Taking Liberties

The attack on the World Trade Center has pushed the Government into drafting stronger anti-terrorist laws. Jon Robins talks to the lawyers who argue that new legislation will harm civil liberties more than it hinders terrorists

No one is seriously suggesting that compulsory identification (ID) cards would prevent the kind of atrocities that took place in New York and Washington DC. Nevertheless, it seems likely that they will feature among the raft of measures that ministers will promote in emergency bills currently being drafted. “The Government has to be seen to be doing something, but not one of these measures would have stopped the situation in New York or anywhere else,” claims John Wadham, the solicitor director of civil liberties pressure group Liberty.
So far, the initiatives that have been mooted include a new fast-track extradition system, greater powers to spy on emails and scrapping the appeal rights of asylum seekers who have been refused entry into the country. “If there was one proposal that could have changed that, and if it were contrary to civil liberties, we'd have to debate it and think seriously about it,” continues Wadham. But he sees “little connection” between what happened in the US and the anti-terror measures being propounded on this side of the Atlantic.
These are anxious times for everyone – not least the civil liberties lobby, which fears that hard-won freedoms could be lost overnight. Almost a year ago to the day, the Government delivered on its pledge to “bring rights home” with the introduction of the Human Rights Act 1998; however, after the events of 11 September, the world looks a very different place.
Home Secretary David Blunkett went so far as to announce that the Government might seek an “accommodation” with the new legislation to prevent terrorists “doing away with the most basic freedoms of all – the freedom from insecurity, from fear, and of course the taking of life”.
Civil liberties lawyers are urging the Government to think carefully before introducing emergency laws. “The problem with legislating after horrific acts is that it leads to poor legislation because there's a panic to do something,” says Sadiq Khan, a partner at civil liberties firm Christian Fisher and the chair of Liberty.
Once a law is on the statute book, it is almost impossible to change it, argues Khan. He points out that there is an undistinguished track record of recent governments legislating in haste and repenting at leisure, from last year's Football (Disorder) Act to the Dangerous Dogs Act, and more pertinently, the anti-terrorism legislation.
The Prevention of Terrorism Act was introduced in the wake of the bombing of two pubs in Birmingham in 1974, claiming the lives of 21 people. When the act was passed, it was intended as a temporary measure to last for only six months. Last year, however, after almost three decades, the legislation was made permanent in the Terrorism Act 2000, which was introduced in the aftermath of the Omagh bomb.

“The problem with legislating after horrific acts is that it leads to poor legislation because there's a panic to do something”
Sadiq Khan, Christian Fisher and Liberty

As Wadham points out, among the first people arrested under the original legislation were the Guildford Four and the Birmingham Six. He says that, over the years, thousands of Irish people have been detained under its provisions “for no good reason”, with “99 per cent” released and “virtually none” of the remainder having been charged in connection with terrorist offences.
“The evidence of our terrorism measures is that they've contributed to the problem but they haven't solved it,” argues Wadham. “There's no reason to believe that measures to take away our rights which are rushed through are going to be any better at preventing terrorism, and they'll certainly be damaging to our rights.”
Gareth Peirce, a partner at Birnberg Peirce & Co with a long history of representing alleged terrorists (including the Guildford Four), is incredulous at the Government's decision to introduce more anti-terrorist legislation. What, she asks, could they possibly have left out of the Terrorism Act? It is expected that a new law would give police the power to arrest those believed to have the knowledge of terrorism for the purpose of questioning?
Peirce believes that terrorist offences should be dealt with under criminal legislation and argues that anti-terror measures only served to make a bad situation worse in Northern Ireland.
“Adding the 'terrorist' label doesn't actually cause the alleged substantive offence to be any different,” she contends. “But what did happen in the process was that the means of obtaining information came to be repeatedly misused so the whole community became suspect in the process.” She claims, for example, that “tens of thousands” of innocent Irish people were stopped every year at points of entry into England.
She believes that the legislation caused “intense fear” to many people. “It's very hard to see, however much sabre-rattling goes on, that producing more legislation is going to improve the ability of the authorities to investigate what are crimes,” she adds.
Many critics objected to what they saw as the overly broad definition of 'terrorism' offered by the 2000 act. Under that legislation, terrorism is “the use or threat of action” designed to “influence the Government or intimidate the public… for the purpose of advancing a political, religious or ideological cause”. According to Peirce, such a definition “sanctifies any government, no matter what regime it is, anywhere in the world”; and at the same time it “criminalises” legitimate groups resisting oppressive governments.

“There is already a xenophobic attitude towards asylum seekers in the UK, and the recent events will simply serve to heighten those feelings”
Tauhid Pasha, JCWI

In March this year, Jack Straw, as Home Secretary, banned 21 groups which he claimed were “concerned in terrorism” under new powers. Of this number, 16 were essentially Muslim groups, including Osama bin Laden's Al-Qaida. Wadham offers an illustration of the powers already at the disposal of the security forces. He reckons that it would be a criminal offence, punishable by 10 years in prison, for Liberty to host a conference on 'civil liberties and terrorism' and ask a member from one of these groups to speak. “Has that anything to do whatsoever with what happened in New York?” he asks. “I can't see the connection personally.”
According to Peirce, the majority of prescribed groups came from movements such as the Kurdish Workers' Party (PKK), which has a large following in the UK, or the Tamil Tigers. “They are not in any way what the man on the street might think of if he was being told that this was a move against 'terrorists',” she says.
Tauhid Pasha, legal, policy and information director at the Joint Council for the Welfare of Immigrants (JCWI), fears how new legislation might affect the already nervous Muslim community in the UK.
The introduction of ID cards, he says, are “simply an encroachment on someone's civil liberties. It's going to be an excuse to stop and search people who are not white. It will take discrimination to a new level, and people, both those settled in the UK as well as those whose immigration status isn't clear, will be targeted.” One thing that it will not do, he argues, is reduce a terrorist threat.
Within days of the assault on the US, David Blunkett announced yet more initiatives to tighten immigration controls. Measures include thermal imaging equipment, acoustic listening devices, X-ray scanners and CCTV cameras, all of which are to be introduced at the Channel Tunnel and at the Dover terminal.
Introducing the security checks, Blunkett described the problem of illegal immigrants as “a global issue of international mobility” which could be “accelerated” by this month's horrors.
It is a choice of emphasis that worries Pasha. He says that, instead of “realising and acknowledging the humanitarian crisis”, the Home Secretary has labelled it as a problem to be dealt with by a clampdown. “There is already a xenophobic attitude towards asylum seekers in the UK, and the recent events will simply serve to heighten those feelings,” he says. “We should remember that many [asylum seekers] are already fleeing the repressive Taliban regime rather than supporting it.”
Between 400 and 900 Afghan refugees apply for asylum every month, making them by far the biggest national group seeking asylum status; and as Pasha points out, refugees die every week trying to get into the country.
Since the devastating attacks on 11 September, ministers have propounded new recommendations for anti-terror measures on an almost daily basis, including fighting terrorist activity in cyberspace. It has been suggested that new powers to monitor emails will be introduced as well as a Government-led initiative for a new EU-wide law to force internet service providers and telephone companies to retain all phone, fax, email and internet records in case they are needed for criminal investigation.
Yaman Akdeniz, director of the Cyber-Rights & Cyber-Liberties organisation, sees no need for a strengthening of powers. He points to last year's Regulation of Investi-gatory Powers (RIP) Act, which came into force after fierce resistance from a coalition of human rights groups, computer techies and net users. Critics see the RIP Act, which has yet to be enacted fully, as threatening the right to privacy in cyberspace. It enables the police and MI5 to collect internet data without a warrant, pick up emails of people suspected of serious crimes with a warrant, and grants unprecedented powers to demand encryption tools used to scramble data.
But Akdeniz is not convinced that the powers available in the legislation would have helped to prevent this month's tragedy. After the attacks, the FBI's wiretapping system Carnivore was implemented in the hunt for clues. According to reports, Carnivore can scan millions of emails a second, and the mass trawling system provoked a fierce debate over right to privacy in the US Congress when the FBI sought the right to tap all messages.
Akdeniz fears that such systems could be used increasingly as a response to a new terrorist threat. “Some of these powers might be necessary in a democratic society, but at the end of the day, not every single citizen is a terrorist, so we shouldn't all be faced with suspicion,” he says. “I'm not even sure how such measures would prevent such terrible crimes happening.”
The war on terrorism is also expected to be taken to the banks, and the Government has pledged to introduce new powers to allow terrorists' assets to be frozen and evidence gathered right across Europe. There have already been signs of a tougher new regime when Barclays agreed to freeze an account in Notting Hill which was suspected of being used as a channel for terrorist funds.
Once again, the Government has only just published new legislation – in this case the Proceeds of Crime Bill – to toughen up the regime. The Government is thinking of revising the legislation in light of recent events.
The bill toughens up the law by bringing non-drugs related offences, including terrorist offences, into line with the harsher regime for drugs offences. Courts will be required to look at spending patterns of suspects over the last six years, and there is a new 'negligence' threshold, making it an offence if there are reasonable grounds for bankers to suspect that someone is money laundering as opposed to the 'actual suspicion' which is required now.
“Altogether, the package is about as draconian as you could possibly imagine,” says Adam Cowell, a partner in Irwin Mitchell's business crime unit and secretary of the International Criminal Law Association. “Whenever a serious event like this occurs, the Government wants to be seen to be doing something, but I suspect that in many instances the powers that they have are already sufficient.”
It is a point that civil libertarians echo. As Khan at Liberty points out, there are more CCTV cameras on UK streets than anywhere else in the world, tighter airline security than in the US and permanent terrorist laws already in place. So do we really need more legislation?
“This language of war leads to poor legislation,” Khan says, “and that could affect generations of people to come.”

Anti-terror legislation – what's being talked about?
Following the events of 11 September, a Government spokesman said: “Although we had some of the toughest anti-terrorism laws anywhere in the world, it was clear there was still more we could do.” He continued that it was “likely to mean the introduction of separate primary legislation in the coming session”. Existing bills currently going through Parliament could be used as vehicles for making changes, and the Proceeds of Crime Bill was cited as an example. It was claimed that the bill could be used to tackle some of the money laundering aspects of terrorism financing. In terms of identification (ID) cards, the Home Secretary David Blunkett has said that it is important for this to be considered “in a cool, measured way”. He has acknowledged that there might be “tensions” between the human rights legislation and “the necessary protection of citizens”.

Euro moves
Following a meeting between European justice and home affairs ministers, a package of measures to step up European law enforcement action against global terrorism was agreed. The measures included:

Fast-track extradition backed by an EU arrest warrant to allow the rapid surrender of fugitives.

Plans to allow terrorists' assets to be frozen and evidence gathered right across Europe.

Work on common penalties and definitions of terrorism throughout the EU, which will allow further policy to be developed.

To set up a group of counter-terrorism specialists within Europol.

Action to remove safe havens for terrorist cash through the rapid ratification of the International Convention for the Suppression of Terrorist Financing.

Greater power for Europol to cooperate with US law enforcement authorities, including the exchange of information and personnel.

Urgent consideration of what further action may be necessary, given the potential increased movement of people across the borders from Afghanistan into Pakistan and other areas of the region.