S. Hrg. 109-701
CATCHING TERRORISTS: THE BRITISH SYSTEM VERSUS THE U.S. SYSTEM
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
SEPTEMBER 14, 2006--WASHINGTON, DC
__________
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__________
COMMITTEE ON APPROPRIATIONS
THAD COCHRAN, Mississippi, Chairman
TED STEVENS, Alaska ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico PATRICK J. LEAHY, Vermont
CHRISTOPHER S. BOND, Missouri TOM HARKIN, Iowa
MITCH McCONNELL, Kentucky BARBARA A. MIKULSKI, Maryland
CONRAD BURNS, Montana HARRY REID, Nevada
RICHARD C. SHELBY, Alabama HERB KOHL, Wisconsin
JUDD GREGG, New Hampshire PATTY MURRAY, Washington
ROBERT F. BENNETT, Utah BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas MARY L. LANDRIEU, Louisiana
WAYNE ALLARD, Colorado
Bruce Evans, Staff Director
Terrence E. Sauvain, Minority Staff Director
------
Subcommittee on Homeland Security
JUDD GREGG, New Hampshire, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
TED STEVENS, Alaska DANIEL K. INOUYE, Hawaii
ARLEN SPECTER, Pennsylvania PATRICK J. LEAHY, Vermont
PETE V. DOMENICI, New Mexico BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HERB KOHL, Wisconsin
LARRY CRAIG, Idaho PATTY MURRAY, Washington
ROBERT F. BENNETT, Utah HARRY REID, Nevada
WAYNE ALLARD, Colorado DIANNE FEINSTEIN, California
Professional Staff
Rebecca Davies
Carol Cribbs
Shannon O'Keefe
Nancy Perkins
Mark Van de Water
Charles Kieffer (Minority)
Chip Walgren (Minority)
Scott Nance (Minority)
Drenan E. Dudley (Minority)
Administrative Support
Christa Crawford
C O N T E N T S
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Page
Opening Statement of Senator Judd Gregg.......................... 1
Statement of Hon. Richard A. Posner, Federal Judge, U.S. Court of
Appeals for the Seventh Circuit and Senior Lecturer, University
of Chicago Law School.......................................... 2
Prepared Statement of........................................ 4
Statement of John Yoo, Professor of Law, Boalt Hall School of
Law, University of California at Berkeley...................... 9
Prepared Statement of........................................ 11
Statement of Tom Parker, CEO, Halo Partnership Consulting, Former
British Counterterrorism Official.............................. 16
Prepared Statement of........................................ 19
Statement of Senator Robert C. Byrd.............................. 29
CATCHING TERRORISTS: THE BRITISH SYSTEM VERSUS THE U.S. SYSTEM
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THURSDAY, SEPTEMBER 14, 2006
U.S. Senate,
Subcommittee on Homeland Security,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 9:27 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Judd Gregg (chairman) presiding.
Present: Senators Gregg, Allard, and Byrd.
opening statement of senator judd gregg
Senator Gregg. We will begin the hearing. The subcommittee
understands Senator Byrd will be here, but probably not for a
few minutes.
We are very appreciative of our witnesses attending today.
This committee has viewed the issue of homeland security as
first and foremost an issue of obtaining the intelligence
necessary in order to stop an attack before it occurs. We have
worked very hard to change the mind set of the Federal
Government and our local and State law enforcement community,
which has always been a reactive mind set, where a crime occurs
and the Government then comes forward through the FBI or
through the local police and tries to determine the culprits
and bring them to justice.
That mind set does not work in the context of the threat
that America faces today, which is a terrorist act, because a
terrorist act once it occurs will create such harm and damage,
as we saw on 9/11, as we have seen England and other nations
such as in Spain in Madrid. A terrorist act cannot be
tolerated, so a legal system which is structured around the
concept of having an event occur and then having the criminals
brought to justice is a legal system which is not capable of or
appropriate to the threat that we have today.
The question becomes for us how within our constitutional
limitations, which are obviously critical and which is what we
are fighting for, how within those constitutional limitations
will we expand our capability to obtain intelligence to be able
to thwart an attack. The English system appears to have taken
significant strides in this area. England, of course, functions
under a common law system, not under a constitutional system,
and does not have a Bill of Rights, although they obviously
have rights which have been evolved over time, and our Bill of
Rights arguably came in large part from those common law
rights.
But the English system has evolved to the point where they
do have the capability to pursue a potential threat more
aggressively than we appear to be able to pursue it prior to
the event occurring. The question that this subcommittee would
like to pursue with this extraordinarily talented panel is are
there within the context of our constitutional structure
actions which we can take which would replicate or take
advantage of the experience of the English system and the
English successes, which are considerable, as we just recently
saw with the situation relative to the bombing of the aircraft
which did not occur, thank goodness.
So we have brought together this panel today to give us
some thoughts on this. We are also interested, should the panel
wish to comment on it, and we can do this in the question
period as to the panel's reaction if it has any, to the debate
which is ongoing right now over the Hamdan decision and how we
use electronic eavesdropping in order to effectively
interrogate and learn what the potential information there
might be from prisoners who we have captured in this war on
terror.
But initially we want to get into this discussion of
American procedure relative to British procedure and where
America can learn from the British situation legally and what
are the limitations on the American system that the British
system does not have and how can we take advantage of the
experience of the British system and still do so in the context
of our constitutional structure.
We have, as I said, a very distinguished panel today: the
Honorable Richard Posner, Seventh Circuit Court of Appeals
Judge and a Senior Lecturer for the University of Chicago, a
person of international reputation on issues such as this; John
Yoo, a Professor of Law at the University of California at
Berkeley, also an expert in this area of national prominence;
and Mr. Tom Parker, who is CEO of the Halo Partnership and a
former British counterterrorism official.
So we would like to begin with you, Judge Posner, and then
we will move to Mr. Yoo and then to Mr. Parker. So please, we
would like to hear your testimony.
STATEMENT OF HON. RICHARD A. POSNER, FEDERAL JUDGE,
U.S. COURT OF APPEALS FOR THE SEVENTH
CIRCUIT AND SENIOR LECTURER, UNIVERSITY OF
CHICAGO LAW SCHOOL
Judge Posner. Well, thank you very much, Mr. Chairman. Am I
audible?
Senator Gregg. Yes.
Judge Posner. So in my 5-minute summary I will be very,
very brief. I want to make just three----
Senator Gregg. If you need more time, take it.
Judge Posner. Okay. Well, I will be very brief and I can
amplify afterwards. I want to make three points: first, that,
contrary to public impression, we can do almost everything that
the British do within the limits of the Constitution; second,
that I think we are overinvested in the criminal justice system
as a way of dealing with terrorism; and third, that the biggest
lesson perhaps we can learn from Britain is the need for a
domestic intelligence service that would be separate from the
FBI.
On the first point, our political and legal culture is of
course derivative from England's and when Americans go to
England they do not feel that they are stepping into some
lawless society because the Bill of Rights has not followed
them to England. In fact, as I explain in my prepared
testimony, the innovative anti-terrorist measures used by
England might violate an American statute, which of course
Congress could change, but would not violate the Constitution.
I want to give just one example of this which seems to me
the most important and that is the British rule that permits
detention of terrorist suspects for 28 days without formal
charges being lodged, and the popular reaction to this is that
we could not have--we could not do anything like this, because
our Constitution requires that a suspect be charged within 48
hours.
That simply is incorrect. First of all, there is nothing in
the Constitution that says anything about 48 hours or prompt
hearings. The Supreme Court has, by way of free interpretation
of due process, has said that normally a suspect has to be
charged within 48 hours, given a probable cause hearing within
48 hours, but that if the government can show a bona fide
emergency or other exceptional circumstances then it can hold
the person longer without the probable cause hearing.
I think it would be very constructive for Congress to enact
a statute which would specify a period of days, like 28 or 38
days, that would be appropriate for detention if there were a
real emergency, as there is in many terrorist situations. And I
give other examples in my prepared testimony.
My second point about overinvestment in the criminal
justice system, I am echoing some remarks that the chairman
made. We have not really had a very happy experience with
prosecuting terrorists in the ordinary criminal courts and the
reason is that the criminal justice system has been designed
with ordinary criminal conduct in mind. It has not been tailor-
made to special problems of terrorism. We have seen in the
prosecutions the problems that our use of the criminal justice
system involves: public trials which can become platforms for
terrorists to preen themselves on martyrdom and so on; the
making public of information that may tip off terrorists about
investigative methods and knowledge of the government; and also
the fact it is very difficult to deter terrorists by threat of
criminal punishment if they are fanatics.
So we should be thinking about alternative, even more than
we are, thinking about alternatives to the criminal justice
system as a way of dealing with terrorists, even in the United
States, where we cannot use military action or covert action.
That brings me to my third point, about our need for a
domestic intelligence agency separate from the FBI. There is an
op-ed piece in the New York Times this morning by the public
affairs officer of the FBI in which he intimates, he does not
quite say, that I advocate breaking up the FBI. Absolutely not.
I would not disturb the FBI in the least. I think it needs to
be supplemented by an agency that is not tied to the criminal
law enforcement system the way the FBI is.
The FBI criminal investigation agency. The training of its
agents, its culture, its traditions, are all oriented toward
arresting people and preparing evidence to enable them to be
convicted. That is fine. We need that, but we also need an
agency that is focused exclusively on intelligence, not using
the methods of criminal law enforcement. So MI5 does not have
arrest powers. The Canadian Security Intelligence Service,
which is the counterpart to MI5 in Canada, does not have arrest
powers. An agency which can focus exclusively on intelligence-
gathering, infiltration, surveillance, disinformation,
penetration, that is a very valuable adjunct to our efforts and
can get around a lot of the difficulties that our criminal
justice system encounters when it tries to deal with
terrorists.
This detention for 28 or 30 days that I mentioned where I
think we can emulate the United Kingdom, I see the real
significance of this as ancillary to intelligence rather than
to criminal justice enforcement, because if you are chasing
terrorists and you seize one you want to be able to question
this person without tipping off his accomplices that you have
him and keeping him in isolation for a few weeks is going to
make it easier to obtain information from him.
So let us think in terms of alternatives to criminal
justice system and let us also not exaggerate the
constitutional limitations on our borrowing from England. Just
one second more on this. We should recognize that the United
Kingdom has a much longer history than the United States in
dealing with terrorist threats. In fact, it goes back at least
as far as the 16th century, and England has had some very
important successes, for example in World War II against German
espionage, later against the Irish Republican Army. So we
should not be provincial, we should not be too proud to learn
from the experience of foreign countries, especially a country
like England, which, as I say, is the source of our own legal
and political culture.
Thank you, Mr. Chairman.
[The statement follows:]
Prepared Statement of Richard A. Posner
I am honored \1\ to have been asked to appear before the
subcommittee to testify concerning this important subject. We must not
be provincial in our response to the threats to our national security
that are posed by global terrorism in an era of proliferation of
weapons capable of inflicting catastrophic harm. We must not be too
proud to learn from nations such as the United Kingdom that have a much
longer history of dealing with serious terrorist threats than the
United States has. Queen Elizabeth I faced serious threats from
religious fanatics eager for martyrdom dispatched to England by foreign
powers with which England was at war in the sixteenth century. Germany
peppered England with spies during World War II. The Irish Republican
Army waged clandestine war against England for decades. And today
England faces at least as serious an internal threat of Islamist
terrorism as the United States does.
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\1\ A brief biographical sketch of Judge Posner is appended at the
end of this statement for background.
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The United Kingdom is a particularly apt model for us to consider
in crafting our counterterrorist policies because our political and
legal culture is derivative from England's. The major difference is our
Bill of Rights, which has no direct counterpart in English law, though
the difference between our two constitutional cultures is narrowing
because of England's having signed the European Convention on Human
Rights.
In considering the effect of the Bill of Rights on measures to
combat terrorism, it is important that we bear in mind the difference
between what the Bill of Rights actually says and how the Supreme Court
has interpreted its words, because judicial interpretations of the
Constitution are mutable, whereas the words themselves can be changed
only by the cumbersome procedures for amending the Constitution.
Important too that we bear in mind the tradition of flexible
interpretation of the Constitution that permits departures from as well
as judicial elaborations of the literal language of the document, and
the essential role of balancing competing interests as a technique of
flexible interpretation. I have argued in my recent book Not a Suicide
Pact \2\ that in relation to measures, especially measures initiated by
or concurred in by Congress, to protect the national security against
terrorist threats, the Constitution should be regarded as a loose
garment rather than a straitjacket, a protection against clear and
present dangers to civil liberties rather than the platform of the
American Civil Liberties Union. Judges in our system are (with rare
exceptions) generalists rather than specialists. Very few of us have
extensive knowledge of the scope and gravity of the terrorist menace
and of the efficacy and limitations of alternative measures for coping
with terrorism, and we should be cautious therefore in setting our
judgment against that of the officials and staffs of the executive and
legislative branch, who have the relevant expertise.
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\2\ Richard A. Posner, Not a Suicide Pact: The U.S. Constitution in
a Time of National Emergency (2006).
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The United Kingdom is a liberal democracy, like the United States,
and Americans living in the United Kingdom, and therefore fully subject
to English law, do not walk in fear that they are at the mercy of a
secret police. Yet England has deployed both before but especially
after September 11, 2001, counterterrorism measures that frighten our
civil libertarians. These include: \3\
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\3\ The sources on which this summary is based include Antonio
Vercher, Terrorism in Europe: An International Comparative Legal
Analysis (1992); Peter Chalk and William Rosenau, Confronting the
``Enemy Within'': Security Intelligence, the Police, and
Counterterrorism in Four Democracies (2004); Dana Keith, ``In the Name
of National Security of Insecurity? The Potential Indefinite Detention
of Noncitizen Certified Terrorists in the United States and the United
Kingdom in the Aftermath of September 11, 2001,'' 16 Florida Journal of
International Law 405 (2004); Jeremie J. Wattellier, Note,
``Comparative Legal Responses to Terrorism: Lessons from Europe,'' 27
Hastings International and Comparative Law Review 397 (2004); Kent
Roach, ``Must We Trade Rights for Security? The Choice between Smart,
Harsh, or Proportionate Security Strategies in Canada and Britain,'' 27
Cardozo Law Review 2151 (2006); Laura K. Donohue, ``Anglo-American
Privacy and Surveillance,'' 96 Journal of Criminal Law and Criminology
1059 (2006).
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--conducting criminal trials without a jury if there is fear of
jurors' being intimidated by accomplices of the defendant;
--placing persons suspected of terrorism under ``control orders''
that require them as an alternative to being detained to
consent to being questioned or monitored electronically or
forbidden to associate with certain persons, and that limit
their travel;
--detaining terrorist suspects for up to 28 days (with judicial
approval) for questioning without charges being lodged;
--deportation proceedings from which the alien and his lawyer may be
excluded--the alien need not be fully informed of the reasons
for deporting him and ``his'' lawyer is appointed by and, more
important, is responsible to the government rather than to the
defendant and secret evidence may be concealed from the
defendant
--indefinitely detaining aliens who have been ordered deported but
cannot actually be removed from the country (there may be no
country willing to take them);
--criminalizing the indirect encouragement of terrorism as by
``glorifying'' terrorism by a statement implying that it would
be good to emulate the glorified activity;
--issuance of search warrants by security officials rather than by
judges;
--traffic analysis and other data mining of Internet communications
without a warrant \4\ (Internet Service Providers are required
to install devices to enable Internet communications to be
intercepted in transit)--a warrant is required to read an
intercepted communication, but it may be granted by an official
rather than by a judge.
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\4\ A warrant is not required ``to monitor patterns, such as web
sites visited, to and from whom email is sent, which pages are
downloaded, of which discussion groups a user is a member, and which
chat rooms an individual visits.'' Donohue, note 3 above, at 1179-1180.
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A majority of these measures, while they might if adopted by our
government violate Federal statutes, would not violate our
Constitution. The Constitution gives illegal aliens much more limited
rights in deportation proceedings than they or citizens would enjoy in
criminal proceedings; allows criminal suspects to negotiate for
``control'' orders in lieu of incarceration; and, contrary to a
widespread impression, does not require that searches be conducted by
warrants, whether issued by judges or (other) officials, but only that
searches be ``reasonable'' (this is patent in the text of the Fourth
Amendment), and does not require that a criminal suspect must always be
brought before a magistrate for a probable-cause hearing within 48
hours of his arrest. Not only is there no such requirement anywhere in
the text of the Constitution, but the Supreme Court, while imposing
this requirement by way of free interpretation of the due process
clauses, has created an exception for cases of ``bona fide emergency or
other extraordinary circumstance.'' \5\
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\5\ County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991).
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That exception is potentially very important, and codifying it
should in my opinion be a priority in the congressional deliberations
on strengthening our laws against terrorism. The government may have a
compelling justification for holding a terrorist suspect incommunicado
for longer than 48 hours: to avoid tipping off his accomplices that the
government has caught him, while meanwhile extracting from him
information that it can use to arrest those accomplices before their
suspicions are aroused. It may even be possible during this period of
extended detention to ``turn'' him, so that he becomes a double agent,
spying on his erstwhile accomplices; recruiting a double agent tends to
be a protracted process and one that must for obvious reasons be
conducted in secrecy. Holding a terrorist suspect incommunicado also
facilitates interrogation without crossing the line that separates
permissible interrogation tactics from torture and other impermissibly
coercive methods, simply because a detainee who is isolated, with no
access to a lawyer, can more easily be persuaded to provide information
sought by the government.
How much longer than 48 hours should it be permissible to detain a
terrorist suspect? That would depend on how likely it is that
protracted detention would yield significant benefits for national
security in the form of additional arrests or of a fuller detection,
penetration, and disruption of ongoing terrorist activities or
preparations. There must be limits. The longer the period of detention,
the greater the hardship to the person detained (who may after all be
innocent) and the less likely further detention is to yield significant
information or other benefits. The benefits diminish with time, and the
costs increase; when the curves cross, the detainee should be brought
before a judicial officer for a determination of whether further
detention would be proper. There should be a fixed outer limit; 28 days
might be the place to start in fixing such a limit.
The English measures that would most clearly run afoul of current
constitutional interpretations are conducting criminal trials without a
jury and forbidding the ``glorifying'' of terrorism unless the
glorification amounts to an incitement to imminent terrorist activity.
Yet the ``unless'' qualification is significant, as ``glorifying'' that
came within it would be punishable under U.S. law, so that the
objection to punishing the glorification of terrorism is not so much to
the principle of the English law as to the vagueness of the word
``glorifying.'' And as for criminal trials without a jury, this
requirement of the Bill of Rights can be bypassed by trying suspected
terrorists before military commissions, where there is no right to a
jury. How far such commissions can go to relax the constitutional
constraints required in orthodox criminal trials is an unsettled
constitutional issue. It will not be resolved until Congress enacts a
law authorizing such commissions, which at this writing seems imminent.
I conclude that, as a matter of constitutional law, Congress and
the President can if they want go a considerable distance in the
direction of English counterterrorist law. It then becomes a question
of policy how far we should go in that direction. And that question in
turn depends on how salient a role the formal legal system, and in
particular the criminal justice system, should play in the fight
against terrorism. My own view is that we are overinvested in criminal
law as a response to terrorism and should be trying to deemphasize
(though not of course abandon) the effort to prevent terrorism by means
of criminal prosecutions, especially in the regular courts, which are
not designed for the trial of persons, whether military or civilian,
who present a serious threat to national security. We should be making
less use of devices such as the warrant that are used mainly in
criminal law enforcement and more use of executive and legislative
oversight to curb abuses of counterterrorism, and we should be focusing
more of our domestic security efforts on intelligence as a means of
detecting and disrupting terrorist plots without necessarily
prosecuting the plotters.
It is telling that no one was ever tried by the military
commissions set up in the wake of 9/11 \6\ and that criminal
prosecutions of terrorists have been few and often trivial,\7\ have had
no demonstrated impact on the terrorist menace, and indeed seem to be
petering out.\8\ Contemporary international terrorists are difficult to
deter, not only because many of them are suicide attackers but also
because most political criminals expect (with considerable basis in
history) to be released from prison, as part of a swap for hostages or
a political settlement, before completion of their terms. Locking up
terrorists (those who survive their terrorist escapades) has only a
limited preventive effect because the supply of terrorists is at
present effectively unlimited. And criminal trials, being public,
provide platforms for terrorists to broadcast their goals and preen
themselves as martyrs and yield information about investigative methods
that may enable future terrorists to evade detection.
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\6\ A failure that may have contributed to the government's losing
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Had the Court had before it
a judgment in a trial before a military commission, it might have been
persuaded that the commission's procedures were adequate to prevent
miscarriages of justice. Of course the Court can also be criticized for
its impatience in refusing to hold its fire until a trial had been held
that could have lent concreteness to the Court's consideration of the
legal issues.
\7\ According to a recent study, ``the median sentence for those
convicted [since the 9/11 attacks] in what were categorized as
`international terrorism' cases--often involving lesser changes like
immigration violations or fraud--was 20 to 28 days, and many received
no jail time at all.'' Eric Lichtblau, ``Study Finds Sharp Drop in the
Number of Terrorism Cases Prosecuted,'' New York Times, Sept. 4, 2006,
p. A7.
\8\ Id.; Dan Eggen, ``Terrorism Prosecutions Drop: Analysis Shows a
Spike after 9/11, Then a Steady Decline,'' Washington Post, Sept. 4,
2006, p. A6.
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Fortunately, if a terrorist plot is detected, often it can be
neutralized without prosecution of the plotters. Some can be deported,
some held in administrative detention, some ``turned'' to work for us,
some discredited in the eyes of their accomplices, some paid off, some
frightened into neutrality, some sent off on wild-goose chases by
carefully planted disinformation, and some carefully monitored in the
hope that they will lead us to their accomplices. The greatest value of
allowing detention of terrorist suspects for more than 48 hours is not
to facilitate prosecution but to support the intelligence function by
enabling the government to obtain more complete and timely information
concerning the scope, direction, timing, personnel, and links to other
networks of the terrorist project that has been detected.
Of course there are incorrigibles who must be prosecuted. But if
they are truly threats to national security they can be prosecuted
outside the ordinary criminal justice system, for example by military
commissions if properly configured to comply with the Supreme Court's
strictures.
My concern with our overinvestment in the criminal law response to
terrorism brings me to the most important lesson that we can learn from
the English, and that is the need to have a domestic intelligence
agency that is separate from a police force. The United Kingdom, like
virtually all nations except the United States, has long had such an
agency (the Security Service, popularly known as ``MI5'' because it
originated a century ago as a branch of military intelligence). MI5 has
no arrest powers--it is a pure intelligence agency--but works closely
with Scotland Yard's Special Branch. It apparently played a major role
in breaking up the Heathrow plot, and it had earlier succeeded in
foiling German espionage in World War II and in limiting IRA violence.
In the United States, domestic intelligence is primarily the
responsibility of the FBI. Other agencies have some domestic
intelligence functions, but there is no counterpart to MI5 or to the
Canadian Security Intelligence Service, which is our northern
neighbor's counterpart to MI5 and played an important role in foiling
the recent Toronto terrorist plot.
The problem with placing domestic intelligence responsibility
inside the FBI is that the Bureau is first and foremost a criminal
investigation agency. It is part of the Department of Justice and its
special agents work under the direction of the Department and the
Department's local U.S. Attorneys to make arrests and gather evidence
looking to prosecution. The Bureau's goal is not to prevent crimes but
to catch criminals. It is very good at that. But its conception of
national security intelligence is shaped by its traditions and primary
focus. It sees such intelligence as an adjunct to criminal
prosecutions. Its conception of how best to deal with terrorism is to
arrest and prosecute and convict and imprison the terrorists. That is a
dangerously incomplete strategy because of the limitations of criminal
law enforcement, sketched above, as a means of preventing terrorism.
Like military and covert action against terrorists abroad, like border
controls, and like hardening potential terrorist targets, criminal law
enforcement is an important tool for dealing with the terrorist threat.
But another important tool, which the FBI so far has been notably
unable to forge, is domestic intelligence as a free-standing mode of
terrorism prevention. The key to effective intelligence, which is not
well appreciated by the Bureau, is to cast a very wide net with a very
fine mesh to catch the tiny clues (most of which would not qualify as
evidence in a court proceeding) that assembled into a mosaic may enable
the next attack to be prevented; for once the plot is detected, as I
have said, it can be disrupted without formal legal proceedings even if
later it is decided to prosecute some or all of the plotters. The
process of detection and disruption requires great patience, and some
risk (a risk the FBI and the Justice Department are unwilling to take)
that a terrorist act will be committed while the intelligence service
is still exploring the extent of the terrorist network without tipping
its hand by recommending arrests.
I have argued elsewhere and at considerable length for the urgency
of our need for a domestic intelligence agency separate from the FBI,
and I will not repeat the argument here but will merely refer the
interested reader to the relevant sources.\9\ I emphasize that there is
no constitutional (or, I believe, other legal) bar to the creation of
such an agency. It has been argued that an MI5 clone wouldn't work here
because the United Kingdom does not have the Bill of Rights. The
argument is mistaken. The principal limitations that the Bill of Rights
imposes on counterterrorism involve arrest, detention, admissible
evidence, trial procedures, and other incidents of criminal law
enforcement and are almost entirely irrelevant to an intelligence
service that would have no arrest or other prosecution-related powers.
The exception is surveillance by means of physical or electronic
searches, which are regulated by the Fourth Amendment. But the relevant
limitations, some of which indeed pinch too hard in my judgment,
notably the Foreign Intelligence Surveillance Act, are statutory rather
than constitutional. Warrants are tightly restricted by the warrant
clause of the Fourth Amendment. But surveillance, even when it takes
the form of wiretapping or other electronic interception, need not be
conducted under a warrant. The only limitation the Constitution places
on searches without a warrant is, as I have noted already, that they be
reasonable, and none of us would wish to see a domestic intelligence
agency employ unreasonable methods of surveillance. The potential
abuses of such surveillance can be minimized, without judicial
intervention, by rules limiting the use of intercepted communications
to national security, requiring that the names of persons whose
communications are intercepted (and the reasons for and results of the
interception) be turned over to executive and congressional watchdog
committees, and imposing meaningful penalties on officials who violate
civil liberties.
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\9\ Richard A. Posner, Preventing Surprise Attacks: Intelligence
Reform in the Wake of 9/11, ch. 6 (2005); Posner, Uncertain Shield: The
U.S. Intelligence System in the Throes of Reform, chs. 4-5 (2006);
Posner, Remaking Domestic Intelligence (Hoover Institution, 2006);
Posner, ``Intelligence and Counterterrorism Five Years after 9/11''
(September 2006, unpublished).
---------------------------------------------------------------------------
So we can learn a lot from the British experience with fighting
terrorism, in particular about the need for detention of terrorism
suspects beyond the conventional 48-hour limit and, above all, about
the need, which should encounter no obstacle based on our Constitution,
for a domestic intelligence agency separate from the FBI.
appendix: brief biographical sketch of richard a. posner
Richard A. Posner was born in 1939. After graduating from Yale
College and Harvard Law School, Posner served in various government
positions, including in the Justice Department, before entering law
teaching in 1968 at Stanford as an associate professor. He became
professor of law at the University of Chicago Law School in 1969, where
he remained (later as Lee and Brena Freeman Professor of Law) on a
full-time basis until 1981. During this period Posner wrote extensively
on economic analysis of law and also engaged in private consulting,
mainly in antitrust law, and was from 1977 to 1981 the first president
of Lexecon Inc., a consulting firm.
Posner became a Judge of the U.S. Court of Appeals for the Seventh
Circuit in December 1981 and served as Chief Judge from 1993 to 2000.
He has written almost 2,200 published judicial opinions. He continues
to teach part time at the University of Chicago Law School, where he is
Senior Lecturer, and to write academic articles and books. For several
years his major academic focus has been on catastrophic risk (including
terrorism and proliferation), national security intelligence, and the
intersection between national security and civil liberties. He has
published in these areas, besides shorter works, Catastrophe: Risk and
Response (2004); Preventing Surprise Attacks: Intelligence Reform in
the Wake of 9/11 (2005); Uncertain Shield: The U.S. Intelligence System
in the Throes of Reform (2006); and Not a Suicide Pact: The
Constitution in a Time of National Emergency (2006).
Posner received honorary degrees of doctor of laws from Syracuse
University in 1986, from Duquesne University in 1987, from Georgetown
University in 1993, from Yale in 1996, from the University of
Pennsylvania in 1997, from Northwestern University in 2002, and from
Aristotle University (in Thessaloniki) in 2002; and he received the
degree of doctor honoris causa from the University of Ghent in 1995
from the University of Athens in 2002, and an honorary juris doctor
degree from Brooklyn Law School in 2000. In 1994 he received the Thomas
Jefferson Memorial Foundation Award in Law from the University of
Virginia. In 1998 he was awarded the Marshall-Wythe Medallion by the
College of William and Mary, and he received the 2003 Research Award
from the Fellows of the American Bar Foundation. He received the John
Sherman Award from the U.S. Department of Justice in 2003, for
contributions to antitrust policy. In 2005 he received the Learned Hand
Medal for Excellence in Federal Jurisprudence from the Federal Bar
Council, the Thomas C. Schelling Award for scholarly contributions that
have had an impact on public policy from the John F. Kennedy School of
Government at Harvard University, and the Henry J. Friendly Medal from
the American Law Institute.
Posner is a member of the American Law Institute, the Mont Pelerin
Society, and the Century Association, a fellow of the American Academy
of Arts and Sciences, an Honorary Bencher of the Inner Temple, a
corresponding fellow of the British Academy, an honorary fellow of the
College of Labor and Employment Lawyers, a member of the editorial
board of the European Journal of Law and Economics, and a Consultant to
the Library of America, as well as a member of the American Economic
Association and the American Law and Economics Association (of which he
was President in 1995-1996). He was the honorary President of the
Bentham Club of University College, London, for 1998. With Orley
Ashenfelter, he edited the American Law and Economics Review, the
journal of the American Law and Economics Association, from its
founding in 1998 to 2005.
Academic writings by Posner have been translated into French,
German, Italian, Spanish, Chinese, Japanese, Korean, Greek, Portuguese,
Ukrainian, Lithuanian, and Slovenian. He and the economist Gary Becker
write weekly commentaries on policy issues, published in ``The Becker-
Posner Blog,'' at http://becker-posner-blog.com/.
Senator Gregg. Thank you very much, Judge, for your
thoughts. We appreciate them.
Mr. Yoo.
STATEMENT OF JOHN YOO, PROFESSOR OF LAW, BOALT HALL
SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA AT
BERKELEY
Mr. Yoo. Thank you, Mr. Chairman, for inviting me to
testify. These are extremely important hearings, a very
important subject. In the 5 minutes I have, I find myself in
the position many law professors are in, in that I might have
something interesting to say, but Judge Posner got there first.
So actually a lot of the things I was going to say he has
already said. So I am just going to try to supplement some of
the points he made and may talk about some areas of difference
between the United States and Great Britain where actually the
Appropriations Committee in particular could do something that
would bring us up to par with Great Britain, not at a
constitutional level but at a policy level.
I think Judge Posner is quite right, the things that people
have focused on in the media as being great differences between
the British and American systems that give the British an
advantage I think are somewhat illusory or exaggerated. He
correctly pointed out this idea that the British can detain
people longer than we can in our system might be a correct as a
matter of formal rules, but does not take account of what has
happened in the United States over the last 5 or 6 years.
One way to think about it is that the British system is, as
you said in your opening remarks, preventative. It aims to try
to prevent terrorist attacks from happening in the future. The
American approach had been primarily or exclusively law
enforcement, which is retrospective. The idea of the criminal
justice primarily is you look at an event that has already
happened and you try to historically put the facts together
about who's responsible. As Judge Posner said, as you have
mentioned, and as Mr. Parker says in his testimony, those two
basic goals are often in conflict and may be incompatible
often.
So one way you can think about what the administration has
done over the last 5 years and in the bill about Hamdan which
you mentioned in your opening remarks has been to try to move
the American system to have some ability to conduct
preventative measures rather than just be stuck in a criminal
justice system, which was the approach administrations of both
parties took until September 11, I would say.
So on the detention issue, the formal rule is quite right,
the United States cannot hold people for longer than 48 hours
in the criminal justice system. In Great Britain you can hold
people for 28 days without criminal charge. But the
administration, in a move approved by the Supreme Court, has
said that it will detain people as enemy combatants without
criminal charge and that can go on for much longer than 28
days. Obviously it can go on for months or years, until the end
of the conflict. That is an example where the administration, I
think with Congress' support and Supreme Court approval, has
tried to introduce some of these preventative measures.
Another area is surveillance, which you mentioned in your
opening remarks. The British have lower standards for the
collection of non-content communication, data about phone
calls, emails, not the content but the other kind of
information connected with that. In Great Britain, as I
understand it, one can just go to an agency official for
permission to conduct, to collect that kind of information. In
the United States you would usually have to go to the FISA
court, the FISA court or a regular court, to collect that
information.
In an effort to move the system to a more proactive future,
forward-looking perspective, the administration introduced the
NSA terrorist surveillance program, which is more like the
British system. This was I think particularly important,
although I think overlooked in the accounts of how Great
Britain broke up the plot last month. If you read the accounts
carefully, they say there was an initial tip given by a
community member. But then it appears that Great Britain used
that information to engage in massive amounts of data mining
and communications interceptions to try to piece together the
network.
That would be difficult under the FISA system, which is
based on individual warrants, based on suspicion of a
particular person. But under the programs that have been
publicly revealed, the administration has tried to move the
system in that direction and, as you said, Congress is
currently considering right now how far to go in authorizing
that. That is one area, at the very least, where I think, as
you asked in your opening remarks, what can Congress do now
consistent with the Constitution to bring is closer to the
British system. It would be to approve at least some elements,
I think, of the terrorist surveillance program.
So the two I think really big areas where Great Britain
does possess advantages is data mining--and this is
particularly I think of interest to the Appropriations
Committee. As you might remember, in the winter of 2001-2002
there was a big controversy over research being conducted at
the Defense Department to engage in data mining, the total
information awareness program, and my understanding was that
Congress through an appropriations rider cut off all funding to
the Defense Department to conduct that kind of research, not to
put the program in operation, but at least to consider some
issues of how can you even balance privacy using computers
against the kind of information you could gather and analyze
using computers. Research on that has been halted through
appropriations and that could be something that this committee
could think about and monitor, balance, in order to bring us
closer to what the British are able to do.
My sense is the British do not have any constitutional
restrictions on data mining and the reports in our press are
that the British use that tool quite extensively.
The last thing I will mention--again, Judge Posner beat me
to it--is the MI5 model. Another thing that this committee
could do is to start the transition of the FBI from a law
enforcement-focused setup to something he mentioned,
prospective, preventative. There's been a lot of studies done
by people in this country and elsewhere about whether it's
possible or consistent for that goal to sit with the law
enforcement goal.
As someone who has worked in the Justice Department, I have
a lot of respect for the FBI agents and their managers, who
have a very difficult problem. But I think it is fair to say
over the last 5 years the FBI has had serious difficulty trying
to upgrade its systems and change its mentality towards a type
you would want for national security purposes.
So that is something I think this committee could usefully
do in addition to data mining, is to consider whether it wants
to start using appropriations as a method to prod the FBI to
move faster or even to consider other options, like
supplementing the FBI with a new independent agency or telling
the FBI to get out of the business of catching bank robbers and
kidnappers and focus exclusively on national security and leave
those other issues, which are perfectly appropriate in
peacetime, to State and local law enforcement.
But thank you very much for having me. I look forward to
your questions.
[The statement follows:]
Prepared Statement of John Yoo
Mr. Chairman, thank you for the opportunity to testify before the
Subcommittee on Homeland Security regarding American and British laws
for investigating and detaining suspected terrorists. I am a professor
of law at the University of California, Berkeley. From 2001 to 2003, I
served as deputy assistant attorney general in the Office of Legal
Counsel at the Department of Justice, where I worked on issues
involving national security, foreign relations, and terrorism. My
academic writing on these subjects can be found in two books, one
published last year, The Powers of War and Peace, and one appearing
later this month, War by Other Means. The views I present here are mine
alone.
Great Britain's successful prevention of a recent terrorist plot to
destroy multiple American airliners flying from London to the United
States in mid-air has prompted questions whether our counter-terrorism
efforts can be improved. Some have suggested that British authorities
enjoy broader law enforcement powers to investigate and detain
terrorists, and asked whether we can learn from and adopt British
practices. This idea has a basic attractiveness because the United
States and Great Britain share a common cultural heritage, face a
similar threat from international terrorism, and operate a common law
legal system.
As I will explain, differences result from both constitutional and
policy choices. I hope to demonstrate in what areas the American
Constitution prohibits adopting British standards, as well as areas
where American laws can be made more effective at fighting terrorism,
that is, where our policy choices are not limited by the Constitution.
First, I will discuss important constitutional differences between the
United States and Great Britain.
Constitutional Differences
Unlike the United States, the United Kingdom does not have a
written constitution. The British system lacks formal constitutional
protections of many of the rights we consider fundamental as deriving
from the constitutional text, structure, and history. Britain's
unwritten constitution does not enforce a strict separation of powers
at the national level, nor does it have a Federal system of government.
Rather than an independent Presidency and Congress, executive power is
exercised by a prime minister and cabinet which represent the majority
party in Parliament.
The American Constitution protects many important civil liberties
through explicit guarantees in the Bill of Rights which are lacking
under the British system. For instance, the Fourth Amendment was
enacted in 1791, partly in response to British practices during the
Colonial period. This Amendment states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
The Fourth Amendment imposes restrictions upon the power of the
government to monitor and detain individuals, even for legitimate law
enforcement purposes. The Supreme Court has interpreted an individual's
right under the Fourth Amendment to require that to allow extended
detention after a warrantless arrest, the suspect must be promptly
presented before a judge to determine probable cause to stand trial for
a crime--in almost all cases, within 48 hours. Gerstein v. Pugh, 420
U.S. 103, 125 (1975); County of Riverside v. McLaughlin, 500 U.S. 44,
56 (1991). If the evidence is found insufficient, the arrestee must be
released. It is well established that the suspect may appeal under the
writ of habeas corpus to challenge his continued detention. See, e.g.,
Ex Parte Bollman, 4 Cranch 75 (1807). Britain has no such
constitutional limits, and has greater flexibility to legislatively
alter the time and procedure of detention without charge.
The First Amendment, likewise ratified as part of the Bill of
Rights, protects among other things individuals' freedom of speech,
religion, and association, which can come into conflict with law
enforcement and intelligence purposes. Britain does not have a
constitutional analogue to the First Amendment. Finally, the Sixth
Amendment guarantees accused criminals certain rights, such as the
right to a speedy trial and the right to be informed ``of the nature
and cause of the accusation,'' and the right ``to be confronted with
the witnesses against him.''
A Comparison of American and British Anti-Terror Laws
The British Parliament has recently enacted several important
pieces of anti-terrorism legislation: the Terrorism Act 2000, the
Regulation of Investigatory Powers Act of 2000, the Anti-terrorism,
Crime and Security Act of 2001, the Prevention of Terrorism Act 2005,
and the Terrorism Act of 2006. These laws set forth comprehensive
definitions of terrorism and related offenses, and establish procedures
authorities shall follow in combating terrorism. The laws represent
Britain's response to two distinct forms of terrorist threat. The first
was from Irish separatists who committed acts of terrorism and murder
in Northern Ireland and Britain. This was the United Kingdom's greatest
domestic security threat for much of the latter part of the 20th
Century. The second form of terrorism addressed by the British laws is
Islamic fundamentalist terrorism perpetrated by al Qaeda and groups
affiliated with it. This has taken on great prominence in Britain post-
9/11, and more so in light of the deadly attacks on the London
Underground on July 7, 2005, and the recently foiled plot to hijack or
blow up passenger jets departing Britain bound for the United States.
The following provides a brief description of the differences in
American and British anti-terrorism laws topic by topic. It examines
the laws regarding arrest, searches, and detention of suspects;
monitoring suspects' bank accounts; monitoring communications data;
intercepting communications, i.e. wiretapping; infiltrating suspected
groups; and finally, sharing information among law enforcement and the
domestic and foreign intelligence communities.
Arrest, Searches, and Detention of Suspects
Under the Terrorism Act of 2000, a British officer may arrest a
suspected terrorist or conduct a search of a suspect he ``reasonably
suspects'' is a terrorist or is in possession of ``anything which may
constitute evidence that he is a terrorist.'' An American officer, by
contrast, must have ``probable cause'' to make an arrest or conduct a
search of a person he suspects to have committed a crime. See, e.g.,
United States v. Watson, 423 U.S. 411 (1976). This is the minimum under
the Fourth Amendment and cannot be changed by Congress.
The British have greater power to detain a terrorist without
criminal charge. Section 23 of the Terrorism Act of 2006 sets forth a
procedure under which a suspect may be detained for up to 28 days
before he must be charged with a crime or released. After 48 hours,
judicial approval is required, and is required a second time if the
authorities wish to detain the suspect beyond 7 days. The judge does
not need to find probable cause, but must be satisfied that ``there are
reasonable grounds for believing that the further detention of the
person to whom the application relates is necessary to obtain relevant
evidence whether by questioning him or otherwise or to preserve
relevant evidence,'' and ``the investigation in connection with which
the person is detained is being conducted diligently and
expeditiously.'' The suspect has access to counsel and may make written
or oral communications before the judge; however, the suspect and his
counsel may also be excluded from portions of the hearing. The British
government has already invoked this power to detain the individuals
arrested in conjunction with the August, 2006 plot to blow up airliners
departing Britain. This allowed the plot to be halted, but also allows
more evidence to be gathered prior to formally charging the suspects
with crimes.
In the United States, law enforcement authorities must generally
present probable cause before a judge that a suspect has committed a
crime or the suspect will be released. The Supreme Court has
interpreted the Fourth Amendment to require the government to charge
suspects at most within 48 hours. The Court has made clear that it is
unreasonable to delay a probable cause hearing for purposes of
gathering evidence to justify the arrest. McLaughlin, 400 United States
at 56. There are few exceptions to the American probable cause
paradigm. One is the material witness statute, 18 U.S.C. . 3144, which
allows the arrest and detention of suspects whose testimony in a
criminal proceeding might be difficult to obtain. This has been applied
in the war on terrorism to initially detain Jose Padilla, as well as
others who may have had information about the 9/11 hijackers, but its
applicability and usefulness are limited.
It is not clear, however, that the unwritten nature of the British
constitution permits broader detention authority than in the United
States as a constitutional matter. The Supreme Court has made clear, as
recently as in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), that the
government may detain enemy combatants without criminal charge or
hearing until the end of hostilties. On September 18, 2001, Congress
voted in the Authorization to Use Military Force statute to approve the
President's authority to use force against those connected to the
September 11, 2001 terrorist attacks. Ever since the earliest days of
warfare, the lesser power to detain combatants has been understood to
fall within the greater authority to use force against the enemy. As
the Court recognized, the purpose of detention in the military context
is not to punish, but merely to prevent combatants from returning to
the fight. In fact, such detention is the merciful, humanitarian
alternative to a practice of granting no quarter to the enemy. That
power extends even to U.S. citizens, as it did in the case of Ex Parte
Quirin, 317 U.S. 1, 28 (1942), in which the Court upheld the World War
II detention and trial by military commission of Nazi saboteurs, one of
whom apparently was a citizen. After noting that the laws of war
permitted the detention without criminal charge of Confederate soldiers
during the Civil War, the Court observed that ``A citizen, no less than
an alien, can be `part of or supporting forces hostile to the United
States or coalition partners' and `engaged in an armed conflict against
the United States.''' No specific congressional authorization, the
Court further concluded, was needed. ``Because detention to prevent a
combatant's return to the battlefield is a fundamental incident of
waging war,'' the Court concluded, ``in permitting the use of
`necessary and appropriate force'' Congress authorized wartime
detention of enemy combatants.
The Constitution imposes much narrower restrictions on the
detention of criminal suspects than the British system. But if the
subject is a terrorist connected with al Qaeda or with the September 11
attacks, he or she might meet the standard for an enemy combatant. In
that case, the U.S. government could detain the subject as an enemy
combatant, without having to meet the criminal justice system's 48 hour
requirement. The only complication in this argument is that Hamdi
addressed a case in which the enemy combatant had been detained in the
course of hostilities in Afghanistan, and did not address a different
factual circumstance presented by an American citizen affiliated with
al Qaeda who is detained on United States soil. While the U.S. Court of
Appeals for the Fourth Circuit in Padilla found the same logic applied
to both cases, the Department of Justice transferred Jose Padilla to
the criminal justice system before the Supreme Court could hear an
appeal.
Restricting Movements of Suspects
Britain's Prevention of Terrorism Act allows authorities to issue
``control orders'' which impose restrictions upon a suspect's civil
liberties without incarcerating him. These orders, which require
judicial approval and are valid for up to one year at a time, could
restrict an individual's freedom to travel, to meet with certain groups
or visit certain locations, to be away from his home during certain
hours of the day, or to use cell phones or the internet. Currently the
regime of control orders is under challenge as a potential violation of
European human rights laws. The United States has no comparable Federal
laws, and such provisions would run into constitutional difficulties
due to the First Amendment's protections of individuals' freedom to
travel and associate.
Monitoring Bank Accounts and Communications
The Anti-terrorism, Crime and Security Act of 2001 allows British
authorities to monitor bank accounts upon obtaining a warrant from a
judge. The judge must find that the monitoring relates to a terrorist
investigation, and also that the particular monitoring order sought
will further that investigation. Anti-terrorism, Crime and Security Act
of 2001, Schedule 2 Part 1 (amending Terrorism Act 2000 . 38). The
order lasts for 90 days. Additionally, the Regulation of Investigatory
Powers Act of 2000, and an accompanying Code of Practice, allows
British law enforcement and intelligence authorities to evaluate
communications data for patterns suggestive of terrorist activities.
This means the attributes of communications, such as the location where
a call was placed and its destination, but not the actual contents of
the communication. To monitor communications data, a law enforcement or
intelligence agency need only complete a written application, which is
considered by a designated individual within the body or agency.
Authorizations are valid for up to one month, and can be renewed. The
government may also inquire into subscriber information, or the
identity of persons to whom a telephone number is registered or who
controls an email account or internet domain. British law enforcement
and intelligence agencies are allowed to share any information obtained
by these or other investigatory means.
In the United States, authorities may obtain a warrant or
administrative subpoena for financial records under the Right to
Financial Privacy Act, 12 U.S.C. . . 3401-3422, which grants
individuals some privacy rights over financial records in the hands of
third parties. Authorities may also obtain a warrant for tangible items
held by third parties, under section 215 of the USA Patriot Act. In
2001, the Patriot Act authorized domestic law enforcement and
intelligence agencies to share financial documents for the purposes of
fighting terrorism. The ability of American authorities to obtain
financial records by administrative subpoenas is somewhat easier than
that granted to their British counterparts, and the rules on sharing
the information among agencies are comparable. With regard to other
tangible items, section 215 of the Patriot Act requires that the
Foreign Intelligence Surveillance Court issue a warrant. Britain does
not have a statute with scope analogous to section 215.
Upon first examination, it would appear that the British system
permits the government easier access to non-content data about
communications because of its ability to seek authorization from an
agency official. But the administration has sought a similar ability
through its warrantless surveillance of communications, with one end of
the message or conversation beginning or ending abroad, with a
suspected al Qaeda member. These communications do not as yet require a
judicial warrant, because the administration claims that the program is
authorized by the AUMF of September 18, 2001, and the President's
Commander-in-Chief authority to conduct war. The program is under
challenge in the courts as a violation of the Foreign Intelligence
Surveillance Act, and Congress is currently considering legislation
that would approve the program or consolidate it for judicial review
before the FISA court.
Data Mining
Data mining uses supercomputers to analyze vast amounts of
information for suspicious patterns of behavior. While British anti-
terrorism legislation does not address data mining, some commentators
claim that data mining is already widely used in the United Kingdom to
combat terrorism. A common misperception about data mining is that it
involves gathering information about millions of individuals, and hence
implies increased surveillance. Rather, data mining applies algorithms
to information that is either already public or on record with third
parties.
Analyzing this type of information does not violate an individual's
Fourth Amendment right to be free of unreasonable searches and
seizures. As the Supreme Court has held with respect to bank records,
once information is turned over to a third party in a commercial
setting, the individual loses his reasonable expectation of privacy in
that information. United States v. Miller, 425 U.S. 435 (1976). The
Supreme Court likewise has held that an individual does not have a
reasonable expectation to the privacy of the phone numbers he dials,
because the phone user voluntarily gives this information to the phone
company; thus, a ``pen register'' to record dialed phone numbers does
not require a warrant. Smith v. Maryland, 442 U.S. 735 (1979). Data
mining is constitutional and does not threaten civil liberties because
it deals first and foremost with raw data. It is not an impermissible
``fishing expedition'' that looks for dirt on a particular person, as
civil libertarians may claim.
American restrictions on data mining do not arise because of
significant constitutional differences between the United States and
Great Britain. Rather, restrictions on data mining in the United States
have resulted from policy decisions made by Congress in response to
reports of Defense Department efforts to create a ``Total Information
Awareness'' program. I believe that Congress reacted prematurely to
exaggerated reports of data mining research. Data mining could be
controlled and developed so that it protects us from terror and
maintains our privacy. Analysis could be limited to data already turned
over to third parties.
Searches could be performed initially by computer. Only after a
certain level of suspicious activity had been registered would an
intelligence or law enforcement officer be allowed to see the results.
A warrant could still be required to investigate the content of
communications or the purpose of purchases. Only after a suspicious
pattern is detected would authorities seek more complete records about
a particular individual's activities, either through a warrant or
administrative subpoena. Because data mining does not violate Fourth
Amendment norms, Congress can authorize data mining programs that
strike the appropriate balance between providing law enforcement access
to useful information and protecting civil liberties.
Profiling, Infiltration, and Privacy
British authorities have the power to monitor ethnic and religious
groups, and radical elements within those groups. British police can
infiltrate the groups, instead of merely relying on informants'
accounts. It is unclear precisely where and how often British
authorities have infiltrated or attempted to infiltrate such groups.
However, there is no indication that such actions are considered
illegal or unconstitutional under the British legal system.
In the United States, guidelines issued by the Attorney General set
forth the extent to which the FBI can monitor potential terrorist
activities and infiltrate criminal or terrorist ventures.\1\ These
guidelines explicitly allow the FBI to check initial leads that may be
related to crime or terrorism, including attending public events. The
FBI may also infiltrate terrorist organizations, but such operations
are normally considered ``sensitive circumstances'' requiring approval
of high-level FBI officials. The decision regarding when infiltration
is appropriate requires that officials weigh factors, but the
Guidelines neither prescribe nor proscribe particular instances when
infiltration is advisable or forbidden.
---------------------------------------------------------------------------
\1\ See The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Terrorism Enterprise Investigations, http:/
/www.usdoj.gov/olp/generalcrimes2.pdf; The Attorney General's
Guidelines on Federal Bureau of Investigation Undercover Operations,
http://www.usdoj.gov/olp/fbiundercover.pdf.
---------------------------------------------------------------------------
The areas of profiling, infiltration, and privacy present fewer
constitutional restrictions and more policy choices. Profiling, which
may perhaps represent a useful tool, can run afoul of equal protection
rules and non-discrimination norms.
Conclusion: administrative reform
Differences between British and American anti-terrorism policy does
not turn on constitutional differences for their scope. Many of the
powers thought to be more advantageous to the British, such as
detention and surveillance, in fact have some counterpart in the
American system. Congress could help by further authorizing these
powers, which are under attack in the court. Other important areas,
such as in the area of data mining, are restricted in the United States
not because of constitutional prohibitions, but because of policy
choices made by Congress.
Perhaps the most important British-American difference, however,
which can have significant effects on the war on terrorism is the
structure of the domestic intelligence agencies. American efforts so
far to reform our national security system in response to the lessons
of 9/11 have focused on changes of high-level administrative
reorganization, such as the creation of a Director of National
Intelligence or the Department of Homeland Security. These changes have
consumed energy and resources, but have placed an additional layer
between the President and those who directly collect and analyze
intelligence.
At the same time, Congress has not undertaken any sweeping reform
of the Federal Bureau of Investigation. The United States is different
from Britain, and France, Canada, and Australia, for that matter, in
that it assigns domestic counter-terrorism and counter-intelligence
functions to an agency that is also responsible for domestic law
enforcement. As I argue in my book, the approaches to law enforcement
and national security are very different. The former is retrospective,
depends on building cases, and focuses on prosecution and
incarceration. The latter is prospective and focuses less on
convictions than on preventing future attacks.
In Great Britain, these functions are split up, with MI5 performing
the role of an internal intelligence service. Arguably this allows
those tasked with counter-terrorism to focus on gathering intelligence,
engage in long-term monitoring and investigation, and develop expertise
on the enemy that may go beyond what is possible in a domestic law
enforcement system, which depends on cases and prosecutions for
success. Congress should devote deeper thought to whether our counter-
terrorism efforts would meet with greater success if it divided the
FBI's current duties between two agencies, one for domestic law
enforcement and one for counter-terrorism and national security
affairs. This could be a greater contribution to our anti-terrorism
laws than making changes to the scope of the substantive powers
available to the government.
Senator Gregg. Thank you, professor. I appreciate those
comments. We have actually had that debate going on for a
while, so I appreciate the reinforcement on the points.
Mr. Parker.
STATEMENT OF TOM PARKER, CEO, HALO PARTNERSHIP
CONSULTING, FORMER BRITISH COUNTERTERRORISM
OFFICIAL
Mr. Parker. Thank you, Mr. Chairman, and thank you for
inviting me. I find myself in the position of an echo to an
echo, I think.
I would start by saying the two systems, the United States
system and the British system, are much more similar than I
think commonly perceived over here. Britain has a large number
of restraints on what it can and cannot do, imposed by its
membership in the European Convention on Human Rights, the
European Convention. Perhaps appropriately, we have heard how
the British common law system informed the American
Constitution. Well, the European Convention on Human Rights is
very strongly informed by the U.S. Constitution. It draws its
inspiration from human rights and the codification of private
rights pioneered really by the United States in the 18th
century and by revolutionary France. So there is a certain
symmetry to this.
The big difference, though, is we have oversight that sits
outside the United Kingdom, and that is the European Court of
Human Rights in Strasbourg. That is our last court for appeals
and it is staffed by foreign judges. So although a British
judge will sit on a European court case, there will be 7 or
perhaps 14 foreign judges hearing the case and the submissions.
So there is no natural sympathy on the bench to the British
perspective when they hear the British government make its
arguments.
That is a very powerful enforcement mechanism. We are--it
is a binding court. We are obligated to respond to its
judgments, and that means that we are held to a very high
standard, one that can be very aggressive in pursuing the
reasons behind British legislation. And it has rolled back
British counterterrorist strategies in a number of very
significant areas over time, most significantly in the area of
coercive interrogation.
The other thing that is interesting about the European
court and is worth mentioning is its focus is on creating a
margin of appreciation for each individual European country.
The court does not, and has actually several times made it very
explicit in its judgments, ever set out to make any form of
judgment about what is or is not appropriate governmental law
enforcement action. What it looks at is purely whether or not
the convention itself has been violated, and if it has, if
actions of governments are up against the limits of the
convention, the degree to which that is appropriate within that
forum. For example, it will treat Britain's response to
counterterrorism different to the way that it treats Turkey's
response to counterterrorism.
So you do not have the same sort of framers' intent, people
poring back to a foundational document and trying to tease out
nuances. There is a little bit more sympathy for trying to
understand the local conditions. But at the same time, there is
no great political sympathy for any governmental point of view.
So it is kind of an interesting contrast to the Supreme Court
in a number of different ways.
Perhaps the most important area for me to dwell on I guess
is our approach to counterterrorism activity, which is
essentially one of criminalization. We have a doctrine of
criminalization in the United Kingdom. We have not always had
that and we adopted it primarily because of the lack of success
we enjoyed in the early 1970s against the Provisional IRA in
Northern Ireland.
One of the reasons, one of the factors in returning back to
this doctrine of criminalization, was the European Court on
Human Rights and the checks that it imposed on British activity
and the embarrassment the British government felt having its
different operations held up to scrutiny in Strasbourg.
I am going to read you the home office strategy because I
think it is quite interesting. The home office basically gives
four core strategic areas for combating terrorism. It is
prevention, which it lists as basically falling into four
different areas: social inclusion, international dialogue,
legislation, border security. So that is block number one,
preventative.
Block number two is pursuit and we see pursuit basically as
falling into only two spheres, intelligence activity and law
enforcement activity. There is no real mention of military as
an option within the British counterterrorist strategy.
Protection, that is target hardening, protective security;
and then preparedness, focus on emergency responses.
So that is sort of the four pillars, if you like, for the
British counterterrorism approach. The other interesting thing
that the idea, the doctrine of criminalization, does is there
is always pull back to the status quo ante. We have had a
history of having temporary legislation for counterterrorism.
In Northern Ireland we had basically over an almost two decade,
three decade period, annual renewal of the laws, prevention of
terrorism acts, that define terrorism purely in the context of
Northern Ireland. This meant, for example, until 2000, the year
2000, in the United Kingdom you could not be a terrorist unless
you were Irish, unless you were one of the proscribed
organizations within the Prevention of Terrorism Act, which was
very, very tightly defined just to focus on the terrorist
threat in Northern Ireland. It is only in the year 2000 that we
ended up with permanent counterterrorist or anti-terrorist
legislation. Up until this point there was always this doctrine
that this is an extraordinary circumstance and we will limit
our deviations from the norm and try and get back to the norm
as soon as possible.
But having said that, there are many, many areas in which
we compromise the norm. A good example, particularly after
Judge Posner's comments, the Diplock courts. In Northern
Ireland it really was impossible to have a normal jury trial of
terrorism offenses. So we introduced a court system where a
judge heard cases without a jury sitting and somewhat relaxed
the rules of evidence, so that it would be easier to present
evidence and protect security concerns in that court. Again,
Diplock courts only sat in Northern Ireland and so they were
only relevant for offenses that occurred in Northern Ireland,
not for offenses that occurred on the mainland.
So there is this interesting, again, tension in the British
system between a desire and focus on treating terrorists as
criminals. We flirted--we in the early 1970s gave terrorists
special category status as prisoners, effectively recognizing
that they fell into a political character, category of
offender, rather than simple criminals, and we moved back away
from that in 1974 and 1975.
So the statute of criminalization has served us pretty
well. And I think--far be it, I do not feel like I really
represent Her Majesty's government, but at the same time I
think it would be fair to say that the current government in
the United Kingdom still clings to that as a very important
touchstone of its counterterrorist approach, that we should
always see this as a temporary circumstance, one in which we
should always be pulling back away toward normalization of our
normal criminal justice system. That is essentially the
concept.
Finally, since--and I am thrilled to hear MI5 get such a
good press in front of the committee. I will say a few brief
words about what I think the strengths of our system are. The
primary strength is the focus. You have an agency that is
devoted, not exclusively to counterterrorism, but now at least
80 percent of the service's work is counterterrorism. It
recently released its support of organized crime function,
which it had got in the mid-1990s, simply so it could focus
more closely on the threat of international terrorism. So you
have a laser beam focus on a threat, which is very useful.
You also have a central coordinating point, and that for me
is the really key thing about our system. We have one agency
whose job it is to get the word out to everybody. We do not
have 4,000--I forget the number of police and law enforcement--
--
Senator Gregg. 18,000.
Mr. Parker. 18,000 law enforcement agencies. We have less
than 60, which makes life a lot easier. I think there is about
50 regional police forces. It keeps changing and there is a
bill to make it--reduce the number of forces even more in front
of Parliament at the moment. Then we have a small number of
very specialized police forces, like the transport police.
But basically MI5's role is to make sure that the
information, the intelligence, gets out to the people who need
it, whether that is law enforcement, whether that is people
responsible for protective security in individual buildings,
whether that is to government ministers who need to make policy
judgments. MI5 is the hub and it makes sure that all
information that comes through it gets out to the right people.
Now, this of course does not happen overnight. You do not
just create something and have it function perfectly. What you
would not get from my written statement is a sense of the
conflicts which certainly did occur, particularly with the
metropolitan police special branch in the early 1990s, when the
security service took over primacy for counterterrorist
investigations on the mainland.
But what has happened is the service has proved that it
adds value, and it has added value by sharing intelligence and
working very closely with police forces. But it still keeps the
wall. I hesitate to mention the wall, but the wall is very
important in Britain. You know, you have intelligence
investigations and you have law enforcement investigations. The
fact that it sits in a different agency makes it much easier to
draw where that line is.
Security service officers and police officers work very
closely together. Although MI5 is the central coordinating
point, it has a filter in regional special branches. So there
are police officers in every police force who have, if you
like, an intelligence hat on that can to a degree take the
security service's concerns in mind when they are working day
to day with the police forces.
So it is a very effective system. It is one that keeps
intelligence out of the courts, although the security service
has on occasion engineered ways to perhaps use obsolete
equipment in court cases where you might actually want to
disclose the methods used. But primarily it tries to keep the
two things separate. It will go to court in support of police
investigations if absolutely necessary. There is certainly no
constitutional or legal bar from them doing that.
The final mechanism that we have that is tremendously
useful is a thing called a public interest immunity
certificate. Then the service can apply to a judge for a
certificate of immunity for disclosure of information that
could be damaging from an intelligence perspective. Essentially
what happens there is the judge gets to see what the
information is and rule whether or not this is a legitimate
concern. And if it is, the government is issued with a PII that
protects intelligence from disclosure in court. That is a very,
very useful little legal nicety or statutory nicety.
I think I probably should wind up there. Thank you very
much.
[The statement follows:]
Prepared Statement of Tom Parker
Acts of terror on British soil have been remarkably commonplace in
the past 35 years. In addition to Irish nationalist and Loyalist
violence relating to the Troubles in Northern Ireland, groups as
diverse as Black September, the Animal Liberation Front and the Angry
Brigade, individuals with links to Hezbollah and Al Qaeda, and agents
of foreign powers such as Libya, Iraq and Syria have all mounted
attacks in the United Kingdom. In the past 5 years British citizens
have been killed in terrorist attacks in Turkey, Jordan, Qatar, Saudi
Arabia, Indonesia and the United States. More Britons were killed in
the World Trade Center on September 11, 2001 than in any terrorist
event before or since. In July 2005 52 people were killed and more than
700 injured in suicide bombings that targeted the London Transport
system. Suffice it to say, the British government takes the threat from
terrorism, whether domestic or international in origin, extremely
seriously.
What constitutional limits does the United States have that Great
Britain does not have?
There appears to be a perception in the United States that there
are fewer civil liberties protections in the United Kingdom and that
the British government consequently has a far freer hand to develop
stringent counterterrorist measures. However, this impression is not
entirely accurate. The protective framework for civil liberties in the
United Kingdom is dense and complex, and at times can be both more
flexible and more implacable than the equivalent protective measures in
the United States.
Unlike the United States, Great Britain does not possess a single
foundational document that amounts to a written constitution.
Constitutional practice has evolved over centuries and is embedded in
common law and a series of legislative instruments. In this sense there
is a great deal of flexibility for British legislators to shape the
legal landscape. However, in past 50 years a significant external check
on this power has emerged in the shape of the European Convention on
Human Rights (ECHR).
The ECHR is a treaty that operates within the framework of the
Council of Europe. It was ratified by Britain in 1953, which is
currently one of forty-six Contracting States. The original draft of
the Convention was inspired by the United Nations' 1948 Universal
Declaration of Human Rights. The closest that Britain comes to a Bill
of Rights, in the American sense, is the Human Rights Act of 1998. This
Act of Parliament was passed to ``give further effect'' to the rights
and freedoms detailed in the ECHR by enshrining them in British law.
As a signatory of the ECHR, Britain has voluntarily submitted to a
binding enforcement mechanism in the shape of the European Court of
Human Rights in Strasbourg, France. Britain, like the other Contracting
States, has accepted the Strasbourg Court's ultimate jurisdiction in
adjudicating matters arising from alleged breaches of the Convention.
This means that the judgments of British courts are no longer sovereign
in such cases but must give way to a higher authority staffed by
foreign judges. The Court seeks to empathetically balance Contracting
States' individual circumstances against the human rights standards
embodied in the Convention by allowing each State ``a margin of
appreciation'' in interpreting their treaty obligations. In such
instances, the basic test applied by the Court is whether or not the
disputed practice answers a pressing social need and, if so, can be
considered proportionate to the legitimate aim pursued. The domestic
margin of appreciation is thus accompanied by a level of European
supervision.
This margin of appreciation has been applied by the Court in
considering cases related to terrorism and other threats to
parliamentary democracy with a flexibility not enjoyed by the U.S.
Supreme Court. For example, in 1972 the Federal Republic of Germany
adopted a decree aimed at excluding political extremists from
employment in the civil service and reiterating all civil servants'
legal duty of loyalty to the free democratic constitutional system. In
a series of cases arising from the dismissal of members of the left-
wing German Communist Party (KPD) and right-wing National Democratic
Party (NDP) from Civil Service positions (most often in the teaching
profession), the Court accepted that ``a democratic state is entitled
to require civil servants to be loyal to the constitutional principles
in which it is founded'' and took into account ``Germany's experience
under the Weimar republic and the bitter period that followed the
collapse of that regime'' (Vogt v. Germany, 1995).
In questions of free speech the Court has recognized that there is
a balance to be struck between protecting national security and
protecting fundamental human rights. The Court has explored where this
balance lies most carefully in a series of complaints from Turkey
arising from the local prosecution of articles and statements critical
of Turkish government policy towards the Kurdish Workers' Party (PKK)
finding for the government in Zana v. Turkey (1997) and against it in
Incal v. Turkey (1998) and Arslan v. Turkey (1999). In its
deliberations the Court weighed such factors as the prominence of the
individual concerned, the circumstances of publication, the political
climate at the time the statement was made and the ``virulence'' of the
language used. It is therefore unlikely that the Court will strike down
the most controversial section of Britain's Terrorism Act (2006) which
creates a new offence of ``glorifying terrorism.''
The Court made it clear in Ireland v United Kingdom (1978) that it
did not see that it was any part of its function ``to substitute for
the British Government's assessment any other assessment of what might
be the most prudent or most expedient policy to combat terrorism.'' The
Court restricted its role to reviewing the lawfulness, under the
Convention, of the measures adopted by the Government in Northern
Ireland. In this context, in Ireland v. United Kingdom the Court did
not find extra-judicial internment a breach of the Convention nor did
it find the British primary focus on Irish nationalist groups
discriminatory. It did, however, rule against the use of coercive
interrogation methods in detention centers in the Province (of which
more below).
The reason for this discrepancy is that, although States do have
the right under Article 15 of the ECHR to lodge a derogation from some
aspects of the Convention--during a period of public emergency
``threatening the life of the nation'' to the extent strictly required
by the exigencies of the situation--there can be no derogation from the
core values embodied in Article 2 (right to life), except in respect of
deaths resulting from lawful acts of war, Article 3 (prohibition on
torture or inhuman or degrading treatment), Article 4 (prohibition on
compulsory labor) and Article 7 (prohibition on retrospective
criminalization).
The United Kingdom was the only European state to register a
derogation from the Convention after the attacks in the United States
on September 11th, 2001. The British government formally derogated from
article 5(1)(f) of the ECHR, which protects against deprivation of
liberty except for purposes of deportation or extradition. The reason
for this decision was to allow the government to operate a special
detention regime for political asylum applicants to the United Kingdom
suspected of involvement in terrorism, where it was not possible to
deport them because they would be at risk of torture or death if
returned to their country of origin.
Introduced in December 2001 as part of the Anti-Terrorism Crime and
Security Act (ATCSA), this detention regime was finally overturned by
the Law Lords (the British equivalent of the U.S. Supreme Court) in
December 2004 as a breach of Britain's Human Rights Act (1998). In all,
sixteen individuals were detained under the ATCSA and all were
subsequently released although most are still subject to control orders
restricting their freedom of movement.
Britain has contributed more to the evolving jurisprudence of the
European Court in the area of national security than other nation
(except perhaps for Turkey) because of the Troubles in Northern
Ireland. A number of landmark cases have had a major impact on British
counterterrorism practice in areas such as the use of telephone
intercepts, the legal status of the intelligence services, the use of
military forces in a civilian context, oversight mechanisms, and the
use of coercive interrogation methods. A selection of relevant cases
can be found at Annex A.
How do the British balance individual liberties with the need for
collective security?
A Doctrine of Criminalization
In the early 1970s a series of missteps in Northern Ireland--
notably the introduction of internment, the deployment of troops armed
with live ammunition in public order situations and the use of coercive
interrogation (see below)--resulted from the initial decision to treat
the Troubles in much the same way as a colonial disturbance. Emblematic
of this approach was the arrival Brigadier Frank Kitson, the celebrated
author of the classic counterinsurgency manual Low Intensity Operations
and a veteran of British military campaigns in Malaya, Kenya and Oman,
to command the British Army Brigade in Belfast. The legacy of this
policy was a major escalation in the level of violence across the
Province and the extension of the nationalist terror campaign to the
British Mainland. As Sinn Fein leader Gerry Adams noted in his memoir
Before the Dawn: ``The attitude and presence of British troops was also
a reminder that we were Irish, and there was an instant resurgence of
national consciousness and an almost immediate politicization of the
local populace.''
A change of government in 1974 ushered in a new approach in
Northern Ireland, one that aimed to delegitimize PIRA violence by
treating terrorism as just another criminal activity to be dealt with
at a local level. This strategy, which became known as criminalization,
normalization and Ulsterization, guided British attitudes for the
remainder of the conflict and has become a benchmark for British
governmental responses to terrorism. In Northern Ireland this policy
ultimately created a climate in which both cross-border co-operation
could flourish and a meaningful peace process could gain ground amongst
the warring parties. Since 1974 successive British governments from the
two major parties have pursued a policy of treating terrorism--both
foreign and domestic--as a law enforcement problem.
Having tried brute force and found it wanting, the British
government has come to appreciate the importance of legitimacy in
counterterrorism operations. Criminalizing terrorism adds greatly to
the appearance of legitimacy. It also creates a framework which
significantly mitigates the sort of abuses that can discredit a
government internationally:
--The British criminal justice system has demonstrated an increasing
willingness to address and eventually rectify past mistakes,
such as the wrongful convictions of the Birmingham Six and
Guildford Four who had been suspected of involvement in a
series of pub bombings in the autumn of 1974.
--The Stalker and Stevens independent police enquiries into
allegations of a government sanctioned ``shoot-to-kill'' policy
in Northern Ireland together comprise the largest criminal
investigation ever undertaken in the United Kingdom generating
9,256 witness statements, 10,391 seized documents and 16,194
exhibits. The enquiries have resulted in almost 100 convictions
for a variety of offences but they ultimately failed to
demonstrate the existence of an official ``shoot-to-kill''
policy.
--The Courts have been vigilant in upholding basic human right
standards. As outlined above, in December 2004 the Law Lords
overturned the immigration detention regime established under
the ATCSA. In December 2005 the Law Lords ruled that material
gathered overseas by means of torture would be inadmissible as
evidence in British Courts.
Finally, it should also be noted that Parliament has played a major
role in advocating for civil liberties in recent years. In 2005 the
Labour government introduced a Terrorism Bill that proposed a maximum
90 day period of detention without charge for terrorism offences. This
Bill was defeated despite a substantial government majority in the
House of Commons because a number of Labour MPs voted against their own
front bench. The Terrorism Act (2006) introduced a shorter 30 day
maximum period of detention and this passed with significant misgivings
and a commitment to further consultation.
Oversight
It is probably fair to say that the British public lacks ``the
dread of government'' often ascribed to the American people and this
can be seen in the relatively benign oversight mechanisms that govern
the operations of the security and intelligence agencies. Although a
former Director General of the Security Service, Dame Stella
Rimmington, has observed that accountability lies at the heart of the
tension between liberty and security, this is an area in which the
United Kingdom differs markedly from the United States.
In the United Kingdom the oversight applied to the operation of the
intelligence and security services is primarily either Ministerial (the
Home Secretary or Foreign Secretary) or bureaucratic (the Joint
Intelligence Committee and National Audit Office) although some public
mechanisms for redress exist through designated Tribunals or
Commissioners. Parliamentary oversight is limited to a single statutory
committee with a legally defined brief restricted to matters of
expenditure, administration and policy. This is a constitutional
oddity--the parliamentary oversight of governmental bodies is usually
conducted by Parliamentary Select Committees which have greater freedom
to set their own agendas. More details on the oversight regime in the
United Kingdom can be found at Annex B.
What can the United States Learn From the British?
Coordination
The greatest single strength of the British approach to
counterterrorism is the high degree of coordination that now extends
throughout the national security hierarchy. This was not something that
happened overnight but has evolved over several decades. At the apex of
this system is the Joint Intelligence Committee (JIC) comprised of the
heads of each intelligence agency and chaired by a senior civil servant
with experience of, but not necessarily from, the intelligence
community.
The Committee meets weekly or more frequently should circumstances
require it. Its primary role is to produce definitive top-level all-
source assessments for British ministers and senior officials. These
assessments are produced by Cabinet Intelligence Groups (CIGs) chaired
by Cabinet Office staff and comprised of subject experts from the
intelligence community. Every relevant party is represented and the
objective of the group is to agree a corporate assessment that reflects
a consensus view across government. Thus ministers are not bombarded by
conflicting information and left to reach their own conclusion
regarding the most compelling interpretation.
Each Service also submits an account of its overall performance to
the Joint Intelligence Committee (JIC) for consideration by the
Security and Intelligence Coordinator as part of the Agency Performance
Review. The JIC reviews and validates the Services' plans and
priorities for the forthcoming year as part of this process.
Subject experts from different agencies frequently have the formal
opportunity to add their comments to intelligence reports issued by
other agencies ensuring that key intelligence--HUMINT and SIGINT--is
presented along with corroborating or discrediting material from other
sources. Finally, it is worth noting that the relatively small size of
the British intelligence community allows subject experts to develop
strong relationships with their counterparts in other agencies. This
greatly facilitates the flow of information between agencies and helps
to reduce inter-service rivalry.
The Joint Terrorism Analysis Center (JTAC) was established in June
2003 as the United Kingdom's center for the analysis and assessment of
international terrorism. JTAC sets threat levels and issues warnings of
threats and disseminates in-depth reports on trends, terrorist networks
and capabilities to its partners in government. Eleven government
departments and agencies are represented on the staff of JTAC and the
center is based in Thames House, the headquarters of the British
Security Service. The head of JTAC reports directly to the Service's
Director General.
The Role of the Security Service (MI5)
The Security Service has primacy in all counterterrorism
intelligence investigations conducted either on the British mainland or
overseas. According to the Intelligence and Security Committee report
on the July 2005 London Transport bombings, the number of MI5's
``primary investigative targets'' rose from 250 to 800 between
September 11, 2001 and July 2005. Intelligence-gathering operations
relating to these ``primary targets'' are the Service's main priority.
The Security Service also acts as an interface between the
intelligence community and law enforcement. It has developed a deep
institutional understanding of the demands and operational constraints
of each paradigm. The Service is not an executive agency and its
officers have no powers of arrest. Executive action can only be taken
by the nation's law enforcement agencies although Chief Constables have
the option of requesting military support in certain circumstances.
Post-incident primacy rests with the police service in whose force area
a terrorist incident has occurred, although MI5 can continue to act in
a supporting role to the police investigation. The Service can bring a
range of resources not usually available to Chief Constables to support
local operations. The Northern Ireland Police Service still enjoys
intelligence primacy in Northern Ireland although this status is
currently under review.
As the central coordinating point in Britain's pre-emptive
counterterrorist effort, the Security Service also disseminates
intelligence to regional police forces and other governmental partners
in the form of both actionable reports and background bulletins which
can cover anything from briefings on different terrorist organizations
to technical reports on terrorist weapon systems. The Service advises
Whitehall and the business community on protective security measures
and runs training courses for external--even foreign--personnel. It
spearheaded the installation of nationwide secure communications system
for police Special Branches and provides national coverage in a system
which is otherwise robustly regional in character.
The Security Service can be seen as the glue that holds the
architecture of the British counterterrorist effort together. There are
currently forty-three regional police forces in England and Wales most
with less than 4,000 officers, another eight in Scotland operating
under a separate judicial system, the Northern Ireland Police Service
and a small number of forces with specialized roles such as British
Transport Police or the Ministry of Defence Police. There is no
national police force equivalent to the Federal Bureau of Investigation
(FBI) although the newly created Serious Organized Crime Agency (SOCA)
is beginning to partly develop in this direction. The fact that the
government chose a former Director General of the Security Service, Sir
Stephen Lander, as the first head of the SOCA is an important
illustration of the reputation MI5 has established for building
effective coalitions within the law enforcement community.
An American MI5
Post incident investigation and pre-emptive intelligence gathering
require a different--and not always symbiotic--skill set. Furthermore,
from a managerial perspective prosecution and intelligence exploitation
can frequently be mutually exclusive objectives greatly detracting from
clarity of purpose. While clearly there is no a priori reason why both
functions cannot effectively be undertaken by the same agency, the
British experience suggests that this can prove problematic.
The counterterrorist function in the United Kingdom was initially
vested in Police Special Branches (SB) comprised of detectives
operating within regional constabularies. The first Special Branch was
established by the Metropolitan Police in 1883 to counter the threat
from the Irish Republican Brotherhood. Police Special Branches,
coordinated by the Metropolitan Police, enjoyed primacy in
counterterrorist intelligence investigations on the British mainland
for most of the Twentieth Century.
At the outset of the 1990s a degree of governmental dissatisfaction
at the lack of success of this arrangement, coupled with an expectation
that the collapse of the Warsaw Pact would free up intelligence
resources, led in 1992 to the transfer of primacy from the Special
Branches to the Security Service. The Special Branches had been able to
boast very few successful intelligence-led arrests. The Service by
contrast had an almost immediate impact and the number of pre-emptive
disruptions of terrorist activity increased, with Service operations
leading to 21 convictions for terrorism-related offences between 1992
and 1999.
However, this consideration also needs to be balanced against
another important lesson of the British experience, which is that
institutional relationships need time to bed down and that once
agencies start operating effectively these relationships improve and
strengthen over time. Police Special Branches have been working closely
with the Security Service since 1910 when the then Home Secretary,
Winston Churchill, provided MI5's first Director General, Vernon Kell,
with a letter directing the chief constables to extend him ``the
necessary facilities for his work.'' The Security Service and the
Secret Intelligence Service were both born out of the same government
agency, the Secret Service Bureau, and ties have remained close. The
key to this virtuous circle in the United Kingdom has been effective
executive leadership. There is definitely a sense in which disrupting
existing relationships can have a retrograde effect on effective
cooperation.
The Mistakes of the Past
The British government's early missteps in its counterterrorism
campaign against the Irish Republican Army (IRA) and the Provisional
IRA (PIRA) are also instructive. Comparison and analogy are not always
reliable policy guides but the British experience in Northern Ireland
offers some useful insights into the inherent risks involved in the
following areas: internment without charge, coercive interrogation and
the use of military personnel in a traditional law enforcement role.
Internment
In the fall of 1971, faced with escalating violence in the
Province, the Unionist Prime Minister of Northern Ireland Brian
Faulkner persuaded the British government that the introduction of
internment might bring the situation under control. On August 9, 1971
British troops mounted a series of raids across Northern Ireland which
resulted in the detention of 342 IRA suspects. The operation, codenamed
Demetrius, was characterized by poor and out of date intelligence which
resulted in many individuals being wrongly detained. Joe Cahill, then
Chief of Staff of the Provisional IRA and a prominent target of
Operation Demetrius, taunted the authorities by surfacing to hold a
press conference in Belfast at which he claimed only 30 of the men who
had been detained were actually members of PIRA.
Within Northern Ireland internment further galvanized the
nationalist community in its opposition to British rule and there was
an immediate upsurge in violence against the security forces. 27 people
had been killed in the first 8 months of 1971 prompting the
introduction of internment, in the four remaining months of the year
147 people were killed. 467 were killed in 1972 as a result of
terrorist action. The number of terrorist bombings in the Province
increased dramatically from around 150 in 1970, to 1,382 in 1972. In
the words of a former British Intelligence officer Frank Steele who
served in Northern Ireland during this period: ``[Internment] barely
damaged the IRA's command structure and led to a flood of recruits,
money and weapons.''
Internment was to continue in Northern Ireland until December 5,
1975 by which time a total of 1,981 people had been detained, the vast
majority of them from the Catholic community. The British Army
estimated that up to 70 percent of the long-term internees became re-
involved in terrorist acts after their release so the measure clearly
did little to deter committed activists. The British government finally
took the decision to discard the power of internment in January 1998.
Announcing the decision, the Junior Northern Ireland Minister Lord Dubs
told the House of Lords: ``The Government have long held the view that
internment does not represent an effective counter-terrorism measure.
The power of internment has been shown to be counter-productive in
terms of the tensions and divisions which it creates.''
Coercive Interrogation
In the immediate aftermath of the introduction of internment in
August 1971 the British security forces implemented a policy of
``interrogation in depth'' for selected detainees. RUC interrogators
working ``under the supervision'' of the British Army applied five
well-established techniques which had previously been practiced in the
course of colonial emergencies: (1) hooding, (2) wall-standing, (3)
subjection to noise, (4) relative deprivation of food and water and (5)
sleep deprivation. Almost a third of those detained on the first day of
Operation Demetrius were released within 48 hours and with these
releases came the first stories about the ill-treatment of those held
by the security forces. In addition to the use of the ``five
techniques'', detainees reported being forced to run an obstacle course
over broken glass and rough ground whilst being beaten and, perhaps
most seriously of all, being deceived into believing that they were
about to be thrown from high flying helicopters unless they agreed to
co-operate with the authorities.
In August 1971 British Home Secretary Reginald Maudling responded
to growing public concern by appointing Sir Edmund Compton to
investigate forty such complaints made by suspects apprehended on the
first day of internment. Despite accepting that the events described by
the plaintives did indeed take place, Sir Edmund reported: ``Our
investigations have not led us to conclude that any of the grouped or
individual complainants suffered physical brutality as we understand
the term.'' The failure of the Compton Report to meaningfully address
the abuses that had occurred in British detention facilities further
damaged the government's credibility.
Ultimately, the government's failure to act decisively to curb
abuses and put an end to the use of the ``five techniques'' led the
Republic of Ireland to file an application with the European Commission
on Human Rights alleging that the emergency procedures applied against
suspected terrorists in Northern Ireland violated several articles of
the European Convention on Human Rights. The case was referred to the
European Court of Human Rights for adjudication which found that the
``five techniques'' were ``cruel, inhuman and degrading'' and thus
breaches of Article 3 of the Convention (See Annex A).
The actual utility of coercive interrogation was also addressed at
some length in the course of the Ireland v. United Kingdom case. The
British government sought to argue that it had been necessary to
introduce such techniques to combat a rise in terrorist violence. The
government claimed that the two instances of ``interrogation-in-depth''
addressed by the Court had obtained a considerable quantity of
actionable intelligence, including the identification of 700 active
Republican terrorists and the discovery of individual responsibility
for about 85 previously unexplained criminal incidents. However, other
well-informed sources are more skeptical. The former British
intelligence officer Frank Steele told the journalist Peter Taylor:
``As for the special interrogation techniques, they were damned stupid
as well as morally wrong . . . in practical terms, the additional
usable intelligence they produced was, I understand, minimal.''
Certainly the last quarter of 1971, the period during which these
techniques were most employed, was marked by mounting not decreasing
violence--a fairly obvious yardstick by which to measure their
efficacy.
Military Operations
The final incident to have a major impact on the evolution of IRA
violence in the period 1971-1972 was the event that has become known as
Bloody Sunday. On January 30th, 1972 soldiers from the British
Parachute Regiment opened fire on civilian demonstrators in
Londonderry/Derry killing 13 and wounding 29. The march that sparked
the violence had been called to protest internment, rocks had been
thrown at the soldiers and a shot allegedly fired, but the
disproportionate British response prompted widespread international
condemnation. In Dublin an enraged mob stormed the British Embassy
burning it to the ground. The British government appointed the Widgery
Tribunal to investigate the incident but it exonerated the soldiers
involved handing the Republican community yet a further propaganda
victory.
The nature of IRA violence changed dramatically after Bloody Sunday
as the incident prompted the first mainland bombing of the Troubles in
February 1972 when the Official IRA left a car bomb outside the
Officer's Mess of the Parachute Regiment in Aldershot, Hampshire. An
Official IRA spokesman issued a statement in Dublin that the attack had
been carried out ``in revenge'' for the Bloody Sunday killings.
Deliberate attacks on civilian targets on the British Mainland soon
followed including four simultaneous car bombs left in London in March
1973, bombs at mainline London railway stations in September 1973 and
in public houses in Guildford and Birmingham in the autumn of 1974.
Throughout the Troubles Britain found itself defending the use of
deadly force against terrorist suspects in a succession of ECHR cases.
In perhaps the most damaging case--McCann and Others v. United Kingdom
(1995)--the court found that three members of a PIRA Active Service
Unit (ASU) had been killed unlawfully when British Special Forces
troopers indicted their operation on the British overseas territory of
Gibraltar (See Annex A). Lingering suspicions that Britain operated a
`shoot-to-kill' policy in its counterterrorist operations against PIRA
were extremely damaging to the country's international reputation and
became a major source of resentment in the nationalist community.
annex a
Ireland v. United Kingdom (1978)
In August 1971, faced with escalating violence in the Province of
Northern Ireland, the British government introduced non-judicial
internment for suspected members of nationalist terrorist
organizations. On the first day of internment 342 suspected members of
the Irish Republican Army (IRA) were detained by the British security
forces. A small number of these detainees (there are only 14 well-
documented cases) were selected by the security forces for a new
coercive regime of ``interrogation in depth.''
Royal Ulster Constabulary (RUC) interrogators working ``under the
supervision'' of the British Army applied five well-established
techniques which had previously been practiced in the course of
colonial emergencies: (1) hooding, (2) wall-standing, (3) subjection to
noise, (4) relative deprivation of food and water and (5) sleep
deprivation. As details of these techniques became public there was an
outcry against their use which was eventually discontinued in April
1972.
The terms used are fairly self explanatory. Hooding meant that a
prisoner's head was covered with an opaque cloth bag with no
ventilation, except during interrogation or when in isolation. The
prisoner would often also be stripped naked to enhance his feeling of
vulnerability. Wall-standing consisted of forcing prisoners to stand
balanced against a cell wall in the ``search position'' for hours at a
time inducing painful muscle cramps. One prisoner was forced to remain
in this position for 43.5 hours and there were at least six other
recorded instances of prisoners being kept like this for more than 20
hours. Subjection to noise meant placing the prisoner in close
proximity to the monotonous whine of machinery such as a generator or
compressor for as long as 6 or 7 days. At least one prisoner subjected
to this treatment, Jim Auld, told Amnesty International that having
been driven to the brink of insanity by the noise he had tried to
commit suicide by banging his head against metal piping in his cell.
Food and water deprivation meant a strict regimen of bread and water.
Sleep deprivation was practiced prior to interrogation and often in
tandem with wall-standing. Detainees were usually subjected to this
conditioning over the course of about a week.
However, the matter did not end there. On December 16, 1971 the
Republic of Ireland had filed an application with the European
Commission on Human Rights alleging that the emergency procedures
applied by the British security forces in Northern Ireland violated
several articles of the European Convention. In its February 1976
report to the Committee of Ministers of the Council of Europe the
Commission unanimously found that the ``five techniques'' amounted to
``a modern system of torture'' and a violation of Article 3 of the
Convention. The case was referred to the European Court of Human Rights
for adjudication.
Ireland v. United Kingdom (1978) was the first inter-state case
ever brought before the European Court. Reviewing the evidence the
Court found the ``five techniques'' to be ``cruel, inhuman and
degrading'' and thus breaches of Article 3 of the Convention but
stopped short of describing them as torture noting that ``they did not
occasion suffering of the particular intensity and cruelty implied by
the word torture.'' The UK was directed to pay compensation to the
victims.
In the course of the hearings British Attorney General, Samuel
Silkin, gave the following commitment to the Court: ``The Government of
the United Kingdom have considered the question of the use of the `five
techniques' with very great care and with particular regard to Article
3 of the Convention. They now give this unqualified undertaking, that
the `five techniques' will not in any circumstances be reintroduced as
an aid to interrogation.'' And, to this day, they have not.
Malone v. United Kingdom (1984)
Article 8 of the Convention guarantees a right to privacy and
protects citizens from state interference with this right ``except such
as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or--for
the prevention of disorder or crime.''
Article 8 was put to the test in Malone v. UK. In March 1977, a
British national, Mr. James Malone, was charged with a number of
offences relating to dishonest handling of stolen goods. It emerged in
the original trial that the police had been privy to private telephone
conversations between Malone and his associates although this material
was not (and could not be in) tendered in evidence.\1\ Malone
ultimately challenged what he believed to be the extended monitoring of
his telephone line in the Strasbourg Court. In Malone v. UK the Court
found that the mechanisms governing the interception of communications
by the police were sufficiently legally ill-defined to place Britain in
breach of Article 8 of the ECHR. The Malone case also raised the
question of effective remedy, a right established under Article 13 of
the ECHR, although the Court did not rule on the issue.
---------------------------------------------------------------------------
\1\ Britain remains one of the few legal regimes in the world in
which telephone intercept material is still not admissible as evidence
in Court. Curiously, material gathered from eavesdropping devices is
considered admissible.
---------------------------------------------------------------------------
The British government of the day responded to the Malone judgment
by introducing the Interception of Communications Act (IOCA) in 1985.
IOCA was designed to govern all circumstances in which the interception
of communications might be required including the exigencies of
national security. Under the terms of the Act this method of
intelligence collection could only be undertaken in a domestic context
if expressly authorized by a warrant signed by the appropriate
Secretary of State. IOCA also established a right of redress for anyone
who believed that interception had taken place unlawfully in the form
of an independent Interception of Communications Tribunal and
Commissioner.
McCann and others v. United Kingdom (1995)
On March 6, 1988, forewarned by intelligence sources, British
soldiers from the Special Air Service (SAS) interdicted what they
thought to be a Provisional IRA attempt to plant a car bomb on the
route of a military parade on Gibraltar. The soldiers' mission was to
affect an arrest in support of the local police, but because the
suspects allegedly adopted ``an aggressive stance'' when challenged,
they were shot dead by the troopers.
All three PIRA members proved to be unarmed at the time of the
shooting and the car they had positioned along the parade route did not
contain a bomb although a car linked to the trio, discovered later in
nearby Marbella, was found to be packed with explosives. Daniel McCann,
Sean Savage and Mairead Farrell were all well known PIRA activists,
indeed Farrell had served 10 years for her part in the bombing of a
hotel outside Belfast in 1976.
There was widespread criticism of the SAS's failure to apprehend
three unarmed suspects without loss of life. Allegations of ``a shoot-
to-kill policy'' resurfaced--primarily in a controversial BBC
television documentary entitled Death on the Rock in which two alleged
eyewitnesses alleged that the British soldiers had opened fire on the
PIRA trio without warning.
The families of the dead PIRA volunteers took the case to the
European Court of Human Rights in McCann and others v. United Kingdom.
In September 1995 the Court narrowly ruled in a 10-9 majority decision
that the PIRA team had been ``unlawfully killed'' in breach of Article
2(2) because it was not convinced the use of lethal force by the SAS
troopers had been ``absolutely necessary'' to protect the public. In a
closely argued opinion the majority members of the Court criticized the
British actions on three main grounds.
First, the British authorities could have chosen to apprehend the
PIRA suspects at an earlier stage in their preparations but chose to
allow the operation to run long to gather further incriminating
evidence of their activities, thus in part assuming some of the
responsibility for placing the public at risk. The Court commented that
allowing the operation to proceed to the point that it was thought a
bomb may have been activated was a ``serious miscalculation'' which
``set the scene'' for the fatal shooting.
Second, the Court noted that the British authorities had rushed to
judgment in assuming that the car parked by the PIRA Active Service
Unit would contain a remotely activated bomb. The briefings received by
the SAS troopers disproportionately focused on this possibility and did
not sufficiently reference other, less threatening, but equally
reasonable alternatives. This too created a climate which made recourse
to lethal force ``almost unavoidable.''
Finally, the Court found the reflexive resort to lethal force by
the SAS troopers themselves troubling. The Court noted that the
training received by Special Forces soldiers lacked ``the degree of
caution in the use of firearms to be expected from law enforcement
personnel in a democratic society'' and failed to emphasize ``the legal
responsibilities of the individual officer in the light of conditions
prevailing at the moment of engagement.''
McKerr v. United Kingdom (2001)
The ECHR was again called to rule on four separate cases in which
14 people had been killed in Northern Ireland between 1982 and 1992
allegedly by or with the collusion of the security forces--McKerr v.
United Kingdom (2001), Hugh Jordan v. United Kingdom (2001), Kelly and
Others v. United Kingdom (2001) and Shanaghan v. United Kingdom (2001).
However, on each occasion the Court stopped short of finding that the
victims had been unlawfully killed, commenting instead in May 2001 that
the post-incident proceedings for investigating the use of lethal force
by the security forces had sufficient shortcomings for the UK to be in
breach of the procedural obligations imposed by Article 2 of the
Convention but nothing more.
annex b
Oversight
Prior to 1985 none of the work of the British intelligence or
security agencies was done on a statutory basis. The Government denied
the very existence of the Secret Intelligence Service (SIS) and the
Security Service (MI5). The agencies derived their authority from
ministerial directives, such the Maxwell Fyfe Directive \2\ which
governed the operation of MI5, and the royal prerogative. There were no
oversight mechanisms outside the chain of command of both agencies
other than those afforded by the government departments to which they
reported--the Foreign and Commonwealth Office and Home Office
respectively. Financing for the agencies was obtained through an annual
``Secret Vote''
