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 , the year , 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 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 s 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 and 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 mids, 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,I forget the number of police and law enforcement-- -- Senator Gregg. 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 s, 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. More Britons were killed in the World Trade Center on September 11, than in any terrorist event before or since. In July 52 people were killed and more than 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. It was ratified by Britain in , which is currently one of forty-six Contracting States.
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. 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. Supreme Court. For example, in 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.
Germany, 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 and against it in Incal v. Turkey and Arslan v. Turkey 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 United Kingdom was the only European state to register a derogation from the Convention after the attacks in the United States on September 11th, 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.
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 s 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.
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 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 In December 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 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 introduced a shorter 30 day maximum period of detention and this passed with significant misgivings and a commitment to further consultation. 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. 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.
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. 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 Role of the Security Service MI5 The Security Service has primacy in all counterterrorism intelligence investigations conducted either on the British mainland or overseas.
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, 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.
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 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 s 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 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 and 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.
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. 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 , 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, British troops mounted a series of raids across Northern Ireland which resulted in the detention of 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.
The number of terrorist bombings in the Province increased dramatically from around in , to 1, in 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 The power of internment has been shown to be counter-productive in terms of the tensions and divisions which it creates.
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 August 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.
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. However, other well-informed sources are more skeptical.
Military Operations The final incident to have a major impact on the evolution of IRA violence in the period was the event that has become known as Bloody Sunday. 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. Deliberate attacks on civilian targets on the British Mainland soon followed including four simultaneous car bombs left in London in March , bombs at mainline London railway stations in September and in public houses in Guildford and Birmingham in the autumn of 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 In August , faced with escalating violence in the Province of Northern Ireland, the British government introduced non-judicial internment for suspected members of nationalist terrorist organizations.
As details of these techniques became public there was an outcry against their use which was eventually discontinued in April 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. One prisoner was forced to remain in this position for 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, 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.
The case was referred to the European Court of Human Rights for adjudication. Ireland v. United Kingdom was the first inter-state case ever brought before the European Court. Malone v. In March , 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.
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.
Curiously, material gathered from eavesdropping devices is considered admissible. 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. 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.
There was widespread criticism of the SAS's failure to apprehend three unarmed suspects without loss of life. United Kingdom. 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.
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.
United Kingdom The ECHR was again called to rule on four separate cases in which 14 people had been killed in Northern Ireland between and allegedly by or with the collusion of the security forces--McKerr v. United Kingdom , Hugh Jordan v. United Kingdom , Kelly and Others v. United Kingdom and Shanaghan v. United Kingdom However, on each occasion the Court stopped short of finding that the victims had been unlawfully killed, commenting instead in May 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.
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. As a former Home Secretary, Jack Straw, has publicly acknowledged, the main catalysts for change were a series of cases before the European Court Human Rights, commencing with Malone v.
United Kingdom see Annex A , which incrementally addressed issues relating to the gathering of intelligence material and the operation of the intelligence agencies. This placed the UK's domestic intelligence agency on a statutory footing for the first time. Between the introduction of the Security Service Act in and the end of the Tribunal investigated complaints.
No complaint was upheld. In the great majority of cases, the complainants were unknown to the Service. The European Court of Human Rights considered that the Security Service Act placed the Service on sufficient legal footing for two pending cases involving alleged Security Service investigations to be discontinued. In the case Esbester v. UK the Court explicitly recognised that the Security Service Act struck a reasonable compromise between the requirements of defending a democratic society and the rights of the individual.
Although the Security Service Act went far enough to satisfy Britain's European Convention on Human Rights obligations it still fell short of providing for the sort of parliamentary oversight that many critics of the intelligence apparatus were calling for. Despite the fact that it is made up of Parliamentarians, it is not a Parliamentary Select Committee but a statutory committee with a legally defined brief. In some respects this gives it greater authority, adding weight to the Committee's requests for information.
Its members are appointed from both Houses of Parliament by the Prime Minister after consultation with the Leader of the Opposition. Despite the executive's control over its appointments, the Committee has been characterized by its bipartisanship. The bulk of the Committee's work is done in camera and its findings must effectively be taken on trust. The Committee also reports to the Prime Minister rather than to Parliament.
As with the Commissioners' reports, the Prime Minster is free to withhold material from Parliament out of security concerns. It may never be able to answer questions about all the issues that it is investigating. That is inevitable.
However, colleagues in the House should be able to feel confident that someone is investigating issues on their behalf and has the power to do the job properly, even if ordinary Members of Parliament are not able to get the answers themselves. Any responsibility for the oversight of operational matters was pointedly omitted from the Act. However, the members of the ISC have been effective advocates for some extension of their powers in this area and in recent years they have been briefed on a wide range of the Services' operational work--often at the request of ministers who see the utility in gaining independent validation for policy decisions.
Since the ISC has employed an Investigator to undertake specific enquiries under the Committee's direction. Intelligence officials themselves have largely embraced the ISC as a new source of legitimacy for their work. We have been joined by our senior member, the Senator from West Virginia. Do you have an opening statement you want to make, Senator? Chairman, thank you.
Chairman--my favorite chairman, right here. One might as well proclaim his choice, had he not, openly and publicly? Very kind of you. My favorite ranking member. Senator Byrd. Bless your heart. Well, thank you, Mr.
Five years ago, more than 3, people lost their lives due to the September 11 attacks. President Bush has said many times that those attacks were inspired by hatred of the freedoms that Americans enjoy. Surrendering our constitutional liberties, and especially the system of checks and balances that allow those liberties to endure, would seem to me to be a strike at the very principles upon which this country was founded.
In this age of international terrorism, there is much that our Government can learn from the experience of other countries. However, these temporary measures were extended time and again for nearly three decades. So, there is a lesson here. Could our country already be headed down the same path, in which our legislative branch approves curbs on civil liberties that last for decades even though they are labeled temporary?
Take, for instance, the warrantless wiretapping that allows government to eavesdrop on millions of Americans without their knowledge. Chairman, we have worked on a bipartisan basis to strengthen our defense against terrorists by adding billions of dollars to border security and billions of dollars to airline security, billions of dollars to law enforcement, intelligence collection, and other essential programs. Yet, the funding has not caught up with the vast security vulnerabilities that remain.
So, this brings us to what may be the key question of this hearing. If we do not adequately fund vital homeland security programs, might our vulnerabilities lead to even greater demands to set aside existing individual liberties in pursuit of more security? Is there not a close relationship between better funding of existing homeland security, law enforcement, and intelligence programs and the preservation of our liberties?
There must be better ways to protect the American people from terrorism absent the abrogation of constitutional protections and the adoption of foreign models which concentrate more and more power in the hands of one man, the President. I thank the chairman for calling this important hearing. I thank the witnesses who are appearing before us. Thank you, Senator Byrd. That is a very interesting question you raise, which is, if we do not adequately fund and we respond to that by some action which limits liberty or the rights instead of funding.
That is an interesting issue and maybe we can expand on that as we go forward. But initially the question which I think I would like to get to is this issue of, looking at British successes, what can we do to replicate those successes here without affronting our liberties and our constitutional rights.
Judge Posner, you made it pretty clear that you felt that we could--do we need to do anything legislatively to give the executive branch the right to restrain people or to hold people longer than 48 hours? Do we have to declare that a person is--is there some sort of-- should there be some sort of court approval of that event in a FISA type of situation, or does that authority basically lie with the executive branch? That is my first question. The second question is, you suggest that we not bifurcate the FBI, although I have to tell you I used to chair the committee that had the FBI and my biggest frustration was that they were not able to move that culture from law enforcement into intelligence, and I still do not think they have even though I have not chaired that committee for 2 years.
This was something we put a tremendous amount of pressure on them to do and they just--basically, the culture resisted. But let us assume we are not going to bifurcate it. Does that mean that an organization like Mr. Negroponte's new intelligence responsibility as sort of the intelligence czar is the place where you might set up a structure that would mirror the MI5 effort, and is that appropriate?
So I would like to get those thoughts from all three of the witnesses--well, Mr. Yoo relative to whether American law, there is any statutory need in order to get to this British position of being able to hold people for a longer period of time if they are deemed to be terrorists, beyond the 48 hours, and then get your thoughts on those.
Parker made a very important point. He said that the fact that the MI5, the security service, has a laser beam focus on intelligence is of great value because the FBI--you mentioned, Senator, that maybe FBI should be shifting its focus from kidnapping and bank robberies to national security and intelligence. Well, the problem is--this happened in Chicago--when the FBI tries to do that, the banks and the people in Chicago, they say: Well, wait a second.
The number of bank robberies in Chicago is rising because the FBI is allocating resources to intelligence. That is the problem. So the FBI is torn. We want it to be the premier criminal investigation agency and that is of course what they are accustomed to doing, what they are trained to do, what they want to do.
So very difficult to change their culture. You are quite right, 5 years, very little progress has been made in actually altering the focus of the FBI. He also mentioned, Mr. Parker, the fact that of course MI5 works closely with the special branch of Scotland Yard and of the other British police offices. The special branches are specialized for criminal law enforcement focused on terrorism and espionage and so on.
Well, we have the germ of that system here because the FBI--the President did insist, over the FBI's objections, that it fuse its terrorist-related units into a new division called the national security branch.
Where to place that service, whether it should be free-standing, whether it should be in the Department of Homeland Security--as I understand it, MI5 reports to the home secretary in the United Kingdom, which corresponds to the Secretary of Homeland Security.
Whether it should be free-standing like the CIA and report to the Director of National Intelligence, whether it should actually be in his office, those are important organization questions which would require further study. In fact, what I would like to see from Congress, from the Director of National Intelligence, would be as a first step a feasibility study: Is this something we need, a separate agency, and concretely how would we establish it, where would we put it, would it work, and so on.
With regard to your previous question, the first question about detention, Professor Yoo reminded me that the Supreme Court has permitted detention of terrorists outside the criminal justice system as enemy combatants. I was thinking more of a system of detention of terrorist suspects which would not require actually designating them as enemy combatants.
The value of congressional intervention here is that Supreme Court has left everything very vague. You can hold a person--the government can hold a person for more than 48 hours if it can show that it is a bona fide emergency or there are other exceptional circumstances. I think it would be helpful for Congress to specify what constitutes an emergency and also to set some limit, so that the Government officials have some sense how long can they hold a person beyond 48 hours.
We do not want it to be indefinite. Under the English system as I understand it--and it would be a good feature of our system--you do not just make an initial decision this person is going to be in for 28 days. You have frequent reauthorization by a judge. That I think, prescribing the procedures and the timetable for this sort of thing, that would be a function for Congress, rather than leaving it to the courts, I would think.
Thank you, Judge. Yoo, did you want to comment on those? Yes, thank you, Senator. I quite agree with what Judge Posner says on the detention issue. It is the case that the Supreme Court has read the authorization to use military force that you passed on September 18, as authorization to detain enemy combatants outside the criminal justice system.
But the case of Hamdan where this was decided, the individual in question was captured outside the United States, in Afghanistan, so it left open the question whether these rules would apply within the United States. The Government detained Jose Padilla under that same claim of authority. The U. Court of Appeals for the Fourth Circuit upheld that as an exercise of this power to detain enemy combatants, but it did not reach the Supreme Court.
So there is unclarity and ambiguity about whether this power could be used in the future, and so that would be an appropriate area, I agree, for further congressional explication of the standards. The other difference I would just point out is I take it under the British system, even when you are in this day period, there are regular hearings, there is regular opportunity to go to a judge.
In the enemy combatant process we use the system of habeas corpus, which can take much longer, and then under the Defense Department regulations there is an annual, I think, review of the combatant status. So the British system actually has more judicial review than ours does.
One question you might want to ask if you are going to go ahead and draft legislation is whether you want to have more than just annual reviews. This is also tied up in the litigation about--I am sorry, the consideration of how Congress is going to react to the Hamdan bill. There is elements in that bill which talk about civilian judicial review over these determinations and how often they might occur.
That is something you could change as that bill goes forward. In terms of the division between MIwhether to have an MI5 type agency or not, I think everyone on the panel seems to agree that the current system is not working, that the FBI's mixture of criminal law enforcement and national security purposes is not a good one. I do not think it is a question of whether you need the change the statutory authority of the FBI. In a way, what Judge Posner describes, and I quite agree with this, is that maybe the statutory focus of the FBI has become too diffuse.
They have too many things which they try to focus on--criminal law enforcement, bank robberies. You know, bank robberies, if you look at the history of the FBI the reason why bank robberies and kidnappings became their initial focus was because they were relatively easy to solve, you had high publicity when you solve them, and it is easy to measure how agents were doing.
You could say, I caught five bank robbers this month. So it led to this case-based system for promotion within the FBI. That is an example of how you cannot change that kind of culture easily, because it is difficult to count, well, is this man or this agent doing a good job stopping terrorist attacks.
Someone cannot come in and say, I stopped five terrorist attacks, because often you do not now how many terrorist attacks you stopped, if any, by taking a measure, because it is more future and prospective. So I think one thing you could do through the appropriations tool which I think would be a quite appropriate exercise of your power would be to start moving resources out of those areas of the FBI that focus on criminal justice, like bank robbery and kidnapping, and devote more money toward the counterterrorism and national security mission.
You might also use your funding tool to try to change the way that the FBI measures success and how they reward employees, who gets promoted or not. That also I think would be a legitimate use of the appropriations tool.
It may be that we made a mistake--I know you--I think you think this, is that we might have made a mistake trying to evolve the FBI into what we want, rather than making a clean break, whether you detach another agency or just start a new one. That might have been in the long run the more effective way to go, although there would be much more disruption when it happened. That is the kind of thing I think is something the committee can do. I do not know whether there is a lot of good studies on that in the United States.
Most of the studies have been about how difficult it is to combine agencies into something like DHS. We have as far as I know very little work on how you split up an agency's functions and what is the most effective way to do it. One place one could look would be to look into the literature and work that has been done on corporations, which go through this all the time, and they make various choices about how to organize things appropriately.
Did you wish to comment on either of those points, Mr. I thought it might be quite useful just to explain the genesis behind the day detention period. The logic there is very specific and it has to do with operating in Europe with porous borders. There is a perception, I think a legitimate perception, as we have seen from the London transport bombings, with one of the suspects fleeing immediately to Italy where he had previously been a resident, that people would be able to cross national boundaries within Europe to carry out attacks very easily.
It is almost impossible to get a response from a foreign police agency in less than 30 days. That was why police needed more time. A letter rogatoire, if you were to deliver it to the French authorities, even with great urgency by the time that has been processed and action has been taken and that information comes back your hour detention period is certainly gone. Iraq has brought Muslim volunteers from many countries to fight the U.
Iraq has been the recruiting poster for jihad that Al Qaeda hoped for. Al-Zawahiri is not the only terrorist to recognize the potential value of government responses to terrorism. Russian terrorists against the tsar hoped that government repression would mobilize the peasants unfortunately it mobilized mostly middle-class revolutionaries in a conflict that ended with the Communist Party in control of Russia. This is jujitsu politics McCauley, Tragic Iterations 7 It is somewhat surprising that a strategy familiar to terrorists is relatively unknown in popular discussion of terrorist motivations.
Already noted are the definitions of terrorism that feature coercion of state policy as the goal of terrorism, with creation of fear as the means. These definitions do not make it easy to see mobilizing their own as a major terrorist goal. Perhaps most difficult about recognizing jujitsu politics as a strategy is that this recognition leads to moving the focus of counterterrorism from the terrorists to the dynamic relation between terrorists and the state.
The dynamics of asymmetric conflict If terrorism is politics, and the response to terrorism is politics, and terrorists can count on politics to produce a useful over-reaction to terrorist attacks—then terrorism is no longer the problem and terrorists are no longer a definable group that can be found, fixed, and finished.
In the pyramid model, there is no clear line but only a gradient of radicalization that distinguishes passive sympathizers at the base from terrorists at the apex. Likewise a pyramid model of the state shows no clear line between passive government sympathizers at the base and policy makers or military at the apex. This competition unfolds over time, often over decades.
The conflicts in Afghanistan and Iraq have already lasted longer than most interstate wars. The time course is a source of complexity, as terrorists often change targets and tactics and so too may the state change tactics and targets in response to the terrorists. Time is a key advantage for the terrorists. They generally have more to lose, or perceive they have more to lose, than the state. They aim to wear out citizen support for policies that sink state resources in a conflict that seems interminable.
Earlier it was noted that successful terrorism seems to be associated with nationalist and anti-colonial causes; contributing to this association is the motivational asymmetry of fighting in and for homeland as opposed to fighting in a foreign land. In another perspective, this competition is a complex form of communication, in which every act is a message to multiple audiences.
Similarly, every state response to terrorist action is a message to all these same audiences. The difficulty for both sides is that the same message is sure to be interpreted and evaluated very differently by different audiences. An example of this complexity is the U. The reaction in the U. But some observers have suggested that the Europeans pulled up their socks to do more against terrorism after the U. Others emphasize that the Libyan response to the U. Integrating over all the different audience reactions is difficult: on balance, was the raid a success or not?
Finally, the competition between terrorists and the state can be seen as a kind of multiplayer game, iterated over many moves, with every move producing a different value for each player. This kind of game can be very complex but in practice there is an art or an applied science that has emerged to play this game.
The game is politics. Candidates pick issues and positions on issues that will maximize election chances. They segment voters. They try to control or code the flow of communications so as to emphasize different issues and different positions for different audiences.
They do not announce a major initiative without trial balloons and audience testing. Understanding terrorism as a tactic of political competition leads to a complexity that democratic countries are familiar with. The more democratic the country, the better prepared for understanding and winning political games.
The response to terrorism as bad public good this section for critique, not for quotation Physical security against attack is a canonical example of a public good. It is nonrivalrous, in that my consumption of national security does not reduce the defense available for other Americans. It is nonexcludable, in that at least within the borders of the U. It is easy to imagine that the private sector would invest too little in security, that is, less than what individuals would be willing to pay for security if free-riders could be excluded.
Jujitsu politics points to the possibility that the response to terrorism can be a bad public good. At least some terrorists feel that at least some state responses to terrorism produce gain for the terrorists and loss for the state. In order to evaluate this possibility I will consider the response to terrorism as a kind of insurance to reduce the likelihood or cost of future terrorist attacks.
There seem to be three ways in which this insurance can go wrong, that is, three ways in which the public security can become a bad public good. Overinvestment in insurance. The first is that the cost of insurance can be greater than the loss expected if no insurance is purchased. Of course it has long been recognized that buying insurance is a bet with negative expected value. Humans are evidently willing to pay good money to reduce the threat of large loss.
But what if the cost of insurance exceeds not just the expected value of the threat but the largest loss ever experienced from this type of threat? Homeland Security Research estimates the cost of the war on terrorism through as 2. Investment in an inefficient form of insurance. The second way the response to terrorism can go from the public good to public bad is if special interest groups bring over- investment in a particular form of insurance when other forms would be more efficient.
Like over-investment in dams and levees on the Mississippi Haddock, , over- investment in security is a kind of inefficiency. In the case of dams and levees, money could be saved by paying people to move away from the Mississippi. For the war on terrorism, the issue is whether the same level of security can be obtained in less expensive ways, ways that are blocked by the efforts of special interest groups who profit by building increased security.
There seems little doubt that there are hardware, software, and service industries that are profiting from the war on terrorism. Whether it is the profit motive that drives the war on terrorism is less certain. The subculture of values that came into control of U. Whatever the role of special economic interests in the war on terrorism, the issue is whether the same level of security could be reached at lower cost by investing in a different form of insurance.
What would be the equivalent of moving people away from the river, instead of building higher levees? One alternative is increased investment in the criminal justice system McCauley, The first attack on the World Trade Center, in , almost brought down the towers.
This attack was treated as a crime, investigated, suspects identified and captured or extradited, trials conducted, convictions obtained, and today most of the perpetrators are in U. That is, the criminal justice system did not prevent terrorism. But no one says that the war on terrorism can prevent terrorism. Indeed U. Tragic Iterations 10 For a continuing threat, the criminal justice system provides a continuing response, whereas the spasmodic nature of war is ill-matched against a chronic problem.
War has a clear beginning and a clear end; terrorism seldom includes either a declaration of war or a treaty of peace. As the war on drugs and the war on poverty failed against chronic problems, so the war on terrorism must ultimately fail. There is no final victory against a tactic that has provided the warfare of the weak for thousands of years. As insurance against terrorism, the criminal justice system is relatively inexpensive. Some additional support might introduce or improve community policing in neighborhoods that might be sympathetic to anti-government radicals, but this is not the place to unpack this possibility.
Here the point is only that increased support for the criminal justice system would be cheap indeed compared with the war on terrorism. Investment in insurance that increases the threat insured against. The third way the response to terrorism can become a bad public good is if the investment in security leaves more people less secure than before. Here the investment is not merely inefficient increase in security but a perverse decrease in security.
For investment in dams and levees, the parallel would be if the new dams and levees put more people in more danger of flood than they were before the latest round of building. For instance, the new dam construction might be less strong than the old dam it replaces. Drivers go faster when wearing seatbelts. Banks tend to take more risk when government insured. The psychology at the bottom of moral hazard is a psychology of preferred risk level, as we change our behavior to obtain, not minimal risk, but our preferred level of risk.
Thus it may be a kind of moral hazard once removed if the war on terrorism increases the threat of terrorism. The insurance policy represented by the war on terrorism strengthens the threat, not by making the insured more risky, but by raising the strength of those insured against.
Jujitsu politics is the mechanism of this perverse transformation of public good to bad public good. Jujitsu politics is plausible; certainly many terrorists believe in it. In any concrete example, however, doubts can be raised about whether a violent response to terrorism inhibits terrorists or incites more terrorism. Has the war on terrorism helped or hindered Al Qaeda? No doubt both, but the crucial question, as for the raid on Tripoli, is whether the balance is for or against terrorism.
There is no sure answer, but it is clear what Al Qaeda thinks. As the surge in U. It is difficult to resist the conclusion that Al Qaeda would like Afghanistan to look more like Iraq. Tragic Iterations 11 The micro-level mechanisms of jujitsu politics are not difficult to see. Safeguarding soldiers creates a barrier between soldiers and locals through which good intelligence—the essence of counter-terrorism—can hardly penetrate.
Terrorist suicide bombers are particularly useful in eliciting barrier responses that wall in the soldiers and wall out the locals. Safeguarding creates a climate in which torturing local suspects is seen as necessary to save soldiers. Particularly useful for the terrorists are mistakes made with high-powered munitions such as bombs and missiles.
Even one of these munitions gone astray — or lured astray by false intelligence — can produce, as in the U. Considered as insurance against terrorism, then, the war on terrorism qualifies as a bad public good in at least three ways. The war is much more expensive than the worst historical instantiation of the threat insured against. The war is much more expensive than an alternative existing insurance against terrorism. And the war can strengthen the terrorists to the extent that it hurts and mobilizes previously passive sympathizers for the terrorist cause.
The war on terrorism qualifies as a bad, bad, bad public good. Terrorism as private provision of public good. As already noted, the usual argument for public support for public goods is that private investment in public goods is likely to be inadequate.
A non-excludable good cannot be charged for in the market place and the market will not produce such a good. Except maybe for terrorism. Terrorism seems to be a would-be public good produced by private investment. Terrorists are not in business for the money. Indeed the future prospects of a terrorist are typically not very attractive. In one of the last steps in joining the Irish Republican Army, the volunteer is told that he should realize that he will almost certainly experience prison and torture and likely death as an IRA member.
The volunteer is sent home to think about this prospect before he can be accepted as an IRA member. Of course there are terrorists who become criminals, just as there are criminals who become terrorists. But the difference between personal gain and group gain—advancing the cause—is important.
Terrorists are non-state groups who invest time and effort and risk punishment and death for a group cause. If they succeed at all in forwarding the group cause for which they are fighting, many other members of the group who invested nothing will nevertheless free-ride on whatever group gains are obtained. The mechanisms by which normal individuals are moved to terrorism are beyond the scope of this essay, but the example is instructive. Public goods are usually said to be undersupplied by the private sector, but terrorism is the odd case of oversupply of a would-be public good by private investors.
What is the economic model that can comprehend this kind of altruism? Tragic Iterations 12 References Chirot, D. Why not kill them all? The logic and prevention of mass political murder.
Reset the password for the opc. March 17, HP You can increase in, this field would be null it is in. Table lists each feature change and this certificate the.
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|Forex script item cost||As already noted, the usual argument for public support for public goods is that private investment in public goods is likely to be inadequate. United KingdomKelly and Others v. 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. It is also easy to imagine scenarios in which 10, would have been killed on September 11—if the planes had hit the World Trade Center later in the day when more people were at work for example—and indeed, early estimates at the time were much higher than 3, If you read the accounts carefully, they say there was an initial tip given by a community member. 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. Political competition in the context of new state power becomes a competition about how best to use newly reinforced government power to respond to the terrorist attacks.|
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|Forex stop loss||As with the Commissioners' reports, the Prime Minster is free to withhold material from Parliament out of security concerns. Are there more people out there who hate the United States? I thank the chairman for calling this important hearing. Parker, the fact that of course MI5 works closely with the special branch of Scotland Yard and of the other British police offices. In what can only be called an act of highest heroism, American Enterprise Institute analyst Veronique de Rugy has actually tried to figure out the budget of the Department of Homeland Security. Most of the studies have been about how difficult it is to combine agencies into something like DHS. The Supreme Court has, by way of free interpretation of due process, has said that overinvesting definition of terrorism 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.|
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|Fogo ipo date||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. Do we have to declare that a person is--is there some sort of-- should there be some sort of court approval of that event in a FISA type of situation, or does that authority basically lie with the executive branch? Overinvesting definition of terrorism government departments and read more are represented on the staff of JTAC and the center is based in Thames House, the headquarters of the British Security Service. Its primary role is to produce definitive top-level all- source assessments for British ministers and senior officials. United Kingdom The ECHR was again called to rule on four separate cases in which 14 people had been killed in Northern Ireland between and allegedly by or with the collusion of the security forces--McKerr v. Negroponte's new intelligence responsibility as sort of the intelligence czar is the place where you might set up a structure that would mirror the MI5 effort, and is that appropriate? The process is also expensive and disruptive.|
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are consistent with most of the definitions of terrorism in the Governments overinvest in publicly observable counterterror not due to irration-. However, the literature recognises a proclivity towards over-investing in ing terrorism of 13 June states that “the definition of terrorist. Defining Economic Targeting as an Element of Terrorist Operations. to protect the country—risking overinvestment in security and generating the very.