THE MAGAZINE

Rethinking the War on Terrorism

By Matthew Harwood

 

Control Orders
 
By far the most controversial counterterrorism power confronted by the Home Office review was control orders. Introduced as emergency legislation in 2005, control orders allow the Home Secretary to impose a range of restrictions on a person the government reasonably suspects is involved in terrorist activities.
 
Suspects placed under control orders have been electronically tagged and tracked, barred from using mobile phones and the Internet, placed under house confinement for 16 hours a day, forbidden from meeting with certain people, and forcefully relocated hundreds of miles away in a process critics call “internal exile.”
 
The British government imposes control orders on terrorism suspects in one of two instances. First, the suspect is a foreign national who cannot be deported to his home country for fear he will be tortured. Second, the evidence linking the suspect to terrorist activities was gained through secret intelligence that cannot be used in criminal court. 
 
Control orders are seen by their proponents as a necessary evil and by their detractors as a violation of core principles of justice. British human rights group Liberty has called control orders “the most shameful legislative legacy of Britain’s domestic ‘War on Terror’” because they allow the government to restrict the freedom of terrorism suspects based on “secret intelligence and suspicion rather than charges, evidence, and proof.”
 
Contrary to criminal proceedings, suspects under control orders cannot see the evidence amassed against them or directly challenge constraints on their freedom. Instead, a special advocate cleared to see intelligence material argues their cases, while those subject to the orders only learn the “gist” of the cases against them.  
 
Critics also point out that control orders don’t work, noting that seven of 48 suspected terrorists placed under control orders have disappeared. Assuming that the government wants to take a tough approach to fighting terrorism, “control orders simply are not an effective way of doing that,” says Big Brother Watch’s Hamilton.
 
This type of police authority also has critics in Parliament. Currently only eight people are subject to control orders. MP Raab tells Security Management that the miniscule number of suspects under control orders doesn’t compute with what MI5 tells the British public about the domestic threat. “I fail to see the security relevance of eight control orders if we have a sea of 4,000 terror suspects,” he says.
 
Criminal prosecution is the only way to combat terrorism and uphold Britain’s values, says Raab. He and others on the right argue that true terrorists deserve a prison cell, not something approximating house arrest. “The justice system is a weapon, not an impediment to fighting terror,” according to Raab, who looks to the United States as a model for disrupting and deterring terrorist attacks through prosecution.
 
Jaime Bartlett, head of the Violence and Extremism Program at the liberal think tank Demos, however, notes that critics who cite the statistic about suspects under control orders absconding omit context. None have disappeared since 2007, he says, because the police have addressed the program’s early problems.
 
The government review ultimately struck a compromise, calling for control orders to be replaced with a new tool, Terrorism Prevention and Investigation Measures (T-PIMs). According to the Home Office, T-PIMs represent “a system which will protect the public but will be less intrusive, [and] more clearly and tightly defined.”
 
T-PIMs will, however, retain many of the old program’s components. Forced relocations will end, curfews will be eased, and communication restrictions will be relaxed, but terrorism suspects will still have to wear electronic tags, report to police regularly, and stay home at night.
 
The Home Secretary also promised police more resources for surveillance to monitor suspects and to aid them in evidence collection. This move was the Home Office’s acknowledgment that control orders had been used as an alternative to prosecution, thus creating a system that may have punished some people for crimes they did not commit.
 
In one marked change, however, the Home Secretary will have to obtain approval from the High Court before imposing T-PIMs unless it’s an emergency situation. Additionally, individual orders will only last a maximum of two years. Then, the restrictions will expire unless the Home Secretary can provide new evidence to renew the restrictions.
 
These reforms don’t go far enough for civil libertarians, who derisively call T-PIMs “control orders lite.” “[They] are still the same authoritarian policy that the government tweaks along the edge with a new name,” Hamilton says.
 
But MP Jullian Huppert, a Liberal Democrat, says that the review’s recommendations represent progress. “There are some very good things,” he says, noting that terrorism suspects can no longer be forcibly relocated to another part of the country and can go about their lives relatively unmolested. Nevertheless, he said, T-PIMs need to lead to prosecution: “The ideal outcome is that somebody who is accused of terrorist activity is prosecuted, hopefully convicted, and jailed.”
 
Others view the coalition compromise as a “Goldilocks” solution—not too draconian, not too liberal, but just right. “They recognize that if you’re going to lessen the actual restraints that are placed on people, you’ve got to have an alternative mechanism to make sure they don’t do anything to harm the public,” Clarke says. “And so they boosted the amount of resources available for surveillance.”
 
Lord Harris said T-PIMs are “probably a reasonable [and] workable alternative” to control orders, although he said that the devil will be in the details once the new power is instituted.
 
Only time will tell what those details are. Unlike the counterterrorism reforms, the specifics on T-PIMs are not included in the Freedom Bill. The government will craft a separate piece of legislation to replace control orders with T-PIMs.
 
Meanwhile, to ensure that terrorism suspects now under control orders are not simply cut loose, the Home Office has extended the existing authority until the end of the year while the T-PIMs legislation is prepared and debated by Parliament. The Home Office will draft but not introduce another piece of emergency legislation. If “exceptional circumstances” arise, Parliament will have the option of reinstating the more draconian aspects of control orders.

 

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