Terrorism and State Surveillance of Communications

Simon Hale-Ross, David Lowe

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429677922
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book brings together leading counterterrorism experts, from academia and practice, to form an interdisciplinary assessment of the terrorist threat facing the United Kingdom and the European Union, focusing on how terrorists and terrorist organisations communicate in the digital age.

Perspectives drawn from criminological, legalistic, and political sciences, allow the book to highlight the problems faced by the state and law enforcement agencies in monitoring, accessing, and gathering intelligence from the terrorist use of electronic communications, and how such powers are used proportionately and balanced with human rights law.

The book will be a valuable resource for scholars and students of terrorism and security, policing and human rights. With contributions from the fields of both academia and practice, it will also be of interest to professionals and practitioners working in the areas of criminal law, human rights and terrorism.

1 Communications and security after Brexit

Who needs what and whom?

Lord Carlile of Berriew QC CBE

Introduction

On 4 June 2018, Her Majesty’s UK Government launched the new the version of The United Kingdom’s Strategy for Countering Terrorism (CONTEST), the United Kingdom’s extensive strategy in development since 2001 for countering terrorism. In her introduction to the revised strategy, the UK Prime Minister, Theresa May, stated:

In the wake of the attacks in London and Manchester I pledged a comprehensive review of our approach to counter terrorism to ensure it was working as effectively as possible. This new Strategy is the result of that review: building on progress made since 2011 and evolving to counter new and emerging threats, to reflect the changing situation around the world, and to learn lessons from the tragic attacks in the UK over the past year.

Because the threat we face is large and multi-faceted, this Strategy has a much greater focus on systemic co-ordination across the public sector. By linking up not just the intelligence agencies but also local authorities, health providers and many others, it will make it harder than ever for terrorists and those who support them to plan and carry out attacks.

This joined-up approach – uniting Government, the wider public sector and individuals around a common goal of preventing terrorism – mirrors the public’s response to the terrorist atrocities we witnessed last year. In the days and weeks after the attacks I was proud of the way the country came together in defiance of those who would drive us apart.¹

This was no mere adjustment of policy. Additional legislation was required. A primary aim was to ensure that the threshold of criminality for terrorism offences is reduced so that early intervention can be more effective.

Lowering the threshold of criminality inevitably raises concerns. Parliamentarians instinctively resist legislating to create swathes of new crimes, especially those involving a low level of criminal intent. Particularly in the context of terrorism, Parliament will always resist legislating to criminalise actions and statements which are far separated from a readily understandable and identifiable terrorist event. For example, making it an indictable and imprisonable crime to fail to report a suspicion of possible future but undefined terrorism by another runs the risk of being seen as an unacceptable example of ‘crime by association’.

To reduce the risk of terrorist attacks happening in this country and against UK interests overseas, the government pledged to:

• 1 Implement a step change in domestic investigative capabilities following a review of all MI5 and counterterrorism police operational activities;
• 2 Introduce legislation to disrupt terrorist threats in the UK at as early a stage as credible intelligence permits, taking account of the scale of the threat and the increased and sometimes dramatic speed at which plots are now developing;
• 3 As set out in the National Security Strategy and Strategic Defence and Security Review 2015, recruit and train over 1900 additional staff across the security and intelligence agencies;
• 4 Develop a series of multi-agency pilots to trial ways to improve information sharing and enrich understanding of the threat at the local level, including work in relation to closed investigations into subjects of interest;
• 5 Bring foreign fighters to justice in accordance with enlarged jurisdictional availability and due legal process if there is evidence that crimes have been committed, regardless of their nationality;
• 6 Maintain the use of enhanced legislative tools to target and corrupt terrorist finance;
• 7 Ensure that we maintain our global reach to disrupt those who directly threaten the UK or UK interests;
• 8 Ensure strong and clearly independent oversight of our counterterrorism work, including publishing annual reports by the Independent Reviewer of Terrorism Legislation, the Biometrics Commissioner and the Investigatory Powers Commissioner.

The policy programme described above provides the framework for the headline theme of this chapter concerning communications and security after Brexit assessing who needs what and whom?

Compromising subjective aspirations and government objective judgements

To answer that broad question above in general terms is not difficult. However, legislation necessarily and almost inevitably is a compromise between the subjective aspirations of the authorities, and the hopefully objective judgements of government and legislators: The detailed methodology by which a straightforward and compelling answer is given is challenging in legislative and therefore Rule of Law terms. The answer has to fulfil the combined and, I believe, complementary objectives of:

• 1 Protection of the public against terrorism;
• 2 Enacting only those new statutory provisions which are demonstrably and reputationally proportionate in the tense government/subject relationship which forms the landscape of human rights.

That such methodology must be found and developed is fundamental. One of the most basic duties of any government is to protect the safety of its citizens. In a free and democratic society, this is easier said than done. An obvious example of this is the challenge presented by busy train stations, where tens of thousands of the working public may be passing through each hour. It would be possible but, in practical terms, unacceptable for every bag and briefcase to be searched before entry to the station.

Although terrorist acts directly affect a relatively small number of people, they remain one of the most alarming sources of serious crime. Whatever the organisational or conceptual origin of an act of terrorism, it can be difficult to detect after the event, let alone to interdict before commission. Often it occurs in unpredicted areas regarded as safe by the general public, including places of public aggregation for recreation, and the physical damage and the fears caused are grave.

To support this view, many informed sources can be cited. One is Sir Mark Lyall Grant, the former UK Permanent Representative to the United Nations, and thereafter the UK National Security Adviser. On 15 October 2017, in an article in the UK newspaper The Guardian², he reminded us that the UK government’s 2015 strategic defence and security review identified four major threats and challenges to UK national security:

• 1 Terrorism and extremism;
• 2 State-based threats;
• 3 Cyber threats; and
• 4 The erosion of the rules-based international order.

He was emphasising the immediacy and priority of the terrorism and extremism threats. It has increased to the extent that counterterrorism policy and planning has been elevated to a major ranking in the context of the physical defence of the nation, its critical infrastructure, and in the effort to increase the confidence of the population in the protection of their safety by the elected government. Countering terrorism now is a policy imperative alongside the planning and judgement of major military assets.

There is abundant evidence to support the importance of increased recognition of counterterrorism legislation and methodology as part of the protection of the nation. Between 2011 and 2016 one UK national was killed in a terrorist offence within the UK, albeit in terrible circumstances. Unfortunately, the more recent past has been more alarming, dangerous, and unnerving. The UK and Europe face an ever immediate and constantly developing threat from terrorism and extremism. As a result of terrorist attacks, during 2017 we saw 36 fatalities and many injuries. A reduction followed in 2018 but there remains great unpredictability: The UK authorities interdicted a significant number of plots in 2017–2018.

The effectiveness of the UK security services in dealing with the changing picture of terrorist activity

Part of the changing picture arises from the effectiveness of the UK security services. There is no real question about their competence and planning and their high level of cooperation. Nevertheless, it is worth reflecting that three of the perpetrators of the 2017 attacks were known to MI5 (the UK security service). Khuram Butt (London Bridge) was an active subject of interest. Khalid Masood (Westminster) and Salman Abedi (Manchester) were closed subjects of interest, i.e. about whom information could not be given openly because of concerns affecting national security. This immediately raises questions as to which cases should be closed/open, and as to the circumstances leading to the change of status. David Anderson QC (now Lord Anderson of Ipswich KBE), the then Independent Reviewer of Terrorism Legislation, stated in his review of the 2017 UK terror attacks that if intelligence officers had interpreted two significant pieces of information about Abedi differently, it is likely he would have been placed under investigation before the attack took place.³ Lord Anderson concluded, therefore, that Abedi’s attack might have been avoidable. It is plausible that, had intelligence agencies been able to coordinate with local organisations in Manchester, there may have been a different outcome. This was later found to be the case by the UK Parliament’s Intelligence and Security Committee’s report into the UK terrorist attacks in 2017. In the Committee’s investigation, MI5 accepted it had made a mistake by acting too slowly in establishing how dangerous Abedi was.⁴

This author’s view is that Lord Anderson has raised important issues that have become the subject of careful reappraisal by the security services. Arguably, other mistakes have been made of a more general nature. Specifically, it is significant that the abolition in 2011 of control orders, and a reduction in the use of their successors, Terrorism Prevention and Investigation Orders, which might have applied to Abedi, was a mistake.⁵

The implications for UK security following Brexit

Evidence of the continuing immediacy of the debate about counterterrorism legislation and action has been that the growing threat of terrorism has been an ongoing thorn in the side of the Brexit debate. At the time of writing, the future relationship between the UK and the European Union’s (EU) security and defence services is yet to be established or resolved. The possibility that national security cooperation of at least the current intensity between the UK and the remaining 27 members of the EU would not be sustained, and was regarded as an appropriate bargaining element in the Brexit negotiations, is alarming. A particular reason why the risks have been increased and the stakes have risen is that the so-called Islamic State suffered attrition in Syria and elsewhere. Their broader military ambitions, notably in Syria, aimed at establishing a single regional caliphate appear to have failed. Evidence indicates that this will result in an increase in asymmetrical warfare – terrorism.

Most terrorism and plots, especially in developed countries, have involved ‘soft’ targets, places of public aggregation, for example, ordinary people having a good time at a concert in Manchester; or young people on an evening out in the vibrant Borough Market area of London. During my years as Independent Reviewer of Terrorism Legislation (2001–2011), I warned repeatedly of the danger to unpredicted, soft targets. This kind of attack, extremely difficult to predict as to specific locations, causes the most fear to the public, and actually goes more to the heart of our freedom than even an attack on Parliament, which like other iconic sites is protected more strongly than any ‘soft’ target realistically can be. One has to put this into the realistic context given such serious events as those in Manchester, Westminster, Borough Market, and on the London District Line. They are plainly concerning, and tragic, crimes in the highest degree both reprehensible and devastating. Worryingly, even those examples, and some within mainland Europe, fall far short of the ‘nightmare scenario’ that police have been rehearsing for years. This is something known as marauding terrorist firearms attack (MTFA) in which terrorists use machine guns to kill pedestrians in a crowded public place. Given the potential reality of the scenario, it merits some attention.

MTFA attacks are likely to involve a dramatic if immediately unrealistic objective, for example, the creation of an inimical and radicalised religious state or the destabilisation of the domestic political settlement. Its likelihood is increased by the risk of determined men and women crossing the Channel, perhaps on one single occasion, perhaps through multiple entries, with lethal weaponry in their vehicles. This is not fanciful. There is a proliferation of violent jihadists, and determined and organised right-wing extremists, across Europe and present in almost every country. Access for illegitimate cargoes to some parts of Europe is easier than to other parts. There is a huge coastline on which boats of various sizes can land with small, lethal cargoes. The history of importation of drugs by sea demonstrates that ri...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Preface
• Editors
• Contributors
• Introduction
• 1 Communications and security after Brexit
• 2 Intelligence gathering, issues of accountability, and Snowden
• 3 EU data protection law
• 4 The Investigatory Powers Act 2016
• 5 The impact of terrorism on peace processes
• Conclusion
• Bibliography
• Index