Keeping control of terrorists without losing control of constitutionalism.

• Jurisdiction: United States
• Author: Walker, Clive
• Date: 01 March 2007

INTRODUCTION: THE DYNAMICS OF COUNTER-TERRORISM POLICIES AND LAWS I. CONTROL ORDERS A. Background to the Enactment of Control Orders B. The Replacement System 1. Control orders--outline 2. Control orders--contents and issuance 3. Non-derogating control orders 4. Derogating control orders 5. Criminal prosecution 6. Ancillary issues 7. Review by Parliament and the Executive C. Judicial Review II. MAINTAINING CONSTITUTIONALISM IN THE CONTROL ORDER REGIME CONCLUSION INTRODUCTION:

THE DYNAMICS OF COUNTER-TERRORISM POLICIES AND LAWS

More than five years since the cataclysmic events of September 11, 2001, two dynamics have affected patterns of terrorism and counter-terrorism. The first was identified from the outset and relates to the growing emphasis upon anticipatory risk. The second is the increasing threat of "neighbor" terrorism.

The anticipatory risk of mass terrorism casualties or even the nightmare of the use of weapons of mass destruction conduces towards interventions which are preemptive or preventative. The threat of terrorism to life and liberty cannot be addressed simply by ex post facto rectification for the sake of justice. (1) An inevitable consequence of this risk dynamic will be an intelligence-led approach, that is, governmental net-casting for information and for potential assailants on a wide and prescient scale. (2) An intelligence-led approach might be said to reflect "a new and urgent emphasis upon the need for security, the containment of danger, the identification and management of any kind of risk." (3) The broad sweep of such an approach recognizes the pervasive nature of terrorism whilst at the same time seeking to refine intelligence data so as to narrow the range of risks that security agencies should address at any one time. This allows the government to target its resources. The careful buildup and analysis of data also signals the government's assessment of the sophisticated, secretive, and dedicated nature of terrorist groups, features that distinguish them from "ordinary decent criminals." (4)

The contrary argument is that the risk paradigm is less persuasive in the realms of terrorism policing; there, the orientation is said to be towards law and order, and measures are often taken or continued without proof of practical efficacy. An example of the latter concerns the policy and legislative accentuation of measures against the financing of terrorism, which impose pervasive burdens upon the financial sectors and their customers but have hampered few terrorists. (5) It is suggested in response that though policies are indeed often exaggerated in scope and intensity in response to the vivid threat of terrorism, (6) and though knowledge through intelligence is always less than perfect, the assessment of risk through an intelligence-led approach is a strong basis for action in the terrorism field and increasingly so. In fact, the intelligence cycle, including the discernment of and reaction to risk, provides a "crucial" (7) key to anti-terrorism strategy and laws, and it is a feature that has been recurrent in counter-terrorism.

The second dynamic, termed here "neighbor" terrorism, reflects the gradual recognition after 9/11 that dangers are presented not only by al Qa'ida and its ilk, as often represented by the convenient figure of Osama bin Laden, the archetypal outlaw who is definitely not one of "us" (nor even one of "them," if "them" is taken to mean the mainstreams of his own nationality or his own religion). (8) That convenient scapegoat has ceased to be the center-stage villain, now driven so far into the shadows by the invasion of Afghanistan in 2001 that even the CIA has reportedly closed its specialist search unit. (9) More ominously, in the contemporary phase of terrorism, the most threatening figures are our neighbors operating from within. Thus, the London bombings of July 7, 2005 were carried out by three second-generation British citizens, Hasib Hussein, Mohammad Sidique Khan, and Shehzad Tanweer, and one long-term British resident, Jermaine Lindsay. (10) These were Yorkshire folk whose mundane backgrounds set at naught many of the tactics of the security forces hunting for cells of crazed foreigners. The attempted bombings in London on July 21, 2005 likewise allegedly involved perpetrators with a mundane profile. (11) The 2005 and 2006 "neighbor" bombers were not an isolated aberration, and it is known that British citizens have engaged in terrorism not only on their own soil but on foreign soil. Examples include Richard Reid (convicted of attempting to set off a shoe bomb on a transatlantic flight in 2001), (12) Ahmad Omar Saeed Sheikh (sentenced to death in Hyderabad in 2002 for the murder of American journalist Daniel Pearl), (13) suicide bombings in Tel Aviv in May 2003 by Asif Mohammed Hanif and Omar Khan Sharif, (14) and the dozen or so British citizens or residents detained in Afghanistan or Guantanamo Bay. (15)

The same trend is evident in the United States, perhaps in part as a consequence of the detention and deportation of noncitizens after 9/11 (16) and the tighter checks on visitors thereafter. (17) Examples include the arrests in March 2006 in Atlanta of a U.S. citizen and a U.S. resident for providing material support to a terrorist group by obtaining information on targets. (18) In June 2006, members of what was described as "a homegrown terrorist cell" were arrested in Liberty City, near Miami, for allegedly plotting attacks on FBI buildings in Miami and on the Sears Tower in Chicago. (19) The members of the cell were all settled citizens or long-term residents. (20) These examples add to the existing list of cases involving U.S. citizens, such as Jose Padilla, (21) Yaser Hamdi (22) (who was allowed to travel to Saudi Arabia on the condition that he give up his U.S. citizenship in 2004), (23) and Ali Saleh Kahlah al-Marri. (24) There is also the Lackawanna case, in which six U.S. citizens of Yemeni origin pleaded guilty in Buffalo, New York to providing material support and resources to a terrorist group by training at a camp associated with al Qa'ida in Afghanistan. (25) Several other U.S. citizens have been charged in connection with attempts to enter Afghanistan. (26) Perplexingly for those who maintain the paradigm image of the terrorist who is an alien in terms of nationality, race, and religion, not all of these "neighbor terrorists" even fit the description of "Arab" or Middle Eastern, a prime example being John Walker Lindh who was convicted for joining the Taliban in Afghanistan. (27)

"Know the enemy and know yourself' may still be the operative ideal, (28) but with globalized population movements and ideologies, discerning friend from foe has become much more troublesome. Late modernity's boons of global movement of persons and ideas and networked communications (29) are, in line with the process of "reflexive modernization," (30) equally adaptable to terrorist purposes by those who adhere to al Qa'ida's tenets. No longer can it be claimed that the enemy is "in a specially intense way, existentially something different and alien" or, as a fellow citizen, that he "intends to negate his opponent's way of life and therefore must be repulsed or fought in order to preserve one's own form of existence." (31) Unsure of the target of counter-terrorism, the tendency must again be towards net-widening and thereby treating the whole population as a risk.

Turning to appropriate legal responses, two main approaches to counter-terrorism are available. First, there is the strategy of criminalization: implementing legal measures that seek criminal justice outcomes. For example, the government could rely on extra policing powers to gather evidence, special processes to assist in trials, special offences, and enhanced penalties. (32) The second tactic is to prevent, disrupt, and counter, thereby engaging in "control." This is essentially executive-based risk management. Measures such as proscription, detention without trial, control orders, port controls, data-mining, and the seizure of assets evidently fall into this category. In addition, several powers such as arrest, interrogation, and stop and search could legitimately be included in either strategy. It also may prove difficult to disentangle intelligence-gathering from forensic interrogation. (33) But their tactical use tends towards the control strategy by mainly working through intelligence-gathering and disruption.

In the "control" mode, the objective relates to "future law enforcement ... not necessarily directed to solving a crime that has already taken place." (34) This purpose is tied to the idea that the threat of terrorism demands an early police intervention at the preparatory stages of a terrorist act to detect (35) or disrupt that plot. It is too dangerous to allow the terrorists to move towards their objectives. Thus, "control" tends to predominate and reflects more general trends in the risk society (36) such as risk aversion, the precautionary principle, and contingency planning. (37) Control is also the foremost strategy in the overarching counter-terrorism strategy, "CONTEST," (38) set by the U.K. government. "Prevention" (such as deterrence and ideological responses), "preparation" (through, for example, risk identification) and "protection" (such as through contingency planning) are set alongside "pursuit" as strategic aims. (39) Even "pursuit," which includes prosecution, is invoked in the context of "disrupting terrorist activity." (40) No great store is placed in the prospect of punishment acting as a deterrent, (41) whether directly through the criminal justice system or indirectly through the impact of control measures. Because the jihadists are seen as harboring fanatical and non-negotiable objectives, punishment seems unlikely to deter them effectively. (42)

Both criminalization and control are controversial in their design and in their implementation. For...