NATIONAL SECURITY, HUMAN RIGHTS AND RISK

1. NATIONAL SECURITY, HUMAN RIGHTS AND RISK Counter Terror Expo Conference 29thApril 2014 Christopher Wood Barrister at Old Court ChambersResearch Fellow at Northumbria University

2. THREAT OF TERRORISM: POST-9/11 Terrorism is seen as an act which is played out on: • Randomness, anticipation, disestablishment (Ericson 2008) • Pre-meditated, indiscriminate and breach human rights (Harfield 2009) September 11 terrorist attack significantly changed attitudes on how best to tackle terrorism: "If we wait for threats to fully materialize, we will have waited too long...we must take the battle to the enemy, disrupts his plans, and confront the worst threats before they emerge". • United States President George W. Bush 'If you’d only been vigilant as you should have been, we could have averted a terrorist attack‘ • Tony Blair MP, then Prime Minister

3. THREAT OF TERRORISM: POST-9/11 'There are known knowns; there are things we know that we know. There are known unknowns; that is to say, there are things that we now know we don’t know. But there are also unknown unknowns – there are things we do not know we don’t know.‘ - Donald Rumsfeld, former US Secretary of Defense • The UK Government introduced counter terrorism measures on the belief that more than 5,000 terrorists were active within the UK. • Terrorist networks can not be identified in full. • Terrorists can work as part of a network or alone (‘lone wolf’ terrorists) – Anders Behring Breivik, Norway attacks on 22nd July 2011.

4. WHO ARE THE TERRORISTS? • There is no statistical evidential link between "psycho-sociological features, nationality or birthplace" and the risk of terrorism (Hoffman, 2006; Harris, 2002; Hayes, 2005). • There is no positive link post-9/11 to identify terrorists through racial, ethnic and religious profiling (Goldson, 2006). • Despite these conclusions, these factors continue to be used as proxies for risk calculation within terrorism (Cole, 2006; Ansari, 2005; Hagopian, 2004; Harris, 2002).

5. WHO ARE THE TERRORISTS? "An extreme form of Islam...inevitably means that some of our counter-terrorist powers will be disproportionately experienced by people in the Muslim community. That is the reality of the situation...“ • Former Minister of State for Community Safety, Crime Reduction, Policing and Counter-Terrorism, Hazel Blears, told the Home Affairs Select Committee (2004-2005) "violence by anti-apartheid groups in South Africa did not make white people in Australia criminal if they supported the anti-apartheid cause. So why am I made to feel like a criminal because others use violence in the name that I also happen to support? Supporting the cause is not the same as supporting the violence. Why am I not allowed to have views because of the actions of violent criminals like Bin Laden?“ • Pickery, McCulloch and Wright-Neville (2008

6. What are the greatest threats to British way of life? Chatham House – You Gov Survey (2012): http://chathamhousesurvey.org/default/summary/section-2/question-3

7. THE DOMESTIC STRATEGY TO COUNTER TERRORISM • The UK introduced the Terrorism Act 2000, followed by other legislation. • The UK re-shaped its counter-terrorism strategy and adopted a proactive rather than reactive approach; developing a stronger pre-emptive and preventative strategy (Agamben2005; Dershowite 2006; Ericson 2007). • The aim of the Counter-Terrorism Strategy (CONTEST) is ‘reducing the risk to the UK and its interests overseas from international terrorism, so that people can go about their lives freely and with confidence‘ • Pursue: “improving the government’s ability to ‘identify and understand the terrorist threat’, ‘disrupt terrorist activity’, ‘bring terrorists to justice though prosecution’ and ‘develop international co-operation with partners and allies’“ (Edwards and Gomis (2011)) • "[There is need] for a radical transformation in the way we think about national security and organise ourselves to protect it. We are entering an age of uncertainty. This Strategy is about gearing Britain up for this new age of uncertainty – weighing up the threats we face, and preparing to deal with them. But a strategy is of little value without the tools to implement it..." - HM Government, 'A Strong Britain in an Age of Uncertainty: The National Security Strategy' (October 2010), Cm 7953

8. THE PRE-EMPTIVE AND PREVENTATIVE APPROACH Specialist Police Powers

9. Deportation with Assurances

10. Control Orders/TPIMs & ETPIMS

12. RISKS • Ericson (2005) explained that: risk assessment is rarely based on perfect knowledge and ‘frays into uncertainty’ and remarks that forms of uncertain knowledge are calculated by ‘foreseeability’, ‘reasonable foresight’ and ‘expectation which he identifies as pragmatic tools of assessment used by contract law and tort law. • ‘law of uncertainty’ Beck suggests that uncertainty is government of the ‘incalculable’ and this is the reason why we, or the courts and SIAC, can only be governed by ‘estimation’: therefore, understanding the possibility of catastrophes which are identifiable as well as their probability and magnitude remain unclear.

13. RISKS • Preventative measures can show that those intending on protecting us, such as Government, are a greater threat to human security than terrorist bombings, corroding British values which terrorists target: human rights and the rule of law (Hoffman 2004; Landman 2007-2008). • Hoffman (2004) suggests that when human rights are traded for security, you get neither; rather minorities and marginalised communities suffer. • This increases the risk of dividing society, fostering segregation and contributing to a climate of fear. (See: Greer, 2010; Fenwick and Choudhury, 2011; Choudhury, 2012 and 2013) . • Other risks include: • Lack of trust and confidence; • Alerting suspects and their companions, thereby reducing the possibility of obtaining crucial evidence/intelligence (eg Edward Snowdon); • Securitization; • Normalization

14. Terrorist Network Terrorist networks are based on a ‘degree centrality’ (Irons, 2008), these consist of: ‘in-degree centrality’ – incoming links; ‘out-degree centrality’ – outgoing links and connections within the network; ‘betweenness centrality‘ – link between networks; ‘bridge’ or ‘subnetwork’ – individuals which link networks (Cross and Parker, 2004). This collectively creates an ‘all-channel’ network , also known as ‘Netwar‘ (Arquilla and Ronfeldt, 1996; Krebs, 2002)

15. TRI-RELATIONSHIP CALCULATION • Balanced calculation and holistic risk assessment adopted; • Identifies wider implications and enables users to identify continuity procedures; • Solid process which is flexible to meet new needs and demands; • Supports Governance and monitors compliance. Counter-Terrorism Measures Banking and Financial Services Risk

16. SAFEGUARDS Further safeguards should be implemented in statutory and policy frameworks, including: • Greater involvement of Judiciary; • Transparency within the measures used; • Suitable remedies for decisions taken. Ensuring counter terrorism approaches are proportionate it becomes possible to prevent, if not reduce, risks such as: • Loss of human rights credibility; • Alienation of communities; • Creating division within society; • Fostering segregation; • Provision of strong propaganda for radical groups; • Breakdown between the State and communities; • Lack of Judicial intervention/participation; and • Undermining the rule of law; • Confidence within the system and framework.

17. THE GREATEST RISK WHEN COUNTERING TERRORISM 'Few things would provide a more gratifying victory to the terrorist than for this country to undermine its traditional freedoms in the very process of countering the enemies of those freedoms.' - Roy Jenkins MP, Home Secretary between 1965-1967 and 1974-1976

18. Christopher Wood Research Fellow at Northumbria UniversityNorthumbria UniversityNorthumbria Law SchoolNewcastleNE1 8STWeb: http://lawresearch.northumbria.ac.uk/ccce/Email: Chris.wood@Northumbria.ac.ukTel: +44 (0)191 243 72 60 Barrister at Old Court ChambersOld Court ChambersNewham House96-98 Borough RoadMiddlesbroughTS1 2HJWeb: www.oldcourtchambers.netEmail: clerks@oldcourtchambers.netTel: +44 (0)1642 232 523