Amnesty International launches petition against "42 days"

[Hat tip: UK Liberty]

Amnesty International have launched an online petition against the British government’s proposals to allow people to be detained for up to 42 days without charge if they’re suspected of terrorism. At the time of writing, it has 2856 signatures.

Meanwhile, The Times is reporting that the government have decided not to use the Parliament Act should the 42 days proposal be defeated in the House of Lords. The Counter Terrorism Bill returns to the Lords later this week.

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David Davis campaign website

See my post at Magna Carta Plus for details.

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The Terrorism Bill 2005: A threat to blogs/websites?

Update: I got it wrong on the committee stage of the bill. The committee stage of this bill takes place over 2 days, the 2nd and 3rd of November. See this link. Sorry for the mistake.

I confess to having taken my off the ball on this one. I didn’t realise the Terrorism Bill 2005 (yes another one!) was in parliament until I heard about the 2nd reading and then was slow off the mark to write about it…

Spy.org.uk have berated the British blogosphere for failing to cover/analyse the Terrorism Bill 2005, which, in addition to enabling 90 days detention of terrorist suspects without charge, they argue threatens websites, bloggers and libraries due to the:

  • vaguely defined offences of “inciting or glorifying” terrorism and distributing a terrorist publication, combined with
  • the power of a police constable, acting on his own opinion that the publication is “terrorism-related”, to issue a notice to a publisher to remove or modify an article within 2 days or be deemed to have endorsed the article, thus rendering you unable to raise the defence that it was provided only in the course of providing an electronic service, you didn’t know it was terrorism related AND you did not endorse it.

More detail can be found here and at the Magna Carta Plus weblog. Note that the committee stage of this bill will be over on Wednesday 2nd November. Time to make use of WriteToThem

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The Prevention of Terrorism Act 2005: Summary

The Prevention of Terrorism Act 2005, i.e. the control orders legislation, is available online here.
This is the version of the legislation that has become law. This article summarises the key features of the Act.

Sections 1 to 4 set out the powers to create control orders. The main points are:

  • Control orders have two forms: derogating control orders are those incompatible with the right to liberty set out in article 5 of the ECHR and thus require a derogation from that article, non-derogating control orders are those which do not derogate from article 5.
  • Control orders can be imposed on a person by a court on application by the Home Secretary, except for non-derogating control orders where the Home Secretary can impose an order without first going through the courts if, in his opion, it is urgent.
  • Control orders can impose any obligation that the Home Secretary (or court where appropriate) believes is necessary for “purposes connected with” preventing or restricting the involvement of the person in “terrorism-related activity”.
  • Possible obligations include prohibitions or restrictions on a person’s possession of specified articles and substances; their use of specified facilities; who they can communicate or associate with; their work, occupation, business or other specified activities; their movements and their place of residence.
  • Other possible obligations include requirements on the person to surrender specified possessions for the duration of the order; to allow access to and searches of their place of residence or any other premisses they have access to; to allow items to be removed from their residence/premisses for testing and to remain in a particular place for specified times or periods or generally.
  • Terrorism-related activity is defined as activity one or more of the following: the commission, preparation or instigation of acts of terrorism; conduct which facilitates the commission, preparation or instigation of acts of terrorism; conduct which encourages the commission, preparation or instigation of acts of terrorism; or conduct which gives support or assistance to individuals known or believed to be involved in terrorism-related activity.
  • Terrorism is defined as it is under Section 1 of the Terrorism Act 2000.
  • The Home Secretary can impose a non-derogating control order on a person if he has “reasonable grounds for suspecting” someone is or has been involved in terrorism related activity, and if he considers it necessary to do so for to protect members of the public from “a risk of terrorism”.
  • Non-derogating control orders last for 12 months but can be renewed by the Home Secretary.
  • Courts must give permission for the Home Secretary’s application for a non-derogating control order unless they find that the decision to make such a control order is “obviously flawed”. They can also quash specific obligations if they believe the decision to impose them is “obviously flawed”.
  • For a derogating control order to be imposed, there must be a public emergency resulting in derogation from article 5 of the ECHR in force.
  • A court can impose a derogating control order if it is satisfied, on balance of probabilities, that the person concerned is involved in terrorism-related activity and if it considers the control order necessary for purposes connected to protecting the public from a risk of terrorism. Note that my earlier article on control orders was thus mistaken about the burden of proof for derogating control orders — house arrest would use the balance of probabilities, but non-derogating orders would not.
  • Derogating control orders expire after 6 months unless renewed.

Section 5 enables a person to be arrested and detained by the police as soon as the Home Secretary makes an application for a derogating control order. This detention can last for upto 48 hours, or with court approval, a further 48 hours.

Section 6 stipulates that derogating control orders can only have effect if a derogation from article 5 of the ECHR is in force. Such a derogation is made by the Home Secretary making an order and putting it before both Houses of Parliament. The order to derogate ceases to have effect 40 days after it has been made, unless both Houses approve of the order. If approved an order lasts for 12 months, but can be renewed by Parliament.

Section 7 sets out various matters on modifying and proving control orders including giving the police the power to enter any premisses, by force if necessary, to search for someone who is to be subjected to a control order, where they suspect the person to be on those premisses.

Section 9 creates various offences. It is an offence to contravene an obligation imposed by a control order, punishable by upto 5 yrs in prison. Obstructing officials who try to enter premisses to search for someone subject to a control order is an offence carrying upto 1 yr (6 months in Scotland) in prison.

Section 13 stipulates that Sections 1 to 9 expire after 12 months, but allows them to be renewed for a year at a time by Parliament.

Section 14 requires the Home Secretary to make 3 monthly reports on the use of control orders, to appoint someone to review the legislation, for that person to review the legislation after 9 months and then every 12 months thereafter (if the legislation is renewed).

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Former anti-terrorist officer says Britain is sinking into a police state.

The Guardian reports that George Churchill-Coleman, who headed Scotland Yard’s anti-terrorist squad in the 1980s and 1990s, and who had to tackle the threat posed by the IRA has this to say on the govt’s house arrest proposals:

George Churchill-Coleman, who headed Scotland Yard’s anti-terrorist squad as they worked to counter the IRA during their mainland attacks in the late 1980s and early 1990s, said Mr Clarke’s proposals to extend powers, such as indefinite house arrest, were “not practical” and threatened to further marginalise minority communities. Mr Churchill-Coleman told the Guardian: “I have a horrible feeling that we are sinking into a police state, and that’s not good for anybody. We live in a democracy and we should police on those standards.

He added: “I have serious worries and concerns about these ideas on both ethical and practical terms. You cannot lock people up just because someone says they are terrorists. Internment didn’t work in Northern Ireland, it won’t work now. You need evidence.”

I quite agree. And whom am I to argue with an ex anti-terrorist officer? Incidently, I think I can locate the cause of Mr Churchill-Coleman’s horrible feeling: We are sinking into a police state.

On a completely different topic, the blogger behind the auroran sunset has said he’s unable to select text on my blog, using the Firefox and Safari browsers. I am able to do so with Firefox, whether I’m logged into the account or not. I’ve also checked the template and settings and can’t find any obvious reason why this should be the case. I’ve regenerated the whole blog and enabled the facility to email articles to friends to see if this helps. Anyway please let me know if you’re having any difficulties.

A note to the auroran sunset if you’re reading this.

I’ve emailed you via the email address you use on usenet. I hope that gets through. I couldn’t find any other address on your website and I didn’t want to create a new blog on http://www.livejournal.com just to send you a comment via the diary (your disabling of anonymous comments limits comments to livejournal users).

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"False positives" in the fight against terrorism

Security consultant Bruce Schneier writes regarding the trade offs one has to make in security when dealing with terrorists:

Security systems fail in two different ways. The first is the obvious one: they fail to detect, stop, catch, or whatever, the bad guys. The second is more common, and often more important: they wrongly detect, stop, catch, or whatever, an innocent person. This story is from the New Zealand Herald:

A New Zealand resident who sent $5000 to his ill uncle in India had the money frozen for nearly a month because his name matched that of several men on a terrorist watch list.

Because there are far more innocent people than guilty ones, this second type of error is far more common than the first type. Security is always a trade-off, and when you’re trading off positives and negatives, you have to look at these sorts of things.

It is for reasons such as this that one should be very wary of weakening rules such as the presumption of innocence, the right to silence and the prohibition of double jeopardy in order to make it easier to jail those suspected of crime or terrorism. These rules were put in place for very sound reasons. Get any changes to them wrong and the impact is likely to be felt mostly by the innocent. A safer strategy is to bolster the investigative powers and the resources available to the police and security agencies dealing with these problems.

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Is the govt to introduce guilt by association?

The Observer reports that it is, although the source is describe as “a source close to Home Secretary, David Blunkett”:

Under Blunkett’s plans, ‘associates’ of terrorists would initially face a civil court order – like the anti-social behaviour orders slapped on unruly teenagers – banning individuals from contact with named terror suspects. This would be intended as a deterrent: disobedience would become an offence punishable by jail.

‘Association’ could cover not only meeting in person, but communicating via email or telephone, or even fundraising: sources close to the Home Secretary said, however, there would have to be evidence of some suspicious intent, rather than merely socialising.

Thus if someone you know is suspected by the police, you could be banned from having contact with them on pain of imprisonment. Which might be a bit unfortunate should you possess the evidence that show they’re innocent but only a conversation with the suspect themselves would reveal this to you (and them).

And note that it is those merely “suspected” of involvement in terrorism that people will be stopped from associating with — suspicion does not imply guilt, and you and the suspect need not have done anything wrong for this to be applied. Then of course there is the possibility of guilt by association becoming circular…

Yet another assault on liberty from Blair and Blunkett.

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On dealing with terrorism

March 11’s horrific events in Madrid have underlined the seriousness of the threat posed by terrorism in the modern world. Clearly the perpetrators of such acts have no regard for human life and do not care about the suffering they cause. Naturally, we wish to see something done to stop this sort fo thing from ever happening again.

Since Sept 11th 2001, governments across the world have been under considerable pressure to “do something” about terrorism, and to be seen to be doing it. Each new atrocity, whether in Bali, Turkey, or, as now, in Spain, puts further pressure on governments and lends credence to the often repeated assertion that the terrorists can strike anywhere they choose, that no country is safe from such attacks. Indeed, it has been my opinion for some time now that it will only be a matter of time before a terrorist group tries a similar attack on Britain. A rare point of agreement between myself, Tony Blair and a certain Mr Blunkett!

Many governments have responded to the terrorist threat by enacting draconian laws that attack civil liberties. Already, in the aftermath of 11/03/2004, there is talk of yet more draconian measures and finding a new balance between protecting civil liberties and preventing terrorism. Indeed according to the BBC, David Blunkett has stated that the greatest challenge was to protect democratic rights in the face of the threat posed by suicide bombers who had changed all the rule books. Further he said:

With new forms of terrorism, with the suicide bombers, with those who are prepared not only to take the lives of others but their own, there is no prosecution, there is not punishment, there isn’t the usual norms of human and social behaviour.

A leader from today’s edition of the Scotland on Sunday newpaper (you’ll need to register to see the leader itself, I’m quoting from the print edition) states:

The only way to prevent the carnage bombers can wreak is to anticipate their actions and arrest them before they act. It is difficult to see how this can be done without lowering the burden of proof currently required of the police and security forces and this is a debate we must have. It will pitch those on the right who would dilute human rights to save human lives against those on the left who, it seems, would sacrifice lives to preserve liberty.

In this debate it is continually assumed by the government, and many others, that civil liberties stand in opposition to effective action against terrorists, that they prevent the government, police and security forces from doing their job in trying to protect us from terrorists. Whilst there may be specific situations where this might happen, in general I reject this whole way of framing the problem.

Recall the very first sentence in the quotation from Scotland and Sunday; “The only way to prevent the carnage bombers can wreak is to anticipate their acts and arrest them before they act”. I agree! But lowering the burden of proof faced in court will make damn all difference to the ability of the police and security services to arrest those they think may be planning or carrying out an act of terrorism. Under the Terrorism Act 2000, a person can be arrested without a warrant in the police merely suspect them of being a terrorist. They can then be held for up to 2 weeks without charge. The offences available to the police/security services to subsequently charge someone with include:

  • being or claiming to be a member of a proscribed organisation
  • ,

  • possessing information or articles in circumstances which lead to suspicion that their possession is for a purpose related
    to the commission, instigation or preparation of acts of terrorism
  • and,

  • directing the activities of a terrorist organisation at any level
  • ,

These are in addition to offences related to illegal possession of firearms, explosives and other materials, and offences related to murder, assault, kidnapping, etc. My point is that the police and security services already have the legal powers necessary to arrest someone they think might be involved in terrorism. And if those people are genuinely planning a bombing, suicide or otherwise, they most likely have commited some or all of the above offences and can be charged and convicted as a result.

The crucial issue is thus not the powers of arrest and the burden to be satisfied in court, but the intelligence gathering powers the police and security forces have and the resources they have at their disposal to exercise those powers. The govt recently announced a huge increase in manpower for MI5 — this I have no problem with and I consider justified for fighting terrorism. The security services already have considerable legal powers for conducting surveillance too, under RIPA and the Terrrorism Act. IMHO the main thing that needs to be done is for the security services and police to get on with their jobs, and get the resources they need. Further tinkering with the anti-terror laws, especially to weaken civil liberties is simply not justified.

But surely lowering the burden of proof will make it easier to jail terrorists? It is not that simple at all. By lowering the burden of proof you make it easier to jail the accused but the flipside is you make it easier to jail the wrong person. If you jail the wrong people, then not only do innocent people end up in jail but the terrorists are free to continue their mayhem.

If you lower the burden of proof, you will inevitably ensure that poorer quality cases are taken to court. Hard pressed investigators will make the decision to prosecute earlier than they otherwise might have done. THIS MEANS POORER INVESTIGATION which will undermine the effectiveness of the anti-terrorism efforts at the most crucial point, the point of investigation of and intelligence gathering on terrorist suspects.

The burden of proof and other protections in our system of law are not just there to protect the liberty of individuals (important as that is) but also to ensure that when we jail people we jail the right people. Weakening such protections leads all of us exposed to wrongful imprisonment by the government and can be counterproductive to effective crime fighting and the fight against terrorism.

The automatic assumption by many that civil liberties must be weakened in the fight against terrorism is a trap. The crucial issue in the fight against terrorism is, and always has been, the effective gathering of intelligence. If we don’t know who the terrorists are, where they are and what they’re doing, we cannot stop them even if we give the government absolute power to do what it wants in the fight against terrorism. Giving the government such power will make it an even more serious threat to our freedom than the terrorists, as history has shown time and time again with examples such as Nazi Germany and Stalinist Russia as testimony. As Benjamin Franklin famous said:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety

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Blunkett’s kangaroo courts — unnecessary and dangerous

For prosecuting terrorist offences, David Blunkett recently proposed trials where evidence is kept secret from the defendant, judges and lawyers are vetted by the security agencies, and guilt is determined on “the balance of probabilities” test rather than “beyond reasonable doubt”. According to the Guardian:

But Mr Blunkett said during his visit to India and Pakistan that new powers might well be necessary because the nature of “suicide terrorism” meant the only effective measures were preventative.

There was no point in threatening to put terrorists on trial after they had blown themselves up. Mr Blunkett’s new thinking on counter-terrorism were voiced as he visited the site in Amritsar of a massacre by British troops in 1919 of more than 400 Indians who were protesting at the introduction of the Rowlatt Act, which gave the British emergency powers to imprison without trial.

Clearly Blunkett is emphasising the need to preempt suicide bombers to deal with them effectively. This can already be done under existing legislation. Consider that under the Terrorism Act the following all apply:

  • It is an offence, punishable by 10 years in prison, simply to be a member of a proscribed organisation.
  • It is an offence, punishable by 10 years in prison, to provide support (financial or otherwise) for, further the activities of, or claim to be a supporter or member of a proscribed organisation (e.g. al qaeda).
  • It is an offence, punishable by 10 years in prison, to arrange meetings in support of a proscribed organisation
  • Police can arrest someone, without a warrant, simply on suspicion of being a terrorist.
  • People arrested on suspicion of being a terrorist can be held without charge, originally for upto 1 week but recently this has been extended to 2 weeks (see comment on this article from spy.org.uk).
  • It is an offence, punishable by 10 years in prison, to possess something in circumstances where the police suspect you possess it for a purpose connected to instigating, committing or planning acts of terrorism.
  • It is an offence, punishable by 10 years in prison, to possess or record information in circumstances where the police suspect you possess it/recorded it, for a purpose connected to instigating committing or planning acts of terrorism.
  • It is an offence, punishable by life imprisonment, to direct, at any level, the activities of a terrorist organisation.

It is also illegal to possess firearms, explosives and various other materials without licences under other laws.

Clearly there is plenty of scope for arresting and detaining for upto 1 week, anyone the authorities have the slightest suspicion of.

Then, if you can’t get them for actually carrying out a terrorist attack, you can get them for:

  • membership of a proscribed organisation
  • ,

  • providing funds to terrorists
  • ,

  • possessing information or equipment that can be used to carry out acts of terrorism
  • ,

  • weapons training
  • ,

  • or for directing any of the activities of any organisation concerned with committing acts of terrorism(the organisation does not need to be proscribed)
  • .

Someone planning to become suicide bomber is likely to commit more than one of the above offences before setting out to execute the bombing. He will have had to get materials and equipment from others, who can also be targeted. What happens once the suspect is in custody and/or taken before a court is irrelevant to preemptively stopping the attack occurring. These are only relevant to whether a would be bomber might be set free to try again. Good intelligence and a solid investigation are the best defences here. A solid investigation will the best means of ensuring a suspected terrorist can be convicted, if not of attempting/carrying out an attack, then of one of the myriad offences above.

And even if this fails, a suspect who is prevented from an attack, and then released, can be kept under surveillance and hauled in again at a moment’s notice under existing legislation.

Thus there is plenty of scope to stop suicide bombers, using preemptive action already available under Britain’s anti-terrorist legislation. About the only thing one might wish to add would be a specific offence of planning terrorist activities.

The key to preventive action is good intelligence and solid investigation of any terrorist events that do occur. The problem here is that Blunkett’s proposals may undermine the latter.

If you lower the burden of proof, you reduce the need/incentive for a solid investigation to convict someone. Thus investigators will decide to move to prosecution earlier in their investigations than they do now. This increases the likelihood of getting the wrong person and letting the real perpetrators go free.

If you allow evidence to be kept from the defence/defendant, you effectively lower the burden of proof and allow defendants to be stitched up very easily, and again increase the risk of letting real terrorists go free.

Blunkett’s proposals, are not merely an offence to the rule of law, they are the abandonment of the rule of law. With secret trials, security vetted judges and counsel, evidence kept from the defendant and a low burden of proof, no-one would be safe from a government (or merely some govt officials) who wanted them out of the way. They are also completely unnecessary for dealing with suicide bombers.

The powers we already have for arresting/detaining suspected terrorists, and the offences they can then be charged with are sufficient, given accurate intelligence and the will to use them when necessary.

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Courts approve use of Terrorism Act against peaceful protestors

Back when the Terrorism Act 2000 was merely a bill, Jack Straw, the Home Secretary at the time, reassured us that “There is nothing in the bill that will interfere in the right of people to protest peacefully, “ and “The legislation is not intended to deal with alleged offences properly dealt with under the existing criminal law. Neither will it in any way curb individuals’ democratic rights to protest peacefully.”

So of course it came as a complete surprise (NOT) when the Terrorism Act 2000 was used against peaceful protestors in London. Still given Straw’s reassurances and the fact the current Home Secretary David Blunkett does not control the police directly, it might seem only fair to wait for the outcome of the legal challenge. Well the courts have upheld the use of the Terrorism Act in these circumstances. So much for the reassurances given by Straw when it was a bill. It is worth remembering why he gave the reassurances. It’s all down to the definition of terrorism, which states:

1. – (1) In this Act “terrorism” means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate
the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section-
(a) “action” includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

Clearly, this definition covers acts of mere civil disobedience, or even threats thereof. It seems clear to me the police could argue that any demonstration involves a threat of “terrorism” so defined, since some of the protestors might try to damage property or threaten to do so through civil disobedience. Once the police get approval to stop and search on this basis, they have the power to search anyone for articles that might be used for “terrorism”, e.g. anything that could be used to damage property, or for disrupting an electronic system — a faxable document for example, mass faxing being a way of disrupting a fax machine which is an electronic system.

The irony is that the trading of arms is far more likely to have involved real terrorists or the risk of such arms falling into their hands than the protests against the trading of arms going on outside the fair.

The moral of the story is that govt assurances that legislation is not intended to be used in certain situations are worthless when the legislation explicitly allows such usage. Bear in mind the above definition of terrorism, and look over the offences in the Terrorism Act 2000 and ask yourself how easy it would be to arrest perfectly innocent people as “suspected terrorists”. A more detailed article on the Terrrorism Act can be found here.

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