Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past [Hardcover ed.] 1107029694, 9781107029699

Table of contents :
Cover......Page 1
Contents......Page 9
List of figures......Page 11
Acknowledgements......Page 13
Introduction......Page 17
Debating explanations of counterterrorism......Page 23
1 Terrorist campaigns and threat perceptions......Page 31
French and British experiences of terrorism......Page 32
Evolution, ideology and motives......Page 37
Islamist terrorism against France and Britain......Page 41
Comparing the threats......Page 54
Threat perceptions......Page 59
The concept of threat perception......Page 60
British and French perceptions of Islamist terrorism......Page 63
2 Legacies of history: norms, institutions and routines......Page 67
Societal norms......Page 68
Norms and historical experiences: from Paris 1789 to Belfast 1969......Page 71
Institutions......Page 80
State institutions in Britain and France......Page 82
Organisational routines......Page 86
Routines of the British and French counterterrorist agencies......Page 89
Combining constructivist, institutional and organisation theories......Page 91
3 Co-ordinating counterterrorism: intelligence, police and prosecution......Page 93
British government co-ordination and the CONTEST strategy......Page 94
French government co-ordination and the Livre Blanc ‘strategy’......Page 100
Limited government reform and the secondary role of strategy papers......Page 104
The agency level – why co-ordination is important......Page 105
Why formal co-ordination has little impact......Page 108
The agencies’ informal organisational routines......Page 116
Integrating inter-institutional conventions: magistrates and police......Page 120
An informal shift to intelligence service primacy......Page 124
Bridging the judicial-intelligence divide......Page 129
Why 9/11 had few implications for the French system......Page 134
Sarkozy’s reforms and their limitations......Page 137
The fuelling of inter-agency competition......Page 140
Organisational and institutional context......Page 145
Formal organisational routines: intelligence and law enforcement......Page 146
Separating inter-institutional conventions: security vs justice?......Page 152
Hesitancy in linking intelligence and police to prosecution and justice......Page 157
Intelligence and police strengthen their co-operation......Page 164
Counterterrorism capability and regional expansion......Page 170
Change in the analysis and dissemination of terrorism intelligence......Page 179
Explaining France and the UK’s divergent counterterrorist reforms......Page 184
4 Justice for suspected terrorists?......Page 192
Pre-trial process: the charging and detention of terrorist suspects......Page 194
Judgment procedures: ordinary trials and special terrorism courts......Page 204
Terrorist offences: ‘casting the net’......Page 214
Reforming terrorism legislation after 9/11......Page 224
Reinforcing the preventive logic of terrorist offences......Page 225
British reforms to the detention and judgment of terrorist suspects......Page 227
Administrative detention and a special court......Page 228
Control orders and ‘TPIMs’......Page 231
Deportations......Page 235
Permanent special procedures rejected; ordinary courts develop......Page 239
Pre-charge detention: from ninety to fourteen days......Page 242
Counterterrorist powers and their application......Page 248
Explaining divergent and self-reinforcing legal responses to terrorism......Page 250
5 Operations: tackling Islamist terrorism and its supporters......Page 260
1995–2001: ‘Londonistan’......Page 261
A major expansion of intelligence and arrest operations......Page 267
Threat perceptions and norm competition......Page 276
From a restrained to a more invasive approach......Page 281
Britain and the Islamists: explaining a gradual and partial change......Page 291
Extensive suppression at home; covert operations abroad......Page 298
Threat perceptions and a normative consensus......Page 308
Zero tolerance of supporters of Islamist terrorism......Page 317
Threat perceptions and norms: explaining counterterrorist operations......Page 326
Conclusion......Page 332
Appendix: list of interviews......Page 345
Index......Page 349

Citation preview

more information – www.cambridge.org/9781107029699

Countering Terrorism in Britain and France

Though Britain and France have faced a similar threat from Islamist terrorism in the years following September 11, 2001, they have often responded in different ways to the challenges it posed. This groundbreaking work offers the first in-depth comparative analysis of counterterrorist policies and operations in these two leading liberal democracies. Challenging the widely held view that the nature of a state’s counterterrorist policies depends on the threat it is facing, Foley suggests that such an argument fails to explain why France has mounted more invasive police and intelligence operations against Islamist terrorism than Britain and created a more draconian anti-terrorist legal regime. Drawing on institutional and constructivist theories, he develops a novel theoretical framework that puts counterterrorism in its organisational, institutional and broader societal context. With particular appeal to students and specialists of International Relations and Security Studies, this book will engage readers in the central debates surrounding anti-terrorist policy. Frank Foley is a García Pelayo Research Fellow at the Centre for Political and Constitutional Studies in Madrid and a Visiting Research Fellow in the Department of War Studies at King’s College London. He has also been a postdoctoral fellow at the Department of War Studies and at Stanford University’s Center for International Security and Co-operation. Dr Foley has conducted field research on counterterrorist agencies and policies in Britain, France and the United States and in 2010 he received a ‘Terrorism Research Award’ from the US National Consortium for the Study of Terrorism and Responses to Terrorism. He has presented his research to security practitioners, including British and French counterterrorist officials and Department of Defense staff at the Pentagon in Washington DC.

Countering Terrorism in Britain and France Institutions, Norms and the Shadow of the Past Frank Foley

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107029699 © Frank Foley 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. Printed and bound in the United Kingdom by the MPG Books Group A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Foley, Frank, 1978– Countering terrorism in Britain and France: institutions, norms, and the shadow of the past / Frank Foley. p. cm. ISBN 978-1-107-02969-9 1. Terrorism – Great Britain – Prevention. 2. National security – Great Britain. 3. Terrorism – France – Prevention. 4. National security – France. I. Title. HV6433.G7F65 2013 363.3250 160941–dc23 2012029959 ISBN 978-1-107-02969-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Dedicated to my Mother and Father

Contents

List of figures Acknowledgements Introduction 1

2

Terrorist campaigns and threat perceptions

1 15

French and British experiences of terrorism Islamist terrorism and the threats to France and Britain Evolution, ideology and motives Islamist terrorism against France and Britain Comparing the threats Threat perceptions The concept of threat perception British and French perceptions of Islamist terrorism

16 21 21 25 38 43 44 47

Legacies of history: norms, institutions and routines

51

Societal norms Norms and historical experiences: from Paris 1789 to Belfast 1969 Institutions State institutions in Britain and France Organisational routines Routines of the British and French counterterrorist agencies Combining constructivist, institutional and organisation theories

3

page ix xi

Co-ordinating counterterrorism: intelligence, police and prosecution The government level – policy and co-ordination British government co-ordination and the CONTEST strategy French government co-ordination and the Livre Blanc ‘strategy’ Limited government reform and the secondary role of strategy papers The agency level – why co-ordination is important

52 55 64 66 70 73 75

77 78 78 84 88 89 vii

viii

Contents The French approach to co-ordinating counterterrorist agencies Organisational and institutional context Reforms to the co-ordination of French counterterrorist agencies The British approach to co-ordinating counterterrorist agencies Organisational and institutional context Reforms to the co-ordination of British counterterrorist agencies Explaining France and the UK’s divergent counterterrorist reforms

4

5

Justice for suspected terrorists?

92 92 108 129 129 141 168

176

The contrasting legislative frameworks of France and the UK Pre-trial process: the charging and detention of terrorist suspects Judgment procedures: ordinary trials and special terrorism courts Terrorist offences: ‘casting the net’ Reforming terrorism legislation after 9/11 Reinforcing the preventive logic of terrorist offences British reforms to the detention and judgment of terrorist suspects The evolution of British and French counterterrorist justice Counterterrorist powers and their application Explaining divergent and self-reinforcing legal responses to terrorism

178

Operations: tackling Islamist terrorism and its supporters

244

British counterterrorist operations: strategy and community 1995–2001: ‘Londonistan’ Post-9/11 (I): targeting operational terrorists Post-9/11 (II): gradually tackling supporters of Islamist terrorism French counterterrorist operations: an invasive campaign The fight against operational terrorists Zero tolerance of supporters of Islamist terrorism Threat perceptions and norms: explaining counterterrorist operations

245 245 251

178 188 198 208 209 211 232 232 234

265 282 282 301 310

Conclusion

316

Appendix: list of interviews Index

329 333

List of figures

1. The formation of counterterrorist (CT) policy and practice 2. Counterterrorist organisational routines 3. Agency roles in countering Islamist terrorism

page 7 74 170

ix

Acknowledgements

This work began life as a doctoral thesis at the European University Institute in Florence, Italy, in late 2004. I would like to thank my supervisor at the EUI, Pascal Vennesson, for offering prescient advice throughout while still giving me the space to develop my own ideas. As a supervisor of studies, his openness, integrity and support were second to none. In 2008–9, I started converting the thesis into a book while working at Stanford University’s Center for International Security and Co-operation (CISAC). Since then, the project has benefited immensely from the critical comments of Martha Crenshaw. Martha’s work has long provided a point of reference for the analytical study of terrorism and counterterrorism, and without it, the rest of us would have had to struggle a lot more to find our way. Lynn Eden, also of CISAC, subjected sections of this text to the closest (and most devastating) reading I have ever received. She also taught me a great deal about how arguments and ideas should be presented in a book. Theo Farrell has offered valuable feedback since the early stages of this project and provided unstinting support for my career, notably during 2010 when I was a research fellow at King’s College London. I am indebted to these scholars and I hope that the final product goes some of the way towards making their efforts worthwhile. CISAC also organised a book panel, at which Lynn and Martha were joined by Tom Fingar, David Holloway and Allen Weiner. I am grateful to Allen, David and Tom for their ideas and insightful comments. Particular thanks are also due to Richard Aldrich, Jacqueline Hodgson and Michael Kenney, who have offered generous feedback and encouragement in relation to this work. Other scholars also offered valuable comments on various versions of the project and suggested useful leads. In this regard, I would like to thank, at the EUI, Javier Alcalde, Xiana Barros-Garcia, Donatella Della Porta, Joerg Friedrichs, Friedrich Kratochwil, the late Peter Mair, Tim Peace, Sven Steinmo; and at Stanford, Brent Durbin, James March, Charles Perrow, Richard Scott and Paul Stockton. While working at King’s College London in the Department of War Studies, I benefited from the feedback and ideas of several colleagues, including xi

xii

Acknowledgements

Rudra Chaudhuri, Michael Clarke, Claudia Hillebrand, Mike Rainsborough and Brooke Rogers. Thanks also to John Bew and Peter Neumann, who gave me access to their excellent research and policy networks at the International Centre for the Study of Radicalisation and Political Violence (ICSR) and who organised a rewarding seminar on the book in late 2010. I am grateful to my colleagues at the Centre for Political and Constitutional Studies (CEPC) in Madrid, with special thanks to Arthur Dyevre, Lasse Thomassen and Simon Toubeau for their helpful comments on sections of this work. I have long benefited from my association with the Juan March Institute in Madrid, for which I thank in particular Ignacio Sánchez-Cuenca, Andrew Richards, Luis de la Calle, Paz Fernández and Gema Sánchez Delgado. Sections of the book have been presented at several research centres and conferences; I appreciate the valuable feedback offered in this context by Marcus Becker, Sergio Catignani, Carlos Closa, Joseph Helman, Thorbjorn Knudsen, Sarah Leonard, the late Fred Halliday, Francisco Herreros, Peter Katzenstein, Elizabeth Kier, Diego Muro, Robert Pape and David Patel. The project has also benefited from the comments of Ronald Crelinsten, Robert Lambert, Sir David Omand, the late Paul Wilkinson and Karin Von Hippel. In addition, I thank my editors at Cambridge University Press, John Haslam and Carrie Parkinson, for guiding me through the process with patience and care. I am grateful to Cambridge’s reviewers (especially reader ‘A’) for their full engagement with the work and valuable feedback. The book could not have been written without the financial support of the Irish Government, the European University Institute, the Zukerman fellowship program at Stanford University, the START terrorism studies’ consortium, the AXA Research Fund and the Garcia Pelayo programme at the CEPC in Madrid. I have been fortunate to be able to devote time to research and writing and I am grateful to these institutions for enabling me to do so. A great deal of thanks goes to the counterterrorist and other practitioners who agreed to be interviewed for this project. They were generous with their time and their testimony is fundamental to this book. I would also like to acknowledge the help of journalists from the Presse Judiciaire in Paris, who gave me access to valuable primary sources and an extensive archive of legal reporting. Some of the ideas and material in this book have developed out of earlier work I did on three articles: ‘Reforming Counterterrorism: Institutions and Organizational Routines in Britain and France’, Security Studies Vol. 18, No. 3 (2009) published by Taylor & Francis; ‘The Expansion of Intelligence Agency Mandates: British Counterterrorism in Comparative Perspective’, Review of International Studies Vol. 35, No. 4 (2009) published

Acknowledgements

xiii

by Cambridge University Press; and ‘Constraining British Legal Responses to Terrorism: Norm Competition and the Prospects for Liberal Democracy’, European Journal on Criminal Research and Policy Vol. 18, No. 4 (2012) published by Springer. I thank the editors and publishers of these journals for providing permission for me to revisit some of my earlier work in the ensuing text. On a personal note, I am indebted to those who encouraged me in my early studies and research including, in Cork, Jim Costello, Andrew Cottey, Dermot Keogh, Hiram Morgan, and Geoff Roberts; in Cambridge, Cole Harrop and Richard Rex; and in Derry, Gillian Robinson. I am also grateful to Harcharan Chandhoke, Ben Jones, Paul Morrison and Karl White for their friendship and hospitality in London over the last number of years, as well as to Pat Comerford for his advice and support. In Madrid, Amparo de la Torre and Jesus Orozco have always shown great kindness to myself and a certain other researcher. I am very grateful for the support of my family. My mother Kathleen has been ever-present, offering me love and encouragement all the way. My father Con has always supported me and has, I hope, passed on his thorough work ethic to me. My sisters, Eileen and Catherine, inspire and back me up even as they make fun of the peculiarities of their brother. My grandmother, Nan (1913–2011), was a loving, driving force in my life and that of many others. Within a few weeks of starting this project in October 2004, I met somebody special who has accompanied me on the journey ever since. Apart from making comments on the book, which have helped to bring clarity, her wholehearted support for the work and her understanding of its author have eased the path. For this and for Olivia’s presence throughout these years, I am immensely grateful. FRANK FOLEY

Madrid 11 April 2012

Introduction

In the aftermath of the September 11 attacks on America, governments across Europe declared their unity in the face of Al-Qaeda. Yet Jean-Louis Bruguière, the leading French counterterrorist investigator, was not feeling much solidarity with his British counterparts. The UK government and security agencies were allowing a senior radical cleric, Abu Qatada, to roam free in London. Although Qatada was suspected of being at the centre of Al-Qaeda recruiting in the UK, he was not arrested in the months after 9/11. In late 2001, Qatada disappeared, and Bruguière declared his frustration: ‘I can say that if he was in France, he would already have been arrested in this business. This was not the case because he was in Britain, and Britain apparently permits this sort of activity.’1 Reflecting on this criticism some years later, a senior British government counterterrorism official conceded that the French authorities were right to take action against radical preachers and that they had done so earlier than the British. Yet many aspects of the French approach would not be appropriate for the UK, he added: ‘The [British] security services are actually law-abiding organisations. They – unlike the French, I suspect – would not disrupt through harassment.’2 This episode forms part of a broader pattern. When faced with similar threats, Britain and France have often responded differently. It is not immediately clear why this should be the case. The two countries are both western European liberal democracies and members of the European Union with broadly comparable police, intelligence and military resources at their disposal. As this book will show, both states face threats from Islamist terrorism, which are similar in key respects. Furthermore, policymakers in the UK and France share a perception that their countries are ‘designated target[s] at the heart of a Europe under threat’, facing an 1 2

Quoted in Canadian Broadcasting Corporation, ‘The Recruiters’, broadcast 9 June 2002. Interview with a former senior UK government official [UK-A], London, 4 November 2005.

1

2

Introduction

enemy that is ‘intent on inflicting mass casualties without warning’.3 While this similar threat perception has led Britain and France to converge in some respects, such as their increasing emphasis on preventive counterterrorism, the two states have continued to display significant differences in their responses to transnational jihad; particularly in their anti-terrorist legal regimes, their police and intelligence operations against militant networks, and their co-ordination and reform of counterterrorist agencies. What explains these differences in approach? In this book, I argue that distinctive norms, institutions and organisational routines, which were formed in the past in France and the UK, continue to cast an influential shadow over the development of counterterrorism in the two countries, leading them to make divergent responses to a similar threat. Only the narrow English Channel physically separates Britain and France, but on key areas of counterterrorism, they have often been poles apart. Take, for example, the co-ordination and reform of counterterrorist agencies, which is the first area of policy and practice considered in this book. While the UK’s main security agencies have worked closely together to fight terrorism, France’s police and intelligence services have been divided over who should take the lead against the threat. On the other hand, France has brought intelligence agencies and judicial actors far closer together for terrorism cases than would ever be possible in the UK. These differences in inter-service co-operation have significant consequences. Police and intelligence agencies need to co-ordinate their activities and share information in order to uncover and prevent potential terrorist attacks. The connection between intelligence and justice is crucial for the authorities’ ability to convict and imprison terrorist suspects, although an overly close relationship between these two domains can undermine civil liberties. Britain and France’s different choices in these areas have important implications for national security and for society. No less significant are the differences between the two countries’ legal regimes for the detention and trial of terrorist suspects, which is the second area examined in this book. While both states emphasise a criminal justice response to terrorism, they implement it in very different ways. Britain has mainly used its ordinary courts to deal with suspected Al-Qaeda terrorists, but the government also added controversial new powers to its legal toolkit, such as control orders, which allowed the authorities to exercise extensive

3

French Government, Prevailing Against Terrorism: White Paper of the Government on internal security in the face of terrorism (Paris: Documentation Française, 2006), Official English translation, pp. 32–3; HM Government, Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism, Cm 7547 (London: TSO, March 2009), p. 6.

Introduction

3

control over terrorist suspects without bringing them to trial. The introduction of such powers, which stand outside normal judicial procedures, has been highly contested in the UK and has given rise to repeated and sometimes inconsistent reforms of anti-terrorist legislation. On the whole, the trend has been for the British government to take on flexible powers for itself, but to be considerably restrained in its use of these powers. By contrast, France’s legal response to terrorism has been consistent and has not required constant reform. The French authorities have relied on special courts and exceptional counterterrorism procedures within their judicial system. The centrepiece of their legal response to terrorism is a group of investigating magistrates – a type of judge of which there is no equivalent in the English legal system. Such magistrates direct law enforcement investigations into terrorism, thus bringing together elements of the judicial and the executive arms of the state. Overall, as will be outlined below, the French authorities have been more draconian in their application of flexible anti-terrorism powers than the British. France and the UK have also shown significant differences in their approaches to counterterrorist operations, which is the third area examined in this study. During the 1990s, the contrast was particularly stark. While France cracked down on militant Islamist networks that had repeatedly attacked it, the UK did not feel threatened by the Islamist radicals on its soil. The British police and intelligence services monitored these activists but essentially gave them free rein to promote and fund terrorist campaigns in other countries. When the Al-Qaeda threat to the UK rose in the years after the September 11 attacks, the British security agencies began to mount extensive and forceful arrest operations against suspected terrorists. These actions signalled a degree of convergence with the French approach, but significant differences remained. The French security agencies have always been prepared to carry out indiscriminate raids in Islamist circles, arresting as many as 160 people in one fell swoop. The British police, on the other hand, have been more targeted in their arrest operations. Moreover, while France has consistently taken a zero tolerance approach against supporters of Islamist terrorism, the British authorities continued to show considerable restraint, even after 9/11. The use of London’s Finsbury Park mosque for some years as a major meeting point for extremists was tolerated until 2003, while a number of militant recruiters and preachers went unchallenged until 2004 or in some cases 2007.4 4

On the Finsbury Park mosque, see the comments by a former senior police officer, Peter Clarke, below p. 268 and Sean O’ Neill and Daniel McGrory, The Suicide Factory: Abu Hamza and the Finsbury Park Mosque (London: Harper Collins, 2006), pp. xxi-xxii, 66–94, 221–9.

4

Introduction

The different paths taken by Britain and France in their legal and operational responses to terrorism have important consequences. If the state does not take sufficiently robust action, it can leave society overly vulnerable to terrorist attacks. Yet excessively draconian measures may have even more pernicious effects, diminishing the legitimacy of the state in the eyes of its citizens and feeding the alienation that can lead to more terrorism in years to come. British and French responses to this dilemma have implications not only for European security but also for the domestic security of the United States. Britain, France and other western European countries are a major source of homegrown Islamist terrorism, a target of attacks and a base for terrorist operations against the American homeland.5 With western Europe becoming a key battleground for Al-Qaeda-inspired terrorists, there has been a keen interest on both sides of the Atlantic in how European states respond to the dilemmas posed by this threat.6 This book compares British and French counterterrorism from 1995 to 2011, a period in which they first faced different and then similar levels of threat from Islamist terrorists. For several years prior to 9/11, France faced a threat from an Algerian terrorist group, Le Groupe Islamique Armé. In 1995 and 1996, this group and its sympathisers carried out a series of attacks in France, killing fourteen people and wounding over 230. As the activities of Algerian militants were supplemented by a growth in transnational terrorist networks in the following years, France undoubtedly faced a greater threat from Islamist terrorists than did Britain and other European countries during the 1990s. This greater threat level was an important reason why France was more active against Islamist terrorism than Britain and other Europeans between 1995 and 2001. However, the threat level was never the only factor influencing French and British counterterrorism. This became clearer after September 11, 2001 when the overall level of threat posed by Islamist terrorism to the two countries began to converge. While jihadist groups continued to threaten France, Islamist-inspired terrorists now expanded their attack planning against the UK as well. One of their plots finally succeeded in July 2005 when a British-based cell with ties to militant camps in Pakistan launched suicide attacks on London, killing fifty-two people and injuring more than 700. Overall, in the years since 9/11, France and Britain have faced a similar type and level of threat from Islamist terrorism. French and British decision-makers’ perceptions of the threat have also been similar in key respects, such as their common view of the terrorists’ capabilities and 5 6

Oliver Roy, ‘Europe’s response to radical Islam’, Current History 104 (November 2005), 360. For a discussion of the keen US interest in this, see below, the Conclusion.

Introduction

5

unrestrained intent to cause mass casualties. This similar threat perception has led the two states to converge in some ways, notably by reinforcing the preventive nature of their anti-terrorist legal regimes and by arresting large numbers of suspected Islamist terrorists. As outlined above, however, significant differences have remained between Britain’s and France’s approaches to inter-agency co-ordination and reform, antiterrorist legislation, and operations. Given that they have been facing a similar threat from Islamist terrorism and have perceived it similarly, why have France and the UK continued to display substantial differences in their responses to that threat? To answer this question, I focus on the influence of historical legacies that operate at three distinct, but related, levels. At the level of society or the political community, norms concerning security and liberty have a strong influence on national responses to terrorism. At the level of the high institutions of state, there are certain inter-institutional conventions governing relations between the judiciary and the government, which also play an important role. Finally, at the level of professional security agencies, the organisational routines of police and intelligence services have a considerable impact on responses to terrorism. The character of these norms, institutions and routines differs significantly between Britain and France, leading these two neighbouring European states to take divergent approaches to key aspects of counterterrorism. Considering the role of domestic norms, my research indicates that the most influential elements of French society (such as government, political parties and the media) show a large degree of consensus on the appropriate balance between security and liberty. The predominant view in France is that the security of the Republic supersedes other considerations. In Britain, by contrast, influential actors propagate radically different, competing ideas on how society should seek to balance national security and the civil liberties of individuals. As we shall see, this norm competition has been a moderating influence on the British authorities, constraining both their legislative and operational responses to terrorism. In France, on the other hand, the normative consensus on the preeminence of security has given the French authorities space to make a more draconian legal and operational response than their British counterparts. As Chapter 2 will outline, the different normative contexts of France and the UK have their origins in the two countries’ distinctive historical experiences and in how these histories are interpreted today. Such norms are deep-seated forces that cannot be easily overturned. Institutions are a second historically grounded source of divergence between Britain and France. There are contrasting inter-institutional conventions in the two countries governing the relationship between the

6

Introduction

judiciary on the one hand and the government and its security agencies on the other. France has a long-standing civil law system and a statist tradition which accords positive value to the state and the Republic. In this context, French investigating magistrates, which constitute a special category of judge, have been able to work directly with both police and intelligence agencies on Islamist terrorism cases to prepare evidence for court. As we shall see, this integration of security agencies and elements of the judiciary may compromise the checks and balances of the judicial system. But since it facilitates the conviction of terrorist suspects, it has won the confidence of the French government, which has been content to rely on exceptional counterterrorism measures within the judicial system, obviating the need for regular legislative reform. In Britain, by contrast, the adversarial legal system and strict notions of judicial independence have combined to keep police and intelligence work more distant from judicial actors. Such conventions help to maintain checks and balances and the legitimacy of the justice system, but they have had a negative effect on the British authorities’ ability to convict terrorist suspects. Against this background, the government tried to circumvent the ordinary judicial system by introducing control orders and other administrative powers. Yet, faced with considerable opposition, the government struggled to maintain control of the agenda and repeatedly introduced legislative reforms, some of which were inconsistent with its previous policies. Thirdly, at the level of professional security agencies, I argue that counterterrorist police and intelligence services follow certain long-standing routines, which exercise a key influence on how they organise to face a threat. A large body of research tells us that organisations in general tend to rely on pre-existing repertoires of action. These routines are usually the product of particular historical circumstances and are not self-evident responses to the current environment. Thus different organisations may adhere to different routines even when facing a similar problem. For example, the French police and intelligence agencies have relied on informal routines to co-ordinate their investigations into Islamist terrorism. These routines have tended to favour ‘bottom-up’ organisational change, independent initiatives by individual agencies and, in some cases, fierce inter-service rivalry. In Great Britain, by contrast, the police and intelligence agencies with chief responsibility for counterterrorism have tended to use formal routines to co-ordinate their investigations. These routines have helped to form a British proclivity for ‘top-down’ organisational reform and an ability on the part of the main security agencies to work closely together on investigations into Islamist terrorism. In sum, this book seeks to show how an interaction between perceived threats and certain legacies of history helps to shape the development of

Introduction Influence of Terrorism

Threat Perceptions

7 Historical Legacies

CT Policy and Practice

Norms of Security & Liberty (Societal level) Institutional Conventions (State level) Organisational Routines (Agency level)

CT agency reform, legislation and operations

Figure 1: The formation of counterterrorist (CT) policy and practice

counterterrorist policy and practice. More specifically, it argues that decision-makers’ threat perceptions are filtered through the distinct norms, institutions and routines of France and the UK, which creates different approaches to inter-agency co-ordination and reform, anti-terrorist legislation, and operations in the two cases (see Figure 1).

Debating explanations of counterterrorism Apart from accounting for the British and French cases, the argument presented here can also contribute to the development of a broader debate on the factors that shape the formation of counterterrorist policies in liberal democratic states.7 Why do states respond to terrorism in the particular ways they do? Scholars offer a range of different explanations.8 Some argue that the nature of a state’s counterterrorist policy depends on the nature of the threat that it is facing. Jeremy Shapiro and Daniel Byman, for example, emphasise that the most dangerous Islamist terrorists threatening the United States are found not within the country, but in other regions of the world. The nature and location of this threat, they argue, leads America to direct its pursuit of terrorists abroad, which naturally favours a military, more than a criminal justice, response. By contrast, since leading European states face significant internal threats from Islamist terrorism, they place more emphasis on using intelligence and law enforcement tools against 7

8

By liberal democracy, I mean a system of government in which the people elect their leaders, with protections for individuals’ rights based on the rule of law and an independent judiciary. See Larry Diamond, Developing Democracy: Toward Consolidation (Baltimore: Johns Hopkins University Press, 1999), pp. 2–3, 10–12. Notwithstanding the studies discussed below, this question has received relatively little attention in the counterterrorism literature, which has tended to focus more on descriptive case studies and assessments of effectiveness. For a literature review, see Frank Foley and Max Abrahms, ‘Terrorism and counterterrorism’, in Robert Denemark et al. (eds.), The International Studies Encyclopedia (Oxford: WileyBlackwell, 2010).

8

Introduction

these foes on their own soil.9 Following a similar view, many analysts, commentators and policymakers believe that differences in the character or level of the terrorist threat are a sufficient explanation for the differences between states’ counterterrorist policies.10 Notwithstanding their emphasis on threats, Shapiro and Byman also highlight the importance of a second factor – state capability. In their view, the United States’ unmatched military capabilities ‘lead naturally to a much greater tendency to use force’. Since European states do not have the capability to effectively combat terrorists abroad with military force, ‘they have made a virtue out of necessity and have concentrated on fighting terrorism at home’ with police and intelligence services.11 From an International Relations (IR) theory standpoint, such analyses take an implicitly realist perspective in their emphasis on threats and capabilities.12 At the other end of the IR scholarship spectrum, some authors have argued that cultural factors are the most important influence on the formation of counterterrorist policies. For Wyn Rees and Richard Aldrich, the differences between American and European responses to terrorism stem not from different threats or capabilities, but from their contrasting ‘strategic cultures’. The US belief in the superiority of American values and the justified nature of its global leadership serves to legitimise a national security culture that privileges military force in several fields, including counterterrorism. Across the Atlantic, by contrast, the authors observe a ‘regulatory’ and legal-minded European culture, informed by both EU integration and leading states’ experiences of domestic terrorism. This strategic culture, they argue, has led Europeans to focus on criminal justice responses to terrorism and adherence to international law.13 Peter Katzenstein offers a more specific cultural 9 10

11 12 13

Jeremy Shapiro and Daniel Byman, ‘Bridging the transatlantic counterterrorism gap’, Washington Quarterly 29:4 (Autumn 2006), 36–7, 40, 43. Rohan Gunaratna, ‘The post-Madrid face of Al-Qaeda’, The Washington Quarterly 27:3 (Summer 2004), 91–2, 94–5; Ludo Block, ‘Evaluating the effectiveness of French counterterrorism’, Terrorism Monitor 3:17 (8 September 2005), p. 6; Marc Perelman, ‘How the French fight terror’, Foreign Policy, 19 January 2006: www.foreignpolicy.com/articles/ 2006/01/18/how_the_french_fight_terror. Several of the French practitioners interviewed for this study also explained the evolution of France’s counterterrorist system solely with reference to the threats that it has faced (see Chapter 1). For a critical discussion of such explanations, see Mariya Y. Omelicheva, ‘Combating terrorism in Central Asia: explaining differences in states’ responses to terror’, Terrorism and Political Violence 19:7 (September 2007), 375, 383–4. Shapiro and Byman, ‘Bridging the transatlantic’, 40. For an IR realist account of the role of threats in world politics, see Stephen M. Walt, Origins of Alliance (Ithaca, Cornell University Press, 1987). Wyn Rees and Richard J. Aldrich, ‘Contending cultures of counterterrorism: transatlantic divergence or convergence?’, International Affairs 81:5 (September, 2005), 908, 910, 913–16, 919.

Introduction

9

explanation in his focus on the role played by norms of appropriate behaviour. Comparing Germany and Japan, he outlines the two countries’ different self-conceptions and norms, arguing that these factors explain why Germany has made a more active response to terrorism than Japan, both at home and abroad.14 Other authors emphasise the importance of institutions. Writing about the United States and Germany, respectively, Martha Crenshaw and Giovanni Capoccia argue that the diffused structures of power within these countries constrain the development of their counterterrorist policies.15 In her study of the American case, Amy Zegart also highlights this institutional factor and adds that a change-resistant culture within the leading intelligence agencies was a second reason why the US government failed to adapt to the rise of new terrorist threats after the Cold War.16 This book seeks to build on the insights provided by these studies into the role of culture, norms and institutions in shaping state responses to terrorism. Yet such studies are not without their problems. Rees and Aldrich highlight the importance of different strategic cultures in Europe and America, but others would argue that their different capabilities and threat environments are the real driving forces behind their divergent counterterrorist policies. It seems reasonable to suggest, as Shapiro and Byman do, that a largely external threat begets an external military response, whereas a significant internal threat brings forth a criminal justice response. Yet Rees and Aldrich do not treat different threats and capabilities as alternatives to their cultural hypothesis. Their analysis would need a more detailed consideration of these factors in order to respond persuasively to this point. A similar objection can be raised against Peter Katzenstein’s argument for the effect of norms on German and Japanese counterterrorism. Since the attacks of September 11, 2001, Germany has faced a considerably higher level of threat from Islamist terrorism than Japan. Katzenstein readily admits this, and it leads him to include a second factor – ‘differences in the magnitude of threat’ – in his theoretical discussion.17 However, this threat-level factor features little in his empirical analysis. The main focus of the article is to show that the

14 15

16 17

Peter J. Katzenstein, ‘Same war – different views: Germany, Japan, and counterterrorism’, International Organization 57:4 (Fall 2003), 731–60. Martha Crenshaw, ‘Counterterrorism policy and the political process’, Studies in Conflict & Terrorism 24:4 (2001), 329–37; Giovanni Capoccia ‘Germany’s response to 9/11: the importance of checks and balances’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), pp. 285–334. Amy Zegart, Spying Blind: The CIA, the FBI and the Origins of 9/11 (Princeton University Press, 2007), pp. 45–54, 121–7. Katzenstein, ‘Same war – different views: Germany, Japan, and counterterrorism’, 735–6.

10

Introduction

different norms of the two countries explain among other things why Germany’s response to terrorism is more active than Japan’s. Yet Katzenstein’s relative neglect of the threat-level variable may undermine his argument. He presents considerable evidence for the role of norms, but how can we be sure that Germany’s more active stance is not simply due to the greater threat that it faces? In sum, the drawback of these studies is that the authors compare country cases that do not allow them to respond fully to objections and alternative hypotheses that focus on the nature of the threat. Given that there is something of an impasse between these rival explanations of counterterrorist policies, I suggest that a comparative analysis of British and French responses to Islamist terrorism can help to move this debate on. It is one thing to know that states with different capabilities in different continents, facing different threats, will respond differently to terrorism. It is another thing to learn that two comparable, neighbouring states facing similar threats still show significant differences in their responses to these threats. This, I will argue, is what one discovers by comparing France and the UK. Both are western European liberal democracies, based on the rule of law, and members of the European Union and NATO. As ‘middle powers’ possessing comparable military, diplomatic and financial capability, both states endeavour to use these capabilities to maximise their international influence.18 They also have comparable resources and capability in terms of police and intelligence services. Lacking a totalitarian period in their modern histories, they do not display the complications in their attitude towards the use of force that are associated with states that do have such a legacy.19 As Chapter 1 will outline, they both have significant previous experience of terrorism, albeit different types, and they currently face a similar threat from Islamist terrorism. Yet, despite these similar characteristics, the UK and France still display significant differences in their counterterrorist policies and practices.20

18

19 20

This approach contrasts with the era of the German ‘trading state’, for example. See Peter Katzenstein, ‘Coping with terrorism’, in Judith Goldstein and Robert O. Keohane, Ideas and Foreign Policy: Beliefs, Institutions and Political Change (Ithaca: Cornell University Press, 1993), p. 266. On Britain and France as middle powers, see for example Barry R. Posen, The Sources of Military Doctrine: France, Britain and Germany between the World Wars (Ithaca: Cornell University Press, 1984), pp. 194, 243. See Katzenstein, ‘Same war – different views: Germany, Japan, and counterterrorism’, 736, 740, 743. To understand why states respond differently to terrorism, this study uses the ‘mostsimilar’ method of case selection. I have selected two cases with many similar general characteristics (possible ‘independent variables’), but which nevertheless display variation on the ‘dependent variable’ – their counterterrorist policies and practices. See Alexander George, ‘Case studies and theory development: the method of structured, focussed

Introduction

11

The focus on Britain and France gives this book better grounds for adjudicating between rival explanations than previous comparative research on the topic. Because of their case selections, Katzenstein, Rees/Aldrich and Shapiro/Byman cannot control for the level of threat in their analyses. However, the cases selected here do facilitate such an exercise, giving the book a degree of analytical leverage not found in existing studies. Neither research strategy is perfect. The country cases analysed by Katzenstein and other previous studies show a greater degree of variation between their counterterrorist policies than the cases selected for this study. In choosing Britain and France – two European states that display a range of similar characteristics and face similar threats – one does not expect to find fundamental differences between their counterterrorist policies. As outlined above, however, there are significant differences between their responses to terrorism, which require explanation. The study gains analytical leverage by comparing the two states’ policies from 1995 to 2011, a period in which they first faced different and then similar levels of threat from Islamist terrorists. The fact that substantial differences between their respective responses persisted – even when the level of threat to the two countries converged – can best be explained by the influence of historical legacies and provides, I will argue, strong evidence for the importance of domestic norms, institutions and routines in state responses to terrorism. In a broader context, this book draws on a body of research concerned with the interaction between transnational non-state actors and domestic politics. Some of this literature has examined the impact of transnational movements at the level of the state, asking why such movements do not inspire the same effect across countries.21 Thomas Risse-Kappen’s answer is that ‘under similar international conditions, differences in domestic structures determine the variation in the policy impact of transnational actors’.22 In this vein, I argue that France and the UK have operated under similar international conditions since 2001, and explore how domestic factors, related to society, the state and security organisations, help to explain why transnational terrorism has inspired different policy responses in the two countries. Britain and France face threats from groups that I characterise as terrorist in nature (in this book, the terms ‘terrorist’ and ‘militant’ are used

21

22

comparison’ in Paul Gordon Lauren (ed.), Diplomacy: New Approaches in History, Theory and Policy (New York: The Free Press, 1979), p. 55; and Charles Ragin, Constructing Social Research (Thousand Oaks: Pine Forge Press, 1994), pp. 105–6. Thomas Risse-Kappen, ‘Bringing transnational relations back in: introduction’, in Thomas Risse-Kappen (ed.), Bringing Transnational Relations Back In (Cambridge University Press, 1995), pp. 3–5. Ibid., p. 25.

12

Introduction

interchangeably). In the academic literature on the topic, terrorism is commonly defined as involving the deliberate creation of fear through violence or the threat of violence, in order to influence a watching audience or government for political purposes.23 It is a type of violence usually carried out by underground groups whose conventional capabilities are extremely limited in comparison to the state they are seeking to coerce.24 In such an asymmetrical confrontation, the creation of fear by posing a seemingly random threat to life is a key element in the terrorists’ attempt to achieve more than their relatively limited capabilities would normally allow. My aim is to shed light on how states respond to such a threat. The use of violence by a state against its own people can also be called terror or terrorism, but this is not an issue that can be addressed within the confines of this study. Debates continue to rage on definitions of terrorism and terrorist groups and different views persist on the appropriate designation for organisations such as Hamas and Hezbollah. The groups examined in this book, however, are not borderline cases. Most observers would agree that the Al-Qaeda and Islamist-oriented groups that seek to use violence against Britain and France exemplify terrorism.25 Related to this, I use the term ‘extremist’ to refer to a supporter of terrorism or violence. This term does not refer to those who simply hold extreme political or religious views. Counterterrorism, for the purposes of this book, refers to policies formulated and actions taken by states (or international organisations) to reduce or prevent terrorism. It encompasses a wide range of activities including social policy, counter-radicalisation programmes, protective security measures, emergency response, diplomacy and military intervention. This book does not seek to cover all aspects of counterterrorism, preferring instead to focus on three core dimensions of the British and French response, concerning inter-agency co-ordination and reform, anti-terrorist legislation, and police and intelligence operations. International operations are crucial when facing transnational terrorism, and the book does consider some of France and the UK’s intelligence activities around the world. I also examine the consequences of the Iraq and Afghan wars for terrorism in Britain and France, but it is not within the remit of this study to examine these military campaigns as such. The 23

24 25

Bruce Hoffman, Inside Terrorism (New York: Columbia University Press, 2006), p. 40; Martha Crenshaw, ‘Introduction’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), p. 7. Ignacio Sanchez-Cuenca and Luis de la Calle, ‘Domestic terrorism: the hidden side of political violence’, Annual Review of Political Science 12 (2009), 31–49. See, for example, Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (United Nations, 2004), pp. 47–52: www.un. org/secureworld.

Introduction

13

central theme of the book rather is domestic responses to a transnational threat. The main focus will be on government policy and the activities of domestic intelligence, police, prosecutorial and judicial agencies. One reason for concentrating on these services is the vital importance of their role. In Britain and France, as in other liberal democracies, these domestic agencies hold primary responsibility for combating terrorism on the national territory and are the state’s ultimate defence against terrorist attack. There are also practical reasons for this focus; the greater levels of secrecy associated with foreign intelligence agencies makes it difficult to systematically compare their activities. Domestic counterterrorist agencies on the other hand are active within the polity, which opens them up to greater public scrutiny and availability to researchers. By analysing this domain, we may also gain insights into domains about which we have less information. The book’s discussion of British and French counterterrorism proceeds in five steps. Chapter 1 outlines both countries’ experiences of terrorism over the last four decades, with a particular focus on how they came to be targets of Islamist terrorism. It shows how Britain and France have faced similar threats from this source since 2001 and have perceived these threats similarly. If we focused only on threat and threat perception then, we would expect to see similar counterterrorist policies in France and the UK. Since this is not the case, Chapter 2 broadens the discussion to consider how particular historical legacies help to shape responses to terrorism in the two countries. Drawing on some conceptual literature, this chapter provides a more precise understanding of the nature of norms, institutional conventions and organisational routines. It also outlines the characteristics of Britain’s and France’s respective norms, institutions and routines, and discusses the distinctive historical contexts in which they developed. The remaining chapters trace how these legacies of British and French history, in combination with decision-makers’ threat perceptions, have shaped their distinctive responses to Islamist terrorism since 1995. This is based on an analysis of primary documents, secondary sources and interviews with thirty-seven counterterrorist officials and other informants in the two countries.26 Chapter 3 analyses counterterrorist policymaking and examines how intelligence, police and prosecution work against terrorism 26

Interviewees are distinguished alphabetically in this book: ‘UK-A’, ‘UK-B’; ‘FR-A’, ‘FRB’, etc. It should also be noted that all of the retired or ‘former’ officials interviewed for the study were in post until at least 2004 (with one exception: ‘FR-N’). Their experience covers over half the period treated in this book, including at least three years after 9/11. Most of the counterterrorist practitioners who were interviewed requested that their statements should not be attributed to them personally, although they did agree that a description of their job (of varying degrees of specificity) could be included.

14

Introduction

has been co-ordinated and reformed within the two states. The fourth chapter compares Britain’s and France’s legal regimes for the detention and trial of terrorist suspects and discusses their respective legislative reforms in this area. Chapter 5 analyses the two states’ intelligence and police operations against Islamist terrorism; how they deal with both suspected operational terrorists and broader networks of practical and ideological support. The conclusion draws together the comparative analysis and argues that the differences between British and French counterterrorism cannot be explained without reference to the domestic norms, institutions and routines found in the two countries. This has implications for our understanding of Britain’s and France’s ability to combat terrorism, and for debates and controversies concerning liberal democratic states’ counterterrorist policies since 9/11.

1

Terrorist campaigns and threat perceptions

Britain and France have extensive experience of political violence on their soil, ranging over the last four decades from Irish nationalist subversion to Arab and Iranian terrorism. It is often argued that these threats have had a major impact on the two states’ current counterterrorist policies. Thus, if France takes a more draconian approach to counterterrorism than Britain and perhaps other European countries, some analysts explain this with reference to the terrorist threats that she has faced in recent decades. Ludo Block, for example, suggests that the French approach ‘emerged from painful experience – unlike other European countries, France has faced the deadly threat of Islamic terrorism on its soil since the 1980s’.1 The assumption here seems to be that Islamist terrorism is inherently a more threatening form of violence than ‘old’ European nationalist terrorist groups. Several French officials also explained their country’s approach to counterterrorism with reference to the particularly acute or complex threats she has faced.2 These analyses and perceptions boil down to a claim that France has faced a greater terrorist threat than other European countries in recent decades, and this explains its more draconian response. But does this match the historical record? The first part of this chapter briefly outlines France and the UK’s experiences of and responses to terrorism, mainly in the period between the 1970s and 1990s, and questions the claim that France faced a greater threat than the UK during this time. I go on to examine the rise of contemporary Islamist terrorism and argue that it has posed a similar threat to Britain and France in the years since the September 11 attacks. I then discuss the concept of threat perception and show that since 2001,

1

2

Ludo Block, ‘Evaluating the effectiveness of French counterterrorism’, Terrorism Monitor 3:17 (8 September 2005), 8. For similar perspectives, see the articles cited in n. 10 of the previous chapter. Such explanations were offered by two counterterrorist investigating magistrates and four police officials.

15

16

Terrorist campaigns and threat perceptions

British and French decision-makers have had a similar perception of the Islamist terrorist threats facing them.

French and British experiences of terrorism In the 1950s and early 1960s, France faced terrorist campaigns both in Algeria and on home soil, as part of the Algerian war of independence. The French army tortured suspects and mounted repressive military operations during the war, which contributed to domestic and international public opinion turning against French rule in Algeria, leading to withdrawal in 1962.3 In the decades that followed, France was a target for a wide variety of militant organisations, from leftist terrorists to Corsican, Basque and Breton separatists, as well as a number of groups from North Africa and the Middle East.4 In 1979, the leftist Action Directe began attacking symbols of capitalism and government, killing around thirteen people before intelligence and police operations brought them under control by 1987.5 France has also responded to Corsican militancy with law enforcement tools, as well as negotiations with local leaders and a failed attempt to introduce greater regional autonomy.6 While these efforts helped to reduce terrorism in Corsica, there has been an increase in the number of killings carried out by mafia-like organisations on the island.7 During the 1980s, several Middle Eastern groups mounted terrorist campaigns on French soil. Palestinian splinter groups, unhappy with France’s support for Yasser Arafat, carried out a number of attacks on Jewish targets in the country in the early 1980s. In 1982, as part of a dispute between Syria and Iraq, Syrian security forces exploded a bomb in Paris outside the offices of a pro-Iraqi newspaper.8 Another Syrian-linked bombing, carried out by Armenian terrorists, killed eight people in ParisOrly airport in July 1983.9 France sought to prevent the spiralling of such 3

4 5

6 7 8 9

Martin Alexander and J. F. V. Keiger (eds.), France and the Algerian War, 1954–62: Strategy, Operations and Diplomacy (London: Frank Cass, 2002). Chapter 2 below discusses the impact of the Algerian war on French security norms. See Shaun Gregory, ‘France and the war on terrorism’, Terrorism and Political Violence 15:1 (Spring 2003), 125–33. Nathalie Cettina, ‘The French approach: vigour and vigilance’, in Marianne van Leeuwen (ed.), Confronting Terrorism: European Experiences, Threat Perceptions and Policies (The Hague: Kluwer Law International, 2003), p. 71. Marianne Lefevre and Josesph Martinetti, Géopolitique de la Corse (Paris: Armand Colin, 2007). Luis de la Calle Robles, ‘Accounting for nationalist violence in affluent countries’, unpublished PhD thesis, European University Institute (2009), p. 184. Jeremy Shapiro and Benedicte Suzan, ‘The French experience of counterterrorism’, Survival 45:1 (Spring 2003), 67, 69, 71. Cettina, ‘The French approach: vigour and vigilance’, p. 73.

French and British experiences of terrorism

17

campaigns by being as neutral as possible with regard to the political issues that motivated transnational terrorism. Applying what some analysts have called the ‘sanctuary doctrine’, the authorities did not interfere with transnational terrorist groups on their soil that did not attack France or French interests directly.10 The government also sanctioned negotiations and deals behind the scenes with Armenian and Palestinian terrorist groups.11 In 1986, a series of terrorist attacks across France caused eleven deaths and more than 220 injuries. Most of the attacks were carried out by the previously unknown ‘Committee for Solidarity with Near Eastern Political Prisoners’ and Hezbollah.12 This terrorism had an Islamist dimension, therefore, but it had nothing to do with the Algerian and Al-Qaeda-linked terrorism that would later threaten France in the 1990s. This was more a case of traditional state-sponsored or, at least, state-linked terrorism. A defector told French officials that these terrorist attacks were sponsored by Iran, Syria and Libya, each of which had particular grievances against France at that time. According to a report in Le Monde, the French government sent officials to Damascus in September 1986 to conclude a deal whereby Syria would cease support for terrorism in France and provide intelligence, in return for French arms, economic aid and diplomatic support. A similar deal was apparently struck with the Iranian regime the following summer.13 Although the government denied that such deals took place, France did withdraw considerably from Lebanese affairs (pleasing Syria) and dramatically scaled back its support for Iraq during the Iran-Iraq war. One French analyst has concluded that this was ‘a policy of diplomatic activities . . . guided by the will of terrorist states’.14 After 1986, France remained largely free of transnational terrorist attacks on its home soil for the next eight years. While France was prepared to negotiate with terrorists and their state sponsors, it also made an operational response to their attacks in the form of intelligence and police investigations at home, and occasional military action abroad by its foreign intelligence service – the Direction Générale de

10 11

12 13

14

Shapiro and Suzan, ‘The French experience’, 69–70. Paul Wilkinson, ‘Trends in international terrorism and the American response’, in Laurence Freedman et al., Terrorism and International Order (London: Routledge and Kegan Paul, 1986), p. 53. Cettina, ‘The French approach: vigour and vigilance’, p. 73. Shapiro and Suzan, ‘The French experience’, 74; A. J. Jongman, ‘Trends in international and domestic terrorism in western Europe, 1968–1988’ in Alex P. Schmid and Ronald D. Crelinsten (eds.), Western Responses to Terrorism (London: Frank Cass, 1993), p. 63. Michel Wieviorka, quoted in Shapiro and Suzan, ‘The French experience’, 74.

18

Terrorist campaigns and threat perceptions

la Sécurité Extérieure, a defence institution. The DGSE carried out a car bombing in Damascus in 1981, an unsuccessful attempt to bomb the Iranian Embassy in Beirut in 1983, and a failed raid on a terrorist camp in Lebanon in 1986.15 That same year, however, as France faced a wave of terrorist attacks at home, the government decided that ‘sanctuary’, diplomacy and ineffectual military operations could no longer be the main elements of its response to such threats. From 1986, France underwent significant reforms of its judicial response to terrorism, which had knockon effects on the police and intelligence services (see Chapters 3 and 4). When the country was attacked by Algerian Islamist militants in the 1990s, the role of diplomacy receded and the judicial, police and intelligence arms of the state began to play the central role in France’s response to terrorism. In sum, prior to the 1990s, France had not experienced any long-term terrorist campaign, but instead a number of waves of terrorism.16 These were mostly short, sharp shocks to the French system, with the longest campaign (by Action Directe) lasting eight years. By contrast, Britain was the target of a sustained terrorist campaign by the Irish Republican Army for a full twenty-eight years, from 1969 to 1997. While the IRA focused most of its attention on targets in Northern Ireland, mainland Great Britain also experienced many terrorist attacks. The IRA directly targeted the government in the Brighton bomb attack on the British Cabinet in 1984, and the mortar attack on 10 Downing Street in 1991. The group also attacked civilian economic targets, for example, in its massive bombing of Manchester and its attack on London’s Canary Wharf in the mid-1990s. Simultaneous attacks – far from being an Al-Qaeda innovation – were used by the IRA when it bombed two bars in Guildford and two more bars in Birmingham, in October and November 1974, killing four and twenty-one people respectively.17 From the 1970s to the 1990s, the UK suffered a greater number of terrorist attacks than France, as part of a terrorist campaign that was longer and more sustained than anything that the French experienced. Terrorism in the UK involved more deadly individual attacks, and a larger number of fatalities than terrorism in France. In the British case, 3,075 people were killed in terrorist attacks related to the Northern Ireland conflict. 2,950 of these were killed in Northern Ireland and 125 in 15 16 17

Ibid., 95; Douglas Porch, The French Secret Services: From the Dreyfus Affair to the Gulf War (New York: Farrar Strauss and Giroux, 1995), p. 435. See Francois Heisbourg and Jean Luc Marret, Le Terrorisme en France aujourd’hui (Paris: Ed. des Equatuers, 2006), p. 48. Richard English, Armed Struggle: The History of the IRA (London: Macmillan, 2003), pp. 167–9, 289–92.

French and British experiences of terrorism

19

mainland Great Britain. A further 270 people were killed in 1988 when Libyan agents caused the Lockerbie plane bombing in Scotland. This amounts to 395 deaths caused by terrorism in mainland Britain during the period 1969–2001.18 By way of comparison, 175 people were killed in terrorist attacks in mainland France (and fifty in Corsica) between 1965 and 2005.19 If the number of fatalities is taken as an indicator, then mainland Britain can lay claim to having faced a greater threat from terrorism than France between the 1970s and 1990s. At the very least, a review of the two countries’ experiences of terrorism raises serious doubts against any claim that France faced a greater terrorist threat than the UK during those decades. For over twenty years, the British response to Irish republican terrorism was based mainly on coercive action by the military, police and intelligence services. However, the often repressive tactics used in this context served to alienate the Catholic population of Northern Ireland and increase support for the IRA. From 1971 to 1974, the authorities approved a policy of internment, which empowered the police and army to round up thousands of people and detain them indefinitely without trial. There was extensive use of coercive interrogation techniques, such as wall-standing, hooding and sleep deprivation, and detainees were physically abused in many cases.20 The nadir of British operations in Northern Ireland came on 30 January 1972 – Bloody Sunday – when paratroopers were sent to police a civil rights demonstration in Derry. Believing themselves to be under attack, the soldiers opened fire and killed thirteen unarmed civilians. The British military’s elite forces tended to fair better with their targeted operations against both Irish and transnational terrorists. The Special Air Service (SAS) gained international fame for operations such as its storming of the Iranian embassy to end a hostage crisis in 1980.21 However, when the SAS killed eleven members of the IRA in separate ambushes in 1987 and 1988, some British observers wondered if there was a ‘shoot-to-kill’ policy, which they felt would bring the state down to the same level as the terrorists.22 Elements of the British army and police in Northern Ireland colluded with Loyalist

18 19 20 21 22

Malcolm Sutton, ‘An index of deaths from the conflict in Ireland’, Conflict Archive on the Internet (CAIN), University of Ulster: http://cain.ulst.ac.uk/sutton/book/index.html. Heisbourg and Marret, Le Terrorisme en France aujourd’hui, p. 51; De la Calle Robles, ‘Accounting for nationalist violence’, pp. 49–50, 291, 296. Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008), pp. 36–42, 47–54. Terence Taylor, ‘United Kingdom’ in Yonah Alexander (ed.), Combating Terrorism: Strategies of Ten Countries (Ann Arbor: University of Michigan Press, 2002), p. 192. English, Armed Struggle, pp. 253–4, 256.

20

Terrorist campaigns and threat perceptions

terrorists in operations that resulted in the killing of civilians.23 As we will see in Chapter 2, both government and wider society later came to regret many of the repressive tactics used in Northern Ireland, and the British response to Islamist terrorism in the 2000s was partly informed by a repudiation of the methods it had used in earlier times. Intelligence and targeted law enforcement operations proved to be more effective coercive instruments against Irish republicans than other more repressive techniques. The IRA was infiltrated by a number of agents and informers from the early 1980s, leading to arrests and prosecutions that had a significant disruptive effect on the organisation.24 All parties to the conflict began to reassess their attitude towards negotiations, and the IRA leadership began to consider if non-violent political means would advance its goals of British withdrawal and a United Ireland. Irish government officials met with elected political representatives of the IRA in the Sinn Féin party in 1988, and the British government opened a secret channel of communication with Sinn Féin in 1990.25 The IRA declared a ceasefire in 1994, which it broke in 1996 but reinstated the following year so that Sinn Féin could participate in negotiations with the British and Irish governments and the political parties of Northern Ireland. In 1998, all parties signed up to a complex political agreement that shared power within Northern Ireland and created North-South institutions designed to enhance co-operation between Northern Ireland and the Republic. The British government did not make any significant concessions regarding the primary stated motivation of IRA violence – the constitutional status of Northern Ireland within the UK. However, it withdrew most of its military forces and agreed to reform of the police service, as well as many of the social and human rights measures demanded by nationalists. The 1998 agreement thus built on previous social reforms introduced by the British government to deal with discrimination and other grievances of the Catholic community, which had contributed to sustaining the IRA campaign.26 US President, Bill Clinton, endorsed the Northern Ireland peace process as a model of conflict resolution and Prime Minister Tony Blair was widely praised at home for diffusing the most potent terrorist threat to the UK by means of political negotiations.27 In the end, a 23 24

25 27

‘NI Police colluded with killers’, BBC News Online, 22 January 2007: http://news.bbc.co. uk/2/hi/uk_news/northern_ireland/6286695.stm. English, Armed Struggle, pp. 307–8; David Bonner, ‘The United Kingdom’s response to terrorism’, in Fernando Reinares (ed.), European Democracies Against Terrorism (Aldershot: Ashgate, 2000), p. 45. English, Armed Struggle, pp. 265–70. 26 Bonner, ‘The United Kingdom’, pp. 48–9. English, Armed Struggle, pp. 304–7; Huw Edwards, ‘Inspired leadership’, BBC News Online, 10 April 1998: http://news.bbc.co.uk/1/hi/despatches/76801.stm.

Islamist terrorism

21

combination of intelligence and police work, social reform and negotiations had taken the sting out of Irish terrorism. Islamist terrorism and the threats to France and Britain While most Irish republicans were setting aside their weapons, Islamist militants’ determination to use violence in support of their goals was growing. ‘Islamism’ generally refers to a political ideology that calls for the establishment of Islamic states. This book focuses on Islamist terrorist groups or networks that combine this ideology with a ‘globalised’ hostility towards leading western powers, popularised by Al-Qaeda among others.28 These actors refer to their struggle as a jihad, in the sense of ‘holy war’, downplaying another important sense of jihad as a personal and spiritual struggle.29 Let us turn to consider the evolution of Islamist terrorism against western states, and against Britain and France in particular. Evolution, ideology and motives Although Islamist terrorism is much more than Al-Qaeda, the group has been a crucial node in militant jihadist networks over the last twenty years. Established following the Soviet withdrawal from Afghanistan in 1988, Al-Qaeda (meaning ‘the base’) built on Osama Bin Laden’s extensive connections among Afghan rebels to become a transnational network in support of Islamist struggles in various countries.30 During the 1990s, the core group around Bin Laden provided funds, equipment and training assistance to a range of Islamist militant organisations around the world. Bin Laden built relationships with groups in approximately thirty countries across North and East Africa, the Middle East, Asia, the Caucasus and, to a lesser extent, Europe and the United States.31 While most of these groups had local objectives, Bin Laden was distinctive in his determination to attack America.32 His central grievance was the US military presence in Saudi Arabia, although he also blamed America and its allies for 28

29

30 31 32

On this and other types of Islamism, see Fawaz A. Gerges, The Far Enemy: Why Jihad Went Global (New York: Cambridge University Press, 2005); and Oliver Roy, Globalized Islam: The Search for a New Ummah (New York: Columbia University Press, 2004). I refer to violent or transnational jihad, to distinguish this militant multinational phenomenon from jihad in the spiritual and personal sense. See Rudolph Peters (ed.), Jihad in Classical and Modern Islam (Princeton: Markus Wiener Publishers, 2005). National Commission on the Terrorist Attacks upon the United States, The 9/11 Commission Report (New York: Norton, 2004), pp. 55–8. Ibid., pp. 58–61; Rohan Gunaratna, Inside Al-Qaeda: Global Network of Terror (London: Hurst & Company, 2002), p. 6. The 9/11 Commission Report, p. 54; Gerges, The Far Enemy.

22

Terrorist campaigns and threat perceptions

the persecution of Muslims in Palestine, Iraq, Chechnya, Kashmir, the Philippines and elsewhere.33 Bin Laden succeeded in penetrating the leaderships of several of the terrorist groups that he had contact with, and winning them around to his vision of global jihad against America and her allies.34 For example, Al-Qaeda shaped the ideology and operations of the South East Asian Jemaah Islamiya (which attacked Bali in 2002) and subsumed two significant Egyptian Islamist groups. It also influenced Algerian Islamists that were both fighting at home and attacking in Europe (this is discussed further below).35 Bin Laden shared his affiliates’ agendas of toppling the secular and authoritarian regimes ruling their countries, but he linked this to the necessity of fighting the United States. The various hated regimes were seen as agents of America, as Bin Laden stressed that ‘Our fight against these governments is not separate from our fight against you [the US].’36 Through collaborations with a diverse range of groups, Bin Laden became a key focal point in the loosely connected transnational community of Islamist militant groups. While Al-Qaeda was networking with other groups during the 1990s, it was also developing its core organisation, as well as recruiting and training its own operatives and building a structure of operational and support cells in a number of countries. Having spent most of the previous eight years in Sudan, Bin Laden returned to Afghanistan in 1996 and established his base and a number of terrorist training camps there.37 Thousands flowed through these camps, but no more than a few hundred seem to have become Al-Qaeda members.38 Some of those recruited joined the operational cells that were to become increasingly active from the mid- to late-1990s. The 1998 bombings of US embassies in Kenya and Tanzania and the attack on the US battleship Cole off the coast of Yemen in 2000 were carried out by Al-Qaeda cells under the supervision of Bin Laden and his chief aides.39

33

34 35 36 37 38 39

Statement, 23 August 1996 (‘A Declaration of Jihad Against the Americans Occupying the Land of the Two Holy Sanctuaries’), in Bruce Lawrence (ed.), Messages to the World: The Statements of Osama Bin Laden (London: Verso, 2005), pp. 23–5, 27–30; Letter to AlJazeera, 3 November 2001, in Lawrence (ed.), Messages to the World, pp. 135–7. Paul Pillar, ‘Counterterrorism after Al-Qaeda’, The Washington Quarterly 27:3 (Summer 2004), p. 102. Gunaratna, Inside Al-Qaeda, pp. 136–7; Gunaratna, ‘The post-Madrid face of Al-Qaeda’, 93; The 9/11 Commission Report, pp. 150–1. Statement, 6 October 2002, in Lawrence (ed.), Messages to the World, p. 163. The 9/11 Commission Report, pp. 66–7. Ibid., p. 67; Gunaratna, Inside Al-Qaeda, p. 8. Jason Burke, Al-Qaeda (London: Penguin, 2007), pp. 177–8, 214–16; The 9/11 Commission Report, pp. 67–70, 190–1.

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The September 11, 2001 attacks on New York and Washington were similarly directed by Bin Laden and his principal associates.40 The scale and audacity of the 9/11 operation raised Bin Laden from one of a number of terrorist leaders to the pre-eminent spokesman and inspiration for Islamist militancy worldwide. As we shall see, his ability to inspire both existing groups and a new generation of Islamist terrorists increased in the years after 2001. However, the killing of almost 3,000 people in simultaneous attacks on the economic and military symbols of the world’s only superpower also transformed terrorism from one among many threats, to the highest security priority of the western world. Al-Qaeda’s base in Afghanistan was swept away by America, and many of the group’s leaders were either captured or killed over the next decade. Bin Laden, his deputy Ayman al-Zawahiri and the remaining members of the core Al-Qaeda leadership split up and moved to Pakistan, residing in cities, towns or in the tribal areas along the border with Afghanistan. They were kept on the run or in hiding, and their ability to direct the organisation was impaired.41 Given these restrictions, a ‘second-tier leadership’ of Al-Qaeda, based mostly in Pakistan’s tribal areas, emerged to assume the main operational planning responsibilities.42 Nevertheless, by the time of Bin Laden’s death at the hands of US Navy SEALs in 2011, the Al-Qaeda leadership and core cadres had been severely depleted by US drone strikes, with their capability and morale at a low ebb.43 Apart from Al-Qaeda’s central leadership and the independent Islamist groups affiliated to Al-Qaeda, analysts have pointed to a third category of Islamist threat to western states. These are individuals and terrorist cells that are not part of any established organisation, but who, in the words of one analyst, ‘move through and draw support from the global network of like-minded radical Islamists’.44 Such ‘freelance’ groupings existed before 9/11 (as we shall see in the French case), but they grew in number after 2001, many of them inspired by Al-Qaeda. The degree of contact that they have had with Al-Qaeda has varied. Some of these small groupings have had little or no direct contact with the organisation, while others have trained with Al-Qaeda members in Pakistan, for example, or received instructions via email from them. These freelancers act according to what they see as Al-Qaeda’s ideology and strategy, and assume the name

40 41 42 43 44

The 9/11 Commission Report, pp. 145–73, 231–53. Pillar, ‘Counterterrorism after Al-Qaeda’, 101. Leah Farrall, ‘How Al-Qaeda works’, Foreign Affairs, March/April 2011, 128–38. Fawaz A. Gerges, The Rise and Fall of Al-Qaeda (New York: Oxford University Press, 2011), pp. 188–90. Pillar, ‘Counterterrorism after Al-Qaeda’, 102. See also Burke, Al-Qaeda, pp. 13–14.

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‘Al-Qaeda’ for themselves in many cases.45 The July 2005 London bombers fall into this category, as do several other groupings of British Pakistanis that have been engaging in terrorism against the UK over the last decade.46 The Internet plays at least three important roles for freelance terrorists: motivation (by providing propaganda), technology (how to make bombs) and communication (connections between people who do not need to meet physically).47 Al-Qaeda, its affiliated organisations and freelance Islamist groupings move through common or parallel networks and share a number of motives and ideological commitments. The issue that unites all the Islamist terrorist groups of interest to this book is their opposition to western states’ intervention in the Muslim world, especially the presence of foreign military forces.48 Many claim to target ‘Zionism’ and oppose the secular or authoritarian regimes ruling in various Muslim-majority countries.49 Others criticise unbelief, calling on the West to embrace Islam, and express their disgust at the social, sexual, financial and other forms of immorality perceived to be prevalent in western countries.50 Islamist terrorists fight for the ummah – an abstract concept of a global community of Muslims. Their ideal is the creation of Islamic states, with a long-term aim in many cases of restoring the Caliphate (a single Islamic state).51 Extreme religious conviction is important to this ideology and its ability to motivate suicide bombings, rooted in a cult of death once expressed by Bin Laden in these terms: ‘[the Islamic nation] desires death more than you desire life.’ His words were later echoed by the perpetrators of the 2004 Madrid bombings: ‘You love life and we love death’, they wrote.52 Nevertheless, the concentration of Al-Qaeda recruitment videos on western powers purportedly attacking Muslims or helping other states to do so indicates the centrality of political grievances to the ideology.53 As we shall see, radical Islamists may be especially motivated by a grievance against individual states’ roles in particular conflicts 45 46 47 48 49 50 51 52

53

Roy, ‘Europe’s response to radical Islam’, 362. Home Office, Report of the Official Account of the Bombings in London on 7th July 2005, HC 1087 (London: TSO, 11 May 2006). Several examples will be discussed below. Roy, ‘Europe’s response to radical Islam’, 362. Pillar, ‘Counterterrorism after Al-Qaeda’, 101–2; see also Robert A. Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2005). Roy, ‘Europe’s response to radical Islam’, 361. Statement, 6 October 2002, in Lawrence (ed.), Messages to the World, p. 166. The Caliphate was abolished in 1924. See Roy, ‘Europe’s response to radical Islam’, 362; Shapiro and Suzan, ‘The French experience’, 79; The 9/11 Commission Report, pp. 50–1. Statement, 6 October 2002, in Lawrence (ed.), Messages to the World, p. 172; ‘Full text: “Al-Qaeda” Madrid claim’, BBC News Online, 14 March 2004: http://news.bbc.co.uk/1/ hi/world/europe/3509556.stm. Gunaratna, Inside Al-Qaeda, p. 95; Burke, Al-Qaeda, pp. 24–6.

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(France in Algeria or Britain in Iraq, for example), but this is in the context of a broader awareness of the suffering of Muslims around the world in many different situations and the purported culpability of western powers for these injustices.

Islamist terrorism against France and Britain Where do France and the UK fit into this story? How did they come to be targets of contemporary Islamist terrorism? The French first aroused anger because of their colonial history in Algeria and support for the authoritarian regime that later took power there. In 1992, when it appeared that an Islamist party, the Islamic Salvation Front (FIS), was about to win national elections, the Algerian army declared a state of emergency and prevented the party from assuming power. A bloody civil war ensued in Algeria. A more radical offshoot of the FIS, Le Groupe Islamique Armé (GIA) soon emerged to take the lead in fighting the Algerian regime, and by 1994 it had also established an extensive network in France. The GIA’s main enemy was its own government and its primary goal was the establishment of an Islamic state in Algeria. Yet the group also declared its hostility towards the West in general and France in particular, which it called ‘the mother of all sinners’ because of its colonial exploitation of Algeria and support for the country’s military regime.54 Al-Qaeda, who opposed France’s support for the regimes not only in Algeria but also in Tunisia and Morocco, provided some funding and training for the GIA.55 Two massive security operations in France in 1993 and 1994, in which over 200 Algerian Islamists were arrested, put the country on notice of a new threat. Then, in December 1994, the GIA hijacked a flight from Algiers to Paris, intending to crash it into the Eiffel Tower or blow it up low over central Paris.56 The plot was foiled, however, as the hijackers were outwitted by the French security forces (see Chapter 5). Yet the GIA’s determination to attack remained undimmed. In the period from July to October 1995, seven terrorist attacks were carried out in Paris and Lyons, killing ten people and wounding over 150. The GIA carried out the first and most professional of these bombings on the Paris RER transport system, 54

55 56

Shapiro and Suzan, ‘The French experience’, 79; Stephen Harmon, ‘From GSPC to AQIM: the evolution of an Algerian Islamist terrorist group into an Al-Qa’ida Affiliate and its implications for the Sahara-Sahel region’, Concerned Africa Scholars 85 (2000), 13–14. Shapiro and Suzan, ‘The French experience’, p. 86; Gunaratna, Inside Al-Qaeda, p. 122. Gregory, ‘France and the war on terrorism’, 131.

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killing eight people, and they were behind most of the other attacks. Some of the bombings, however, may have been carried out by ‘copycat’ freelance terrorists not directly linked to the GIA.57 A further attack on the Paris RER in December 1996, which killed four and injured eighty people, was never claimed by any group, although similarities between it and the previous year’s attacks led the authorities to believe that this bombing too was carried out by Algerian-linked Islamist militants.58 Between late 1996 and 1998, the GIA split as members of the organisation broke away to form the Groupe Salafiste pour la Prédication et le Combat (GSPC), under the leadership of a former GIA commander, Hassan Hattab. One of the people who encouraged Hattab to form the new group was Osama Bin Laden, and the Al-Qaeda leader gave his blessing to the GSPC when it emerged.59 According to French intelligence, the two men discussed terrorist operations by satellite phone in 1999.60 By then, the GIA as an organisation had effectively disappeared and the GSPC had become the main Islamist militant group in Algeria. The GSPC also reorganised the GIA’s former French and European networks under its own aegis.61 Over a thousand Algerians and French nationals of Algerian descent had already passed through Al-Qaeda training camps in Afghanistan and Sudan during the 1990s. Many of them were GIA and GSPC recruits sent there for training, but others were volunteers with little connection to these organisations.62 In any case, by the time they left the training camps, the Algerians who turned up in western Europe tended to be motivated by Al-Qaeda’s brand of global jihad as much as they were by Algerian concerns.63 They were also joined by Islamist militants who had previously seen action in Bosnia and Chechnya.64 ‘Freelance’ terrorists were active, such as the ‘Groupe Roubaix’, a band of French Islamic converts and second-generation French North Africans, which had been active in Bosnia and Afghanistan. This group was caught trying to bomb a police station in Lille in 1996, on the eve of a G7 summit.65 While the Islamist terrorist networks in France and its neighbouring 57 58 59 60 62 63 64

65

Shapiro and Suzan, ‘The French experience’, 80–1. Barry James, ‘Troops join police patrols after deadly train blast: Paris fears new terror attacks’, International Herald Tribune, 5 December 1996. Harmon, ‘GSPC to AQIM’, 14–15; Burke, Al-Qaeda, pp. 217–18. Gunaratna, Inside Al-Qaeda, pp. 124–5. 61 Burke, Al-Qaeda, p. 218. Ibid., pp. 219–20; Jean Luc Marret, ‘Homeward bound – AQIM fails to strike Western Europe’, Jane’s Intelligence Review, 11 May 2010. Burke, Al-Qaeda, pp. 219–20. Evan F. Kohlmann, Al-Qaida’s Jihad in Europe: The Afghan-Bosnian Network (Berg, 2004); Anthony Keats, ‘The Salafist Group for Call and Combat (GSPC)’, Center for Defense Information, 14 January 2003: www.cdi.org/terrorism/gspc.cfm. Shapiro and Suzan, ‘The French experience’, 86–7.

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countries were still predominantly Algerian and French-Algerian, militants of other nationalities were playing an increasing role. During the mid- to late-1990s, these interrelated networks comprised GSPC operatives, freelance terrorists and militants with a more direct operational connection to Al-Qaeda. Bin Laden’s links with the Afghantrained foot soldiers and the GPSC leadership gave him considerable influence over these western European networks.66 In late 2000, Algerian militants in Frankfurt, including some who had trained in Al-Qaeda’s Afghan camps, acquired bomb-making chemicals and laid a plan to attack Strasbourg’s Christmas market. However, their communications with fellow Algerian militants in London and Milan led to their plot being discovered and foiled.67 It was clear by this time that the focus of the Islamist terrorist threat to France had moved away from the GIA and towards the GSPC and Al-Qaeda. While the Algerian regime and France’s support for it was still the main focus for most of these militants, they were increasingly influenced by a more universal grievance against western powers’ perceived interference in Muslim affairs.68 This trend towards a more global jihadist ideology would continue in the years after 9/11. During the mid- to late-1990s, Britain became a centre of activity for some Al-Qaeda operatives and members of Islamist groups allied to Bin Laden. A French crackdown in the years after the 1995 terrorist attacks on its soil led to many Algerian militants fleeing to Britain, where they remained for a number of years.69 Also living in Britain were seven members of the Egyptian Islamic Group and two members of al-Zawahiri’s Egyptian Islamic Jihad – two groups that had been more or less absorbed into Al-Qaeda.70 Khalid al-Fawwaz represented Osama Bin Laden in London from 1994 until 1998, when he and two colleagues were arrested in connection with Al-Qaeda’s East African US embassy bombings.71 With the presence of these and many other radicals, the support network for Islamist terrorism in the UK was more developed than that in France and possibly any other country in Europe.72 66 67 68 69 70

71 72

Burke, Al-Qaeda, pp. 218–20; Gunaratna, Inside Al-Qaeda, pp. 124–5. Cettina, ‘The French approach: vigour and vigilance’, p. 75; Marret, ‘Homeward bound.’ International Institute for Strategic Studies (IISS), ‘A complex web’, Strategic Comments 9:6 (August 2003). Gregory, ‘France and the war on terrorism’, 139. See also Chapter 5. The two members of Islamic Jihad were arrested in 1999. See Gunaratna, Inside Al-Qaeda, pp. 124–5; Philip Johnson, ‘Terror groups hiding in the heart of Britain’, Daily Telegraph, 28 September 2001. Interview with a former senior counterterrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005. Gunaratna, Inside Al-Qaeda, pp. 116–17.

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Unlike in France, however, there were no Islamist attacks in the UK from 1995 to 2001, and little evidence of any plots to that effect. It appears that London was primarily a support centre for terrorist action elsewhere in Europe and the Middle East during this period.73 It is true that the UK did face some possible threats. A number of Algerians and Middle Eastern nationals were arrested on terrorist charges from late 2000 to January 2003 in locations as widely spread as London, Leicester, Manchester and Edinburgh, indicating a potential threat to the UK that pre-dated 9/11.74 Nevertheless, there can be little doubt that Britain faced a lesser threat from Islamist terrorists than France between 1995 and 2001. Given the UK’s close alliance with the detested United States, however, any restraint by radical Islamists in relation to Britain was more likely tactical than reflecting any broader conciliatory intentions towards the country. Osama Bin Laden criticised the UK’s ‘crusader’ role in Palestine from 1918 to 1948, and condemned its participation in air strikes against Iraq in 1998. He defined his ‘struggle’ then as one between ‘the Islamic world’ and ‘the global Crusader alliance with the Zionist Jews, led by America, Britain and Israel.’75 The threat picture in France and the UK began to converge after 2001, leaving the two countries facing a similar level of threat from Islamist terrorists. Prime Minister Tony Blair’s prominent diplomacy and dispatch of British military forces in support of the American-led invasion of Afghanistan in October 2001 certainly provided reason for action if it was needed. An Al-Qaeda spokesman condemned the invasion, which he said was ‘spearheaded by the two crusaders, Bush and Blair’ and warned that the UK was a target for attacks.76 A message from Bin Laden in November 2002 criticised Britain and five other countries ‘especially’ for their alliance with America and invasion of Afghanistan (the others were France, Germany, Italy, Canada and Australia). He added that the killing of over 200 people (including twenty-six British citizens) in the October 2002 Bali bombings, along with other attacks, were ‘reactions in kind perpetrated by the zealous sons of Islam in defence of their religion’.77

73 74 75 76 77

This is discussed below in Chapter 5. Gunaratna, Inside Al-Qaeda, p. 119; IISS, ‘A complex web’. Interview with Al-Jazeera, December 1998; and Letter to Al-Jazeera, 3 November 2001, in Lawrence (ed.), Messages to the World, pp. 73, 136. ‘In Full: Al-Qaeda statement’, BBC News Online, 14 October 2001: http://news.bbc.co. uk/1/hi/world/middle_east/1598146.stm. Statement, 12 November 2002, in Lawrence (ed.), Messages to the World, p. 174.

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A substantial threat to the UK homeland began to materialise by late 2002, according to police.78 In January 2003, several North African men were arrested in London and two other cities on suspicion of planning to use poisons in a terrorist attack on Britain. Recipes and the ingredients for making a number of poisons, including ricin, were discovered, and one suspect – an Algerian, Kamel Bourgass – stabbed and killed a police officer as he was being arrested. He and another Algerian man were alleged to have trained in poison preparation in Al-Qaeda camps in Afghanistan in the late 1990s.79 These and other cases showed how, as in France, the focus of Islamist terrorist activity by Algerians in the UK had broadened beyond the Algerian conflict to a broader agenda against western powers, compatible with and sometimes linked directly to Al-Qaeda.80 While foreign nationals sought to attack in the UK, British citizens were even more active. A study of Islamist-inspired terrorism convictions and attacks in the UK between 1999 and 2009 shows that almost 70 per cent of these offences were committed by ‘home-grown’ British radicals.81 Many of these ‘freelance’ British terrorists had trained in Islamist militant camps in Pakistan before returning to attempt terrorist attacks in the UK. In one important case, five young men (four British nationals of Pakistani origin and one of Algerian origin) were convicted of conspiring to cause explosions with fertiliser bombs in the UK between January 2003 and March 2004. The leader of the group, Omar Khyam, had visited Pakistan three times for training and met at least one senior Al-Qaeda figure. The court heard how he and his colleagues wanted to hit Britain because of its support for the United States.82 In March 2003, Tony Blair joined America in leading the coalition to war against Saddam Hussein’s Iraq. This, Khyam later claimed, was the ‘final straw’ for him.83 As this case indicates, the threat to Britain pre-dated the invasion of Iraq, but the war and subsequent occupation likely contributed to an intensification of the

78

79 80 81 82

83

DAC Peter Clarke, ‘Learning from experience – counter terrorism in the UK since 9/11’, Speech to the Policy Exchange, 24 April 2007: www.policyexchange.org.uk/publications/ publication.cgi?id=15. Mark Easton, ‘Trials give terror battle insight’, BBC News Online, 13 April 2005: http:// news.bbc.co.uk/1/hi/uk/4441763.stm. IISS, ‘A complex web’. Robin Simcox, Hannah Stuart and Houriya Ahmed, Islamist Terrorism: The British Connections (London: Centre for Social Cohesion, 2010), p. viii. ‘Seven “planned terror campaign”’, BBC News Online, 21 March 2006: http://news.bbc. co.uk/1/hi/uk/4829538.stm; ‘Five get life over UK bomb plot’, BBC News Online, 30 April 2007: http://news.bbc.co.uk/2/hi/uk_news/6195914.stm. ‘Profile: Omar Khyam’, BBC News Online, 30 April 2007: http://news.bbc.co.uk/2/hi/ uk_news/6149794.stm.

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threat. Indeed senior British government and intelligence officials have said that the threat of home-grown terrorism against the UK increased substantially following the invasion of Iraq.84 On 7 July 2005, a group of three British Pakistanis and one Jamaican exploded bombs simultaneously on three London tube trains and one bus in a suicide operation that killed fifty-two people. This was followed on 21 July by an apparent ‘copycat’ operation by four East Africans, whose bombs failed to explode. Inspired by ideologies of Islamist terrorism, men from both groups had visited Pakistan in the years before their attacks and made contact with militants there.85 Two of the 7 July bombers recorded videos before their attacks, which were later released by Al-Qaeda’s propaganda unit, interspersed with footage of Ayman al-Zawahiri praising the London operation and calling for further attacks from the ‘sons’ of Pakistan. The London bombers themselves echoed the Al-Qaeda leadership’s call for attacks against the West in general and the UK in particular. In his video, the apparent leader of the grouping, Mohammad Sidique Khan, pledged his allegiance to Osama Bin Laden and exemplified the general grievance against western powers and the universalised concept of a world community of Muslims characteristic of Islamist terrorism today. The justification for violent jihad, he said, was that ‘your democratically elected governments continuously perpetuate atrocities against my people all over the world’.86 Not content with operations on the scale of the London bombings, other Islamist terrorists were determined to raise the bar back up to the impact achieved on 9/11. In August 2006, British police disrupted a sophisticated plot to smuggle liquid explosives on board several transatlantic flights with the intention of detonating the bombs in mid-air and bringing down the planes. If carried out successfully, this return to the Al-Qaeda hallmark of a spectacular aviation attack could have killed thousands of people. Indeed, the UK’s domestic intelligence service, MI5, judged it to have been the most dangerous terrorist conspiracy in British history.87 In later court cases, eight men were found guilty of conspiracy to murder and three of their associates were convicted of

84

85

86 87

Frank Gardiner, ‘Intelligence lessons of 7/7’, BBC News Online, 30 March 2006: http:// news.bbc.co.uk/1/hi/uk_politics/4861528.stm; Richard Norton Taylor, ‘Former MI5 chief delivers damning verdict on Iraq invasion’, Guardian, 20 July 2010. Paul Tumelty, ‘Reassessing the July 21 London bombings’, Terrorism Monitor 3:17 (8 September 2005); ‘Profile: Muktar Ibrahim’, BBC News Online, 11 July 2007: http://news. bbc.co.uk/2/hi/email_news/6634901.stm. Home Office, Official Account of the Bombings, p. 19. My emphasis. Christopher Andrew, The Defence of the Realm: The Authorized History of MI5 (London: Penguin, 2010), p. 828.

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other terrorism offences. As in previous plots, some of the men had travelled to Pakistan where they are thought to have received training in bomb-making and to have met Rachid Rauf, an influential Al-Qaeda planner whom British intelligence believe was involved in several terrorist conspiracies, including the 2005 London bombings. Thereafter, Rauf emailed coded instructions from Pakistan to the men in London as they prepared the explosives and planned their attack.88 Not all of Britain’s Islamist terrorists had these kinds of connections, however, nor were all of their plans as sophisticated as the liquid explosives plot. On 29 June 2007, two cars packed with explosive material were parked outside nightclubs in central London. One of these potentially large bombs was discovered and defused, however, while the other did not explode. After this failure, the two perpetrators – an Indian man and a British national of Iraqi descent – mounted a suicide operation the following day by attempting to drive a jeep loaded with gas cylinders into the departure lounge at Glasgow Airport. All they could do, however, was to ram into a steel barrier outside the building. The vehicle burst into flames, one of the men was overpowered and arrested, while the other suffered severe burns from which he later died. Amateur though they may have been, the men might easily have killed dozens of people.89 The British security forces continued to observe considerable numbers of Islamist militants on their soil during subsequent years. Some of their more significant arrests included a group of Pakistani students allegedly linked to Al-Qaeda, who were disrupted in April 2009, and a network of radicals in three British cities who had been preparing a terrorist attack on London in December 2010.90 UK interests abroad also faced a threat in the decade after 9/11. Outside of the theatres of war in Iraq and Afghanistan, the most costly example of this was the bombings of the British consulate and an HSBC bank branch in Istanbul in November 2003, which killed thirty people, including the British consul-general.91 Although they formed an independent group, the Turkish Islamists behind the attacks later stated in court that they had received $150,000 from Al-Qaeda to carry out the bombings, with one man saying that he was a ‘proud member’ of Bin 88 89 90 91

Ibid., pp. 828–33, 999; ‘Airliners plot: the verdicts’, BBC News Online, 8 July 2010: www. bbc.co.uk/news/10455923. Michael Clarke and Valentina Soria, ‘Terrorism in the United Kingdom’, The RUSI Journal 154:3 (2009), 48. Andrew, Defence of the Realm, pp. 836–8; ‘Four men admit London Stock Exchange bomb plot’, BBC News Online, 1 February 2012: www.bbc.co.uk/news/uk-16833032. Bradley W. C. Bamford, ‘The United Kingdom’s “War Against Terrorism”’, Terrorism and Political Violence 16:4 (Winter 2004), 739.

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Laden’s network.92 Yet, as the capability of Al-Qaeda’s central leadership weakened towards the end of the decade, by 2011 the main threats to the UK were posed by British-based Islamist militants and Al-Qaeda affiliate groups in Somalia and Yemen (the latter planted a bomb on a cargo plane, which was discovered in East Midlands airport in late 2010).93 Overall, since 2001 there has been a significant level of threat to the UK from British and foreign terrorists, who are inspired by or directly linked to Al-Qaeda, as well as a threat to the government’s interests abroad. The Islamist terrorist threat to France continued to evolve in the years after 2001, comprising Al-Qaeda, the GSPC and freelance militants. Apart from its perceived ‘crusader’ role in the Middle East after the First World War and its support for the Algerian regime, Osama Bin Laden had another reason for hostility towards France when it participated in the American-led invasion of Afghanistan in October 2001.94 Of the western nations involved, France was one of six countries mentioned as ‘especially’ culpable by Bin Laden for their alliance with America and occupation of Afghanistan. Along with other attacks against western targets, Bin Laden praised the ‘reactions in kind perpetrated by the zealous sons of Islam’ against French interests: the killing of eleven French engineers (and two Pakistanis) working for the Pakistani navy by a suicide bomber in Karachi on 8 May 2002, and the bombing of the French oil tanker Limburg in the Gulf of Aden on 6 October 2002, which killed one Bulgarian crew member.95 Pakistani Islamists carried out the Karachi attack, though they may have been sponsored by elements of the Pakistani intelligence services.96 Members of a Yemen-based Al-Qaeda cell were found to have carried out the oil tanker bombing, which mirrored the earlier Al-Qaeda attack on the US battleship Cole off the coast of Yemen in 2000.97 Terrorist activity, which could be traced back to Bin Laden’s Afghan training camps, was also manifest in France itself. In December 2002, 92 93 94 95 96

97

‘Al-Qaeda “aided Istanbul bombers”’, BBC News Online, 13 September 2004: http:// news.bbc.co.uk/1/hi/world/europe/3653744.stm. Theresa May, ‘The UK’s Counter-Terrorism Strategy’, Speech at the Royal United Services Institute, 12 July 2011: www.rusi.org/events/past/ref:E4E2060330E9FE. Letter to Al-Jazeera, 3 November 2001, in Lawrence (ed.), Messages to the World, p. 136. Statement, 12 November 2002, in Lawrence (ed.), Messages to the World, p. 174. The potential role of Pakistani intelligence only emerged in later years. See Angelique Chrisafis, ‘Sarkozy urged to testify to inquiry into Pakistan arms sales kickbacks’, Guardian, 18 November 2010. ‘Yemen raises Al-Qaeda sentences’, BBC News Online, 5 February 2005: http://news.bbc. co.uk/1/hi/world/middle_east/4238487.stm.

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Menad Benchellali was arrested in a suburb of Lyons where he had a small laboratory set up for producing poisons, including ricin. A French national of Algerian extraction, he learned his poison-making skills at an Al-Qaeda training camp in Afghanistan from the late 1990s until the American invasion in 2001. At this point, he joined Islamist militants in the Georgian-Chechen border area for a period, before returning to France where he linked up with terrorist networks and worked intensively on producing poisons. He and twenty-four others from the so-called ‘Chechen networks’ were subsequently convicted on terrorist charges related to a plot to carry out a chemical attack in France.98 France actively opposed the invasion of Iraq in 2003, but this foreign policy choice did not shelter the country from Islamist terrorism. Its military role in Afghanistan and relationship with the Algerian regime were enough to make it a target, according to numerous terrorist communiqués. As we shall see below, Islamist extremists also expressed their anger at France’s military operations in North Africa and its domestic policies against religious symbols and face-covering veils. The number of suspects arrested in France for activities related to ‘Islamist extremism’ rose steadily year on year during these years, from fifty-eight arrests in 2002 to 170 in 2005.99 Apart from Al-Qaeda operatives linked to the Afghan camps, French security services were also concerned about the GSPC, which continued to develop along the transnational Islamist lines that it followed during the late 1990s. The group issued a statement in October 2003, declaring its support for Osama Bin Laden’s jihad against the United States and the struggle of its Muslim ‘brothers in Afghanistan, the Philippines, and Chechnya’.100 In practice, it also integrated itself more closely into global jihadist networks, notably by channelling volunteers from across North Africa to Al-Qaeda in Iraq (AQI). During 2004–5, the leader of the GSPC, Abdelmalek Droukdal, was in communication with AQI leader, Abou Moussab al-Zarqaoui, an interaction that he later described as ‘pivotal’ for the GSPC’s movement towards a closer relationship with Al-Qaeda.101 The group pledged allegiance to Bin Laden and was formally integrated into 98

99

100 101

Joby Warrick, ‘An Al-Qaeda “chemist” and the quest for ricin’, Washington Post, 5 May 2004; Verena von Derschau, ‘Filières tchétchènes: de huit à dix ans pour cinq prévenus’, AP (Associated Press), 14 June 2006. Indeed, the 2005 figure is based only on numbers of people taken into custody until the end of May 2005. See Francois Heisbourg and Jean Luc Marret, Le Terrorisme en France aujourd’hui (Paris: Ed. des Equatuers, 2006), p. 62. ‘Algerian group backs Al-Qaeda’, BBC News Online, 23 October 2003: http://news.bbc. co.uk/1/hi/world/africa/3207363.stm. Jean-Pierre Filiu, ‘Sliding south: pragmatism steers Al-Qaeda into the Sahel’, in Relationships and Rivalries: Assessing Al-Qaeda’s Affiliate Network (London: IHS Janes,

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the Al-Qaeda network in January 2007, renaming itself Al-Qaeda in the Islamic Maghreb (AQIM). This gave the Algerian militants an enhanced profile and helped it to raise funds, but it also had operational implications. As part of the vetting process through which groups are accepted into Al-Qaeda’s network, Droukdal vowed to increase his focus on foreign targets. In late 2007, AQIM killed four French tourists in a brutal shooting in Mauritania. This and other threats from the group brought to an end the famous Paris-Dakar Rally as the organisers cancelled the 2008 event following the ‘strong recommendation’ of the French government and decided to hold the rally in South America in subsequent years. AQIM also attacked American oil workers and launched near simultaneous suicide car bombs against the United Nations office in Algiers and the constitutional court in December 2007, killing forty-one people.102 Despite its more global orientation, the vast majority of AQIM attacks were still against Algerian targets, and its primary political goal remained the overthrow of the regime.103 Among its foreign targets, the group reserved particular ire for France. Droukdal posted a call for ‘martyr’ operations against France on an Islamist website in late 2005, for example, stating: ‘France is our enemy number one, the enemy of our religion, the enemy of our community.’104 Observing AQIM’s escalation of violence against foreign targets in North Africa during 2006–7, French officials were concerned that the Algerian militants would once again export these tactics to France.105 Two factors, however, made this a difficult proposition. First, Algerian security forces were putting significant pressure on AQIM. The group had already expanded its presence and terrorist activity in the SaharaSahel region, notably in Mali and Mauritania. From 2008–9, however, AQIM was forced to focus more on this region and on its Kabylie stronghold, east of Algiers, as counterterrorist operations made it increasingly difficult for the group to operate in the rest of Algeria.106 The second constraining factor was the failure of the group to make the old GSPC

102

103 104 105

106

2010), p. 33; Heisbourg and Marret, Le Terrorisme en France aujourd’hui, p. 64; ‘Le GSPC algérien menacerait la France dans le cadre du‘djihad’ international’, Le Monde, 26 June, 2005. Filiu, ‘Sliding south’, pp. 31–2; Harmon, ‘GSPC to AQIM’, 16, 18; Souad Mekennet et al., ‘A Threat Renewed: A Ragtag Insurgency Gains a Qaeda Lifeline’, New York Times, 1 July 2008; Dakar Rally, ‘History’: www.dakar.com/dakar/2012/us/history.html. Filiu, ‘Sliding south’, pp. 31, 34; Harmon, ‘GSPC to AQIM’, 16. Philippe Ridet and Piotr Smolar, ‘Les islamistes algériens du GSPC font de la France leur “ennemi numéro 1”’, Le Monde, 29 September 2005. Several French counterterrorist officials expressed this view in interviews in 2006–7. See also: Craig Smith, ‘North Africa feared as staging ground for terror’, New York Times, 20 February 2007. Filiu, ‘Sliding south’, pp. 31, 34; Harmon, ‘GSPC to AQIM’, 17, 21; Marret, ‘Homeward bound’.

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support networks in Europe fully operational after 2001. Extensive police and intelligence work by France and other European states may have compromised these networks to the extent that they were incapable of carrying out terrorist attacks on the group’s behalf.107 Freelance Islamist terrorists posed a more direct threat to France than AQIM during the decade after 2001 (although the group has tried to use such individuals, as we shall see). In September 2005, the French antiterrorist services disrupted a cell led by Safé Bourada – an Algerian who had served time in France for his role in the 1995 terrorist campaign. While Bourada had his roots in the GIA of the 1990s, it does not appear that he took instructions from its successor group, the GSPC, on his release in 2003. Instead he formed his own grouping, Ansar al-Fath, to which he recruited a number of French nationals. He and eight other members of his cell were later convicted of terrorist offences related to a plot to bomb the Parisian metro and Paris Orly Airport in 2005.108 Bourada had travelled to Lebanon prior to his arrest, and the court ruled that his chief lieutenant, Kaci Ouarab, had received training in Lebanon that was designed to help carry out bombings in France. A more common destination for young French Islamists around this time was Iraq, where they went for terrorist training or to join the insurgency. For example, the intelligence services found evidence of at least twenty-two French citizens going to Iraq in 2005, seven of whom were killed (including one in a suicide operation) and two of whom were imprisoned.109 Islamist networks in France were involved in recruiting or channelling such men to Iraq. A DVD containing footage of young European Islamists receiving training in explosives and the use of suicide bomb jackets on the Syria-Iraq border surfaced in Paris in May 2005 and was apparently being used to recruit more young men to go to Iraq.110 Rany Arnaud, a French Muslim convert, made several visits to Syria during these years, allegedly with the intention of fighting in Iraq. He was arrested in France in December 2008 on suspicion of planning a car bomb attack against the headquarters of French domestic intelligence. He had been in contact with Islamist militants in Algeria and had tried to buy explosives material before his arrest.111 107 108

109 110 111

Marret, ‘Homeward bound’; Filiu, ‘Sliding south’, p. 34. ‘Suspected terrorist cell raided by French police’, AFP (Agence France Presse), 26 September 2005; Pierre-Antoine Souchard, ‘9 convicted in Paris terror trial’, AP, 23 October 2008; Marret, ‘Homeward bound’. Heisbourg and Marret, Le Terrorisme en France aujourd’hui, p. 63. Block, ‘Evaluating the effectiveness of French counterterrorism’, p. 7. Jean Chichizola, ‘Un apprenti terroriste voulait “faire sauter” la Direction de renseignement’, Le Figaro, 10 March 2009. Bernard Squarcini, France’s most senior domestic intelligence official, refers to this case in: Christophe Cornevin and Jean Marc Leclerc, ‘Squarcini: “Nous dejouons deux attentats par an”’, Le Figaro, 1 July 2010.

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As Al-Qaeda in Iraq declined from 2007, French intelligence noticed their citizens going to other conflict zones, such as Afghanistan, Pakistan and Yemen.112 One of those observed was Ryad Hannouni, a French national of Algerian descent who attended a terrorist training camp in the border area between Afghanistan and Pakistan and was suspected of forming links with Al-Qaeda members there. On his return to Europe in September 2010, he was arrested in Italy in possession of bomb-making equipment and was extradited back to France. Using contact information found on Hannouni’s mobile phone, police then arrested three men in the south of France, who were alleged to be part of a network offering support and false identification papers to Islamist extremists returning from Afghanistan.113 Police also said in late 2010 that they knew of at least twenty-five French nationals who had travelled to Afghanistan and Pakistan to receive terrorist training.114 Examples such as Hannouni, Arnaud and Kaci Ouarab match the trend seen in Britain, whereby home-grown radicals went to fight or train abroad before returning to engage in terrorist activity at home. On the basis of such cases and the earlier experience of the Afghan training camps, terrorism analysts and French intelligence argue that some of those trained in Iraq, Pakistan or elsewhere could use their skills to carry out an attack in France.115 Apart from its military role in Afghanistan and support for the Algerian regime, France continued to attract the ire of Islamist radicals for at least two other reasons. First, the 2004 ban on religious symbols (such as the headscarf) in schools followed by the law against wearing face-covering veils in public (discussed for many years and passed in 2010) were widely regarded as targeting Muslims. The measures provoked a barrage of threats from various Islamist extremists including Osama Bin Laden and AQIM, which released a statement saying: ‘France launched a war against Muslim women . . . we solemnly swear in front of Allah not to remain silent about these provocations . . . and to do everything we can to, at the first occasion, take revenge against France.’116 Secondly, France – along with the United 112

113 114 115

116

See Bernard Squarcini’s comments in: Stéphane Joahny and Laurent Valdiguié, ‘Terrorisme: “La menace n’a jamais été aussi grande”’, Le Journal du Dimanche, 10 September 2010. ‘Coup de filet dans les milieux islamistes en France’, Le Monde, 5 October 2010; ‘12 terror suspects arrested in France’, Deutsche Presse Agentur, 5 October 2010. Nicholas Vinocur, ‘France says terror suspects were planning attack’, Reuters, 10 November 2010. Heisbourg and Marret, Le Terrorisme en France aujourd’hui, p. 67; Block, ‘Evaluating the effectiveness of French counterterrorism’, p. 7. See also the comments of Bernard Squarcini in Joahny and Valdiguié, ‘Terrorisme’. June 2009 statement, quoted in Marret, ‘Homeward bound’.

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States – has been the most prominent western collaborator with the security forces of North African and Sahelian regimes since 2001.117 AQIM often expresses its anger at this co-operation. In August 2009, a suicide bomber detonated his explosives outside the French embassy in Mauritania, wounding two French security guards. AQIM stated that the attack was a ‘response to the aggression of the crusaders – most of all France – and their collaborators against Islam and its people’.118 In July 2010, Mauritanian and French special forces conducted a joint operation against an AQIM base in northern Mali, trying – but ultimately failing – to free a French hostage. Six AQIM members were killed in the operation, prompting a leader of the group to say, ‘[we] will not rest until French blood has been spilled. Fighting hand in hand with French miscreants is sufficient proof that the Mauritanian army is fighting Islam.’119 AQIM’s efforts to make good on such threats have been hampered by its apparent failure to maintain an operational network in Europe. In response, the group has attempted to link up with potential freelance terrorists in the Algerian Diaspora in France. French national Kamel Bouchentouf exchanged emails with an AQIM leader concerning his proposals for a terrorist attack in France prior to his arrest in May 2007. Police found bomb-making materials and documents when they searched his house. Later convicted on terrorism charges, Bouchentouf confessed to planning an attack against the French 13th Regiment (paratroopers) at Dieuze in northern France.120 Adlène Hicheur, a French-Algerian researcher, was also allegedly in contact with AQIM via e-mails in which he discussed possible terrorist targets in France and suggested that he was willing to be part of an active unit. Although there was no evidence that he had taken any practical steps in that direction, the French authorities put Hicheur in detention in October 2009 and placed him under formal investigation on terrorism charges.121 Based on reports by foreign intelligence agencies and their own information, the French security services also warned in 2010 that AQIM could send operatives from one of their African bases to attempt an attack on French soil.122

117 118 120 121 122

Jean-Luc Marret, ‘French counterterrorism operations in the Sahara’, Terrorism Monitor 8: 36 (September 2010), 6–8; Harmon, ‘GSPC to AQIM’, 22–3. Filiu, ‘Sliding south’, p. 34. 119 Ibid.; Marret, ‘Operations in the Sahara.’ Marret, ‘Homeward bound.’ Scott Stewart, ‘The curious case of Adlène Hicheur’, Stratfor, 21 October 2009: www. stratfor.com. See Bernard Squarcini’s comments in: Joahny and Valdiguié, ‘Terrorisme’. See also: Kim Willsher and Xan Rice, ‘France on full alert for suicide bomb threat on Paris transport’, Guardian, 20 September 2010.

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Many of the terrorist plots against France and indeed the UK unravelled when the authorities picked up on suspicious contacts or communications between the conspirators. However, the self-styled Al-Qaeda gunman, Mohamed Merah, departed from this trend in March 2012 when he carried out lone attacks in Toulouse and Montauban. A French national of Algerian descent, he apparently minimised any potentially suspicious communication between himself and the few others that may have known something of his intentions.123 Amassing a cache of automatic weapons, he shot dead three off-duty French soldiers on 11 and 15 March before attacking a Jewish school on 19 March, killing three children and a rabbi.124 In a call to a French television station, Merah claimed allegiance to Al-Qaeda and presented his two main grievances as France’s military intervention in Afghanistan and its ban on the wearing of face-covering veils in public. He justified his attack on the school by stating that Israel ‘kill[s] our brothers and sisters in Palestine’.125 Tracked down by police, he resisted to the end before being killed by elite firearms officers. In his methods, Merah was an atypical jihadist (or potentially a new type of Islamist militant), given his exclusive focus on guns and eschewal of bombings and suicide operations. Nevertheless, his attacks showed graphically that Islamist-inspired terrorism continued to pose a threat to France and highlighted the damage that could be done by so called lone-wolf terrorists. Overall, France continued to face a significant level of threat from Islamist terrorism in the years after 2001. Freelance terrorists – including some who had received training abroad – made several efforts to attack the French homeland. GSPC/AQIM posed the main threat to French interests abroad and was also interested in attacking France itself. Comparing the threats While France faced a greater threat from Islamist terrorists than Britain from 1995 to 2001, the evidence presented above indicates that the two countries have faced a similar type and level of threat in the years since the 9/11 attacks. This can be seen more clearly if we compare the characteristics of the Islamist terrorist threats against France and Britain during the post-9/11 era. It is useful to refer here to Stephen 123 124 125

‘Abdelkader Merah, grand frère et conscience radicale du tueur’, Le Monde, 26 March 2012. Christophe Cornevin and Jean-Marc Leclerc, ‘Enquête sur l’arsenal hétéroclite de Merah’, Le Monde, 26 March 2012. ‘Gunman calls France 24 hours before pre-dawn siege’, France 24, 22 March 2012: www. france24.com/en/20120321-toulouse-gunman-calls-france-24-before-pre-dawn-raid.

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Walt’s balance of threat analysis, which suggests certain key indicators for measuring threat levels. Following Walt, I hold that the level of threat to a state is a function of its opponents’ capability, proximity and intentions.126 Let us assess these three indicators in respect of the British and French cases. Terrorist capability is made up of a number of elements. Human resources are important, and it appears that significant numbers of people have been involved in Islamist terrorism against both Britain and France in the years since 9/11. In addition to the terrorist groups and cells described above, we may also refer to the numbers of people arrested on terrorist charges in the two countries. While arrest figures are partly influenced by factors related to the nature of society and anti-terrorist security forces (see Chapter 5), they are still the closest thing we have to an indicator of the scale of human resources involved in terrorism. Considering the years after 9/11, 460 people were arrested as part of investigations into Islamist terrorism in Britain in a 36-month period between 2001 and 2004. In France, 406 people were taken into custody in cases of Islamist terrorism in a 41-month period between 2002 and 2005.127 During the entire period of 2002–10, France arrested approximately 900 people in cases of Islamist terrorism, while Britain may have made as many as 1,400 Islamist terrorism arrests during a comparable period.128 While the overall British figure is higher, if arrests are a reasonable indicator, the human resources available to Islamist terrorism in both countries have been considerable. It also appears that many of those posing a potential threat to France have based themselves outside the country in neighbouring EU states.129

126 127

128

129

My use (and modification) of Walt’s threat analysis is justified in the next section. Memorandum submitted by the Association of Chief Police Officers (ACPO) in House of Commons Home Affairs Committee, Terrorism and Community Relations: Written Evidence, HC 165-II (London: TSO, 2005), Ev 2; Heisbourg and Marret, Le Terrorisme en France aujourd’hui, p. 62. The UK does not usually release statistics on ‘Islamist’ terrorism arrests. However, official sources state that the police in Great Britain arrested 1,897 people on suspicion of terrorism (all types of terrorism) between 2001 and 2010. On the basis of certain figures (see Chapter 5 for details), I estimate that around three-quarters of these were made in relation to Islamist terrorism, hence the approximate figure of 1,400. For the French figure, see Heisbourg and Marret, Le Terrorisme en France aujourd’hui, p. 62; and Europol, EU Terrorism Situation and Trend Report (TE-SAT Reports, 2008–11): www.europol.europa.eu. Overall, arrest figures were similar until 2005, but the UK arrested more suspected Islamist terrorists than France between 2006 and 2010. Robert Leiken argues that France hosts considerably less numbers of Islamist terrorists than the UK and faces a far lesser threat as a result. See Robert Leiken, Europe’s Angry Muslims (New York: Oxford University Press, 2012), pp. 111–13, 266, 294. It is true that

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Terrorist capability also depends on access to weapons. The Islamist militants threatening Britain and France have been able to acquire various types of conventional explosives. Readily available materials have been used to produce explosives with varying degrees of effectiveness for terrorist plots that have ranged from amateur to sophisticated. Operatives in both countries have shown an ability to cause significant damage and disruption. Conventional explosives were used in both the Paris train attack of 25 July 1995 and the London bombings of 7 July 2005 to devastating effect, killing eight and fifty-two people respectively.130 Suicide bombing was the method of the London attacks, while some ‘freelance’ French terrorists have also trained in suicide operations abroad and may be willing to execute them in France. AQIM, which has carried out mass casualty suicide attacks in Algeria, would have no compunctions about using the same tactics on French territory. The apparent willingness to carry out suicide operations strengthens the capabilities of the terrorists acting against Britain and France. Yet even when suicide missions or explosives are not used, a campaign of assassinations can also have a major impact, as the case of Mohamed Merah showed. As we saw above, terrorists in France and Britain have also shown an interest in unconventional weapons – especially poisons – although their ability to deploy such weapons to mass effect is still unclear. Overall, the capabilities of French and UK-focused Islamist terrorists appear to be broadly similar. The second indicator of threat level – proximity – is also an area of similarity between the British and French cases. Both states face a combination of immigrant and home-grown terrorists resident within their territories. These operatives have often been linked to terrorist groups or training camps abroad, while retaining the advantage of being able to reside close to their target. The sizeable Muslim community in Britain (two million) and the even larger Muslim population of France (roughly four to five million) gives the small violent minority in both countries a

130

French officials have noted a trend since 1998–99 whereby the numbers of Islamist militants on their soil has decreased (see Chapter 5). However, these officials believe that many such militants simply moved to other EU countries and continued to pose a threat to France. Furthermore, even though Britain has hosted a larger number of Islamist terrorists than France since around 2005, there have still been hundreds of militants active in France since 9/11, including a number who have engaged in advanced attack planning, as outlined above. From an operational point of view, these French-based militants along with others outside the country have had the potential to mount significant terrorist attacks and have posed a similar threat to that which has faced the UK. See below this chapter for further discussion of why the ‘absolute’ capability of terrorist networks is more important than their relative size. Home Office, Official Account of the Bombings, p. 23; ‘Men on trial over Paris bombings’, BBC News Online, 1 October 2002: http://news.bbc.co.uk/1/hi/world/europe/2289646. stm.

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certain amount of cover.131 We have seen how immigrant Algerian Islamists have engaged in terrorist activity in both countries, with some East Africans also active in the UK. British citizens, often of Pakistani origin, have made home-grown terrorism a problem for the UK, while French nationals of Algerian descent have been at the forefront of the terrorist threat to France. Incoming immigrant militants can be vetted and may be easier to detect, but the presence of home-grown terrorists – many with no criminal record – is a more difficult problem facing both countries. Although it is complicated to fully assess terrorist intentions – the third indicator of threat level – it is fair to say that those threatening France and Britain have also shared important similarities on this score. I outlined above the ideology and political grievances driving contemporary Islamist terrorism. We saw how the decision of Britain and France to join America’s invasion of Afghanistan featured prominently in Osama Bin Laden’s condemnations of them, and that France’s opposition to the war in Iraq did not diminish the motivations of Islamist terrorists threatening French territory. A key point here is that while radicals in the two countries may be especially motivated by a particular situation (the UK in Iraq, or France’s role in Algeria, for example), this is in the context of a broader resentment against western powers’ purported culpability for the suffering of Muslims around the world in many different situations. The statements of those threatening the two countries – whether it was AQIM, Mohamed Merah or the London bombers – revealed this similarly structured grievance. Al-Qaeda’s ideology of global jihad has been influential here. Apart from their words, the similarly hostile intentions of the Islamist terrorists threatening Britain and France are also manifest in the apparently unrestrained nature of their operations. For example, the July 2005 attack on London and the plot by the Safé Bourada group to attack Paris, disrupted in September 2005, showed a similar operational approach: simultaneous attacks to be executed without warning in places where high concentrations of people were gathered, with the aim of producing the maximum number of casualties possible. Given their political grievances, statements and attack planning against France and the UK, it seems clear that Islamist terrorists have had a longterm or ‘strategic’ intent to attack these countries throughout the period since 2001. Nevertheless, the specific or tactical threats that they have 131

Gunaratna, Inside Al-Qaeda, pp. 124–5; Alan Travis, ‘Officials think UK’s Muslim population has risen to 2m’, Guardian, 8 April 2008; On the different estimates of France’s Muslim population, see Gilbert Charles and Besma Lahouri, ‘Les Vrais Chiffres’, L’Express, 4 December 2003.

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been able to pose to the two countries have fluctuated at particular times. This may be due to the success of counterterrorism efforts, or to tactical choices made by the terrorists themselves.132 Between 2006 and 2009, for example, France appeared to experience fewer substantial terrorist plots than it had in previous years or, at least, fewer such plots were publicly disclosed by the authorities.133 While acknowledging this, French counterterrorist officials pointed to ongoing militant networks under their observation and insisted that Islamist terrorism still posed a significant threat to France throughout this period.134 By 2010, the head of French domestic intelligence, Bernard Squarcini, said that the terrorist threat was once again at the same level as 1995, which was the high point of the threat to France in recent decades.135 Then, in March 2012, the attacks by Mohamed Merah provided a more tangible indication that Islamist militants still posed a threat to France. In Britain, meanwhile, during the years after the 2005 London bombings, the authorities reported numerous substantial terrorist plots (as outlined above). In 2009, however, Britain’s domestic intelligence service, MI5, reported a decline in the number of plots involving ‘late stage attack planning’. Despite this, the head of MI5, Jonathan Evans, observed that significant terrorist networks remained in the UK and that ‘their strategic intent is the same’ as before.136 As such analyses indicate, a reduction in tactical-level terrorist activity should not lead one to assume that the fundamental nature of a threat has changed. Though tactical fluctuations have occurred, Islamist terrorists have shown a similar strategic intent vis-à-vis Britain and France throughout the period since 2001. In addition to facing a similar threat, the UK and France have also to some extent faced a common threat from Islamist terrorism. We have seen evidence that many of those threatening the two countries perceive themselves as part of a broader transnational movement against western powers in defence of a universalised Muslim community or ummah. The development of a common ideology and operational approach by terrorists in Britain, France and other countries is facilitated by the Internet, which also enables the sharing of technical knowledge on bomb-making and direct communication between operatives.137 One example of the links 132 133 134 135 136 137

On these and other factors affecting levels of terrorist activity, see Martha Crenshaw, ‘How terrorism declines’, Terrorism and Political Violence 3:1 (1991), 69–87. On terrorist plots against France, see Marret, ‘Homeward bound’. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010. See Joahny and Valdiguié, ‘Terrorisme’. Quoted in: Andrew, Defence of the Realm, pp. 838–9. Roy, ‘Europe’s response to radical Islam’, 362.

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between countries was the discovery of GSPC cells in both France and the UK between 1999 and 2001.138 Although it is not clear if the group was actually threatening Britain or simply using it as a base to attack France, the British authorities went to great lengths after 2001 to keep individuals linked to the GSPC in detention.139 There also appears to be a connection between two of the conspiracies referred to above – Menad Benchellali’s ricin-production in Lyons, disrupted in December 2002, and the Kamel Bourgass group in London found with recipes and the ingredients for ricin in January 2003.140 It is believed that both men had been trained in poison-making in Al-Qaeda camps in Afghanistan in the late 1990s. They later went to France and the UK respectively to set up terrorist cells and work on poison preparation. Police believe that the plan was to execute co-ordinated poison attacks in the two countries.141 Another potential example was the alleged plot by Al-Qaeda on the AfghanPakistan border to send operatives to launch simultaneous attacks in Britain, France and Germany in 2010, as reported by several intelligence agencies.142 As such cases indicate, there may well be connections between some of the Islamist terrorists threatening the UK and France. Though this is relevant, the more important point for the purposes of this book is simply the similarities in the threats to the two countries. Having outlined the evolution of their respective threats and compared the capability, proximity and intentions of the militants involved, it seems reasonable to conclude that since 2001, Britain and France have faced a similar type and level of threat from Islamist terrorism.

Threat perceptions As mentioned above, it is often argued that the nature of a state’s response to terrorism depends on the nature of the threat that it is facing. While not disagreeing with this, some scholars believe that a focus on decision-makers’ perceptions of the threat yields a more fine-grained analysis. This section discusses such arguments and develops the concept of threat perception to be used in this book. It also shows that, in 138 139 140 141 142

Gregory, ‘France and the war on terrorism’, 139. ‘Who are the terror detainees?’, BBC News Online, 11 March 2005: http://news.bbc.co. uk/1/hi/uk/4101751.stm. Bamford, ‘The United Kingdom’s “War Against Terrorism”’, 745. Jason Burke, ‘Revealed: how secret papers led to ricin raid’, Observer, 17 April 2005; Warrick, ‘An Al-Qaeda “chemist”’; Easton, ‘Trials give terror battle insight’. Frank Gardner, ‘Al-Qaeda terror plot targeting Europe uncovered’, BBC News Online, 29 September 2010: www.bbc.co.uk/news/world-europe-11432849.

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addition to facing similar threats from Islamist terrorism, British and French officials have also perceived these threats in a similar way since 2001. In subsequent chapters, I will argue that such threat perceptions can account for some of the trends observed in British and French policy responses. To make this argument, however, we first need a clear idea of what threat perceptions are.

The concept of threat perception There are at least two different approaches to analysing threat perception: one broad, the other narrow. In its broader sense, threat perception is embedded in systems of meaning that affect what is and what is not defined as a threat. As Peter Katzenstein and others have pointed out, these perceptions are not simply derivative of threats. For example, terrorism is typically seen as a threat while traffic accidents are not – despite the fact that far more people are killed or injured on the roads than by terrorist attacks.143 Further evidence for the systems of meaning affecting threat perceptions lies in the apparent difference between the US government, which has tended to perceive terrorism as an act of war, and European policymakers who perceive it as a crime.144 In this study, however, my case selection holds constant the broader systems of meaning within which terrorism-related threat perceptions are situated. Both British and French policymakers perceive terrorism as a crime, for example. Rather than the broader systems of meaning, which are largely similar in the two states, differences in and changes to more particular aspects of British and French threat perceptions may be more relevant for a comparative analysis of their counterterrorist policies. For the purposes of research on these cases, therefore, we can consider threat perception in its narrow sense. Theories within the rational choice paradigm in political science can be drawn on to provide a clear understanding of threat perception in its narrow sense. The rational choice paradigm assumes that actors will carry out considered calculations, with evaluations of other actors’ behaviour being crucial to their choices.145 Particularly relevant here is ‘strategic choice theory’, which holds that actors will ‘survey their environment and, 143 144 145

Peter J. Katzenstein, ‘Same War – Different Views: Germany, Japan, and Counterterrorism’, International Organization 57:4 (Fall 2003), 734–5, 736. Ibid., 732–3. Margaret Levi, ‘A model, a method and a map: rational choice in comparative and historical analysis’, in Mark Irving Lichbach and Alan S. Zuckerman (eds.), Comparative Politics: Rationality, Culture and Structure (Cambridge University Press, 1997), pp. 23, 26.

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to the best of their ability, choose the strategy that best meets their subjectively defined goals’.146 Such actors are strategic in the sense that they ‘respond to their environment through a relatively coherent meansends calculus’.147 Consistent with this strategic perspective, realist theory in International Relations (IR) goes into detail on how states respond to the strategic environment. One of the main strands of the theory has been structural realism, which focuses on the balance of power among states.148 Deviating from this approach, Stephen Walt’s neo-realist theory holds that states react not so much against the power of other actors but rather against the threat that they pose.149 Alongside an account of the threat itself, however, Walt argues that attention needs to be paid to the state’s perception of that threat, in order to understand its response. Similar to Thomas Christensen, Walt’s approach is to graft a perceptual variable onto traditional realist accounts of the objective strategic environment.150 Another neo-realist, Fareed Zakaria, has taken this innovation a step further by abandoning the analysis of the objective strategic environment in favour of an analytical focus solely on decision-makers’ perceptions of this environment. The evolution of these perceptions is the real key to explaining their policy choices, he argues.151

146

147 148 149 150

151

David A. Lake and Robert Powell, ‘International relations: a strategic-choice approach’, in David A. Lake and Robert Powell (eds.), Strategic Choice and International Relations (Princeton University Press, 1999), pp. 6–7. Although the authors refer to strategic choice as an ‘approach’, I refer to it as a theory for the purposes of this book, since it entails some distinctive theoretical expectations, which can be contrasted with other theories considered in Chapter 2. See also pp. 29–30 of Lake and Powell on the compatibility of strategic choice theory with the realist tradition in IR. Ibid., p. 30. Kenneth Waltz, Theory of International Politics (New York: Random House, 1979). Stephen M. Walt, Origins of Alliance (Ithaca: Cornell University Press, 1987). Stephen M. Walt, ‘Testing theories of alliance formation: the case of Southwest Asia’, International Organization 42:2 (Spring 1988), 280–1; Stephen M. Walt, Revolution and War (Ithaca: Cornell University Press, 1996), pp. 18–19, 22, 36, 40–1; and Thomas J. Christensen, ‘Perceptions and Alliances in Europe, 1865–1940’, International Organization 51:1 (Winter 1997), 65–8. See also F. Gregory Gause III, ‘Balancing what? Threat perception and alliance choice in the Gulf’, Security Studies 13:2 (Winter 2003/2004), 275, 280–2. Fareed Zakaria, From Wealth to Power: The Unusual Origins of America’s World Role (Princeton University Press, 1998), pp. 24, 42. On post-Waltzian foreign policy neorealism (also known as ‘neo-classical’ realism), which has been developed by Walt and Zakaria among others, see also Colin Elman, ‘Horses for courses: why not a neorealist theory of foreign policy’, Security Studies 6:1 (Autumn 1996); Gideon Rose, ‘Neoclassical realism and theories of foreign policy’, World Politics 51:1 (October 1998); and Randall Schweller, review of From Wealth to Power, by Fareed Zakaria, in American Political Science Review 93:2 (June 1999), 497–8.

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Zakaria’s approach is well suited to the study of responses to terrorism. This is not to deny the relevance of the objective strategic or threat environment. For example, I outlined above evidence which indicates that the threat to France from Islamist terrorists during the mid- to late1990s was greater than the threat to Britain. However, the focus of this book is counterterrorist policies and practices. Features of (or changes in) the objective threat environment impact on policy and practice only insofar as the state’s officials perceive them. While it is important to note the differences in the objective level of threat to the UK and France during the mid- to late-1990s, the key information for an analysis of counterterrorist policies is that France perceived a serious threat, whereas Britain perceived the Islamist radicals on its territory as possible threats to other countries – but not to the UK itself.152 Indeed the UK’s rapid policy changes in the months after 9/11 are not explained by the sudden rise of a new threat. Rather, it is that the British authorities’ perception of the level of threat posed by Islamist radicals in Britain and abroad, as well as the possible links between the two, increased in light of the attacks on New York and Washington. For these reasons and for the sake of theoretical parsimony, this book adopts Zakaria’s approach. Rather than focusing on the objective threat, I will examine whether and how decision-makers’ threat perceptions shape their counterterrorist policies and practices. Threat perceptions will be analysed using a modified version of Stephen Walt’s approach. Although his ‘balance of threat’ theory is concerned with how states threaten each other, it can be adapted to analyse how states respond to terrorist threats. In this book, threat perception is measured in terms of three indicators: the perceived capability of the enemy, his perceived proximity, and his perceived intentions. My modifications to Walt here are twofold. First, Walt’s operationalisation of threat refers to the enemy’s capability, proximity and perceived intentions (he thus mixes objective and perceptual indicators).153 Because I seek to measure threat perceptions, I will focus solely on perceptual indicators. For example, Walt’s focus on the proximity of the enemy is relevant to counterterrorism. A state that faces a largely foreign-based terrorist threat may well act differently to a state that is threatened by large numbers of terrorists within the country. However, I will modify this to focus on how state decisionmakers perceive the terrorists’ proximity. Similarly, I will analyse how state officials perceive the terrorists’ intentions.

152 153

This is outlined in Chapter 5. See Walt, Origins of Alliance, vi; and Walt, ‘Testing theories of alliance formation’, 280–1.

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Secondly, Walt refers to both the enemy’s overall capability and his offensive capability or ability to harm.154 However, overall capability in the traditional realist sense, including elements such as population, raw material endowment, industrial and military capability and human resources, is irrelevant to an analysis of terrorist groups. In contrast to inter-state balancing, the relative ‘size’ of a terrorist group’s human resources or overall capability may not be crucial. However, absolute capabilities matter a great deal. The possession by terrorist groups of any capability to cause explosions is a key factor. The possession by Islamist terrorist groups of any biological or nuclear weapon would place western states in a highly vulnerable position.155 This is because the intentions of these groups are seen as particularly unrestrained and unsusceptible to military deterrence. In the case of terrorist groups, therefore, Walt’s two-fold understanding can be collapsed into one: offensive capability (or ability to harm). Again focusing on decision-makers’ perceptions of the terrorists, I will refer to this simply as perceived capability. In sum, the analysis of threat perception presented here blends insights from two related theories. First, the strategic choice perspective provides a broad theoretical expectation: actors will survey their strategic environment and, to the best of their ability, choose the policy that best responds to the characteristics of that environment as they perceive it. Secondly, I draw on Walt’s balance of threat theory to identify the relevant characteristics of a perceived threat environment: the perceived capability of the enemy, his perceived proximity and his perceived intentions. Let us now turn to consider the threat perceptions of French and British decisionmakers across these three categories. British and French perceptions of Islamist terrorism French government and security officials, having seen their country attacked in 1995 and 1996, perceived the Islamist terrorist threat to France as high for several years before 2001. British officials, on the other hand, believed that UK-based Islamist activists posed little or no threat to their country. One senior counterterrorist officer who served in the London Metropolitan Police said that during the 1990s, the British view of such Islamists was that although they were supporting terrorism in 154 155

Walt, ‘Testing theories of alliance formation: the case of Southwest Asia’, 280–1; Walt, Revolution and War, p. 19. Edward Rhodes, ‘A world not in the balance: war, politics and weapons of mass destruction’, in T. V. Paul, James J. Wirtz, and Michael Fortmann (eds.), Balance of Power: Theory and Practice in the 21st Century (Stanford University Press, 2004), pp. 166–7.

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other countries, ‘they [were] not actually doing anything’ against the UK. ‘We didn’t realise that there was a threat’, he added.156 This perception had a significant impact on the UK’s counterterrorist operations during the 1990s, as Chapter 5 will explain. From a global perspective, Osama Bin Laden’s Al-Qaeda was perceived as a threat to British interests around the world, but the government believed that Israeli or US interests were the most likely targets.157 However, following the 9/11 attacks in 2001 there was a reassessment of the threat in Britain, and a convergence between British and French threat perceptions. French officials continued to see the threat to their country as high, while British decision-makers now viewed Islamist terrorism as a significant threat to the UK. In particular, the British were far more concerned about the potency of Islamist terrorists generally and the potential connections between foreign extremists and those resident in the UK that could pose a threat to domestic security.158 In the period since 9/11, French and British threat perceptions – as gleaned from interviews and public statements – showed important similarities across the three indicators outlined above. First, in respect of capability, officials in both countries have assessed Islamist terrorists as being capable of deploying conventional explosives and have predicted that they are likely to use unconventional weapons in the future. Eliza Manningham-Buller, the head of MI5 between 2002 and 2007, said: ‘Today we see the use of home-made improvised explosive devices. Tomorrow’s threat may – I suggest will – include the use of chemicals, bacteriological agents, radioactive materials and even nuclear technology.’159 Similarly, France’s national counterterrorism strategy paper referred to Islamist terrorists’ current use of conventional explosives, before warning of a number of ‘factors [that] darkly suggest a resort to . . . non-conventional weapons’ in the future, including chemical, nuclear and ‘especially’ biological weapons.160 Officials in both states also see Islamist terrorism as a proximate threat and assess that a mix of both foreign and home-grown operatives pose a 156 157 158

159 160

Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Intelligence and Security Committee, Annual Report 2001–2002, Cm 5542 (London: TSO, 2002), p. 22. Bamford, ‘The United Kingdom’s “War against Terrorism”’, p. 744; interview with a former senior counterterrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005. ‘MI5 tracking “30 UK Terror Plots”’, BBC News Online, 10 November 2006: http:// news.bbc.co.uk/1/hi/uk/6134516.stm. French Government, Prevailing Against Terrorism: White Paper of the Government on internal security in the face of terrorism (Paris: Documentation Francais, 2006), pp. 36–7.

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threat to their countries. French security officials refer to their experience of being targeted by foreign groups, from the GIA in the mid-1990s to the GSPC and Al-Qaeda in later years. Yet they also stress the threat posed by French nationals living in France but with important foreign links, ranging from citizens of Algerian descent to Islamic converts.161 After 9/11, the British government first thought that foreign nationals living in the UK posed the predominant Islamist terrorist threat to the country.162 By early 2004, however, home-grown terrorist plots linked to Al-Qaeda made them realise that UK-based British citizens were central to the threat.163 The third similarity between British and French threat perceptions is that they see the intentions of the Islamist terrorists facing them as hostile and unrestrained. Peter Clarke, the head of the London Metropolitan Police’s terrorism investigations branch between 2002 and 2008, said: ‘Suicide has been a frequent feature of attack planning and delivery. There are no warnings given and the evidence suggests that on the contrary, the intention is frequently to kill as many people as possible’.164 Similarly, France’s national counterterrorism doctrine indicates how French officials are concerned that the ‘trade mark’ of Islamist terrorism is ‘the use of simultaneous explosions’ with its ‘top priority [being] to cause as many immediate casualties as possible’.165 Britain and France both regard terrorism as a crime. The conventional logic of criminal investigations is that a crime takes place and then the police investigate it after the fact. However, with a common perception of Islamist militancy as a form of terrorism that seeks to maximise casualties, the expectation on police and intelligence services has been not merely to investigate terrorist crimes, but to prevent them from happening in the first place. Thus, as we will see below, officials from both the British and French counterterrorist agencies say that when facing Islamist terrorism, they had to change from the conventional crime-solving approach to what may be called a ‘preventive logic’. In terms of the law, this means making it an offence to ‘prepare’ or ‘participate in’ terrorist activity, broadly defined (as Chapter 4 will outline). In terms of operations, it means arresting suspected terrorists earlier in the investigatory process (see Chapter 5). As 161 162

163

164 165

Several of the French police and intelligence officers interviewed mentioned these points. See Home Office, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society, Cm 6147 (London: TSO, 2004), p. 2; and Peter Clarke, ‘Learning from experience’. Several of the British police officers interviewed made this point. On the importance of the Omar Khyam-led plot in early 2004 to this realisation, see Vivienne Walt, ‘Police see more European citizens involved in terror activities’, Boston Globe, 13 June 2004. Peter Clarke, ‘Learning from experience’. French Government, Prevailing Against Terrorism, 31–2.

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the indications of terrorist activity are less substantial at this early stage than is the case after a violent crime has actually been committed, counterterrorist agencies have had to make extra efforts to gather sufficient evidence to successfully prosecute suspects in court. Thus, in terms of the planning of terrorism investigations in both France and Britain, the preventive logic has implied that the gathering of judicial or court-admissible evidence starts earlier in the counterterrorist process, at the stage during which intelligence is still being gathered. It has also implied that intelligence itself is increasingly gathered in ways that enable its judicial exploitation. As Chapter 3 will outline, this has had some important implications for the relationship between intelligence and police agencies. This chapter began by showing how France and the UK faced significant threats from terrorism between the 1970s and 1990s, although Britain faced a more sustained threat than France and suffered a greater number of fatalities. It seems that historical threat levels do not help us to understand why France has made a more draconian legal and operational response to contemporary Islamist terrorism than the UK. In the years since 9/11, the two states have faced similar threats from Islamist militants and have perceived these threats in a similar way. As just indicated, these threat perceptions and the preventive logic associated with them can explain some aspects of British and French counterterrorism, especially those areas where they have converged since 2001. However, neither current nor historical threats can adequately explain the significant and ongoing differences between British and French responses to Islamist terrorism. Indeed, rather than focusing on the magnitude of past threats to explain current counterterrorism, it is more fruitful to trace how historical experiences of terrorism are interpreted today and may contribute to society’s normative self-understanding. It is to this and other legacies of British and French history that we now turn.

2

Legacies of history: norms, institutions and routines

Islamist terrorism is a leading threat to Britain and France in the current era, but the security organisations and state institutions that deal with this threat were formed in different historical circumstances, facing different challenges to those of today. Institutions created and routines developed in the past continue to have a major influence on the two states’ responses to contemporary threats. More broadly, France and the UK’s historical experiences have left the two countries with their own distinctive configurations of norms concerning security and liberty, which also exercise an ongoing influence on policy and operations. In this chapter, I will first examine what International Relations (IR) scholarship tells us about the nature of domestic norms, and outline the historical development of Britain’s and France’s different norms in the fields of security and liberty. In similar vein, I will then discuss the nature of state institutions before going on to compare the particular institutions found in the UK and France. Thirdly, the character of organisational routines will be discussed, before comparing the routines of the British and French counterterrorist agencies. Overall, an important difference will become apparent between the focus of this chapter and the account of threat perception given in Chapter 1. Whereas the analysis of threat perception stresses rational responses to the strategic environment, this chapter emphasises how actors can be influenced by standards of appropriate behaviour stemming from their particular societal, institutional or organisational context.1 Let us consider first the level of society or the political community and in particular the role of norms. 1

This broadly corresponds to the oft-made distinction between actions based on a ‘logic of consequences’ and those based on a ‘logic of appropriateness’. See the ‘Introduction to the second edition’ in James G. March and Herbert A. Simon, Organizations (Cambridge MA: Blackwell, 1993), p. 8.

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Societal norms Norms are commonly defined as shared understandings of standards of appropriate behaviour for actors with a given identity.2 We know from the constructivist literature in IR that many norms are international in scope and common to a wide range of countries.3 Others, however, arise out of particular national historical experiences, and can differ across societies. Such shared understandings not only prescribe ends, but also lay down acceptable means of accomplishing tasks.4 Norms may be regulatory (specifying standards of appropriate behaviour) or constitutive (defining the identities of actors).5 Drawing on a distinction made by Peter Hall, the norms of interest to us here concern ‘fundamental beliefs about politics’.6 Examples would include beliefs about security, liberty, freedom of expression, or habeas corpus. As we shall see below, this specification is important for distinguishing between norms and institutional conventions. Apart from such differences in content, it should also be noted that this study conceptualises institutional conventions as embedded solely in the institutions of state. This distinguishes them from norms, which are manifest in the broader society or political community. It is for this reason that I refer to them as societal norms.7 Given our focus on standards of appropriate behaviour for actors with a given identity, it is useful to draw a link, as Peter Katzenstein does, between norms and ‘conceptions of self and other’.8 This refers, first, to those collective identities that states generate through interaction with other states. ‘Self’ in this context refers to one’s own national political community, while ‘other’ refers to other national political 2

3 4 5 6 7

8

Peter J. Katzenstein, ‘Introduction: alternative perspectives on national security’, in Peter J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996), p. 5; Martha Finnemore and Kathryn Sikkink, ‘International norm dynamics and political change’, International Organization 52:4 (Autumn 1998), 891; Audie Klotz, Norms in International Relations: The Struggle against Apartheid (Ithaca: Cornell University Press, 1995), p. 14. Theo Farrell, ‘Constructivist security studies: portrait of a research program’, International Studies Review 4:1 (2002), pp. 49–55. Elizabeth Kier, Imagining War: French and British Military Doctrine between the Wars (Princeton University Press, 1997), p. 31. Katzenstein, ‘Introduction: alternative perspectives’, p. 5; Finnemore and Sikkink, ‘International norm dynamics’, 891–2. Peter Hall, Governing the Economy: The Politics of State Intervention in Britain and France (New York: Oxford University Press, 1986), p. 278. For a similar distinction between institutions and what the author calls ‘societal values’, see Kelly Kollman, ‘Same-sex unions: the globalization of an idea’, International Studies Quarterly 51:2 (June 2007), p. 333. Peter J. Katzenstein, ‘Same war – different views: Germany, Japan, and counterterrorism’, International Organization 57:4 (Fall 2003), 737.

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communities.9 Secondly, as Katzenstein argues, norms and conceptions of self and other are also bound up with a society’s interpretation of its own history. German and Japanese governments derived standards of appropriate behaviour, he writes, partly ‘from classifying the “other” as Germany and Japan’s political regimes of the 1930s and 1940s’.10 I argue below that norms – linked to conceptions of self and other, and interpretations of history – influence counterterrorist policy in Britain and France today. While such norms may manifest themselves in the world views of particular organisations, they are embedded in a broader societal context. The kinds of norms examined in this study hold not just within organisations, but also across organisations and the broader society.11 Finnemore and Sikkink have shown how some norms can be ‘highly internalised’ (unarticulated and taken for granted as common sense), while other norms are articulated and consciously invoked by actors.12 While both types appear in the cases examined here, the ‘conscious’ type of norm is more prominent. To grasp how these norms manifest themselves in the public discourse of a political community, I focus on the views of important political and societal actors.13 These include government politicians and officials, political parties and other formations of the political elite in Parliament, the police, non-governmental organisations (NGOs), the media and key actors in the legal profession, including the judiciary. The focus will be on these elite actors’ beliefs concerning fundamental concepts such as ‘security’, ‘liberty’, and ‘human rights’, in the counterterrorist context.14 This can be operationalised on the basis of actors’ responses to a number of questions. For example, how important is it that the nation unites behind the government’s response to terrorism?

9

10 11 12 13

14

Sujata Chakrabarti Pasic, ‘Culturing international relations theory: a call for extension’, in Yosef Lapid and Friedrich Kratochwil, The Return of Culture and Identity in IR Theory (Boulder: Lynne Rienner, 1996), pp. 87–8. Terrorist organisations are not the kind of ‘other’ referred to in this concept; hence the placing of ‘threat perception’ in a separate category of variable from ‘conceptions of self and other’. Katzenstein, ‘Same war – different views: Germany, Japan, and counterterrorism’, 736. For this reason, I do not formulate a concept of ‘organisational norms’ in this book. Finnemore and Sikkink, ‘International norm dynamics’, 892. This combines Elizabeth Kier’s focus on ‘important political actors’ with Jeffrey Knopf’s focus on ‘societal actors’. See Kier, Imagining War, pp. 25–6; and Jeffrey Knopf, Domestic Society and International Cooperation (Cambridge University Press, 1998), pp. 3–7. These are elite actors in the sense that they make decisions on public policy and/or can influence such decisions through their access to the main venues of public debate. While political actors (such as government politicians and officials) are more powerful, positions taken by societal actors (such as NGOs or media outlets) also have an important influence, as Chapters 4 and 5 shall show. See also Knopf, Domestic Society.

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Should civil liberties, human rights and police practices be modified to deal with terrorists? If yes, to what extent? And is such action likely to be effective in preventing terrorism? Answers to such questions will reflect a society’s interpretation of its previous experience of threats such as terrorism and how it sees any modifications to the law and police practice that were made in that context. Although not completely static, the norms embodied in responses to such questions tend to show considerable endurance over time.15 In some countries, the vast majority of important political and societal actors will give similar responses to the questions posed above. If this kind of normative consensus holds sway, the norms in question will approach the status of common sense within the polity. In other countries, however, there are competing views among elite actors regarding the appropriate balance between liberty and security. In this kind of norm competition scenario, each of the competing norms becomes highly articulated and self-conscious in the context of contentious public debate, thus more closely approximating ideologies.16 In Elizabeth Kier’s study of attitudes to the military between the world wars, France displayed ‘competing political cultures’, while Britain on the other hand had ‘a consensual political culture’.17 By contrast, in my study of contemporary attitudes to security, liberty and counterterrorism in the two countries, France shows a normative consensus by and large, while Britain displays a high level of norm competition. These are not absolute statements. There are commonly shared norms in the UK, on which all elite actors agree. There have also been indications of norm contestation in France at certain times during the period under study. On the whole, however, there is a clear contrast between the UK and France in this respect, such that it makes sense to categorise them as sites of norm competition and normative consensus respectively. How can one show the presence and effects of norms?18 I consider two types of indicators as evidence of the presence of a norm. First, as Finnemore and Sikkink write, ‘we recognise norm-breaking behaviour because it generates disapproval or stigma and norm confirming behaviour . . . because it produces praise’.19 Thus, if an action generates

15 16

17 18

19

Kier, Imagining War, p. 26. Ibid., pp. 26–7, 57, 87. On competing norms, see also Friedrich V. Kratochwil, ‘How do norms matter?’, in Michael Byers (ed.), The Role of Law in International Politics (Oxford University Press, 2000), pp. 48–9. Ibid., Chapters 4 and 6. Paul Kowert and Jeffrey Legro, ‘Norms, identity and their limits: a theoretical reprise’, in Peter J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996), pp. 483–8. Finnemore and Sikkink, ‘International norm dynamics’, 892.

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widespread disapproval in society, I take this as evidence of the presence of a norm. Secondly, constructivist scholars emphasise that norms prompt justifications for action.20 For example, even as the UK government violated the traditional British norm against imprisonment without trial, from 2001 to 2004, its justifications and pleadings that it would use this power only in exceptional cases provided evidence of the existence of that norm. Were it not for the norm, there would have been no need to explain their action at all. I therefore consider justifications as evidence of the presence of a norm. On the question of how to show the effect of a norm on policy, the main evidence is actors’ behavioural compliance with the standards expressed by that norm. Occasional violations do not invalidate a norm, Katzenstein argues,21 but if the violations are widespread, one must conclude either that the norm is not present or that it has little effect on policy. My case selection of France and the UK allows me to hold the type and level of terrorist threat constant for much of the period under study (after 2001). This should provide a solid basis for examining whether and how norms have an effect on counterterrorist policies. As Kier argues, if actors in similar positions hold different beliefs, this allows one to show the impact of cultural factors and, in this case, norms.22 In terms of theoretical expectations, societal norms are best seen as constituting certain behavioural possibilities, rather than leading directly to specific outcomes.23 In other words, norms determine ‘zones of permissibility’ within which a number of particular outcomes are possible.24 While this approach may be criticised as indeterminate,25 it is not so wide as to explain every outcome. Indeed it proves apposite in the area of counterterrorism, where boundaries of acceptability are often tested. In the British case, for example, the ongoing norm competition tends to impose a de facto zone of permissibility, which the government may violate for a period, but which it cannot contravene indefinitely.

Norms and historical experiences: from Paris 1789 to Belfast 1969 The UK displays a high degree of norm competition on security and liberty issues. On the one hand, the principle of ‘security first’ is very 20 21 22 23 24 25

Ibid.; Katzenstein, ‘Introduction: alternative perspectives’, pp. 20–2. Katzenstein, ‘Introduction: alternative perspectives’, p. 20. Kier, Imagining War, p. 147. Martha Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force (Ithaca: Cornell University Press, 2003), p. 15. Kratochwil, ‘How do norms matter?’, p. 63. Kowert and Legro, ‘Norms, identity and their limits’, pp. 486–7.

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much in evidence in the British case, and its influence has been boosted since 2001 by the perceived existence of a severe terrorist threat to the country. Yet this security principle has been extensively contested by norms that potentially or actually contradict it. These norms range from a civil liberty principle, to more specific ideas such as resilience, proportionality, freedom of expression, political asylum and respect for communities. The ‘security first’ norm is also important in France and, as in Britain, its influence has been boosted by the perceived presence of a severe terrorist threat. Unlike in the UK, however, this principle has not been vigorously contested by opposing norms in French public discourse. As we shall see, the norms listed above, which have contradicted the security principle in the British case, have either not arisen in France, or if they have, they have generally been trumped by the ‘security first’ norm. Other ideas concerning the potential vulnerability of the state and the values of French republicanism have tended to reinforce the normative consensus around security. The different configurations of norms found in Britain and France have been shaped by the two countries’ distinctive historical experiences and by how these histories are interpreted today. In the UK, political leaders, civil liberty NGOs and the media often make reference to ‘traditional British liberties’, which they trace back to Magna Carta – the ‘Great Charter’ of 1215 – which guaranteed that no freeman would be imprisoned ‘except by the lawful judgment of his peers or by the law of the land’.26 This and subsequent English writs gave effect to this bodily freedom – habeas corpus – and assured that justice would be swift. In more recent times, even as political leaders have assured the public that the security of the nation is their top priority, they have also tapped into the idea that liberty is a particularly British tradition. In their 2010 programme for government, Prime Minister David Cameron and his deputy Nick Clegg stated that they would respect ‘Britain’s tradition of freedom’, with the latter emphasising the importance of ‘traditional British liberties which have always made this country very great’.27 The previous Prime Minister, Gordon Brown, also echoed a commonplace idea when he had spoken of Britain as ‘the home of liberty’.28 As we shall see, the positive value attached to the idea of long-standing ‘British liberties’ comes into play in debates on counterterrorism. 26 27

28

Quoted in Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008), p. 35. HM Government, The Coalition: Our Programme for Government (London: Cabinet Office, 2010), p.11; ‘Control orders need replacing, David Cameron says’, BBC News Online, 5 January 2011: www.bbc.co.uk/news/uk-politics-12120911. Gordon Brown, ‘Remarks at the British Library, London’, 29 October 2008.

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Equally important is the self-conception that Britain has been an island of long-standing political stability since at least the eighteenth century. Even though this interpretation has been challenged by recent historiography, many historians still read British history in this way, and it continues to have a marked influence on elite British society.29 In the last century, the UK prevailed in two world wars without suffering a breach of its borders, and a certain idea of British resilience developed on the basis of this experience. During threatening episodes since then, there have been widespread references in popular discourse to Britain’s ‘blitz spirit’ under sustained aerial bombing during the Second World War.30 As the Law Lords (then Britain’s highest court) effectively threw out a central plank of the government’s counterterrorist policy in December 2004, one of their number – Lord Hoffmann – referred to this history: ‘This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life . . . Fanatical groups of terrorists . . . kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda’.31 As Lord Hoffmann’s reasoning showed, selfconceptions of stability and resilience can undermine the ‘security first’ principle. If Britain is a stable and resilient polity, there is no need to compromise its traditional liberties just because of terrorism. Liberty is a key component of French self-conceptions and views of France’s contribution of universal values to the world in the 1789 Declaration of the Rights of Man and of the Citizen. Political leaders and state officials speak of the importance of safeguarding ‘public liberty’ when responding to terrorism.32 Sûreté, freedom from arbitrary detention by the state’s forces, is another concept from the 1789 declaration that can still be invoked today.33 Yet republican values stemming from the French Revolution also emphasise the importance of the state as representative of the general will and common good. The ‘republican State’, as former 29

30

31

32

33

See, for example, Gertrude Himmelfarb’s essay on British national history and review of the Oxford Illustrated History of Britain in this context: Gertrude Himmelfarb, The New History and the Old (Cambridge, MA: Harvard University Press, 2004), pp. 150–9. Mark Connelly, We Can Take It: Britain and the Memory of the Second World War (London: Pearson Longman, 2004); Tom Geoghegan, ‘Did the Blitz really unify Britain?’ BBC News Online, 8 September 2010: www.bbc.co.uk/news/magazine-11213968. House of Lords, Opinions of the Lords of Appeal for Judgement in the Cause of A (FC), X (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [16 December 2004] UKHL56, paragraph 96. Nicolas Sarkozy, Speech to the National Assembly, Ordinary Session, 23 November 2005: www.assemblee-nationale.fr/12/cra/2005-2006/076.asp#P207_57062. Investigating magistrates and some police officials also referred to this in interviews. Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Oxford: Hart, 2005), p. 45 (fn. 31).

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President Jacques Chirac portrayed it, ‘is an impartial State, one that guarantees national cohesion and solidarity between citizens’.34 Cohesion and political stability are not taken for granted in France. There is, as Cole and Raymond point out, the ‘undeniably enduring legacy of the abrupt and sometimes violent transition to the modern age effected by the . . . Revolution of 1789’.35 Since that date, France has experienced no less than thirteen different constitutions, ranging from absolute monarchies to liberal democratic republics. Although there was a basic acceptance of the republican form of government by the 1870s, France continued to ‘progress through rupture’, as one study puts it, at least until the establishment of the Fifth Republic in 1958.36 The contrast between the instability of the French political system and the stability of the British system during those centuries is striking.37 Also unlike Britain, France saw its borders breached by German armies in the two world wars. The traumatic defeat of 1940, which led to a Nazi occupation of the country for four years in collaboration with the Vichy regime, was prominent in popular memory for decades afterwards.38 In addition to external enemies, there were also internal threats to the stability of the state. Douglas Porch makes the case that France’s role as home of the Revolution and refuge for foreign radicals historically led its governments to have a particular fear of internal subversion, potentially aided by outside influence. In this context, he argues, France developed a tradition of maintaining powerful domestic intelligence agencies to keep track of such potential threats.39 This tradition continues today in respect of France’s large population of immigrant origin, parts of which are perceived as a latent threat to the stability of the state. The potential for mass violence in the banlieues (suburbs) is seen as a particular concern here.40 If ideas of stability and resilience have resonance in Britain, French historical experience seems to warn of potential instability and vulnerability. Indeed there is a tradition in public discourse that conceives of

34 35 36 37 38 39 40

See Robert Elgie, Political Institutions in Contemporary France (Oxford University Press, 2003), pp. 71–2. Alistair Cole and Gino Raymond, ‘Introduction’, in Cole and Raymond (ed.), Redefining the French Republic (Manchester University Press, 2006), p. 1. Ibid. See also Elgie, Contemporary France, pp. 6–13. Elgie, Contemporary France, pp. 6–7. Henry Rousso, The Vichy Syndrome: History and Memory in France since 1944 (Cambridge, MA: Harvard University Press, 1991). Douglas Porch, The French Secret Services: From the Dreyfus Affair to the Gulf War (New York: Farrar Strauss and Giroux, 1995), pp. 20–1. Laurent Bonelli, ‘The control of the enemy within? Police intelligence in the French banlieues’, in Didier Bigo and Elspeth Guild (eds.), Controlling Frontiers: Free Movement into and within Europe (London: Ashgate, 2005), pp. 193–204.

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France as a potentially fragile polity. Speaking about France’s response to terrorism in 2005, then Interior Minister Nicolas Sarkozy said: ‘Democracy is a precious human achievement, but a fragile one. She has her adversaries and they are resolute. They are organised. They have already struck.’ If the Republic was potentially fragile, the implication drawn from this was clear – there must be a strong response to threats. ‘Liberty’, said Mr Sarkozy, ‘is not synonymous with lack of foresight, nor with weakness. The adversaries of democracy must know that she has decided to defend herself and return every blow with her own methods.’41 Distinctive British and French self-conceptions have been reinforced by their different reactions to the experience of fighting militant movements in Northern Ireland and Algeria respectively. Although Northern Ireland is part of the United Kingdom, there has long been a strand of British thinking that viewed Ireland as a place apart, more like a colony than a part of the kingdom.42 Traditional English liberties did not apply to Northern Ireland after 1969, as the British authorities contended with the IRA’s campaign of terrorism.43 A different set of rules held there, as outlined above, which permitted internment without trial, coercive interrogation techniques and repressive operations. By the 1990s, however, the British authorities had re-evaluated their approach, and the repressive methods used in Northern Ireland in the past are widely acknowledged in the UK today as having been counterproductive. A wide range of actors, from human rights lawyers, to the British army, to former ministers involved in Northern Ireland issues, all now agree that internment and coercive interrogations were a ‘major mistake’, which served to generate sympathy for the Irish republican cause.44 The UK’s controversial practices were also highlighted in numerous cases taken before the European Court of Human Rights.45 The Court ruled that Britain had violated the European Convention on Human Rights (ECHR) in some of its killings of IRA members (what became known as the ‘shoot to kill’ policy) and in its use of coercive interrogation techniques in Northern Ireland. Indeed 41 42 43 44

45

Sarkozy, Speech to the National Assembly, 23 November 2005. Nicholas Canny, Kingdom and Colony, Ireland in the Atlantic World, 1560–1800 (Baltimore: Johns Hopkins University Press, 1988). Donohue, Cost of Counterterrorism, p. 36. In 2006, the British army’s official review of operations in Northern Ireland admitted that the use of internment and ‘deep interrogation’ was ‘a major mistake’. See Aaron Edwards, ‘Misapplying lesson learned? Analysing the utility of British counterinsurgency strategy in Northern Ireland, 1971–76’, Small Wars and Insurgencies 21:2 (June 2010), 324. See also Richard English, Armed Struggle: The History of the IRA (London: Macmillan, 2003), pp. 140–1. David Bonner, ‘The United Kingdom’s response to terrorism’, in Fernando Reinares (ed.), European Democracies Against Terrorism (Aldershot: Ashgate, 2000), pp. 51–8.

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the government was obliged to give ‘a solemn undertaking’ to the Council of Europe that such interrogation techniques would never again be used on British soil.46 Such cases, which tarnished the UK’s international image, were a further element for the government to consider when deciding on counterterrorist policy, and may have contributed to the re-evaluation of its approach. In the context of the peace process and the British rapprochement with Irish nationalism, the London government publicly apologised for miscarriages of justice and for Bloody Sunday, which Prime Minister David Cameron acknowledged had only ‘strengthened’ the IRA and ‘exacerbated the violent conflict’ in Northern Ireland. ‘You do not defend the British Army by defending the indefensible’, he said.47 Stating that they had learned from the mistakes made in Northern Ireland, British officials now affirmed that responses to terrorism had to be ‘proportionate’, in order not to exacerbate the problem.48 France also mounted a repressive response when faced with violent resistance in Algeria and on home soil related to the Algerian war of independence between 1954 and 1962. The army tortured suspects and carried out repressive operations and summary executions, which contributed to domestic and international public opinion turning against French rule in Algeria, leading to France’s eventual withdrawal.49 The crisis also had major implications for the French political system. European settlers in Algeria – known as pieds-noirs – as well as sections of the French army and society were firmly against any moves towards withdrawal. With the country divided and facing a sustained terrorist campaign on French soil from Algerian nationalists, the Fourth Republic collapsed in 1958, allowing the Second World War hero General Charles de Gaulle to step in, oversee the creation of a new Republic and become its first President.50 When de Gaulle indicated his intention to withdraw from Algeria, generals firmly opposed to this tried to seize power in Algiers in 1960 and ’61. These elements, allied with some of the pieds-noirs, then launched fierce terrorist campaigns in Algeria and France, mounting over 5,000 attacks in one year, including several

46

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Adam Tomkins, ‘Civil liberties in the Council of Europe’, in C. A. Gearty (ed.), European Civil Liberties and the European Convention on Human Rights (The Hague: Kluwer Law, 1997), p. 43. ‘Bloody Sunday: PM David Cameron’s full statement’, BBC News Online, 15 June 2010: www.bbc.co.uk/news/10322295. See Chapter 5. Martin Alexander and J. F. V. Keiger (eds.), France and the Algerian War, 1954–62: Strategy, Operations and Diplomacy (London: Frank Cass, 2002). Elgie, Contemporary France, pp. 12–13.

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attempts to assassinate de Gaulle himself.51 By 1962, however, France had withdrawn from Algeria and de Gaulle had managed to see off this major threat to the stability of the country. Yet the Franco-Algerian war remains a subject of controversy to this day. The French state has been reluctant to acknowledge its widespread use of torture and summary executions during the war. Despite the ultimately counterproductive effects of such actions, there has never been a public acknowledgement of ‘mistakes made’ to the same extent as in the British case, nor has there been an equivalent reconciliation with Algerian society.52 A key difference, of course, is that Britain was not forced to withdraw from Northern Ireland. It was able to moderate its behaviour over time and eventually turn the situation into something of a conflict resolution success story. It may be easier to acknowledge mistakes and lessons learned when they take the form of setbacks rather than outright defeat. France was not offered such luxuries. Withdrawal divided the country and threatened once again the stability of the political system. Also unlike Britain, ECHR cases did not arise (the French did not ratify it until 1974) and so France did not have to consider its behaviour in Algeria in that light.53 To the extent that French political elites have thought about the Algerian crisis since the 1960s, the lessons they have taken may concern more the historical vulnerability of the state than any other kind of lesson-learning. Rather than highlighting the importance of more proportionate responses to terrorism, the Algerian experience has more likely reinforced the importance of the ‘security first’ norm for French society. With these distinctive historical backgrounds, different normative contexts concerning security and liberty have developed in Britain and France in recent decades. In Britain, the government, police forces, sections of the media and others assert security as their top priority in public debate. However, they have been contested extensively by other important political and societal actors, such as some political parties, NGOs and sections of the media and the legal profession that assert contradictory norms, such as liberty and proportionality, which resonate powerfully in British self-conceptions and contemporary discourse. This means that, as Jon Moran has put it,

51

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Jeremy Shapiro, ‘French responses to terrorism from the Algeria War to the present’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), pp. 257–9. Jo McCormack, Collective Memory: France and the Algerian War, 1954–1962 (Lanham: Lexington Books, 2007); ‘Years of fire’, Economist, 17 February 2011. France delayed ratification partly to avoid ECHR cases on Algeria. See Elisabeth Abdelgawad and Anne Weber, ‘The Reception Process in France and Germany’, in Helen Keller, ed., A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, 2008), p. 108.

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‘public debate [on security and liberty] is intense and varied and keeps the government under the spotlight’. One important aspect of this, he notes, is that major newspapers have made detailed examinations of the police’s counterterrorist operations.54 Anastassia Tsoukala’s research into British and French debates on counterterrorist policies supports this view. Based on an empirical analysis of the content of newspaper articles between 2001 and 2003, Tsoukala concludes that ‘British discourses . . . [have been] quantitatively more important than the French ones.’ As this research is based on a detailed analysis of public statements and arguments by elite actors, it indicates the high level of debate on counterterrorism in the UK, relative to France.55 It also supports the view that Britain is a site of norm competition on security issues, while France displays a large degree of normative consensus in this area. Chapters 4 and 5 will outline some dimensions of the intense public debate in Britain, and show its effects on counterterrorist policy. After eight years of battling the government, a reflection by prominent civil liberties advocate Henry Porter gave an indication of the impact of public debate and norm competition in the UK. ‘To my surprise’, he wrote, ‘I found that campaigning really does work.’ Listing victories achieved against the government by a number of civil liberty NGOs, he noted ‘the extraordinary effect a few determined people can have’.56 In France, on the other hand, both researchers and societal actors point to consensus and a lack of debate on security and responses to terrorism. Jeremy Shapiro, author of a number of works on France, noted that given the ‘repressive’ nature of French counterterrorism, ‘the criticism of the system . . . in French civil society has been rather tepid’.57 Schmit and Gerecht made similar observations, noting that in the centre-left newspaper of record, Le Monde, ‘news reports and editorials infrequently express concern about the intrusiveness of the French counterterrorism methods’.58 In a report on counterterrorism co-operation with countries 54 55

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Jon Moran, ‘Generating more heat than light? Debates on civil liberties in the UK’, Policing 1:1 (2007), 88. The study collected statements in quotation marks made in the media, rather than simply comparing numbers of articles. See Anastassia Tsoukala, ‘Democracy in the light of security: British and French political discourses on domestic counterterrorism policies’, Political Studies 54:3 (October 2006), 609–10, 622. Henry Porter, ‘I’m off, but the struggle for civil liberties must go on’, Guardian, 21 May 2010: www.guardian.co.uk/commentisfree/henryporter/2010/may/21/liberty-centralcivil-liberties-henry-porter. Jeremy Shapiro, ‘Detention of terrorism suspects in Britain and France’, Testimony to the Commission on Security and Cooperation in Europe, 15 July 2008: www.brookings.edu. The authors note the ‘striking’ contrast with the New York Times, where criticism is ‘constant’. Reuel Marc Gerecht and Gary Schmitt, ‘France: Europe’s counterterrorist powerhouse,’ American Enterprise Institute: European Outlook 3 (November 2007): www. aei.org.

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that torture, Human Rights Watch also observed that ‘France has not experienced the same public debate or media scrutiny [on this issue] as have Germany and the UK.’59 Lack of debate does not mean lack of interest, but it points rather to a large degree of consensus in French society on counterterrorism issues. Government officials, police officers, lawyers and human rights NGOs all agree that such a consensus exists, though they take different views on whether this is a good or a bad thing. As one senior police officer said: ‘the notion of the Republic and the notion of the centralising state are important notions in France, which few people contest . . . there is never a discussion on the putting in place of special laws to fight against terrorism . . . there is a consensus.’60 On the other side of the fence, the testimony of Michel Tubiana, President of the French Ligue des Droits de l’Homme from 2000 to 2005, also indicated a French consensus on security issues, although he was understandably less positive about this. Speaking about the efforts of his NGO to bring human rights considerations to bear on anti-terrorism legislation, Mr Tubiana said that it was difficult to have an impact on policy or public debate: ‘It’s extremely difficult . . . we shout, but it is difficult to be heard.’61 If concepts of liberty and proportionality resonate in Britain even in discussions of counterterrorism, such ideas do not make a major impact in equivalent French discussions. The normative consensus on security issues in French society means that most actors with influence unite behind the government’s security-oriented response to terrorism. While norms are important to counterterrorism, this is not necessarily due to public opinion. Majorities in both France and Britain appear to support security-oriented government policies on terrorism over any concerns about the erosion of civil liberties.62 The consensus among the elites of French politics and society is wholly consistent with its broader public opinion in 59 60 61

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Human Rights Watch, No Questions Asked: Intelligence Cooperation with Countries that Torture (New York: HRW, June 2010), p. 51. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. Interview with Michel Tubiana, experienced defence lawyer on terrorism cases and President of the French Ligue des Droits de l’Homme (2000–2005) [FR-P], Paris, 23 February 2007. Another human rights advocate expressed a similar view: interview with a representative of a French-based human rights organisation [FR-T], Paris, 20 February 2007. For studies and opinion polls which indicate this, see Defence Science and Technology Laboratory, ‘What concerns do the UK public have concerning the impact of counterterrorism legislation implementation since 2000?’, Home Office Occasional Paper 88 (March 2010), pp. 2–3, 18–19, 22–3; Infraforces, ‘Les Francais et la perception de la politique sécuritaire du gouvernement’, 3 October 2010: www.france-info.com/IMG/pdf/ 1/9/d/Rapport_Sondage_Septembre2010_-_France_Info_20mn.pdf; Ipsos, ‘Les Francais et le politique Algerienne de Paris’, 25 October 1995: www.ipsos.fr/ipsos-public-affairs/

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this regard, but there is a tension in Britain between its elite political discourse and its public opinion. Nevertheless, this does not stop some important political, legal and NGO actors from asserting the importance of civil liberties. As a rebel Labour Member of Parliament (MP), Diane Abbott, put it in 2005 (when helping to vote down one of the government’s counterterrorist policies): ‘If we listened to public opinion, we would bring back hanging tomorrow.’63 Public opinion does not explain the differences between French and British responses to terrorism. The important source of variation in this context is rather elite political and societal actors, who have constructed different forms of public discourse on security issues in the two countries. The ‘security first’ norm tends to be supported in France by republican and other ideas, whereas it is often opposed in the UK by contradictory concepts such as liberty, proportionality and resilience. Subsequent chapters will outline other salient norms in the two countries and show how the normative consensus in France, contrasted against norm competition in Britain, helps to explain the differences between their respective approaches, particularly their legal and operational responses to terrorism.

Institutions In addition to broader societal norms, we also need to take into account the character and configuration of specific state institutions in order to understand national responses to terrorism. Previous studies have shown the effects of domestic institutions on counterterrorism in the United States and Germany. Research on the US case has emphasised the separation of powers between executive, legislature and judiciary as well as the fragmented nature of the executive branch, showing how these institutional rules and structures have constrained the American response to terrorism.64 Giovanni Capoccia has similarly shown that the diffused structures of power in Germany constrain the government’s ability to introduce new counterterrorism measures.65 These analyses rightly

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sondages/francais-et-politique-algerienne-paris; Ipsos, ‘Insécurité et terrorisme: l’action du gouvernement’, 29 March 1987: www.ipsos.fr/ipsos-public-affairs/sondages/insecurite-etterrorisme-l-action-gouvernement. Brian Wheeler, ‘Blair defeat MPs: heroes or villains?’ BBC News Online, 11 November 2005: http://newsvote.bbc.co.uk/2/hi/uk_news/politics/4424200.stm. Martha Crenshaw, ‘Counterterrorism policy and the political process’, Studies in Conflict & Terrorism 24:4 (2001), 329–37; Matthew Kroenig and Jay Stowsky, ‘War makes the state, but not as it pleases: homeland security and American anti-statism’, Security Studies 15:2 (April–June 2006), 250–4; Amy Zegart, Spying Blind: The CIA, the FBI and the Origins of 9/11 (Princeton University Press, 2007), pp. 58–9. Giovanni Capoccia, ‘Germany’s response to 9/11: the importance of checks and balances’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), pp. 285–334.

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draw our attention to the importance of institutional structures and veto points. Yet there is more to institutions than rule-based check and balance. As the British and French cases illustrate, there are also conventions that make some actions thinkable in a given institutional context, and others not. Of particular interest here will be the conventions that govern the relationship between the executive and the judiciary. These sorts of conventions can be best understood with reference to the literature on ‘new institutionalism’. Scholars writing from this perspective reject the claim that changes in ideas and institutions are primarily adaptive responses to changing environments. As Lynn Eden puts it, institutionalists ‘do not assume rational, efficient or adaptive outcomes’, but stress instead ‘how older ways of understanding and acting persist’ and shape governments’ solutions to the problems they face.66 Institutions thus develop in a ‘path dependent’ manner, as Walter Powell explains: ‘Choices made at one point in time create institutions that generate recognizable patterns of constraints and opportunities at a later point’, he writes. Outcomes cannot be explained simply by ‘the preferences of actors . . . but must be explained as the product of previous choices’.67 Indeed, these previous choices have been theorised as ‘critical junctures’ or ‘critical founding moments of institutional formation that send countries along broadly different developmental paths’.68 Institutionalists see such paths as self-reinforcing processes, which may become ‘locked-in’ or resistant to radical reform. Institutions can and do change but new developments will usually be broadly compatible with and follow the same logic as the existing institutional order.69 Although different schools of new institutionalist thought have formed, there is broad agreement that institutions can be defined as comprising formal rules, procedures and norms.70 Illustrative examples, cited by Hall 66 67

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Lynn Eden, Whole World on Fire: Organizations, Knowledge and Nuclear Weapons Devastation (Ithaca: Cornell University Press, 2004), p. 51. Walter W. Powell, ‘Expanding the scope of institutional analysis’, in Paul J. Di Maggio and Walter W. Powell (eds.), The New Institutionalism in Organizational Analysis (University of Chicago Press, 1991), pp. 188–9. See also the discussion of this point in Eden, Whole World on Fire, pp. 50–2. Kathleen Thelen, ‘Historical institutionalism in comparative politics’, Annual Review of Political Science 2 (June 1999), 387–92. See also Kathleen Thelen, ‘How institutions evolve: insights from comparative historical analysis’, in James Mahoney and Dietrich Rueschemeyer (eds.), Comparative Historical Analysis in the Social Sciences (Cambridge University Press, 2003), pp. 217–20. Thelen, ‘Historical institutionalism in comparative politics’, 386. Much of the later institutionalist literature rowed back on its initial focus on continuity and endeavoured to also explain institutional change. Peter A. Hall and Rosemary Taylor, ‘Political science and three new institutionalisms’, Political Studies 44:5 (December 1996), 938–40, 942–3, 947–8. This article distinguishes between the ‘historical’, the ‘sociological’ and the ‘rational choice’ schools of new institutionalist thought. All three would accept that institutions are comprised of rules and

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and Taylor, include ‘the rules of a constitutional order’, ‘the standard operating procedures of bureaucracy’ and the norms or ‘conventions governing trade union behaviour’.71 If institutions are comprised of rules, procedures and norms, however, the third of these three elements needs to be specified further. There is a danger of simply conflating norms and institutions, such that the latter loses its status as a variable that can be considered independently of the wider political culture of a society. To counteract this risk, the reference to norms in my definition of institutions is restricted to those norms that pertain to and are embedded in an ‘immediate institutional situation’.72 Within these confines, such norms may be either regulatory (specifying standards of appropriate inter-institutional behaviour) or constitutive (defining the professional identities of actors within these institutions).73 Beyond this immediate institutional context, however, norms which pertain to ‘fundamental beliefs about politics’ and society are not entailed in my definition of institutions.74 With these provisos in mind, the variable of interest to this study is formulated as inter-institutional conventions. This is defined as: the formal rules, standard operating procedures and norms that govern the relationships between institutions.75

State institutions in Britain and France This section gives an overview of British and French state institutions before going on to highlight certain inter-institutional conventions that are of most relevance to counterterrorism. Identifying the similarities and differences between the two cases will allow us to give a more precise account in subsequent chapters of where institutions matter to counterterrorism policy – and where they do not. To begin with, one can identify some broad similarities between the institutional structures found in the two states. Traditionally, in both cases, there has been a strong executive, supported by the legislature, which has been more or less predominant over the judiciary. This contrasts with the US, where a more equal division of power means that the three branches of government each have considerable

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procedures. The rational choice school rejects the inclusion of norms in the definition, but sociological and historical institutionalists by and large include this element in their definitions. Ibid., 938. 72 Hall, Governing the Economy, p. 278. Katzenstein, ‘Introduction: alternative perspectives’, p. 5; Finnemore and Sikkink, ‘International norm dynamics’, 891. This is based on a distinction made in: Hall, Governing the Economy, p. 278. As outlined above, ‘fundamental beliefs about politics’ are analysed as societal norms in this study. This is based on the preceding discussion and on: Hall and Taylor, ‘Political science and three new institutionalisms’, 938; and Hall, Governing the Economy, p. 19.

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ability to constrain the other two.76 Under the Fifth Republic, France has a dual executive where a directly elected President works with a Prime Minister and Cabinet who are responsible to Parliament. In Britain, the Prime Minister and Cabinet, who are likewise accountable to Parliament, lead the government. Yet in a situation where the office of Prime Minister has arguably become more ‘presidential’, there has not been any institutionally based difference between the ability of the British and French executives to formulate counterterrorist policy.77 The French Parliament is weak partly because of constitutional restrictions placed on it at the beginning of the Fifth Republic. The British Parliament has considerable prestige owing to its long history, but it too has generally been subordinate to a powerful executive over the last one hundred years. In both cases, because loyalty to political parties is so strong, the executive can usually count on its majority in Parliament to provide a permissive environment for the passing of legislation.78 As such, there are no major sources of variation in the institutional rules and practices of the British and French Parliaments that one could expect would make a difference for counterterrorist policy. The relationship in Britain and France between the executive and legislature on the one hand and the judiciary on the other is a more complicated story of convergence in some areas and divergence in others. The executive and Parliament in France – as expressions of the will of the people – traditionally predominated over the judiciary.79 For many years, the executive could count on subservient co-operation even from the Conseil Constitutionnel, the highest constitutional authority in the land, which determines whether bills and treaties conform to the French Constitution. This began to change in the 1970s, however, as the Constitutional Council took advantage of reforms to its procedures to become more active in its scrutiny of parliamentary bills. As members often voted according to their political leanings, the Council’s rulings reflected left- or right-wing ideology, depending on which side constituted a majority of members during any given period.80 As Sylvain Brouard has shown, the Council partially or totally vetoed almost 14 per cent of domestic laws passed between 1986 and 2006, making it a strong court in his view.81

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Elgie, Contemporary France, pp. 178–9. Ibid., 95–6; David Judge, Political Institutions in the United Kingdom (Oxford University Press, 2005), 145–6. Elgie, Contemporary France, pp. 175–6; Judge, Institutions in the United Kingdom, pp. 24–31, 79. Elgie, Contemporary France, pp. 178–9. 80 Ibid., pp. 186–90. Sylvain Brouard, ‘The Constitutional Council: the rising regulator of French politics’, in S. Brouard, A. Appleton and A. Mazur (eds.), Beyond Stereotypes, French Fifth Republic at Fifty (New York: Palgrave Macmillan, 2009), pp. 112–13.

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From similarly humble origins, the judiciary in the UK has been moving in a broadly similar direction to its French counterparts. The strength of the doctrine of parliamentary sovereignty in Britain meant that judges were traditionally reluctant to challenge elected governments. In the 1980s, however, there was an increase in the number of applications for judicial review. Although only a small proportion of these concerned central government, their expansion gave rise to a debate about the extent to which the judiciary was moving beyond its traditional role.82 In 1998, the passing of the Human Rights Act gave effect to the main articles of the European Convention on Human Rights in the UK’s legal systems. Upon entering force in October 2000, the Act enabled British judges to adjudicate directly on whether the government’s legislation fully respected fundamental convention freedoms, such as the right to a fair trial or freedom from torture. Over the next decade, such cases were heard by courts at the various levels, sometimes ascending to the Appellate Committee of the House of Lords, the highest court of appeal in the UK, composed of the most senior members of the judiciary, commonly known as the ‘Law Lords’. The Human Rights Act theoretically adhered to the doctrine of parliamentary sovereignty by stipulating that British courts would rule on whether legislation was compatible with the ECHR; in other words, a negative ruling by the Law Lords would not in itself strike down such legislation.83 However, as David Feldman has written, in practice a ‘declaration of incompatibility’ by the court ‘tends to undermine the moral legitimacy of the legislation and leads to pressure on the government to introduce amending legislation’.84 Indeed rulings by Britain’s highest court on the ECHR have been accorded huge weight by the government and media over the last decade, and have a legitimacy that makes them hard to ignore.85 Although notions of judicial deference are still important, in practice the transfer of power from the executive and Parliament to the judiciary has been ‘significant’, according to one legal expert, ‘unprecedented’, according to another, and a ‘paradigm shift in the foundations of the British constitutional law’, according to a third.86 A second important development was the transfer of the Law Lords’ judicial authority to a newly created Supreme Court for the UK in October 2009. Although there was no increase in their formal powers, 82 84 85 86

Judge, Institutions in the United Kingdom, pp. 226–7. 83 Ibid., pp. 229–31. David Feldman, ‘Terrorism, human rights and their constitutional implications’, European Constitutional Law Review, 1, Issue 3 (October 2005), pp. 534–5. Richard Cornes, ‘Supreme Court stories’, Presented at the Centre for Political and Constitutional Studies, Madrid, 12 April 2010. Keith Ewing, Mathew Flinders and Richard Edwards respectively, quoted in Judge, Institutions in the United Kingdom, pp. 231–2.

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this reform reinforced the trend towards a stronger role for the senior judiciary. As the Deputy Head of the Supreme Court Lord Hope put it in 2010, ‘The very fact that decisions are now being issued in the name of a court – of the Supreme Court indeed – does seem to have given them an added authority.’87 Lord Neuberger, a senior Court of Appeal judge, went further, stating that Supreme Court judges could over time take on ‘greater power than they have at the moment’ to challenge the government.88 The Supreme Court may not be as interventionist as the French Conseil Constitutionnel across all policy areas, but in the context of the Human Rights Act, the highest court in the UK has been increasingly willing to challenge the government on issues of security, liberty and human rights. As Chapter 4 will outline, this can be best understood in the context of British public discourse on such norms. All in all, the interinstitutional conventions regarding judicial review of the executive’s parliamentary legislation have been evolving in a broadly similar direction in Britain and France. The separation of powers between the executive (or government) and the judiciary is important to both polities.89 However, in the area of criminal investigation and justice, conventions of judicial separation from government (and agencies responsible to the government) are more strictly applied in the UK than in France. This difference stems mainly from their contrasting legal systems, but it also owes something to different conceptions of the state. France’s civil law, inquisitorial system gives prosecutors and in particular a Paris-based team of investigating magistrates (juges d’instructions) the power to direct the French law enforcement agencies’ investigations into terrorism.90 Investigating magistrates are completely independent of government. Yet, as Chapters 3 and 4 will outline, the positive normative value attached to ‘the State’ and ‘the Republic’ in France has provided conditions in which these magistrates have voluntarily allied themselves with the state and its security agencies in the fight against terrorism.91 Thus, a section of the judiciary works directly with security agencies that fall under the executive responsibility of the government. This is a key element in what I will call the 87

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Lord Hope of Craighead, ‘The creation of the Supreme Court – was it worth it?’, The 2010 Annual Gray’s Inn Reading, 24 June 2010: www.gresham.ac.uk/lectures-andevents/the-creation-of-the-supreme-court-was-it-worth-it. Joshua Rozenberg, ‘Fear over UK Supreme Court’s Impact’, BBC News Online, 8 September 2009: http://news.bbc.co.uk/2/hi/uk_news/8237855.stm. Judge, Institutions in the United Kingdom, pp. 223–6; Elgie, Contemporary France, pp. 178–9, 190. This system was reinforced by judicial reforms made in 1986 (see Chapter 3). On French statism and its ‘state-centred conception of justice’, see Elgie, Contemporary France, pp. 71–4; and Hodgson, French Criminal Justice, pp. 14–22, 30.

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integrating inter-institutional conventions of the French state in the area of criminal justice. Such conventions enable a unity of effort among different branches of the state against terrorism that is not so readily achievable in the UK. The legal system in England and Wales is a common law, adversarial system.92 Whereas inquisitorial systems hold that one of the roles of judges is to lead police investigations, the common law world understands the judicial function more narrowly as the adjudication of issues, primarily at trial.93 Thus, in contrast to France, there is no section of the judiciary in Britain that collaborates directly with law enforcement officers on terrorism investigations. Chapter 3 will show how the absence of such co-operation is explained by a separating inter-institutional convention, rooted in English common law tradition, which places a premium on the judiciary maintaining its independence from the government and its agencies’ management of security issues. If the state is viewed positively in France, there is something closer to anti-statism in the British concept of judicial independence or, more precisely, a strong wish on the part of judges to maintain their independence from government.94 Overall, the differences between France and the UK’s inter-institutional conventions in the area of criminal justice are wide-ranging. In addition to having different formal rules and standard operating procedures, some institutional actors in the two cases have different professional identities and adhere to distinctive norms. Grounded in legal systems with long historical roots, these inter-institutional conventions continue to have important effects, including on the two states’ responses to Islamist terrorism.

Organisational routines We have focused thus far on the societal level and the level of the high institutions of state (primarily the executive and judiciary). No less important, however, is the level of professional security and investigative organisations. An analysis of the interactions between police, intelligence and 92

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The legal system of England and Wales is distinct from that of Scotland. As the vast majority of Islamist investigations in the UK are concentrated in the former jurisdiction, I concentrate on this system, usually referring to it as the ‘English’ legal system, for simplicity’s sake. Hodgson, French Criminal Justice, p. 66. Chapter 4 goes into detail on this. On judicial independence in Britain, see Judge, Institutions in the United Kingdom, pp. 223–6, 258–9. On the effects of anti-statism on US counterterrorism, see Kroenig and Stowsky, ‘War makes the state, but not as it pleases’.

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related agencies reveals the importance of organisational routines to the practical work of terrorism investigations. Nevertheless, research on counterterrorist agencies has not hitherto tapped into the organisation theory on this subject.95 Drawing on this literature, I will briefly discuss the nature of organisational routines, before going on to examine the particular routines of Britain and France’s counterterrorist agencies. My starting point is James March’s insight that organisational action stems less from a logic of consequences (the considered weighing of alternatives, envisaged by rational choice theory) and more from a logic of appropriateness. This means that organisations tend to resort to preexisting repertoires of action on the basis of recognising a situation ‘as being of a familiar, frequently encountered, type’.96 The situation (or ‘stimulus’) facing them thus evokes a response that has been developed ‘at a previous time as an appropriate response for a stimulus of this class’.97 Where organisational responses are marked by the appearance of such regular patterns of action (and the absence of consequence-weighing), March considers them to be instances of ‘routinised’ activity.98 Such organisational routines are collective in nature; they involve interaction between multiple actors within and across organisational units.99 Given these characteristics, I adhere to the widely accepted definition of organisational routines as recurrent interaction patterns.100 This definition is also appropriate for my empirical focus on how routines function as co-ordination mechanisms in terrorism investigations.101

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97 99 100

101

However, some authors have used related concepts, such as ‘organisational learning’ and organisational ‘adaptation failure’. On the former, see Michael Kenney, From Pablo to Osama: Trafficking and Terrorist Networks, Government Bureaucracies and Competitive Adaptation (Philadelphia: Penn State Press, 2007), pp. 3–7, 222–7. On the latter, see Amy Zegart, ‘September 11 and the adaptation failure of U.S. intelligence agencies’, International Security 29:4 (Spring 2005), pp. 89–97; and Zegart, Spying Blind. March and Simon, Organizations, p. 8; March’s later work stresses the importance of the logic of appropriateness over the logic of consequences. See, for example, Barbara Levitt and James G. March, ‘Organizational learning’, Annual Review of Sociology 14 (1998), 320. 98 March and Simon, Organizations, p.139. My emphasis. Ibid., p. 142. Markus C. Becker, ‘Organizational routines: a review of the literature’, Industrial and Corporate Change 13:4 (August 2004), 645–7. A number of influential articles use this or a similar definition. For a review and discussion, see ibid., 644–6, 663–4; and Brian T. Pentland and Henry H. Rueter, ‘Organizational routines as grammars of action’, Administrative Science Quarterly 39:3 (September 1994), 484, 487–8. Given this focus, I do not devote attention to another important function of routines – how they enable organisations to embed knowledge into collective action. For a discussion of ‘knowledge-laden’ routines in a security context, see Eden, Whole World on Fire, p. 3, pp. 55–7. See also Kenney, From Pablo to Osama.

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Organisational routines thus embody long-standing patterns of interaction that continue to have their effects long after the historical circumstances which gave rise to them have faded away. This is important for understanding how organisations respond to feedback from the external environment. Markus Becker writes that ‘routines may adapt to experience incrementally in response to feedback about outcomes, but they do so based on their previous state’. Similar to the ‘new institutionalist’ literature, the claim here is that organisational routines can change, but they do so in a path-dependent manner. This means that – quite apart from the external environment – choices made in the past also have ‘feedback effects’ which favour the continuation of certain routines and make the development of others less viable.102 If an organisation accumulates experience of a certain routine and has some success with it, this may make it unrewarding to change later on, even if the proposed reform entails a superior procedure.103 Actors also tend to reproduce organisational routines in habitual and unreflective ways.104 Such routines are all the more powerful because they are not up for debate and are taken for granted in their particular contexts. For example, it will be shown below how certain investigatory procedures, which are regarded as completely ‘normal’ in France, are rejected as unpalatable in the British context. It is through these path-dependent and habit-based mechanisms that historically grounded routines shape organisations’ responses to contemporary challenges. We considered above how one can show the effects of norms. I follow a similar approach in respect of organisational routines and institutional conventions. As with norms, the main evidence for the effect of these factors is actors’ behavioural compliance with the routines and conventions specified in the two cases under study. Selecting the British and French cases allows me to hold the type and level of terrorist threat constant for the period after 2001. If state officials – which have similar types of responsibilities and perceive similar threats – nevertheless adopt different types of reforms in response to those threats, this provides a basis for showing the effects of organisational routines and institutional conventions.

102 103 104

Becker, ‘Organizational routines’, 653. The literature calls this a ‘competency trap’. See Levitt and March, ‘Organizational learning’, 322. Organisation theorists differ on whether actors reproduce routines in unreflective ways or as a result of ‘effortful accomplishment’. See Becker, ‘Organizational routines’, 648–9. As will be discussed in Chapter 3, the empirical cases examined here support a qualified version of the former thesis.

Routines of the British and French counterterrorist agencies

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Routines of the British and French counterterrorist agencies The literature stresses that organisational routines are context-dependent and may ‘strongly differ’ from setting to setting.105 The routines of counterterrorist agencies are no exception and the key differences between them may be captured in the concepts of formal and informal organisational routines. In this study, a formal routine is indicated by the presence of regularised interaction patterns between agencies, based on rules laid down by a central authority. Conversely, an informal organisational routine is indicated by the presence of irregular interaction patterns between agencies, based on interpersonal relationships.106 I argue that the British counterterrorist agencies display a set of formal organisational routines, while their French counterparts’ routines are informal in nature. We can best understand this variation by shifting the analysis back one step to consider the antecedents of organisational routines. I identify three initial conditions, which give rise to particular organisational routines among counterterrorist agencies (each of which is followed by its two, contrasting ideal types). These antecedents are: (i) the number of counterterrorist agencies in the state (few/many); (ii) the nature of their respective mandates (distinct/overlapping); and (iii) the distribution of authority between organisational units (concentrated/dispersed).107 This implies an analysis based on Becker’s three-fold conceptual framework, which comprises the antecedents, characteristics and outcomes of organisational routines (see Figure 2).108 There are two steps to this analysis: first, to outline the antecedents that gave rise to different organisational routines in the French and British cases; and second, to consider how these organisational routines shape reforms to the co-ordination of counterterrorist agencies.

105 106

107

108

Becker, ‘Organizational routines’, 651. Interpersonal relationships are important in all organisational settings since they facilitate smooth collaboration on the carrying out of particular tasks. The key distinction, however, is that the quality of interaction between entire agencies is dependent on interpersonal relations in an informal routines setting, whereas in a formal setting the quality of interaction between agencies does not depend on such relationships. These three antecedents are the sources of the variation between British and French counterterrorist organisational routines. A number of other plausible antecedents – ranging from task and informational uncertainty to the nature of the adversary – are controlled for by the selection of these two country cases. Markus Becker, ‘A framework for applying organisational routines in empirical research: linking antecedents, characteristics and performance outcomes of recurrent interaction patterns’, Industrial and Corporate Change 14:5 (September 2005), 823–7.

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(i) number of agencies (ii) nature of mandates (iii) distribution of authority

Types

Outcomes

Formal / Informal

Diverse reforms to co-ordination of counterterrorist agencies

Figure 2: Counterterrorist organisational routines

My analysis focuses on the organisational routines that are formed between intelligence, police, prosecutorial and judicial bodies as they co-ordinate their work on counterterrorism. These various agencies constitute different organisational units, but they are linked by the interaction between them.109 What were the diverse antecedent conditions of the French and British cases, which gave rise to different counterterrorist organisational routines in the two states?110 Let us state them first in summary form. In France, seven agencies have simultaneously played an important role in domestic counterterrorism intelligence and law enforcement in recent decades, most of which have overlapping mandates. Rather than being regulated by rules and procedures enforced by a central body, authority has instead been dispersed among several agencies and actors. These conditions have given rise to a set of informal organisational routines characterised by selective and ad hoc co-operation, often based on interpersonal relations, between the French counterterrorist services. These informal routines can work relatively smoothly – as in the relationship between investigating magistrates and intelligence officers – or they can lead to problems, as we will see when examining the relationship between the French counterterrorist police and intelligence agencies. The British case differs from France across all of the criteria mentioned above. For decades until 2007, between two and three agencies played a key role in domestic counterterrorism intelligence and law enforcement in Great Britain, each of which had a distinct mandate and operated on the basis of rules laid down by a central authority. These conditions gave rise to organisational routines of close formal co-operation between Britain’s main counterterrorist police units and its domestic intelligence agency

109 110

Becker, ‘Organizational routines’, 647. As centralised (as opposed to federal) states, the key counterterrorist competences and agencies of both France and the UK are centralised in their respective capitals. Beyond this basic common denominator, however, the distribution of authority between and within government and the counterterrorist agencies is done differently in the two cases.

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(although this co-operation does not extend to include any section of the judiciary, as explained above). These formal routines are evident in the British agencies’ regularised co-operation procedures and working practices that reflect a clear division of labour between the services. To understand the origins and characteristics of these French and British routines, we need to examine the mandates and activities of all the agencies involved. This will be done in detail in Chapter 3 on counterterrorist organisations. Chapter 3 will also show how such routines shape reforms to the co-ordination of counterterrorist agencies in France and Britain. Combining constructivist, institutional and organisation theories As we have seen, the three theoretical perspectives employed here are considered in respect of different empirical referents. Broadly speaking, norms pertain to the societal level, institutional conventions are found at the ‘high’ level of the state, and organisational routines are studied at the ‘low’ level of professional counterterrorist agencies. Yet there are also analytical reasons for maintaining a distinction between these concepts even as I seek to combine them in an empirical explanation. First, even though all three perspectives emphasise historical legacies, they differ on the mechanisms through which past patterns affect current outcomes. For example, a focus on organisational routines draws attention to recurrent patterns of interaction, which are often implicit in working life and whose effects derive from the power of habitual practices rather than from any normative force. Inter-institutional conventions, on the other hand, tend to be articulated more explicitly and to have more normative standing than routines. Secondly, maintaining a distinction between norms, institutions and routines helps to avoid the error of some culturalist approaches which, through broad conceptualisations, attempt to explain everything with one concept but run the risk of explaining nothing.111 This book employs more specific concepts than the notion of culture, since this enables the formulation of more precise explanations. Thus, I argue that a focus on organisational routines provides the best understanding of states’ different approaches to reforming the coordination of intelligence and police 111

Works by Jeffrey Checkel and Colin Gray, among others, have been criticised for conflating norms, institutions and other factors under the label of culture. It has been argued that such broad conceptualisations lack analytical bite and are unfalsifiable. See the discussions in Kollman, ‘Same-sex unions: the globalization of an idea’, 333; and Theo Farrell, ‘Culture and military power’, Review of International Studies 24:3 (July 1998), 408.

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agencies. When considering such agencies’ diverse approaches to counterterrorist operations, the focus shifts to societal norms as the primary explanation for the cross-national variation observed. At the same time, the interactions between the different levels will also need to be grasped. To understand countries’ different legal responses to terrorism, for example, we need an account of how state institutions interact with the broader context provided by societal norms. One common implication of constructivist, institutional and organisational routine theories is that historical legacies shape current policy in ways that may reduce the likelihood of efficient outcomes. Domestic responses to transnational terrorism can be seen as a hard test for this claim. The protection of citizens from Islamist terrorism is one of the highest priorities of security policy today. Moreover, the domestic counterterrorist agencies examined in this book are the state’s ultimate defence against attacks on the national territory. If a focus on norms, institutions and routines sheds more light on this leading policy priority than a rational-design perspective, then the three theories would have passed a difficult test.112 Norms and institutional conventions seem to be of a piece in the two countries examined here. In France, there is to a large extent a unified set of state institutions, including elements of the judiciary, and a unified body of norms in society concerning security. In Britain, there is more division between state institutions and a more divided normative context, given the high level of contestation on security, liberty and related norms. Meanwhile, the lower level of professional security organisations – with French informal routines and British formal routines – has its own individual logic. This stems from particular organisational choices made in the past and does not necessarily fit with the broader institutional and normative logics of the cases. A key question for the remaining chapters is how do these norms, institutions and routines affect Britain’s and France’s ability to counter Islamist terrorism?

112

For a rationalist view of adaptive responses to the environment in another context, see Robert O. Keohane, ‘International institutions: two approaches’, International Studies Quarterly 32:4 (December 1998), 381, 386–7. For an institutionalist critique of this approach, see Paul Pierson, ‘The limits of design: explaining institutional origins and change’, Governance 13:4 (October 2000), 476–86.

3

Co-ordinating counterterrorism: intelligence, police and prosecution

How do the French and British governments formulate and co-ordinate internally their counterterrorist policies? Do their agencies with operational responsibility for countering terrorism on the national territory co-ordinate their own activities sufficiently? Given the evolution of terrorist threats in recent decades, have these agencies been substantially reformed? This chapter discusses the co-ordination of counterterrorist policy and operational agencies in France and the UK and the reform of such arrangements in the context of Islamist terrorism. I argue that while government-level policy co-ordination follows a broadly similar logic in the two states, reforms to the co-ordination of counterterrorist agencies have varied in both type and intensity. The discussion concentrates largely on domestic counterterrorist services – ranging from intelligence and police to prosecution – because these have primary responsibility for combating terrorism on the national territories of France and the UK, and because they have been the focus of most attention and reform.1 Given the similarities in the Islamist threat to the two states and the implications of this for terrorism investigations, as outlined above, why have the British and French counterterrorist agencies nevertheless undergone different types of reforms in response to that threat? The answer to this question lies, I will argue, in their contrasting organisational routines and in the different inter-institutional conventions of the British and French states. Societal norms have less influence on these types of agency co-ordination issues, although they have a crucial impact on legislation and operations as subsequent chapters will show. Though the main focus of this chapter is on operational-level agencies, the first section sets the scene for this by examining counterterrorist policymaking at government level.

1

External intelligence agencies are referred to in so far as their work counters terrorism in the ‘homeland,’ but systematic comparisons are not made partly because information on the activities of external agencies is much harder to access.

77

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Co-ordinating counterterrorism

The government level – policy and co-ordination The counterterrorist policies of leading western states, especially since 9/11, have been wide-ranging, involving many government departments and numerous policy instruments. This section considers how such policies are co-ordinated within the British and French governments and examines the scope of their reforms to their respective governmental structures in the area of counterterrorism. It also analyses both governments’ official counterterrorist strategy documents and clarifies the roles of those with executive responsibility for such policies. It is in the context of these executive structures that agency co-ordination (the main subject of this chapter), legislative reform (Chapter 4) and counterterrorist operations (Chapter 5) take place. British government co-ordination and the CONTEST strategy Primary ministerial responsibility for domestic security and counterterrorism in the United Kingdom rests with the Home Secretary (interior minister), who is responsible for counterterrorist policy and legislation, and exercises executive control over the police and the UK’s domestic intelligence agency, MI5. The UK’s foreign, signals and defence intelligence agencies fall under the responsibilities of the foreign and defence ministers. The work of these and other ministers with responsibilities for counterterrorism have been co-ordinated through cross-departmental committees. In October 2001, shortly after 9/11 and reflecting the new perception of terrorism as a strategic threat, a central Sub-Committee on International Terrorism was established under the Defence and Overseas Policy (DOP) Committee of the Cabinet Office (the central government department that supports the Prime Minister, Cabinet committees and other forms for cross-departmental co-ordination).2 Known as DOP (IT), this sub-committee was chaired by the Prime Minister and attended by the home, foreign and defence secretaries, as well as by representatives of the police and intelligence agencies.3 Its brief was to review government policy on international terrorism, with a particular focus on the UK’s ability to locate, capture and convict suspected terrorists. It was in the 2

3

Andrew Stewart, ‘UK Counter-terrorism Strategy and the Background to “CONTEST”’, in Terrorism in the UK, Broadening the Government’s Counterterrorist Response – CONTEST, The Airey Neave Papers 50 (Shrivenham: Strategic and Combat Studies Institute, 2005), p. 37. Cabinet Office, Ministerial Committees of the Cabinet: Composition and Terms of Reference (London: TSO, 2006), p. 13.

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context of policy requirements set by this sub-committee that the Home Office made its proposals for new anti-terrorist legislation in the years after 9/11.4 In late 2005, however, an internal review by the Prime Minister’s ‘delivery unit’ concluded that the existing co-ordination arrangements were inadequate. Leaked to the media, the report included critical comments from many government officials who believed that there needed to be stronger central direction to bring together the work of various departments on counterterrorism.5 The Conservative opposition party and some security analysts pushed the government to follow the United States’ example and establish a new Department of Homeland Security, or at least a full time minister for security. The government considered a proposal along these lines, but ultimately refused it and sought instead to strengthen the existing system of co-ordination.6 The work of DOP (IT) was taken over in April 2007 by a new Ministerial Committee on Security and Terrorism, supported by a new secretariat located within the Home Office.7 Named the Office for Security and Counter-Terrorism (OSCT), it took over administrative responsibility for counterterrorist strategy and co-ordination from the Cabinet Office.8 It prepares a ‘Weekly Security Meeting’, chaired by the Home Secretary, at which ‘senior representatives’ from the police, intelligence agencies and relevant government departments discuss ‘tactical coordination’.9 Although not a new department, OSCT with its large staff of some 500 officials represents a significant consolidation of responsibilities within the Home Office.10 An inquiry by the cross-party Home Affairs Committee of the House of Commons concluded in 2009 that ‘after a slow start’, the government now had an ‘effective’ and ‘joined-up’ structure for counterterrorism. The

4 5 6 7

8 9 10

Interview with a former senior UK government official [UK-A], London, 4 November 2005. David Leppard, ‘Labour’s war on terror is failing, says leaked report’, Sunday Times, 23 October 2005. Jimmy Burns and Nicholas Timmins, ‘Spies breathe a sigh of relief’, Financial Times, 29 March 2007. Ministerial oversight was later taken over by a broader National Security, International Relations and Development (NSID) committee and various sub-committees. See HM Government, Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism, CM 7547 (London: TSO, 2009), p. 60. Paul Cornish, Domestic Security, Civil Contingencies and Resilience in the United Kingdom (London: Chatham House, 2007), p. 21. HM Government, Pursue, Prevent, Protect, Prepare, pp. 60, 138. In 2006–07, there was a string of incidents of Home Office incompetence, unrelated to terrorism. As part of the April 2007 reforms, the government siphoned off some Home Office responsibilities into a new Ministry of Justice, leaving the Home Office to concentrate on terrorism, immigration, crime and security-related issues.

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Co-ordinating counterterrorism

MPs also expressed ‘considerable confidence in OSCT and its liaison with other departments’.11 In addition to cross-departmental committees, the government has also created high-level posts with co-ordinating functions. The position of ‘Security and Intelligence Co-ordinator’ was established within the central Cabinet Office in June 2002 to help organise a broader government response to the more dangerous perceived threat environment after 9/11. According to the then Cabinet Secretary, Sir Andrew Turnbull, ‘the whole demands of security had changed . . . we had a growing requirement’.12 The first holder of the post of Security and Intelligence Co-ordinator – Sir David Omand – had a range of responsibilities, one of which was to develop the UK’s overall counterterrorist strategy, ‘CONTEST’, and to co-ordinate the four main strands of that strategy across government departments (see below). He also performed a number of tasks on intelligence issues, including the role of being ‘effectively the Prime Minister’s advisor on security and intelligence-related matters’.13 He was responsible for the UK’s overall intelligence budget, for developing the government’s priorities for intelligence collection, and for reviewing the performances of the agencies and their heads.14 The Security and Intelligence Co-ordinator continued to play this central role until 2007, when the Cabinet Office handed responsibility for counterterrorist strategy and co-ordination to OSCT within the Home Office. From then on, the Director General of OSCT, Charles Farr, was the most important individual co-ordinator of government departments’ work on counterterrorism.15 Although the status of the Cabinet Office security co-ordinator role was now reduced and its responsibilities altered, it continued to play an important part in intelligence matters until 2010. That year, Prime Minister David Cameron reorganised the Cabinet Office and appointed a National Security Adviser to work with him on defence, intelligence and other security issues. This adviser, supported by a deputy, was now responsible for key aspects of intelligence 11 12 13 14

15

Home Affairs Committee, Project CONTEST: The Government’s Counter-Terrorism Strategy (Report and Evidence) HC 212 (London: TSO, 2009), pp. 3, 7. Quoted in Intelligence and Security Committee, Annual Report 2004–2005, Cm 6510 (London: TSO, 2005), p. 7. Intelligence and Security Committee, Annual Report 2003–2004, Cm 6240 (London: TSO, 2004), p. 31. Ibid., pp. 31–32; Cabinet Office, Departmental Report 2004, Cm 6226 (London: TSO, 2004), p. 8; interview with a former senior UK government official [UK-A], London, 4 November 2005. Frank Gregory, ‘A Critical Analysis of Recent Developments in UK Counter-Terrorism Policies and the Implications of the Car Bomb Incidents of June 2007’, Analyses of the Real Instituto Elcano 115 (29 October 2007): www.realinstitutoelcano.org.

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governance, notably as accounting officer for the UK’s overall intelligence budget.16 Overall, the trend in the Cabinet Office and in OSCT has been to concentrate extensive intelligence and counterterrorism responsibilities in individual high-level posts. As these developments indicate, counterterrorism has not just generated its own dedicated offices and committees, but has also formed part of the government’s broader array of security and intelligence activities. At the high level of ministers and senior security officials, there has been an increasing emphasis over the last decade on cross-departmental committees that can consider national security ‘in the round and in a strategic way’, including terrorism, domestic security, foreign policy and military campaigns. This function was taken over in 2010 by a new National Security Council.17 Meanwhile, intelligence requirements are considered by the Joint Intelligence Committee (JIC), which has been based in the Cabinet Office since 1957. Through this forum, senior officials from a range of ministries – including foreign, defence and the Home Office – come to a common view on the priorities for intelligence collection to be given to the agencies, which is then submitted to ministers for approval. Intelligence requirements have become increasingly concerned with terrorism over the years since 9/11.18 Apart from organisational reforms, the British government also made efforts to develop an overall strategy that would define the ends and means of counterterrorist policy. From September 2002, the then Security and Intelligence Co-ordinator, Sir David Omand, and his Cabinet Office Counterterrorism Strategy Team worked on the development of CONTEST. This broadly based strategy for countering terrorism came into effect in 2003, when it was endorsed by the DOP (IT) ministerial committee on terrorism. It was later approved by the full Cabinet in April 2004.19 In public speeches during 2004 and 2005, Sir David outlined the overall ends and means of CONTEST, but a public document setting out the strategy was not published until July 2006.20 The government’s strategic objective, as defined by CONTEST, is ‘to reduce the risk . . . from terrorism so that people can go about their lives freely and with 16 17

18 19 20

Cabinet Office, National Intelligence Machinery (London: TSO, 2010), pp. 19, 21. Cabinet Office, ‘National Security Council’,: www.cabinetoffice.gov.uk/content/nationalsecurity-council; Intelligence and Security Committee, Annual Report 2007–2008, Cm 7542 (London: TSO, 2009), pp. 33–4. Cabinet Office, National Intelligence Machinery, pp. 23–6. Intelligence priorities are discussed further below. Interview with a former senior UK government official [UK-A], London, 4 November 2005. HM Government, Countering International Terrorism: The United Kingdom’s Strategy (London: TSO, 2006).

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confidence’.21 A senior government official involved in the drafting of CONTEST emphasised the importance of ensuring that people feel free to carry out their daily lives ‘with confidence’. This can be measured with reference to certain indicators, he said, and was ‘code for whether the terrorists are winning or not: have they succeeded in their initial aim, which is to dislocate society?’22 Thus, success and failure in a counterterrorist campaign are not presented as a question of defeating or eradicating terrorism. They are understood, rather, as ongoing processes that can be measured partly with reference to the public’s confidence levels and behaviour. The goal of CONTEST, therefore, is to reduce terrorism and maintain public confidence. The means of achieving this end are fourfold. Given the wide-ranging nature of the government’s response to Islamist terrorism – involving many departments and policy instruments – CONTEST sets out a macro-level conceptual framework, which divides the UK’s counterterrorist policy into four strands: pursue, prevent, protect and prepare. The ‘pursue’ strand involves intelligence, law enforcement and military actions to locate, disrupt and bring terrorists to justice. The most prominent area of counterterrorist policy, this strand includes anti-terrorist legislation, organisational reforms and operations against terrorist networks – the three areas that are the focus of this book. The ‘prevent’ strand of CONTEST is concerned with preventing the radicalisation of individuals, in other words, ‘stopping people becoming terrorists or supporting violent extremism’.23 Thirdly, the ‘protect’ mission involves measures designed to protect the public and property, such as the surveillance of locations that could be the target of terrorist attacks and the deployment of security barriers and personnel. This includes a major focus on protecting the country’s critical national infrastructure – those services and infrastructure, such as telecommunications, energy supplies and transport, that are essential to the functioning of society and the economy.24 Fourthly, CONTEST focuses on the need to ‘prepare’ to manage the effects of major terrorist and other incidents once they have occurred. The focus here is on equipping and training the emergency services to respond to terrorist attacks, and improving their capacity to maintain such services even in the face of a highly disruptive attack. In this context, the government has attempted to improve Britain’s capabilities 21

22 23

HM Government, CONTEST: The United Kingdom’s Strategy for Countering Terrorism, CM 8123 (London: TSO, 2011), p. 9; See also HM Government, Pursue, Prevent, Protect, Prepare (the 2009 version of the Strategy), p. 56; and HM Government, Countering International Terrorism (the 2006 version), p. 9. Interview with a former senior UK government official, London [UK-A], 4 November 2005. HM Government, Pursue, Prevent, Protect, Prepare (2009), p. 80. 24 Ibid., pp. 104–17.

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for dealing with disasters, including a terrorist attack involving a chemical, biological, radiological or nuclear weapon of mass destruction.25 Revised versions of CONTEST were released in 2009 and 2011. While earlier versions focused on the UK’s response to international terrorism, the 2011 strategy broadened this out to cover all forms of terrorism. There were no changes to the overall statement of ends and means. However, individual parts of the strategy were revised, notably the ‘prevent’ strand. The 2006 version of CONTEST stated that the government would address ‘structural problems in the UK and overseas that may contribute to radicalisation, such as inequalities or discrimination’.26 The 2009 version changed the language used on this issue, referring instead to ‘real or perceived grievances’, ranging from domestic inequality to British foreign policy. The emphasis now was less on structural problems and more on tackling violent extremist ideology and the ideologues propagating it, as well as supporting individuals who were vulnerable to radicalisation.27 The 2011 strategy took this a step further, stating that the government would also make a greater effort to ‘challenge’ and argue against non-violent extremist groups, and would no longer give funding to some of them.28 The most obvious difference between the various versions of the strategy was that the second and third versions – with over 120 pages each – offered much more detailed information on the nature of the threat and the government’s response than the first version, which was just thirty-six pages. This development was aimed primarily at interested parties, such as local authorities, Muslim community groups and the private sector, some of which are involved in implementing particular parts of the strategy. Shorter summary documents about CONTEST aimed at a wider audience were also published, reflecting the government’s wish to improve public understanding of the threat and the UK’s response.29 The 2009 and 2011 documents also placed a greater emphasis than their predecessor on measuring and improving implementation of the strategy.30 The main changes therefore were to individual parts of the 25 26 27 28

29

30

HM Government, Pursue, Prevent, Protect, Prepare (2009), pp. 118–25. HM Government, Countering International Terrorism (2006), p.1. HM Government, Pursue, Prevent, Protect, Prepare (2009), pp. 83, 88–92. HM Government, CONTEST (2011), pp. 61–4. Some experts criticised this move, arguing that certain non-violent radicals have the credibility to effectively counter the narrative of violent jihadists. HM Government, Pursue, Prevent, Protect, Prepare (2009), pp. 6, 153–5; ‘Frank Gregory, An Evaluation of Revisions to the UK Counter-terrorism Strategy with a special focus on the CBRNE Threat’, Analyses of the Real Instituto Elcano 130 (11 September 2009), p. 2: www.realinstitutoelcano.org. HM Government, Pursue, Prevent, Protect, Prepare (2009), pp. 134–47, 158; HM Government, CONTEST (2011), pp. 109–17.

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strategy as well as to communication and implementation, while its overall framework of ends and means remained the same. One motivation behind CONTEST, according to a senior government official closely involved with it, was to provide an overall structure so that officials and departments could see how their work fitted into the broader counterterrorist project. It was also hoped that this would encourage departments not traditionally associated with counterterrorism to increase their contribution to the effort.31 In interviews, although government officials and counterterrorist professionals (such as police officers) were mostly focused on their own department’s responsibilities, many did refer to the concepts of the CONTEST strategy.32 At the very least, it appeared to help them categorise a wide and potentially overwhelming body of counterterrorist policy. Some agencies, notably the police, also organised their counterterrorist activities according to the strategy’s four categories of pursue, prevent, protect and prepare.33 The release of a revised version of the strategy in 2009 reinforced awareness of CONTEST across government and defined what was expected of each of the departments and agencies charged with implementing its various parts.34 French government co-ordination and the Livre Blanc ‘strategy’ Primary ministerial responsibility for internal security and counterterrorism in France rests with the government’s interior minister – a mandate similar to that of his British counterpart.35 The domestic intelligence and police services, as well as the military police force, the Gendarmerie Nationale, report directly to this minister.36 The Ministry of Justice is responsible for drafting terrorism legislation, but the Interior Ministry has also made inroads into this sphere over the last decade.37 France’s 31 32 33 34 35

36 37

Interview with a former senior UK government official [UK-A], London, 4 November 2005. The interviewees referred to here included police and intelligence officers and officials from two government departments. See the testimony of then London Metropolitan Police Assistant Commissioner Robert Quick to: Home Affairs Committee, ‘Project CONTEST’, Ev 14. HM Government, Pursue, Prevent, Protect, Prepare (2009), pp. 138, 158. See also Home Affairs Committee, ‘Project CONTEST’, Ev 22. Ministère de l’Intérieur, ‘Missions’: www.interieur.gouv.fr; Ministère de la Defénse, La defénse contre le terrorisme : Une priorité de la Ministère de la Defénse, (Paris, DICOD, 2005), p. 9. Fabio Liberti and Camille Blain, ‘France’s National Security Strategy’, Real Instituto Elcano Working Paper 3 (17 January 2011), pp. 19–20: www.realinstitutoelcano.org. Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Oxford: Hart, 2005), pp. 47–9, 92.

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foreign, signals and military intelligence services involved in counterterrorism depend on the Defence Ministry. To co-ordinate the work of these and other ministries on counterterrorism, there is a Comité Interministériel de Liaison Anti-Terroriste (CILAT). Established in 1982, it is chaired by the Minister of the Interior (or his or her cabinet director), and brings together the directeurs de cabinet of the President, the Prime Minister, the Foreign Minister, the Defence Minister and the heads of the police and intelligence agencies charged with countering terrorism.38 However, French security analysts such as Nathalie Cettina point out that since CILAT meets infrequently, it does not appear to be the main venue for counterterrorist policy co-ordination.39 In this context, two other committees stood out as relevant for crossdepartmental discussions on counterterrorism during much of the period under study here. The Conseil de Sécurité Intérieure (CSI), largely dormant for many years, was reinvigorated by President Chirac in 2002 and given a mandate to define the overall priorities of domestic security policy (although this was done primarily in the context of the fight against crime, rather than as a counterterrorist policy measure). It was chaired by the President and attended by the Prime Minister and other relevant ministers.40 Mr Chirac also appointed a new member, responsible for counterterrorism, to the Élysée Cabinet in order to strengthen the President’s oversight of the fight against terrorism.41 The second relevant group was the Comité Interministériel du Renseignement (CIR) of ministers and senior officials, which was for many years the government’s main committee responsible for co-ordinating France’s intelligence services.42 It was supported by a CIR ‘secretariat’ of senior officials, attached to the Prime Minister’s office, which developed national priorities for intelligence collection to be approved by ministers, and followed up the 38

39

40

41 42

Kevin O’Brien, ‘France’, in Karin von Hippel (ed.), Europe confronts terrorism (London: Palgrave Macmillan, 2005), p. 27; Shaun Gregory, ‘France and the War on Terrorism’, Terrorism and Political Violence 15:1 (Spring 2003), 134. Nathalie Cettina, ‘Antiterrorisme: Une Fragile Coordination’, Centre Français de Recherche sur le Renseignement, Note de Reflexion 9 (April 2011), 7: www.cf2r.org/fr/ notes-de-reflexion/antiterrorisme-une-fragile-coordination.php. French Government, Prevailing Against Terrorism: White Paper of the Government on Internal Security in the Face of Terrorism (Paris: Documentation Francais, 2006), p. 49; Francois Heisbourg and Jean Luc Marret, Le Terrorisme en France aujourd’hui (Paris, Ed. des Equatuers, 2006), p. 70; Kristin Archick and Paul Gallis, Europe and Counterterrorism (New York, Nova Science, 2003), p. 64. Gregory, ‘France and the War on Terrorism’, p. 140. Jean-Paul Brodeur and Nicolas Dupeyron, ‘Democracy and Secrecy: The French Intelligence Community’, in Jean-Paul Brodeur, Peter Gill and Dennis Tollborg (eds.), Democracy, Law and Security: Internal security services in contemporary Europe (Aldershot: Ashgate, 2003), p. 18.

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implementation of these priorities by the intelligence agencies.43 Like its closest British equivalent, the JIC, this secretariat considered terrorism intelligence requirements alongside other national security priorities. Thus, the French government did not make any significant reforms to its co-ordination of counterterrorist policy at executive level after the terrorist attacks on its soil in 1995, nor did it do so after the 2001 attacks on America. Reform came later, in 2008–9, not in direct response to terrorism, but following a review and White Paper on defence and security policy, which was initiated following the election of President Sarkozy. Under these reforms, the CSI and its defence equivalent were subsumed into a larger national security council, the Conseil de Défense et de Sécurité Nationale (CDSN). The work of the CIR committee was taken over by a new Conseil National du Renseignement (CNR), thus moving intelligence governance from the Prime Minister’s purview to a body under the responsibility of the President.44 As part of this reform, a National Co-ordinator of Intelligence was also appointed to supervise the planning and implementation of intelligence activities across the agencies. This attempt to co-ordinate through one individual had some similarities with the UK’s introduction of a Security and Intelligence Co-ordinator, though the French post did not appear to have equivalent responsibilities, for example, in terms of the intelligence budget.45 The French government also released a counterterrorist strategy paper, or Livre Blanc, entitled ‘Prevailing Against Terrorism’. Initiated in May 2005 by the then Interior Minister, Dominique de Villepin, the Livre Blanc was elaborated by a steering committee of senior civil servants from different ministries, the heads of two intelligence agencies and one academic.46 Aware of what other countries had done, one member of the steering committee said that it had ‘looked very closely at the Brits’ and the work of Sir David Omand on the UK strategy. This member of the committee also consulted Singapore’s counterterrorism public awareness document.47 When the Livre Blanc was published and announced in March 2006 by Dominique de Villepin (by now, Prime Minister), he introduced the paper not only as ‘a comprehensive security strategy’, but also as a review of France’s counterterrorist capabilities and as a public awareness document.48 This mixing of three objectives into one document means that the Livre Blanc did not fulfil all the goals set for it. The 43 44 46 47 48

SGDN, Secrétariat Général de la Défense Nationale (Paris, SGDN, 2005), pp. 3, 10. Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 1, 7–10. 45 Ibid. French Government, Prevailing Against Terrorism, p. 131. Interview with a member of the Livre Blanc steering committee [FR-C], Paris, 13 July 2006. French Government, Prevailing Against Terrorism, pp. 5–6.

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paper does not give a macro-level conceptual framework or a clear breakdown of ends and means, as one might expect a ‘strategy’ paper to do, opting instead to present a detailed ‘re-examination of France’s counterterrorism system’. For example, the first fifteen pages of the review cover in turn electronic surveillance capabilities, intelligence and police co-ordination, international co-operation, the prosecution of terrorists, prison conditions, stopping the movement of terrorist suspects, funds and ideas, and the role of the armed forces.49 Though lacking an overall conceptual framework, the Livre Blanc’s ready descent into details did involve a candid identification of both the strengths and weaknesses of French counterterrorism. Chief among the perceived strengths is the judicial system’s linking of counterterrorist law enforcement to justice, which is discussed in greater detail below. The main weakness identified by the Livre Blanc is an insufficient co-ordination of France’s crisis management plans.50 A member of the Livre Blanc steering committee said that government officials’ confidence in France’s judicial response to terrorism ‘made it easier for them to acknowledge that they were not up to par on consequence management’.51 Indeed, the document makes specific recommendations in a number of areas, from the reform of France’s co-ordination of crisis management and its emergency powers legislation, to the improvement of the government’s communication with the public following a terrorist attack.52 Despite its potential as a basis for change, no reforms of the French counterterrorist system were initiated on the basis of the Livre Blanc.53 A member of the steering committee observed in July 2006 that ‘the follow-on . . . has been extremely weak’.54 However, some of the recommendations of the terrorism Livre Blanc later reappeared in the broader White Paper on defence and security policy of 2008, and some reforms, notably of crisis management, were initiated in that context.55 Nevertheless, even before it was released, there was an indication of the limited impact of the Livre Blanc exercise on practical counterterrorism measures. In the months following the London bombings of July 2005, the French government decided to make the attack on Britain an 49 51 52 53 54 55

Ibid., pp. 9, 45–60. 50 Ibid., pp. 77–78. Interview with a member of the Livre Blanc steering committee [FR-C], Paris, 13 July 2006. French Government, Prevailing Against Terrorism, pp. 79, 83, 85–6. Interview with an SGDN official [FR-B], Paris, 7 February 2007. Interview with a member of the Livre Blanc steering committee [FR-C], Paris, 13 July 2006. Author correspondence with a member of the 2006 Livre Blanc steering committee and the 2008 National Security White Paper drafting committee, 26 April 2011; Liberti and Blain, ‘France’s National Security Strategy’, 8.

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opportunity to formulate new terrorism legislation, containing reforms long demanded by the Interior Ministry and its agencies (see Chapter 4). During the preparation of the legislation, however, officials noticed that this ‘created a bit of a problem with the Livre Blanc’, which was still in the process of being developed and consulted upon.56 As a member of the steering committee recalled, since ‘the legal calendar was quicker than [the] Livre Blanc calendar’, the government would have to explain why it was announcing specific legislative reforms before its general review of counterterrorism policy had been concluded.57 The parliamentary rapporteur on the new legislation, Alain Marsaud, also admitted that ‘in all logic, it would have been preferable to wait for the results of this reflection before taking on a modification of our anti-terrorist system’.58 However, the demands of logic would have to be ignored, he concluded, because the serious nature of the threat demanded an immediate response, rather than waiting around for the conclusions of the Livre Blanc committee. The government essentially took the same approach, announcing its specific legislative reforms in November 2005 before the completion of its strategic document in March 2006. Limited government reform and the secondary role of strategy papers In both the British and French governments’ policies on Islamist terrorism, the ‘tactical’ response came first, with the ‘strategic’ underpinning for that response coming later. As will be made clear below, a number of important changes to the co-ordination of counterterrorist agencies, as well as to legislative and operational responses to terrorism, had already been made in both countries long before such strategy documents were formulated. It is noteworthy that policymakers felt the need to, at some point, develop a broadly based conceptual framework or overall review of what they were doing. However, given the time lag between the onset of transnational Islamist terrorism against the two countries (mid-to-late 1990s in France; 2001 in Britain) and the production of these strategies (France in 2006; Britain in 2003), it was a case of governments making a practical response first, and then developing a broader ‘strategic’ basis for that response afterwards. The delay of almost a decade in the French case is particularly striking here. Once formulated, a strategy may have 56 57 58

Interview with a member of the Livre Blanc steering committee [FR-C], Paris, 13 July 2006. Ibid. Alain Marsaud, ‘Lutte contre le terrorisme, sécurité et contrôles frontaliers’, Commission des lois constitutionnelles, de la législation et de l’administration générale, Rapport N° 2681 (Paris : Assemblée Nationale, November 2005), p. 25.

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practical implications, such as clarifying roles and stimulating greater contributions from government departments, as was intended in the British case. Equally, however, a strategy may be largely ignored, even when it is materially relevant to new legislation and policies at the ‘tactical’ level, as happened with the French Livre Blanc. In considering the British and French governments’ approaches to co-ordinating counterterrorist policy, some specific differences are worthy of note. In Britain, there has been a consolidation of responsibilities in the Office for Security and Counter-Terrorism (OSCT) within the Home Office, which has a large staff devoted to counterterrorist policy and co-ordination. The French Interior and Justice Ministries also have considerable numbers of staff devoted to counterterrorism, but the government does not have an OSCT-type office charged with ensuring co-ordination across departments. The French cross-departmental counterterrorism committee, CILAT, meets infrequently, which means that the more relevant venue for such liaison at government level is the intelligence committee, the Conseil National du Renseignement.59 Also, while the British government uses its counterterrorist strategy to stimulate policy implementation across departments, the French strategy has not been used in this way. Notwithstanding these differences, however, Britain and France have followed a broadly similar approach to the co-ordination of policy at government level. In both cases, Interior Ministries have retained primary executive responsibility for counterterrorist policy, although Defence, Foreign, Justice and other ministries also play a role. Given this range of contributions to policy, both governments have used cross-departmental co-ordination committees to link work in different areas together. They have eschewed the option of radically restructuring ministries or establishing new counterterrorism or homeland security departments. The changes that have been made to their respective government-level structures in the area of counterterrorism have been relatively limited in scope. This conforms to new institutional theory’s expectation of organisational path dependency. While reforms have been introduced in both cases, they have been broadly compatible with and followed the same logic as the existing institutional order. The agency level – why co-ordination is important While France’s and Britain’s changes to government-level structures have followed a broadly similar logic, the remainder of this chapter will show 59

Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 7–8.

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that there have been significant differences between their organisational reforms at the level of counterterrorist agencies. My main focus here is on the co-ordination of organisations that perform the distinct counterterrorist functions of intelligence collection, law enforcement, and prosecution. Effective co-ordination of these agencies matters in the campaign against Islamist terrorism, as one episode in the United Kingdom illustrates. In January 2003, Stephen Oake, a British police officer, was killed during a counterterrorist operation, in which nine men were arrested. This was the case, noted in Chapter 1, where recipes and ingredients for making poisons such as ricin were found. Although Kamel Bourgass was convicted of this murder and of a minor poison-related offence, he was not found guilty of conspiracy to murder with poison, and the eight other men on trial with him were acquitted of all conspiracy charges.60 The evidence presented in court proved insufficient to secure the convictions sought. The fallout from this result brought the British government and police into disrepute and shook public confidence in the state’s motives. Many believed that the government had wilfully inflated the terrorist threat in the ‘ricin case’ in order to boost support for its planned invasion of Iraq, which took place just a few months after the men were arrested.61 The whole episode showed how in most democratic societies, it is not enough to simply prevent terrorism. The state must also prosecute successfully through the courts, thus demonstrating that its draconian actions are necessary in each case and are not simply part of a cynical attempt to advance its own interests. Co-ordination between intelligence, law enforcement, and prosecution – with the aim of gathering and presenting compelling evidence – is thus crucial for most liberal democracies facing Islamist militancy where the obligation is certainly to prevent, but also to prosecute, terrorism. There is thus a key distinction between intelligence and evidence – the two modes of information gathering that are discussed in this chapter. Intelligence can take into account any source and it can be of varying degrees of reliability. Law enforcement investigations, on the other hand, are geared towards the gathering of evidence, which is to be admitted to a judicial process or trial. In this context, the source of the information and the reliability of evidence must be tested according to judicial rules of evidence. Whereas intelligence can be anything that helps the authorities 60

61

Michael Jacobson, The West at War: U.S. and European Counterterrorism Efforts, Post September 11 (Washington DC: Washington Institute for Near East Policy, 2006), pp. 78, 84. DAC Peter Clarke, ‘Learning from Experience – Counter Terrorism in the UK since 9/11’, Speech to the Policy Exchange, 24 April 2007: www.policyexchange.org.uk/ publications/publication.cgi?id=15.

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to build up a picture of a target, evidence gathered during law enforcement investigations must meet higher standards, since it is the basis for deciding the guilt or innocence of individuals in a court of law. To understand the process from intelligence to arrest to prosecution, we must trace the connections between four types of organisations: intelligence services, the police, prosecution agencies and judicial bodies.62 In the context of a similar threat from Islamist terrorism, France and the UK have been making changes to how these four types of organisations work (or do not work) together. These reforms to the co-ordination of counterterrorist agencies are evaluated along four dimensions in this chapter. First, attention is paid to whether the method of reform is formal or informal. This designation is partly based on whether reforms are officially announced (involving the creation of new bodies, for example) or whether they simply happen in practice without being formalised at official level. It also depends on which actor initiates the change and on the extent to which the reform is co-ordinated across all relevant agencies. We miss a lot if we restrict ourselves to considering formal, officially announced institutional reforms only. The French case demonstrates that there are other, more informal, methods by which significant changes to the co-ordination of counterterrorist agencies can be introduced. Secondly, I am interested in whether the reforms favour extensive or restrictive forms of co-operation. This designation depends on how many different types of agencies involved in responding to terrorism (from intelligence and police to prosecution and the judiciary) have links and co-ordinate their activities. Thus, two police agencies may work very closely together, but if they do not also co-operate with intelligence or judicial actors, for example, this would indicate a rather restrictive form of co-operation. On the other hand, where police agencies do cross this divide and work directly with judicial or other types of actors, this would represent an extensive form of co-operation. Thirdly, in the concluding part of the chapter, observations will also be made on whether counterterrorist reforms are balanced or unbalanced in the two cases. This is judged with reference to how the reforms divide counterterrorist responsibilities between the intelligence and police arms of the state. Finally, I will refer to the scope of organisational reforms at the agency level. The indicators for this will include budget, the expansion of existing agencies, the number and type of new bodies created, the numbers of personnel involved,

62

Concerning judicial bodies, I am referring to the role of certain types of judges in investigations, in charging and in the assembly of a case of evidence for court. The primary role of judges – as adjudicators in a judicial process – is considered in Chapter 4.

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and the testimony of actors on whether a reform has significantly affected their work. In what follows, France and the UK are treated in turn in a similar twofold manner. In both case studies, I will first outline the type and degree of inter-agency co-operation found among counterterrorist services – each reflecting the distinct organisational routines and inter-institutional conventions of Britain and France. The second step will be to show how these routines and conventions have shaped counterterrorist organisational reforms in the two states, ensuring that new developments take a form that reinforces – or at least follows the same logic as – the pre-existing patterns of inter-agency co-operation. The French approach to co-ordinating counterterrorist agencies Organisational and institutional context The positive normative value attached to the state in France often leads observers to assume that France has a strong, unitary state. In practice, however, as Robert Elgie points out, the French state ‘has always been internally divided and these divisions have often rendered purposive state action very difficult’.63 This is particularly true of the security arms of the state. In this section, I first outline the mandates and responsibilities of France’s counterterrorist agencies and critique a dominant view of how these agencies are co-ordinated. Several works in the counterterrorism literature and some French officials claim that a formal co-ordinating committee, UCLAT, manages counterterrorist operations and the roles of the different agencies therein. However, on the basis of interviews with serving intelligence and police officers, I show that UCLAT’s role has been exaggerated. I go on to outline how the French counterterrorist agencies have instead tended to rely on informal organisational routines and ad hoc co-operation arrangements. Thirdly, I examine the institutional basis for the role of investigating magistrates in police investigations into terrorism and show the considerable power of initiative that this team of judicial actors has built up in recent decades. Why formal co-ordination has little impact A wide range of intelligence, police, military and judicial bodies have responsibilities in France’s operational response to terrorism. In the decades following the 63

Robert Elgie, Political Institutions in Contemporary France (Oxford: Oxford University Press, 2003), p. 80.

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1950s, two national domestic intelligence services, the Renseignements Généraux (RG) and the Direction de la Surveillance du Territoire (DST) – both responsible to the Interior Ministry – gathered information about suspected terrorists on French territory. As will be outlined below, these two agencies were merged in July 2008 to form an organisation called the Direction Centrale du Renseignement Intérieur (DCRI). However, I will refer to the RG and DST, because they were distinct agencies for thirteen of the sixteen years under study here and because their agents and some units continue to carry out their historic functions within the new organisation. The Paris police division or Préfecture du Police housed its own section of the RG – the Renseignements Généraux de la Préfecture du Police (RGPP) – which gathered terrorism intelligence in the Paris area. This agency continued its autonomous role even after the 2008 reform.64 In addition to its intelligence-gathering activities, the DST (and today the DCRI) also mounts judicial investigations and makes anti-terrorist arrests – a mandate that it shares with some sections of the Police Judiciaire (the detective division of the French Police Nationale). Chief among these anti-terrorist police divisions have been the Division Nationale Anti-Terroriste (DNAT)65 and the Section Anti-Terrorist (SAT) of the Paris Brigade Criminelle (the capital’s own separate division of the Police Judiciaire). As noted above, a Paris-based team of investigating magistrates directs law enforcement investigations into terrorism. The Gendarmerie Nationale – a military body – generally polices towns and countryside areas throughout France and provides a nationwide intelligence capability that is relevant to counterterrorism.66 These seven services – the DST, the RG and RGPP, the Police Judiciaire, the Paris SAT, the investigating magistrates and the Gendarmerie – have shared responsibility for domestic counterterrorist intelligence and law enforcement in France in recent decades. The Direction Générale de la Sécurité Extérieure (DGSE) provides intelligence on terrorism gathered outside of France. In contrast to the UK’s foreign intelligence service, which reports to the Foreign Ministry, the DGSE is under the authority of the Defence Minister, and some of its operatives are military personnel. Another military intelligence agency, the Direction de la Protection et de la Sécurité de la Defence, provides 64

65

66

The RGPP changed its name to the Direction du Renseignement à Paris (DRPP) in July 2008, but for simplicity sake I refer to it here as the RGPP – the name that it had for most of the period under study. DNAT changed its name to the Sous-Direction Anti-Terrorist (SDAT) in June 2006. I refer to it as the DNAT in these pages, although when describing the 2006 reform below, I will refer to it by its new name. Interview with a counterterrorist officer of the Gendarmerie Nationale [FR-D], Paris, 21 February 2007.

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protective security for the French defence sector (armed forces and industry) against terrorist attacks. Related work is carried out by the Direction du Renseignement Militaire (DRM), which hosts a small unit that tries to predict potential threats to French armed forces around the world. The DRM’s main mandate, however, is to collect signals intelligence which is used, along with its satellite imagery capability, for the surveillance of suspected terrorists. In the context of this proliferation of agencies, many with overlapping mandates, relations between the French police, intelligence and military services have traditionally been characterised by mistrust and lack of co-ordination, occasionally breaking into outright conflict. Comparative police research has pointed out the particularly high value placed on secrecy in the French context. A 1996 study of Belgium, France, Germany, Luxembourg and the Netherlands concluded that France had the least open police culture of the five cases, a pattern of secrecy that not only hinders international co-operation but also erects internal barriers between the French police and intelligence services.67 For example, when Syrian-sponsored Armenian terrorists attacked France in 1982 and 1983, the DST, the RG and the RGPP all worked on the case without revealing the details of their intelligence information to each other.68 In 1981, the Interior Minister refused, in the presence of the Prime Minister, to share intelligence about terrorism with the foreign intelligence agency, the DGSE, because he claimed it was a ‘nest of Soviet spies’.69 Although patterns of inter-agency co-operation on counterterrorism underwent many changes and some improvements over the next twenty years, as we will see, problems of mistrust and inadequate co-ordination between the services remained. Against this background of inadequate inter-agency collaboration and in the context of the wave of Middle Eastern-related terrorist attacks on French soil in the early 1980s, a counterterrorist co-ordination unit was established in October 1984 – the Unité de Co-ordination de la Lutte AntiTerroriste (UCLAT). As an attempt to institutionalise regular rules and procedures for multilateral co-operation between the agencies, UCLAT – if it could work to its full potential – would constitute a formal method of 67

68 69

Chantal Joubert and Hans Bevers, Schengen investigated : a comparative interpretation of the Schengen provisions on international police co-operation in the light of the ECHR (The Hague: Kluwer Law International, 1996), p. 536; Brodeur and Dupeyron, ‘Democracy and Secrecy: The French Intelligence Community’, pp. 9–10. Nathalie Cettina, L’antiterrorisme en question (Paris: Éditions Michalon, 2001), pp. 57–58. Jeremy Shapiro and Benedicte Suzan, ‘The French Experience of Counterterrorism’, Survival 45:1 (Spring 2003), 75.

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counterterrorist co-ordination. A unit of around fifty police, intelligence officers and administrative staff, UCLAT works at the operational level from its office in the Interior Ministry and has two core functions: the centralisation of information on terrorist threats, supplied to it by the various French services, and making threat assessments which are the basis for the setting of France’s official terrorist threat level. As part of the first function, UCLAT hosts weekly meetings of representatives from all the French services and government departments that deal with terrorism issues. Officials from approximately fourteen different bodies attend these meetings, comprising three intelligence agencies (DCRI, RGPP and DGSE), the Police Judiciaire’s national anti-terrorist service and its Paris unit (the SAT), as well as a counterterrorist specialist from the Gendarmerie Nationale. Representatives of four other police services, the Police Aux Frontières, the Sécurité Publique, the Service de Protection des Hautes Personnalités and the Service de Co-opération Technique Internationale de Police usually attend the meetings.70 The French Customs Service, La Douane, the Transport Ministry and the Justice Ministry are also represented, while the Direction de la Protection et de la Sécurité de la Defence may attend if the security of the French defence sector is on the agenda. Information on terrorist suspects under investigation by different services is exchanged at these weekly conferences, while UCLAT officials receive information on an ‘everyday’ basis from their contacts in the French services.71 The unit also receives information from the anti-terrorist services of other states, including from France’s police liaison officers in foreign capitals. As a former head of the unit, Gilles Leclair, stated in 2004: ‘UCLAT is like a sorting office to which all information on threats is sent.’72 These pieces of intelligence – often on very specific instances of terrorist activity or ‘micro-events’ as one official called them – are collected, sorted and put together in the form of a report, which is then redistributed to the anti-terrorist services concerned.73 By synthesising information from the various security services, UCLAT provides what it calls a ‘cross-cutting’ analysis of the terrorist threat. Intelligence services such as the DCRI or DGSE make their own analyses, but these are not always given to UCLAT.74 The unit relies not on the intelligence services’ analyses but 70 71 72 73 74

Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006; Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 11. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Quoted in Stéphane Berthomet and Guillaume Bigot, Le jour où la France tremblera (Paris : Éditions Ramsay, 2005), p. 131. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Ibid.

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on the numerous pieces of specific or ‘raw’ intelligence that it receives from the services, according to a UCLAT official. ‘We do our own analysis’, he emphasised.75 UCLAT’s second function is to make the threat assessments that form the basis of France’s official terrorist threat level. UCLAT’s analysis of the threat is then passed up the bureaucratic hierarchy to the Secrétariat Général de la Défense et de la Sécurité Nationale which, under the authority of the Prime Minister, sets the official terrorist threat level for France.76 Having previously had a two-level system, the French moved to a fourcategory classification of the terrorist threat in March 2003, comprising jaune, orange, rouge and écarlate.77 This official threat level informs further decisions on the level of protective security arrangements made under the Vigipirate plan, such as the scale of police street patrols or the severity of passenger controls at airports. Notwithstanding UCLAT’s important roles in centralising intelligence and informing France’s official threat level, there have been three limitations on the unit’s capacity to co-ordinate France’s counterterrorist services. The first of these concerns the dissemination of threat assessments. UCLAT’s threat reports are submitted to the Interior Minister and to high-level inter-ministerial committees. However, the main intelligence services also submit their own analyses of the terrorist threat to their own ministers.78 According to a police official, the services’ interpretations of the intelligence can sometimes vary, and their reports can differ from the interpretation contained in the UCLAT report.79 The long-standing practice has been for the heads of the French intelligence services to brief their own ministers, such that they have regarded passing information through an intermediary as a failure.80 Secondly, the extent of information sharing is very much at the discretion of the heads of the individual security services and there has long been a question mark over the amount and quality of information that they

75 76

77 78

79 80

Ibid. Ibid; SGDSN, ‘Le Plan Vigipirate’: www.sgdsn.gouv.fr/site_rubrique98.html; interview with an SGDN official [FR-A], Paris, 7 February 2007. In 2009, the SGDN was reformed and renamed the Secrétariat Général de la Défense et de la Sécurité Nationale (SGDSN). O Brien, ‘France’, p. 27. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007; interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Cettina, L’antiterrorisme en question, p. 130. As we shall see, it appears that the various agency heads maintained their prerogatives, even after the 2008–9 reforms to intelligence governance.

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share within the UCLAT structure.81 A counterterrorist police investigator said that ‘[at UCLAT] the services do not necessarily tell all that they do’.82 A counterterrorist officer of the Gendarmerie Nationale similarly commented that the services do not share all of their intelligence with UCLAT.83 A former high-ranking official of the DST also said that the weekly UCLAT meetings consist merely of ‘general exchanges’.84 As UCLAT functions as a ‘sorting office’ or clearing house for information on terrorist threats, it may be that the kind of intelligence given to a forum that takes in up to fourteen agencies and ministries, ranging from Transport to Interior to Customs, is not information of very high sensitivity. Given the broad attendance at its weekly meetings, UCLAT does not appear to be the kind of structure likely to foster intense co-operation between the top three or four services dealing with terrorism in France. A third limitation of UCLAT becomes apparent when considering its role in the co-ordination of counterterrorist operations. Some of UCLAT’s own official documentation has claimed that it ‘centralise[s] all actions carried out by the services’, while one UCLAT official interviewed by the author similarly spoke of the unit doing ‘operational co-ordination of all the investigations’.85 Some observers of French counterterrorism have interpreted such official statements in a simplified way, writing that UCLAT plays a central role in the organisation of operations in France. Kevin O’Brien states that UCLAT ‘is responsible for co-ordinating and leading’ counterterrorist operations, while Shaun Gregory describes UCLAT as ‘the principal co-ordination body’ at the apex of France’s counterterrorist system, which ‘draw[s] on’ all the agencies for missions ranging from intelligence collection to arrest operations.86 More vaguely, a RAND report states that ‘interaction between the DST and the police is largely instituted through UCLAT’.87 Such claims need to be clarified, however, as they refer to at least two different operational roles: either (i) UCLAT is informed about operations 81 82 83 84 85

86 87

Ibid., pp. 130, 165. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Interview with a counterterrorist officer of the Gendarmerie Nationale [FR-D], Paris, 21 February 2007. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. UCLAT, Unité de Co-ordination de la Lutte Anti-Terroriste, June 2003 (information sheet, copy in author’s possession); interview with a French police counterterrorist official [FRE], Paris, 4 July 2006. O’Brien, ‘France’, pp. 27–28; Gregory, ‘France and the War on Terrorism’, pp. 134–35. Peter Chalk and Willian Rosenau, Confronting the ‘Enemy Within’: Security Intelligence, the Police and Counterterrorism in Four Democracies (California, Rand, 2004), pp. 20–1.

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done by the services and it centralises this information, and/or (ii) UCLAT co-ordinates or even takes decisions on which service will carry out which operation. It turns out that the UCLAT official referred to above was speaking only about the first role. ‘We dialogue every day with all of the services’, he explained, ‘we co-ordinate all the information . . . and we redistribute it to the services concerned’.88 Notwithstanding this claim, however, interviews with police officers who work on counterterrorist investigations reveal a different picture. Asked if UCLAT is the place where you learn that another French counterterrorist service is working on the same terrorist cell as you, one Police Judiciaire officer said: ‘In theory: yes . . . [but] after, the functioning of UCLAT means that it does not work very well all of the time.’ If his service needs to mount an arrest operation, it may only inform the co-ordination unit after it has taken place. ‘We will tell it [UCLAT]’, he said, ‘but before [the operation], we don’t necessarily tell.’89 A former police officer also said that UCLAT ‘is a good idea – but an idea which is not exploited enough’.90 Similar views can be found in earlier research that quoted, for example, a ‘ground-level’ official as saying that ‘little useful information is exchanged’ at UCLAT.91 Thus, the kinds of operational information sent to UCLAT may not be timely or of great consequence to investigators in many cases. In the second role specified above – operational decision-making – the unit does not ordinarily play a major part. As one former UCLAT official admitted, ‘It [UCLAT] is not an instance of authority because each service – DST, RG, Police Judiciaire – has their own hierarchy. It is not UCLAT which decides’.92 He did point out, however, that during certain terrorist crises and for certain large raids, operational decisions were made by senior officials from the different services during a meeting of UCLAT. For the large Operation Chrysanthemum in November 1993, the police and intelligence services discussed the targets at UCLAT, after which eighty-eight people were arrested.93 During the series of terrorist attacks in the summer of 1995, the director-general of the Police Nationale presided over meetings of UCLAT that brought together representatives of the main French counterterrorist services. The Interior Minister justified

88 89 90 91 92 93

Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Cettina, L’antiterrorisme en question (2001), p. 130. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Ibid.

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this substitution of the usual head of UCLAT by a superior authority, citing what he called the need to ‘show all officials the determination of the government to overcome a certain reticence or reflexes which do not have a place during an ordeal’.94 Indeed, the traditional ‘reticence’ concerning co-operation between the services was apparently overcome during the 1995 crisis. Dealing with a large number of leads and investigations, and meeting more regularly than usual during the crisis – sometimes on a daily basis – the director of the Police Nationale presided over UCLAT conferences at which operational tasks were allocated to different services.95 However, the special position that UCLAT has occupied during certain terrorist crises should not be confused with the unit’s usual role. Kevin O’Brien and Shaun Gregory both state that French counterterrorist operations are generally co-ordinated through UCLAT, yet as we will see, ad hoc bilateral arrangements are far more important for the usual functioning of such operations in France.96 These authors are also mistaken when they write that the director-general of the Police Nationale is the regular chair of UCLAT meetings.97 As a former counterterrorist police investigator, Stéphane Berthomet, points out, UCLAT has reverted to its standard role when the crises or large operations, referred to above, were over. The chair passed from the director-general of the Police Nationale back to the usual head of UCLAT, who possessed the lower rank of ‘Commissaire Divisionaire’. In usual circumstances, therefore, UCLAT ‘has no authority over the anti-terrorist services’, Berthomet confirms.98 The fact that the Interior Minister felt it necessary to substitute the head of UCLAT with the director of the national police at certain critical moments indicates the importance of rank in this context. As a former head of one of the intelligence services said: ‘I did not hear of putting myself – as a prefect – under the orders of Commissaire X.’99 Similarly, police investigators refer to UCLAT’s lack of authority when explaining why they don’t co-ordinate their arrest operations through the unit. Stating that his service does ‘not necessarily tell’ UCLAT in advance of a planned anti-terrorist raid, one officer added: ‘They don’t have a coercive power over us. It’s not a hierarchical authority . . . it [UCLAT] 94 95 96 97 98 99

Cettina, L’antiterrorisme en question, pp. 130–3. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007; Cettina, L’antiterrorisme en question, p. 170. O Brien, ‘France’, p. 27; Gregory, ‘France and the War on Terrorism’, pp. 134–35. Gregory, ‘France and the War on Terrorism’, p. 135; O Brien, ‘France’, p. 28. Berthomet and Bigot, Le jour où la France tremblera, p. 131. See also Cettina, L’antiterrorisme en question, p. 85. Quoted in: Cettina, L’antiterrorisme en question, p. 129.

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doesn’t work very well at this level in my opinion.’100 A former DNAT and DST investigator also said: ‘UCLAT does not have a power of organisation . . . Today, [it does] the co-ordination of information – no more.’101 It is also worth noting that the unit has ‘no relations’ with investigating magistrates.102 Magistrates do not attend UCLAT meetings,103 and the police and intelligence services themselves work directly with the magistrates on terrorist cases. Given the leading role played by investigating magistrates in terrorist investigations and operations, UCLAT’s lack of contact with them is a further indication that the unit does not play a major role in the co-ordination of operations. UCLAT has two important functions related to the centralisation of information and the provision of assessments that inform France’s official terrorist threat level. However, given its lack of authority, and the co-ordination problems between certain services, UCLAT does not amount in practice to a formal or top-down organiser of inter-agency co-operation. On the contrary, France’s counterterrorist agencies tend to work together in a rather more informal way. The agencies’ informal organisational routines As outlined above, seven services have simultaneously played important roles in domestic counterterrorism intelligence and law enforcement in France in recent decades. Their mandates or responsibilities in these areas have often overlapped and they have not been greatly encumbered by rules, procedures or checks imposed by an external authority. For example, the mandates of the two national domestic intelligence agencies, the Direction de la Surveillance du Territoire (DST) and the Renseignements Généraux (RG), were set out not in legislation approved by Parliament, but instead by government decree.104 The government itself also tended not to interfere greatly in the structure or co-ordination of such agencies.105 In recent decades, it allowed senior police, intelligence officials and, as we shall see below, investigating magistrates to drive developments in counterterrorist intelligence and law enforcement.106

100 101 102 103 104 105 106

Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Cettina, L’antiterrorisme en question, p. 141. Brodeur and Dupeyron, ‘Democracy and Secrecy: The French Intelligence Community’, p. 14. Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 3. Shapiro and Suzan, ‘The French Experience ’, 78–9.

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Against this background, the agencies developed informal routines for working together. One example was the DST and RG, which for many years had overlapping responsibilities in the area of terrorism intelligence. The DST had a mandate to gather intelligence on ‘threat[s] to security’ within France, which were ‘inspired, supported or initiated’ by foreign actors.107 The RG, meanwhile, had responsibility for the gathering of intelligence and ‘information regarding internal terrorism’.108 The tenuous nature of this distinction was revealed by the emergence of Islamist terrorism in France in the mid-1990s, which originated largely in Algeria but was also rooted in sections of French society. Speaking in 2007, a former senior counterterrorist official of the DST acknowledged that the overlapping mandates of the RG and DST meant that sometimes ‘we perceive . . . that we are working on the same individuals’.109 He said that in his experience (he worked at the DST until 2004), bilateral meetings of DST and RG counterterrorist officials took place ‘fairly regularly’ to facilitate the exchange of information on intelligence operations. These meetings were held on a somewhat ad hoc basis – either every week, every two weeks or once a month, depending on the circumstances. If officials found that the DST and RG were monitoring the same grouping, he said, they either made a ‘joint-section’ to work on the target together or they redivided the target among themselves, saying ‘this man, this man, this man – is for the RG; that one, that one, that one – is for the DST’.110 A third option, he said, would be if one service was particularly ‘well placed on the [target]’, the other service would abandon their work on that target altogether and leave it for the better-placed agency. Such informal arrangements form part of a broader pattern whereby co-operation between the French security services appears to rely on interpersonal relations between key officials. As Bernard Carayon, the author of a parliamentary report on the services, judged in 2002, ‘the co-ordination of the intelligence services remains pragmatic . . . They don’t exchange enough of the substance of their capabilities, even if it is often the same men who, for twenty or thirty years, have assured the continuation of the exchanges.’111 While appearing ad hoc and improvised

107 108 109 110 111

Decree of 22 December 1982, quoted in: Cettina, ‘The French Approach: Vigour and Vigilance’, pp. 79–80. Police Nationale Memorandum No. 643 of 19 March 1976, quoted in: Ibid., p. 80. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Ibid. Bernard Carayon (Rapporteur spécial), ‘Rapport sur le projet de loi de finances pour 2003 - Secrétariat Général de la Défense Nationale et Renseignement’, Commission des finances, de l’économie générale et du plan, Rapport N° 256, Annexe 36 (Paris: Assemblée

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in nature, DST-RG co-operation often produced good results, as in December 2002 when joint work between the two agencies enabled them to disrupt the plot by Menad Benchellali and others to carry out a terrorist attack in Paris.112 According to the former DST official, outside of the ad hoc meetings and improvised ‘joint-section’ operations outlined above, the two agencies also conducted their own ‘separate’ intelligencegathering on Islamist terrorist groups.113 Other domestic intelligence agencies also play an important role in monitoring Islamist terrorism in France. The Paris Préfecture du Police has long had its own intelligence wing, the Renseignements Généraux de la Préfecture du Police (RGPP), which has approximately 700 officers and has a prominent role and status in the Paris area. The significant role played by the RGPP in Islamist intelligence was attested to by a former DST official, who said ‘it’s an important structure’.114 This was confirmed in more specific terms by a former police and DST counterterrorist investigator who said that between 2004 and 2007, for example, ‘at least 70 per cent of arrests in the Islamist domain’ in Paris had come from information provided by the RGPP. Indicating that ‘I know well the people who work on the ground’, he was confident in his estimation of the RGPP’s importance, but this only added to his concern that the RGPP has ‘a tendency to be independent’.115 The former investigator also described how the RGPP sometimes sent its information to the SAT (the Paris police antiterrorist unit), but at other times shared it with the DST. ‘That, once again,’ he explained ‘is a question of [relations between] men, a question of opportunity.’116 If the RGPP works independently of other agencies, the Gendarmerie Nationale – a military body – has had even more problematic relations with the country’s main police and intelligence services. A counterterrorist officer of the Gendarmerie claimed that his service’s presence in towns and countryside areas nationwide allowed it to gather a good deal of intelligence on terrorism. This was confirmed, he said, when the

112

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Nationale, October 2002), p. 21. Mr Carayon was a centre-right member of the National Assembly, close to the governments that were formed by the centre-right for the two successive parliaments, 2002–07 and 2007–12. This is according to a researcher who has worked for a government research agency and interviewed dozens of police and intelligence officers for a number of works on French counterterrorism since 1997: Interview with a former government agency researcher on French counterterrorism [FR-J], Paris, 10 July 2006. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Ibid. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Ibid.

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Gendarmerie was asked to quantify its intelligence-gathering in the context of a review of its budget. The officer believed, however, that intelligence exchange between the French counterterrorist services was ‘personalised’ and depended on one-to-one ‘interpersonal confidence’.117 Although the Gendarmerie had passed a good deal of intelligence on terrorism to the DST and RG, this was ‘not valued’ by these or other police counterterrorist agencies, he said. He complained that when the Gendarmerie had set up its own Bureau de la Lutte Anti-terroriste in 2003, to centralise information on terrorism gathered by its brigades around France, the police services referred to the structure as ‘BLAT’, which has a pejorative connotation in French. Some of them also mistakenly call it a ‘Bureau de Liaison Anti-terroriste’, he said, implying that the Gendarmerie merely works for the police in the area of counterterrorism.118 As if to confirm the Gendarmerie officer’s suspicions, a former police counterterrorist investigator, Stéphane Berthomet, complained in 2005 that ‘the Gendarmerie has not stopped organising anti-terrorist actions’, adding that ‘the unfortunately-named BLAT’ would only duplicate the work of UCLAT.119 Such Gendarmerie–police tensions are not confined to counterterrorism, but form a part of what is often referred to as ‘the little war between the police and the Gendarmerie’.120 The relationship between the Gendarmerie and its police and intelligence counterparts in the field of counterterrorism has thus been marked by mistrust. The Paris RGPP meanwhile enjoys a fair degree of autonomy. Co-operation between agencies such as the DST, RG, RGPP and Gendarmerie has often been organised bilaterally on an ad hoc basis. There has been a reliance on informal organisational routines and interpersonal relationships, which can produce good results, though they tend to favour selective and irregular forms of co-operation. As we will see below, such informal routines also influence how investigating magistrates interact with security agencies. One officer, with experience in both the anti-terrorist police and the DST, summed up the improvised nature of much of this inter-agency co-operation by saying: ‘when they [the agencies] can do something on their own, they do it . . . But sometimes they are obliged to work together.’121

117 118 120 121

Interview with a counterterrorist officer of the Gendarmerie Nationale [FR-D], Paris, 21 February 2007. Ibid. 119 Berthomet and Bigot, Le jour où la France tremblera, p. 142. See Hodgson, French Criminal Justice, pp. 90–2. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007.

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Integrating inter-institutional conventions: magistrates and police To understand French counterterrorist law enforcement – or ‘judicial investigations’, as they are known in France – it is necessary to look more closely at the crucial role played by investigating magistrates. In 1986, a wave of terrorist attacks in France by Middle Eastern-related groups provoked public outcry, in which context the government decided to centralise the country’s judicial response to terrorism.122 Legislation was passed in September 1986 which decreed that all judicial proceedings related to terrorism – no matter what part of France they came from – would be dealt with centrally in the Palais de Justice, or Trial Court of Paris. The legislation created a section of public prosecutors (procureurs) and a section of investigating magistrates (juge d’instructions) within the Court who specialised in and dealt only with terrorism cases.123 Under the French inquisitorial legal system, a public prosecutor may refer a case to an investigating magistrate. The latter then conducts an ‘impartial’ investigation – in this instance, on suspected terrorists – and prepares a file on the case which he eventually passes back to the public prosecutor and the defence, who argue the case before a trial jury of professional judges.124 For many years, there were four investigating magistrates specialised in counterterrorism, but this increased to seven between 2004 and 2006, and by 2010 eight magistrates were in place.125 In the area of counterterrorism, the first step in the law enforcement process is usually when a judicial police service receives information from an intelligence agency or obtains information itself, which indicates that a group or individuals are engaging in terrorist activity. At this stage, as one officer noted, the judicial police service has a ‘power of initiative’ to begin working on surveillance, infiltration and the gathering of evidence.126 However, as the police cannot itself authorise court-admissible telephone taps nor the arrest and detention of individuals, it is not long before it goes to the public prosecutor with its information.127 In some terrorist cases – where the prosecutor opens a ‘preliminary inquiry’ or where a ‘flagrant’ misdemeanour has been committed – the prosecutor can task a judicial 122 123 124 125

126 127

Parmentier, ‘France’, p. 63. Cettina, ‘The French Approach: Vigour and Vigilance’, p. 82. Shapiro and Suzan, ‘The French Experience’, 77–78. The ‘impartiality’ of investigating magistrates is discussed in Chapter 4, as is the trial process in terrorism cases. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007; Isabelle Horlans, ‘Portrait de Gilbert Thiel: Un juge dans le placard’, L’Union L’Ardennais, 27 March 2010: www.lunion.presse.fr/article/a-la-une/portrait-degilbert-thiel-un-juge-dans-le-placard. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Ibid.

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police service and oversee their arrest of the suspects.128 Indeed, in most areas of general French criminal procedure, it is the prosecutor who supervises the police’s arrest, detention and investigation of individuals.129 By contrast, in the area of counterterrorism, the prosecutor quickly refers the vast majority of cases to an investigating magistrate specialised in terrorism cases. By opening an ‘information judiciaire’, the prosecutor passes the case to the magistrate so that the latter’s unique investigatory powers can be used (these powers are outlined below).130 As one such investigating magistrate underlined, ‘we are tasked generally in terrorism cases . . . very early’. Indeed, in ‘nine out of ten cases’, he said, the investigating magistrate is already directing the investigation before any decisions about arrests are made.131 The integrating inter-institutional conventions of the French state permit investigating magistrates to work directly with police and security agencies that fall under the executive responsibility of the government. When he is given a case, it is the prerogative of the investigating magistrate to decide which agency he will task for the judicial investigation. As one counterterrorist police officer pointed out, the investigating magistrate ‘chooses freely’, and his choice ‘is not necessarily the service which did the preliminary investigation. Even if in general it is that service which continues [on the case], it can happen that we do the preliminary investigation but then the [main investigation] is given to another service.’132 Once the investigating magistrate has chosen a judicial police agency for the case, he delegates some of his investigatory powers to the agency under a commission rogatoire.133 This allows police investigators to carry out the detailed work of the investigation and follow up leads under what one counterterrorist officer called a ‘fairly broad’ set of instructions. However, he added, all of this is done according to the overall direction set by the investigating magistrate: ‘He [the magistrate] orients the investigation . . . we propose the direction to him. He cannot choose everything. So we

128

129 130 131 132 133

Here, the two categories of case are: ‘enquete de flagrance’ or ‘flagrant delit’ and ‘enquete preliminaire’. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007; interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Hodgson, French Criminal Justice, pp. 62, 67–68. Interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006; Shapiro and Suzan, ‘The French Experience’, 78. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

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propose, but it’s he who really decides . . . we work for him. He tells us: “you do this, you do this, you do this”. We are obliged to do what he wants. We cannot take initiatives.’134 Thus, the investigating magistrate sets the overall direction of the inquiry and makes the key decisions. As one serving counterterrorist magistrate said: ‘it is the investigating magistrate who directs, and who decides to arrest this or that person’.135 A former magistrate was even more emphatic, stating: ‘we have put the [investigating] magistrate at the centre of our judicial system. He is unavoidable . . . he is the pivot. He is the boss in any context.’136 The investigating magistrate has assumed such a key role in terrorist inquiries partly because of some important investigatory powers, which are unique to him. He has the most extensive powers of authorising courtadmissible intercepts such as telephone taps (ecoutes judiciaire), notwithstanding an increase in prosecutors’ powers in this field since 2004.137 He also has important powers in respect of the charging and detention of suspects and the questioning of them after they have been charged.138 After conducting a number of terrorism investigations during the 1990s, the magistrates built up a broad picture of the militant Islamist networks that were active in France at that time.139 As Shapiro and Suzan have shown, this small and specialised group became terrorism experts of a kind difficult to create in normal judicial institutions, with individual magistrates even specialising in specific classes of terrorism, such as separatists or Islamists.140 Jean-Louis Bruguière emerged as the leading investigating magistrate in French counterterrorism in the 1990s, and became Vice President of the Tribunal de Paris, responsible for the co-ordination of counterterrorist magistrates in 1996 where he remained until 2007.141 He directed investigations which resulted in the arrest of Carlos ‘the Jackal’ in Sudan, as well as of Libyan agents suspected of blowing up airliners, and is, according to the Financial Times, ‘acknowledged as one of the world’s foremost legal experts on Islamic terrorism’.142 With their

134 135 136 137 138 139 141 142

Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007; See also Shapiro and Suzan, ‘The French Experience’, 83. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Ibid. See also Hodgson, French Criminal Justice, p. 62. These powers are outlined fully in Chapter 4. Shapiro and Suzan, ‘The French Experience’, 78, 82. 140 Ibid., p. 78. Piotr Smolar, ‘Jean-Louis Bruguière, un juge d’exception’, Le Monde, 6 January 2005. Ibid. Michael Steinberger, ‘The war on terror’s legal challenges’, Financial Times, 8 January 2005.

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expertise and international role, not to mention their media-awareness, the investigating magistrates became the public face of counterterrorism in France.143 Mr Bruguière exemplified the magistrates’ reputation as implacable opponents of terrorism in defence of the people and the state. As the BBC commented, ‘for the overwhelming majority of French people and politicians, Mr Bruguière is a hero.’144 Investigating magistrates are tasked by and report back to public prosecutors specialised in terrorism, who are under the authority of the Minister of Justice. A small Bureau Anti-Terrorist in the Justice Ministry, with approximately six staff, follows terrorism cases in order to inform the Minister and his cabinet of their development.145 The Ministry may occasionally make direct contact with public prosecutors on individual cases, but by and large the prosecutors respond to terrorist cases on their own initiative.146 If prosecutors are relatively unencumbered by government, investigating magistrates have statutory independence from government and politicians – the executive cannot remove them from office. ‘We are completely independent’, affirmed one magistrate.147 This independence from government, along with their expertise, strong public reputation and international role, has given investigating magistrates a strong position in the French counterterrorist system. Indeed, as Shapiro and Suzan have argued, the magistrates contributed to a certain ‘de-politicisation’ of counterterrorism in France. Whereas politicians tended to be associated with the appeasement of terrorism in the 1980s, the investigating magistrates – independent of government – gained public reputations as implacable and effective opponents of terrorism in the 1990s.148 Taking ownership of counterterrorism from politicians, it was the magistrates – not the government – who were central to the main changes in the organisation of French counterterrorist agencies after 1995.

143 144

145 146 147 148

Shapiro and Suzan, ‘The French Experience’, 78–79. Henri Astier, ‘France’s top anti-terror judge’, BBC News Online, 1 July 2003: http://news. bbc.co.uk/2/hi/3031640.stm. One magistrate responsible for separatist terrorism, Gilbert Thiel, had a different style to Bruguière, more independent of government. Nevertheless, Bruguière as the leading counterterrorist magistrate and the one with responsibility for Islamist terrorism is the one that concerns us more here. Interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006. Ibid. See also Hodgson, French Criminal Justice, p. 78. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Shapiro and Suzan, ‘The French Experience’, 78–79.

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Reforms to the co-ordination of French counterterrorist agencies At the centre of a competitive system of several counterterrorist agencies, the investigating magistrates, together with certain senior agency officials, made ad hoc changes and informal alliances that shaped the organisation of France’s terrorism investigations and operations after 1995. Relying on this informal evolution of the system and on a widespread confidence in the intelligence agencies’ coverage of Islamist terrorism, French governments did not introduce any major reforms of the country’s counterterrorist agencies neither after their own experience of terrorist attacks in 1995, nor after terrorism shot to the top of the international agenda in 2001. An informal shift to intelligence service primacy Although the 1986 legislation, which created a Paris-based section of investigating magistrates, was an important and formally introduced ‘top-down’ reform, it does not fully explain the evolution of French counterterrorism over the following twenty-five years. It was not intended in this legislation to have investigating magistrates take ownership of counterterrorism from politicians, yet that is exactly what happened.149 Similarly, the 1986 legislation by itself could not have claimed to be tackling the vexed question of how to better co-ordinate France’s counterterrorist police, intelligence and judicial agencies. Indeed, considerable mistrust and lack of co-ordination between certain agencies remained from the 1980s and manifested itself during the series of Algerian Islamist terrorist attacks on France in 1995 and late 1996. For example, although Gendarmerie officers had a file in their possession that showed similarities with one of the Paris underground attacks (at Port Royal), they did not share the file with the police until fifteen days after they discovered it.150 Criticised in private for these and other co-ordination problems, the services were sent a public message by Jacques Chirac in September 1995. In what has since been referred to as the President’s ‘call to order of the services’, he criticised what he called the ‘traditional quarrels of the chapel’ which prevented a ‘perfect coherence’ in the actions of the counterterrorist agencies. ‘It makes for a little disorder’, he warned, calling for an effort to ‘break down the frontiers and reinforce the cohesion of the ensemble’.151 The emergence of assertive and publicly recognised investigating magistrates, such as Jean-Louis Bruguière, also led to some resentment on the part of the counterterrorist agencies. Intelligence officials believed that 149 151

Ibid., p. 78. 150 Parmentier, ‘France’, p. 67. Ibid., p. 68; Cettina, L’antiterrorisme en question, p. 134; Oliver Talles, ‘Face au terrorisme, le modèle français’, La Croix, 24 October 2005.

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Bruguière demanded too much sensitive intelligence on certain cases, while the police criticised the investigating magistrates for giving the impression in public that they were ‘the bosses of the investigations’.152 Yet the magistrates’ strong public reputations, and their power to decide which service did which judicial investigation, gave them a good deal of authority within the French counterterrorist system. As UCLAT was proving an inadequate means of fostering inter-agency co-operation, an alternative emerged after 1995, and especially from 1998, whereby some investigating magistrates and senior security officials began to informally reshape the organisation of French domestic counterterrorism. ‘In France, the particularity is that there is an enormous number of services that work on terrorism.’153 Thus, a police investigator summed up the challenge posed by the proliferation of French police and intelligence agencies. If the UCLAT model was about trying to co-ordinate all these services together, counterterrorist investigating magistrates took the opposite path: they decided to pick and choose individual services to work with at different times. In choosing a service to carry out judicial investigations into Islamist terrorism, they usually settled on one of the following three options. They could task the counterterrorist specialists at the ‘Sixth Division’ of the Police Judiciaire, which changed its name in 1998 to the Division Nationale Anti-Terroriste (DNAT). Alternatively, they could opt for the Section Anti-Terroriste (SAT), another Police Judiciaire service which had a mandate covering the Paris area. Finally, the investigating magistrates could task the Direction de la Surveillance du Territoire (DST) which, although an intelligence agency, also had a competence to carry out judicial investigations in the areas of national security and terrorism. Like the intelligence agencies, the mandates of these three counterterrorist judicial police services overlapped considerably and the official division of labour between them was ‘not at all clear’, as one former police officer put it.154 In practice, however, all French interviewees agreed that there was a pattern concerning which services worked on Islamist or other terrorist investigations in different periods. From 1993–4, when the Algerian terrorist threat emerged, until 1998, the ‘Sixth Division’ of the Police Judiciaire/DNAT and the SAT were given the vast majority of judicial investigations into cases of Islamist

152 153 154

French police official quoted in Cettina, L’antiterrorisme en question, p. 122. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007.

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terrorism.155 There was little alternative to these two Police Judiciaire services during this period, as the DST did not yet provide a viable judicial police service for terrorist cases. As much of the period was taken up with investigating the series of attacks by Islamist terrorists during 1995 and late ’96, a former DST official also stressed that it was normal for these services to dominate following the actual commission of crimes, in the manner of a traditional police service.156 Finally, several sources attest to the importance of the good relations which the then leader of the ‘Sixth Division’, Roger Marion, had with a number of judicial figures, such as the prosecutor, Irène Stoller and the investigating magistrates, Laurence Le Vert and Jean-Louis Bruguière.157 Partly on the basis of such informal links, the ‘Sixth Division’ was given the vast majority of terrorist cases from the mid- to late-1990s and formed a ‘specialised double-team’ with the investigating magistrates, as one author has put it.158 In 1998, the division changed its name and was upgraded to the rank of Division Nationale Anti-Terroriste (DNAT).159 That same year, however, saw the beginning of the decline of the DNAT in the field of Islamist terrorism. The trigger for this was an increase in Corsican militancy, including the unprecedented assassination of the highest French government official in Corsica, Prefect Erignac, in February 1998. This provoked a political storm in France and led to the DNAT devoting ‘almost all its means’ to investigating Corsican terrorism, according to a senior police official.160 Roger Marion was promoted out of the DNAT in 1999 but later left the Police Judiciaire altogether, taking his personal network of judicial contacts with him.161 Meanwhile, the DST – an intelligence agency that also had a judicial competence – developed this second side of its operations in 1998 by

155

156 157

158 159 160 161

Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007; interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007; interview with a former government agency researcher on French counterterrorism [FR-J], Paris, 10 July 2006. See also Jacques Follorou, ‘Roger Marion sans affectation’, Le Monde, 7 July 2006. Parmentier, ‘France’, p. 68. Cettina, ‘The French Approach: Vigour and Vigilance’, p. 79. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. Jacques Follorou, ‘Roger Marion sans affectation’, Le Monde, 7 July 2006 ; interview with a former government agency researcher on French counterterrorism [FR-J], Paris, 10 July 2006.

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creating a unit dedicated to judicial investigations, the Unité Enquete Judiciaire. One former DST officer said that as the DNAT left Islamist terrorism to one side, the DST ‘profited from this moment to use the terrain, to monopolise the terrain and develop properly its judicial investigation structure’.162 By itself, however, this DST initiative would not have made much impact on the organisation of French counterterrorism. For that, it depended on the approach of the investigating magistrates. The magistrates, seeing that the DNAT were busy working on separatist terrorism, and recognising the efforts of the DST, decided to work directly with the intelligence agency on Islamist terrorism.163 Some also saw this as a potentially beneficial simplification of the existing system. The practice which held sway from the mid- to late-1990s was that an intelligence service would communicate information to the Police Judiciaire, which then informed a magistrate and proceeded to work under the direction of that magistrate to investigate and arrest the suspects. According to a former investigating magistrate, however, there could often be breakdowns in communication, or a failure to take responsibility at some point in this chain: ‘It didn’t work. So we said: “That is finished. You intelligence officers will now work under our orders . . . [you] are going to have the hat of a judicial police officer, and so you will depend on us, magistrates or prosecutors.”’164 Beginning in 1998, this significant change – a breakdown of the separation between justice and intelligence – was not accomplished through the formal creation of new structures, but relied instead on the informal development of interpersonal confidence between individuals. Investigating magistrates, such as Jean-Francois Ricard, interacted personally with intelligence officials to assuage the latter’s concerns about sharing sensitive intelligence.165 A ‘climate of confidence’ developed between the two sides, according to a former senior DST official: ‘I have not had serious problems with magistrates’, he said, ‘everything is done naturally’.166 The leading counterterrorist investigating magistrate, Jean-Louis Bruguière, developed good relations in particular with Louis Caprioli, who was head of counterterrorism at the DST from 1998 to 162 163 164 165 166

Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. This testimony on Ricard is based on an interview with a ‘French official’, cited in: Shapiro and Suzan, ‘The French Experience’, 83. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007.

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2004. Apart from facilitating the sharing of information between the DST and the investigating magistrates, such relationships also paid off for the DST as the magistrates tasked its new Unité Enquete Judiciaire for the vast majority of judicial investigations into Islamist terrorism after 1998. As a former DNAT and DST officer said: ‘He [Bruguière] knew Mr Caprioli well. They had good contacts. So he gave more cases to the DST.’ This establishment of direct relations between justice and the intelligence agency was ‘not at all a political choice or a high-level decision’, he added. ‘It was more a reality of the terrain.’167 Not only was it not a political choice, but the government was actually against the idea of the DST working directly under the control of the judiciary, according to a former investigating magistrate: ‘The political power wanted to keep its intelligence services to itself, saying “It’s a privilege of the executive; intelligence officers cannot go to see the magistrates, who are in another sphere.”’168 Nevertheless, the will of the magistrates and senior DST officials prevailed little by little, according to one of their number, Gilbert Thiel: ‘It was the choice of Jean-Louis Bruguière to work more and more with [the DST] . . . after, it was Bruguière who decided to reserve for them a sort of monopoly of the treatment of Islamist cases.’169 Another serving counterterrorist magistrate confirmed that the government still regarded the DST as a ‘power of the executive’ and resented the fact that the agency works under the control of independent investigating magistrates for the judicial part of its inquiries. According to the magistrate, Nicolas Sarkozy in particular did ‘not always regard with a favourable eye that the DST has this double-hat’.170 Although the magistrates, with the support of senior DST officials, made this change in ad hoc fashion in response to the circumstances of 1998, it has had significant implications. Consistent with organisational routine theory’s expectation of path dependency, the 1998 reform had ‘feedback effects’ which have shaped the organisation of French counterterrorism ever since. As the DNAT focused on separatist terrorism and the magistrates gave the DST almost all of the Islamist cases, the latter specialised in this class of terrorism to the extent that, as the years went on, there was ‘no reason’ for magistrates to task other services with less 167 168 169 170

Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

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expertise in this area, according to one investigator. The DNAT’s specialists in Islamist terrorism began to leave the service in order to work for the DST and the Paris Section Anti-Terroriste (SAT). ‘I myself [left the DNAT] and went to the DST just after that moment’, he recalled.171 Thus, even when separatist terrorism declined in importance and the DNAT became available again for Islamist cases, especially after 2001, the DST’s expertise and informal alliances with the investigating magistrates allowed it to continue dominating the field of Islamist investigations. As one counterterrorist police officer explained: ‘Certain magistrates prefer to work with this or that service. It’s a question of methods and of human rapport, and that explains why sometimes it is more the DST that is tasked than us, or vice versa . . . it’s true that for the tasking of certain cases, we depend on the magistrates.’172 A ‘police officer who has worked with [Jean-Louis Bruguière] for a long time’ was less circumspect when quoted in Le Monde on the question of alliances within French counterterrorism: ‘Bruguière is a politician with neither faith nor law. His aim is to be the boss. He can sacrifice an investigation for his alliances.’173 The most consequential change to the organisation of French domestic counterterrorism over the last fifteen years – a shift to DST primacy in alliance with investigating magistrates – was set in train by Bruguière and other practitioners, but never officially announced. Bearing the mark of French counterterrorism’s informal organisational routines, this change simply happened in practice without being formalised or recognised at government level.174 Bridging the judicial-intelligence divide As the DST worked directly with investigating magistrates after 1998, France developed a selective but nevertheless extensive form of counterterrorist co-operation which bridged the gap between the disparate worlds of intelligence and justice. Exploring how this co-operation functions offers further insights

171 172 173 174

Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Quoted in Piotr Smolar, ‘Jean-Louis Bruguière, un juge d’exception’, Le Monde, 6 January 2005. This case (and the British case discussed below) supports a qualified version of the understanding of organisational routines as unreflective (see Chapter 2). It indicates that entrepreneurial agents may perform such routines in innovative ways while still reproducing the underlying pattern (in this case – a routine of informal interaction between agencies).

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into the conditions that have shaped the French approach to counterterrorist reform. As outlined above, the shift to DST primacy over the last decade owed much to France’s informal organisational routines and the particular circumstances of 1998. However, this change was also underpinned by French officials’ perception of the terrorist threat. Given their experience of a plane hijack by Algerian Islamists in 1994 and the repeated use of no-warning bombs in the 1995 attacks, French officials have since the mid-1990s perceived the intentions of the Islamist terrorists facing them as unrestrained and focused on maximising casualties.175 This perception was reinforced by 9/11 and their assessment of terrorist attacks and plots against western targets after 2001. As Chapter 1 indicated, the perception of a mass casualty terrorist threat has led both French and British officials to adopt a preventive logic of investigations, which implies the gathering of intelligence in ways that enable its judicial exploitation as evidence for a trial. That logic – followed to an extreme conclusion perhaps – could even lead a state to turn over its counterterrorist law enforcement to an intelligence agency. Looking back to 1998 and considering the evolution of terrorism since then, it is precisely this preventive logic that underpins French officials’ justifications of the shift to DST primacy in judicial/law enforcement investigations of Islamist terrorism. ‘We can pass fairly easily from intelligence to the judicial part’, said an investigating magistrate. ‘It’s a great advantage of efficiency . . . because [it allows] an intelligence agency working under cover to take its judicial police “hat”, do a proces-verbal [report for a magistrate] and then Poof! – we can go to arrest the people very well.’176 It should also be noted that, in the late-1990s, officials began to perceive a broadening of the Islamist terrorist threat to France beyond the Algerian issue and diaspora to take in networks with greater international connections.177 According to a former senior DST official, this meant that prevention often had to start abroad, which suited the DST as an intelligence agency with international links. ‘The DST has done a work of prevention . . . a work of anticipation’, he said, ‘[to] find the terrorists before they commit an attack’. It was necessary for the DST to develop its judicial investigation competence in 1998, he continued, 175 176 177

See Chapters 1 and 5 on why French officials saw these events as indicating unrestrained intentions on the part of Islamist terrorists. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. See also Shapiro and Suzan, ‘The French Experience’, 79, 86–7. This is outlined in more detail in Chapters 1 and 5.

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because it was ‘the only one’ to perceive the international travel and links of many Islamist terrorists. When these suspects returned from Afghanistan or Pakistan, ‘we had done the intelligence inquiry and we transformed it into the judicial [investigation] . . . in order to arrest them’.178 The DST – reformed in 2008 into the DCRI – is the only western intelligence agency that also has a competence to carry out judicial/law enforcement investigations and thus, under the direction of an investigating magistrate, contribute to the assembly of a case of evidence that is presented in court.179 This is possible because the integrating interinstitutional conventions of the French state enable close co-operation between certain judicial actors and security agencies that report to the government. While this had traditionally manifested itself in the investigating magistrates’ joint work with the police, the magistrates found no barriers to their extension of it to the DST intelligence service in 1998. The DST/DCRI has maintained a distinction between the work of its intelligence agents and the work of its law enforcement investigators in the Unité Enquete Judiciaire. However, there is close communication between these two types of personnel within a framework where intelligence, naturally enough for an intelligence agency, remains the organising principle. ‘Formally, they are separated’, said one senior police official, ‘but they depend on the same boss. They are of the same house, of the same doctrine, of the same culture’.180 It is the DCRI’s intelligence agents who carry out the preliminary surveillance of individuals and extract information from this intelligence work in order to prepare a report for the public prosecutor.181 This report presents an account of the activities, movements and contacts of the suspect in France, and also abroad in many cases. The agency’s report to the prosecutor on Djamel Beghal of 7 September 2001, for example, contains a broad range of detailed information on the suspect’s activity in Afghanistan: who he met, where he travelled, how he received training in explosives and was given a mission by an Al-Qaeda figure to attack 178 179

180 181

Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. The US Federal Bureau of Investigation has a similar dual mandate, but this is a case of a criminal investigative agency taking on intelligence functions. See Antoine Garapon, ‘Is There a French Advantage in the Fight Against Terrorism?’, Analyses of the Real Instituto Elcano 110 (1 September 2005): www.realinstitutoelcano.org; Marc Perelman, ‘War on terror à la française’, International Herald Tribune, 27 January 2006. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007.

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American interests in Paris.182 This detail is based on intelligence, and the confidential sources of the information are not revealed. The report states only that the information presented is ‘based on the elements in our possession’.183 Assuming he is satisfied with the information presented in such a report, the public prosecutor refers it to an investigating magistrate who, in Islamist cases, usually goes back to the DCRI and re-tasks them for the law enforcement phase – the judicial investigation. As a former senior official of the agency explained: ‘At this point, we change our hat and there are specialised [DCRI] personnel who work on the judicial investigation’ with the magistrate. However, he added, the DCRI’s intelligence agents also continue their own work ‘with clandestine sources’ and can communicate any new information they find to the DCRI’s judicial investigation unit.184 Having previously been required to go through the Police Judiciaire to receive information from the then DST, the investigating magistrates were happy to get more direct access to such intelligence by working with the DST itself from 1998.185 As one former magistrate said, ‘we have broken the firewall that existed between intelligence and its judicial exploitation . . . [intelligence] officers working under our orders: that means that you give us the information’.186 This particular remark may oversimplify matters somewhat. Tensions still exist between intelligence and judicial priorities, and the DST/DCRI retained its right to choose the information that it would share with magistrates, as well as its prerogatives concerning the protection of sources.187 Nevertheless, joint DSTmagistrate investigations and personal interactions between the two sides fostered a ‘climate of confidence’ in which the intelligence agency shares quite detailed information with the magistrates, such as that found in the Djamel Beghal file. As the former magistrate said, it means that in France ‘the information of the intelligence agent can be, must be exploited at the judicial level’.188 182

183 184 185 186 187 188

Direction de la Surveillance du Territoire, Bordereau D’Envoi à Monsieur le Procurer de la République (Objet: Djamel Beghal), Paris, 7 September 2001 (copy in author’s possession). Ibid. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Cettina, L’antiterrorisme en question, pp. 123–24; Shapiro and Suzan, ‘The French Experience’, 82–83. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. See also Shapiro and Suzan, ‘The French Experience’, 91. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006.

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This intelligence-judicial co-operation is important for the charging and prosecution of terrorist suspects in France. When the investigating magistrate is making his decision on whether or not to charge an individual, he has access to and can take into account purely ‘administrative’ intelligence material given to him by the DST/DCRI (this is information collected by the intelligence agency in an administrative capacity, before they were working in a judicial framework).189 For the main part, he relies on ‘judicial’ material collected by the DCRI during the judicial investigation phase. Nevertheless, the magistrate’s ability to access and take into account earlier or more sensitive intelligence gives him a greater information base for his decision. When such cases are prosecuted before a court, information collected by the DCRI during the judicial investigation phase is used as evidence in the trial; this includes intercept material, which is derived from telephone-tapping or the covert interception of email and Internet communications.190 In a context of professional trust between the intelligence agency and magistrates, ‘administrative’ intelligence – sometimes of a sensitive nature – can also be ‘judicialised’ and introduced as evidence in the trial.191 France’s model of inter-agency co-operation on terrorism investigations is selective, since the DCRI intelligence service bypasses both the police and formal inter-agency forums in order to work directly with investigating magistrates. It is nevertheless an extensive form of co-operation, since those DCRI officers and magistrates bring together the disparate worlds of intelligence and justice. In doing this, they ensure the links between all the key points in the counterterrorist process: connecting intelligencegathering to arrest operations, the assembly of a case of evidence and finally the presentation of that evidence to a trial court. This unique model has been possible because the integrating inter-institutional conventions of the French state enable judicial and intelligence actors to work together in ways that would not be permitted in many other countries, including Britain. This unity of the state against terrorism was further facilitated by informal organisational routines. A former counterterrorist magistrate said that people with rather different functions in the French

189 190 191

Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. This is discussed in greater detail in Chapter 4. Ibid. Shapiro and Suzan, ‘The French Experience’, 83. Though such intelligence cannot secure a conviction on its own, in combination with other corroborating evidence, it likely has an impact on the outcome of the trial. See Jacqueline Hodgson et al., ‘Terrorist Investigations and the French Examining Magistrates System’ (Home Office, July 2007), p. 10 and Jacqueline Hodgson, ‘The Investigation and Prosecution of Terrorist Suspects in France’ (University of Warwick, 2006): www2.warwick.ac.uk/fac/soc/law/staff/academic/hodgson/publications.

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state ‘got to know and have trust in each other. I mean, on a Sunday morning, we did jogging: there were the guys of the DST, of the DGSE, prosecutors, an investigating magistrate, officials of the Police Judiciaire . . . [there] together.’192 Along with other elements – to be discussed in Chapter 4 – this judicial-intelligence co-operation has contributed to a confidence among French officials in the ability of their judicial system to charge and secure the convictions of terrorist suspects. Chapter 4 will also consider whether such cosy personal relations between some magistrates and intelligence officials may have compromised the checks and balances of the judicial system. Why 9/11 had few implications for the French system With its interception of many terrorist plots since the mid-1990s, France has provided a unique example of intelligence capability merging with legal instruments to prevent and prosecute terrorism.193 French counterterrorist practitioners are proud of this judicial-intelligence co-operation, although some recognise that it depends on informal alliances between individuals. As one police officer has been quoted as saying: ‘There is a very good anti-terrorist system in France – but it relies on people.’194 Others do not see any problem with this reliance on interpersonal relations, and they point out that it has facilitated the development of direct co-operation between diverse actors. Interviewed in 2006, the former investigating magistrate who spoke of intelligence agents and magistrates jogging together went on to say: ‘We have won thanks to that: trust and working together.’195 While other practitioners may not state it so boldly and say that France owes some of its success in preventing terrorist attacks to luck, all share a confidence in their counterterrorist system.196 The shootings by Mohamed Merah in March 2012 ended France’s record of preventing terrorist attacks since 1996, but they did not, at least initially, greatly undermine this confidence. The initial response of many officials 192

193

194 195

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Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006 (my emphasis). Plots intercepted include a planned attack on Strasbourg in December 2000 and two separate conspiracies to strike targets in Paris in late 2002 and September 2005. See Chapters 1 and 5. Cettina, ‘The French Approach: Vigour and Vigilance’, p. 85. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006 (my emphasis). Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007.

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was to focus on the difficulty of preventing lone wolf terrorist attacks. The head of the DCRI, Bernard Squarcini, emphasised that although the Merah case would have important effects, ‘this does not change our strategy in the fight against terrorism, which has proved its worth for more than fifteen years.’197 Given the interest of American security experts in France after 9/11, and with at least one official British delegation visiting Paris in order to learn about their model, the French are also used to outsiders asking their advice about counterterrorism and co-operation between intelligence and judicial actors.198 Apart from organisational strengths, the other major source of officials’ confidence was a widespread belief that the French security services had extensive intelligence coverage of France’s Islamist milieu, which they had been developing at least since the emergence of Algerian-linked terrorism in the mid-1990s. Along with the DST, the Renseignements Généraux (RG) and its Paris section (the RGPP) were often singled out as particularly important in this context. For example, Alain Chouet, a former head of counterterrorism at France’s foreign intelligence service, the DGSE, said in 2005: ‘The RG has a deep knowledge of the Muslim community. Their work on the ground provides 80 per cent of the information.’199 The conclusion of the official Livre Blanc review of 2006 summed up the French government and practitioners’ views on their counterterrorist system. Although the review was critical of certain areas, it made a highly positive evaluation of the organisation of France’s counterterrorist intelligence and judicial investigations. Endorsing the magistrates’ direct contact with the then DST, it stated: ‘the exchange is facilitated by the fact that the DST is at the same time an internal intelligence agency responsible for preventing activities that threaten national security and a judicial police agency that undertakes sensitive investigations on Islamist terrorism’. The Livre Blanc concluded that this co-operation and France’s broader judicial response to terrorism ‘gives cause for satisfaction. It does not need major reform.’200

197 198

199

200

Elisabeth Fleury and Damien Delseny, ‘Bernard Squarcini: “Notre stratégie de lutte contre le terrorisme a fait ses preuves,”’ Le Parisien, 24 March 2012. For examples of the American interest, see Shapiro and Suzan, ‘The French Experience’, 88–93; and Reuel Marc Gerecht and Gary Schmitt, ‘France: Europe’s Counterterrorist Powerhouse,’ American Enterprise Institute: European Outlook 3 (November 2007): www. aei.org. The British interest in French counterterrorism is discussed in Chapter 4. Quoted in Oliver Talles, ‘Face au terrorisme, le modèle français’, La Croix, 24 October 2005; This echoed the views of FR-H, quoted above, who highlighted the RG and its Paris section, the RGPP, in particular. French Government, Prevailing Against Terrorism, pp. 53, 54. This conclusion takes in the organisation of intelligence and investigations as well as France’s judicial procedures for dealing with terrorism. See Chapter 4 for the Livre Blanc’s comments on judicial procedure.

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Informed by this kind of perspective, the French government did not introduce any major reforms to the organisation of its counterterrorist agencies after experiencing terrorist attacks on its soil in the mid-1990s, nor did it do so after the 2001 attacks on America. Although the government was worried by some glaring examples of lack of co-ordination between the agencies during the 1995 attacks (hence President Chirac’s public ‘call to order’), it did not introduce any reforms to the organisation of the agencies in response to these inadequacies. Instead, it stood by as practitioners at the agency level – investigating magistrates and intelligence officials – informally made changes to the organisation of French counterterrorism, part of which was even against the wishes of the government. However, in a context where these informal changes have helped to bolster the confidence of French practitioners in their counterterrorist system and impressed outside observers, the government has not stymied them. In the years after 9/11, a number of western states, including the UK, made reforms to their intelligence and police services – but not France. Relying, in effect, on the informal evolution of their counterterrorist system and on a widespread confidence in the intelligence agencies’ coverage of Islamist terrorism, the government did not make any significant formal or ‘top-down’ reforms to the organisation or funding of France’s counterterrorist agencies in the decade after 1995. Some changes were made, such as the decision in 2002 to provide additional funding in order to recruit almost 14,000 new police agents during the period 2003–7. However, only 600 of the new police personnel were to be focused on combating terrorism and organised crime, and the announcement was made in the context of a publicly perceived rise in crime, rather than as a counterterrorist measure.201 Within the Ministry of Economy, Finance and Industry, the ‘FINTER’ cell was set up on 20 September 2001 to co-ordinate the different ministries and agencies who track and counter the financing of terrorism.202 Overall, however, it was not felt necessary to introduce large budget increases aimed at the terrorist challenge, nor to greatly expand the human resources of France’s police and intelligence agencies working on counterterrorism. For example, the four million euro supplementary funding that was provided to the counterterrorist services in 2005 is a relatively small figure in comparative terms and, according to French security analysts, is typical of the years after 9/11.203 While British intelligence saw a major increase in its budget after 2001 motivated by counterterrorism concerns (see below), the 201 202 203

Archick and Gallis, Europe and Counterterrorism, p. 64. O Brien, ‘France’, p. 27. Berthomet and Bigot, Le jour où la France tremblera, pp. 125–7, 134.

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annual budget for the French intelligence services only inched up during the same period.204 Sarkozy’s reforms and their limitations In May 2007, the DST, RG and the counterterrorist division of the Police Judiciaire left their respective buildings and were co-located in new premises at LevalloisPerret, just outside Paris. A counterterrorist police official with responsibilities for inter-agency co-ordination was cautious when asked about the planned move the previous year. ‘The motivations are very down to earth’, he said. It happened first, he explained, because the DST and RG needed larger premises, and the Interior Ministry ‘found this opportunity in a very big building, to relocate them there’.205 ‘For now . . . it is just a geographical recentralisation’, he said. ‘In time’ however, ‘it is possible [there] . . . to make it that the services are better and better impregnated with the culture of the others.’ Indeed, ‘the fact of all being in the same place’ is going to ‘create a new culture of service’, he believed. ‘The people must get to know each other better and better, to work together more and more.’206 This modest approach to improving interagency relations appeared to be based on a recognition that the pattern of the French counterterrorist agencies has been to interact in informal and improvised ways. In June 2008, however, the government went further and merged France’s two main domestic intelligence services, the RG and the DST, which had constituted two of the three agencies represented at LevalloisPerret, to form a new organisation, the Direction Centrale du Renseignement Intérieur (DCRI). This formal restructuring, driven by the newly elected President Nicolas Sarkozy, departed from the norm of the previous twenty years, according to which French governments had refrained from making significant reforms to the intelligence agencies.207 The reform was motivated not by counterterrorist concerns, but rather by the economising aims of ending duplication and the anomaly of having two national domestic intelligence agencies with similar mandates. As Mr Sarkozy put it: ‘Believe me, that [reform] goes against a lot of ingrained habits, once again! But I cannot accept there being several intelligence services with the consequent loss of energy.’208 Placing the DST and RG under a 204 205 206 207 208

Ibid., p. 134. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Ibid. Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 3; Piotr Smolar, ‘DST et RG: nouveaux voisins de palier’, Le Monde, 24 May 2007. Nicolas Sarkozy, Speech at the ceremony to remember victims of terrorism, Paris, 19 September 2007: www.ambafrance-uk.org/President-Sarkozy-talks-about,9479.

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common leadership should foster more regular interactions and integrated operations between the component parts of the new DCRI.209 However, as one senior police official noted in late 2010, more than two years after the merger was implemented, it was a ‘complex and tricky’ process. This is because the DST and RG had ‘two different cultures, different ways of dealing with the terrain’, he explained. ‘It will take time to build a new culture.’ Nevertheless, the fusion of the two agencies was ‘on track’, he believed.210 This merger, driven by President Sarkozy, was an example of a powerful individual challenging long-standing organisational structures and routines. While it is proving complicated to overcome such patterns, important changes were underway within the new DCRI. In other areas of French counterterrorism, however, the existing structures and routines had considerable staying power. Though he ended the DST-RG overlap, President Sarkozy was unable to tackle other overlapping mandates, such as the DST’s sharing of counterterrorist law enforcement with the Police Judiciaire.211 The DST kept its judicial police competence and its Unité Enquete Judiciaire continues its law enforcement investigations within the new DCRI structure. A senior police official confirmed that there has been no change in this unit’s budget, ‘nor in the way they work’.212 It is also interesting to note that the Renseignements Généraux de la Préfecture du Police (RGPP) in Paris – which escaped the initial relocation to Levallois-Perret – has remained independent of the DCRI reform.213 This seemed to confirm the fears of a former police and DST investigator who had previously pointed out that certain important counterterrorist services, notably the RGPP, were not included in the Levallois-Perret relocation. This brought a danger, he said, that they would be ‘isolated’ and would ‘disappear’ from view.214 Overall, though one agency had disappeared as part of the DCRI reform, there were still up to six independent services with overlapping responsibilities for 209 210

211 212 213

214

Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 3–4. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010. This senior police official has extensive experience within one of the agencies that today makes up the DCRI and still has much contact with the service. Recall the comments by investigating magistrates, quoted above, on the government and Mr Sarkozy’s dislike of the DST’s intelligence and law enforcement ‘double hat’. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010. Gérard Davet and Isabelle Mandraud, ‘La ministre de l’intérieur présente le nouveau visage des services de renseignement français’, Le Monde, 13 September 2007. In 2008, the RGPP changed its name to the Direction du Renseignement à Paris (DRPP). Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007.

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domestic terrorism intelligence and law enforcement (DCRI, RGPP, Police Judiciaire, the Paris Section Anti-Terrorist, the investigating magistrates and the Gendarmerie). In this context, informal organisational routines remained important. As the DCRI got off the ground, President Sarkozy announced that as part of a broader restructuring of government in the area of national security, CIR (the main government committee responsible for co-ordinating the intelligence services) would be reformed into a Conseil National du Renseignement (CNR). A new post of National Co-ordinator of Intelligence would also be created to serve as advisor to the President and a central intermediary between him and the heads of the intelligence services.215 Gradually implemented in 2008–9, these reforms raised the possibility that a new central authority could emerge with the ability to co-ordinate the activities of the intelligence agencies in a formal or ‘topdown’ manner. In practice, however, the new co-ordinator proved to be merely one of several important intelligence directors, each of which maintained their traditional prerogatives.216 The first holder of the post, Bernard Bajolet, himself indicated that informal relationships were still all too important to inter-agency relations, even with his post and the CNR in place. ‘The system remains fragile’, he said in 2010, ‘because it relies heavily on people’. Listing several examples of how good interpersonal relationships between heads of services had aided co-operation, he nevertheless warned: ‘If the human factor is a strength, it also remains a source of fragility.’217 Writing in 2011, French security analyst, Nathalie Cettina underlined the ongoing importance of informal networks to French intelligence and counterterrorism. She also pointed out the potential for conflict under the new system between the CNR, which now reports to the President, and other bodies such as the Interior Ministry or the UCLAT counterterrorism unit, which still report to the Prime Minister. The danger is that during the next ‘co-habitation’, when those two office-holders will be from different political parties, the interpersonal relationships so important to the system could break down because senior police and intelligence officials will have been appointed by politicians from different parties.218 215 216 217

218

Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 7. Floran Vadillo, ‘Vers une nouvelle coordination du rensignment?’, Le Monde, 7 March 2011. Assemblée Nationale, Commission de la défense nationale et des forces armées, Audition de M. Bernard Bajolet, coordonnateur national du renseignement à la Présidence de la République, 27 January 2010: www.assemblee-nationale.fr/13/crcdef/09-10/c0910020.asp. Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 8–13.

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Indeed, regardless of this potential source of conflict, there has already been over the last several years a lack of co-operation between the main police and intelligence agencies in French domestic counterterrorism. The fuelling of inter-agency competition A central theme of this discussion has been how the development of judicial-intelligence co-operation by magistrates and senior DST/DCRI officials has by and large won the confidence of counterterrorist practitioners in France. However, these changes have not satisfied all agencies, and the absence of distinct mandates and a central authority in French counterterrorism has left unresolved some tensions and problems in the system. The prevalence of informal routines has favoured close – usually bilateral – links between certain agencies, but the selectivity of this co-operation has effectively excluded others from working on the priority area of French counterterrorism – Islamist militancy. The Gendarmerie Nationale, as noted above, has felt that its terrorism intelligence-gathering is not sufficiently valued by the main police and intelligence services. While it has a mandate to carry out judicial inquiries under the control of a magistrate, the Gendarmerie does not in practice play any role in the investigation or arrest of Islamist terrorists. A counterterrorist officer of the Gendarmerie said that his service did not pursue Islamist cases. However, they were not happy, he said, with the magistrates’ decision to give most ETA investigations to the Police Judiciaire, thus excluding the Gendarmerie from this area also.219 A former police officer confirmed that ‘the big services for the repression [of terrorism] are essentially police, yes 90 per cent’ (the reference to ‘police’ here includes the DCRI, but excludes the Gendarmerie).220 Thus, Kevin O’Brien was surely wrong when he wrote that the Gendarmerie ‘occupies a very strong, perhaps even commanding, institutional position’ within the French counterterrorist system.221 Interviews with Gendarmerie and police officers show rather that the Gendarmerie feels somewhat excluded from crucial dimensions of the fight against terrorism. A more important effect of the informal changes to French counterterrorism was the effective exclusion of the counterterrorist division of the Police Judiciaire – the DNAT – from working on Islamist terrorism after 219 220

221

Interview with a counterterrorist officer of the Gendarmerie Nationale [FR-D], Paris, 21 February 2007 Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. This interviewee drew a distinction between the Gendarmerie (as a military body) and the police. The DCRI, like its two predecessor organisations, is part of the Police Nationale, although in practice it has a large degree of independence. O’Brien, ‘France’, p. 38. This view of the Gendarmerie appears to be the result of an overreliance on official documentation and organisational charts.

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1998. Since then, the DST/DCRI has been working both on the intelligence side and on judicial/law enforcement investigations into Islamist terrorism, which its magistrate allies were happy to provide. With its unique hold on both sides of the operational coin, the DST – de facto – became the specialist on Islamist terrorism among the French agencies. The result, as the senior investigating magistrate, Gilbert Thiel, put it, has been that the Police Judiciaire’s DNAT ‘since some years has been almost or completely excluded from the treatment of cases of radical Islamism’.222 DNAT officers became frustrated with this situation particularly in the post-9/11 context. Yet since the DST’s informal dominance of Islamist investigations was not formalised or officially recognised by the government, the DNAT retained its mandate for all areas of counterterrorism. As such, the door was open for it to attempt a comeback into the field of Islamist terrorism investigations. In June 2006, the DNAT was renamed and upgraded in status within the Police Judiciaire, becoming the Sous-Direction Anti-Terrorist (SDAT). An initiative of the head of the Police Judiciaire, Martine Monteil, one of the goals of this repackaging of the DNAT was to regain a foothold in judicial investigations into Islamist terrorism.223 To that end, the division had already hired 30 new officers in 2005, who were tasked with specialising in militant Islamist activity.224 Speaking in 2007, a senior Police Judiciaire counterterrorist official confirmed that the SDAT was ‘working once again in a newly intensive way’ on Islamist terrorism and he questioned whether it was appropriate for the DST to continue its judicial investigations into terrorism since giving an intelligence service such responsibilities could be ‘a threat to public liberty’, in his view.225 Another terrorism investigator of the Police Judiciaire said that ‘in the long term . . . perhaps what we seek is to recuperate this judicial activity from the DST’. He noted, however, that this was ‘not easy’ because ‘the services don’t necessarily want to leave their prerogatives for the profit of another service’. He admitted that ‘it is a type of “war”, entre guillemets, between the services [DST and SDAT] to keep their domains of competence’.226

222 223 224 225 226

Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Oliver Talles, ‘Face au terrorisme, le modèle français’, La Croix, 24 October 2005. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007.

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This rivalry meant that there was little co-operation between the DST and the SDAT on terrorism investigations. Asked if the two services conducted operations together, the Police Judiciaire investigator said: ‘No, no, no. For the moment, it is very separated.’227 A former senior DST official stressed his service’s work with investigating magistrates when asked about inter-agency co-operation. He added that the DST’s work ‘with the Police Judiciaire – the DNAT – the work on Islamic terrorism, it was, let’s say, less intense’. This was because the Police Judiciaire’s role, according to him, was to investigate after terrorist attacks – such as in 1995 – while the DST’s role was to prevent attacks.228 This perception of the division of labour was rejected, however, by a senior Police Judiciaire officer. ‘We can also do preventive [work] as the mission of the Police Judiciaire’, he affirmed.229 Given their competition for cases and conflicting perceptions of the division of labour, the lack of co-operation between the two services was unsurprising. The change to SDAT in 2006 was not a formal, ‘top-down’ change to French counterterrorism. The Police Judiciaire made an internal reform, which was not co-ordinated with other counterterrorist agencies and whose success or failure still depended on the evolution of those other agencies and on the SDAT’s ability to make informal alliances with them and the magistrates. As it turned out, the SDAT did not appear to make any decisive inroads into Islamist terrorism cases in the following years. The disappearance of the RG in 2008 (subsumed into the DCRI) took away one potential ally, which had been prepared to supply the SDAT with intelligence, enabling the latter to investigate and arrest suspected Islamist terrorists.230 That merger of the RG and DST into the new DCRI reinforced the latter’s dominance of both intelligence and judicial investigations into Islamist terrorism. Combining the staff of the two historic agencies, the DCRI is a huge organisation, with around 3,000 officers covering all issue areas, from terrorism to street violence to economic espionage.231 Terrorism is the sole focus of the SDAT, but since it is a much smaller agency, which under normal circumstances can only allocate approximately 100 officers to a case, it is unable to match the DCRI’s resources.232 227 228 229 230 231 232

Ibid. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. For an example of this RG-SDAT co-operation, see Piotr Smolar, ‘Onze interpellations dans le cadre d’une enquête sur un réseau islamiste’, Le Monde, 15 February 2007. Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 3–4. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010.

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SDAT concentrates its resources on judicial investigations, but even in this domain it is difficult to compete, because the DCRI has maintained its judicial mandate and its Unité Enquete Judiciaire continues to work, drawing on the expertise on Islamist terrorism that it has built up since 1998. As one senior police official put it in December 2010, ‘The DCRI has a lot of databases on Islamist terrorism and a lot of experience. So it is still at the top of the fight against Islamist terrorism, more than the SDAT.’ Competition for cases continued between the two services, he said. ‘Officially, there is supposed to be a synergy between them, but in reality, it is a competition.’233 A counterterrorist police officer added: ‘Between the DCRI and the SDAT, we must confess that there is trouble sometimes . . . there is no gentlemen’s agreement between them.’234 With their overlapping mandates on terrorism investigations, the DCRI and the SDAT have conflicting perceptions of what their respective roles are, and as they sought to occupy the same ground in French counterterrorism, there was little co-operation between them. While the informal organisational routines of French counterterrorism have facilitated close co-operation between investigating magistrates and the DST/DCRI, these routines are selective and they exclude a number of services. These range from the independent RGPP in Paris and the Gendarmerie on the intelligence side to the Police Judiciaire on the law enforcement side. From the perspective of these agencies, co-operation and information-sharing between the French counterterrorist services has been problematic. ‘All the services work on their side’, said a Police Judiciaire investigator, ‘we don’t know much of what the neighbour does’.235 Those at the centre of the system, who work on counterterrorist co-ordination, also admit that ‘power games do exist on the ground [between services] . . . on which there is always a reflection, for sure’, as one officer put it. For him, however, these were ‘positive conflicts of competence . . . [in which] two or three services say “I want this case”, for this or that reason’.236 A senior police officer confirmed that ‘there are conflicts between the services to keep the files. And there is no real separation or borders between them. Each service tries to pull the file for itself.’237 This lack of ‘borders’ – a reference to the overlapping mandates of several agencies – gives rise to a competitive system, but one that lacks a central authority to decide who does what. Government 233 235 236 237

Ibid. 234 Ibid. Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010.

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choices regarding the allocation of resources are important and helped to reinforce the DCRI’s position in recent years. However, in a situation where each agency has enough resources to be viable, budget does not decide everything. Other factors have proved important, notably the informal alliances of the investigating magistrates and their decisions to grant investigations to one service or another. Some magistrates have appreciated having a choice of different services, perhaps believing that it helps to keep the counterterrorist agencies on their toes. Gilbert Thiel, for instance, said that ‘monopoly situations are never very good’, and he hoped that ‘we will arrive in the coming years to organise a veritable competition – in the good sense of the term – between the SDAT, who have increased their potential on the cases of radical Islamism, and the DST’.238 While Mr Thiel saw competition as a good thing, others believe that having ‘parallel structures’ – two services with the same role – means that there is uncertainty and no consistent pattern to French counterterrorism.239 This was the view of a former police and DST investigator, who complained about how law enforcement investigations into Islamist terrorism have shifted between different services in France. ‘There is no framework’, he said, ‘One day, it can be one [service]. The next day it can be another. It depends also on the magistrate . . . he can say, “I want to task the SDAT”, or “no, now I want to task the DST”.’240 These kinds of informal routines, which have helped to connect certain services for many years, may have to face new challenges. According to Nathalie Cettina, the creation in recent years of a powerful ‘intelligence elite’ in the CNR committee with its own information silos could damage relations between it and non-intelligence bodies, including the anti-terrorist investigating magistrates.241 This would be damaging for counterterrorism because the trust and informal co-operation that have developed between the DCRI and the magistrates have strengthened their ability to admit intelligence material into court and aided French terrorism prosecutions. Both sides have something to gain from their relationship; the magistrates gain sensitive intelligence material and access to the vast investigatory resources of the DCRI, while the intelligence agency is tasked by the magistrates for judicial investigations into Islamist terrorism and maintains its privileged position in that sphere.242 However, these 238 239 240 242

Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Ibid. 241 Cettina, ‘Antiterrorisme: Une Fragile Coordination’, 6. Some of these dynamics helped to bring them together in the first place. See Shapiro and Suzan, ‘The French Experience ’, 91.

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incentives do not by themselves determine the level of trust, nor the quality of co-operation between the DCRI and the magistrates. The question of whether their informal links will maintain their strength or become a source of weakness will depend to a large extent on the individuals in post and the state of their personal relationships with key individuals in the other service.243

The British approach to co-ordinating counterterrorist agencies Organisational and institutional context In this section, I first make the case that the British intelligence and police agencies adhere to formal organisational routines in their joint work on counterterrorism. I then show how this close co-operation between police and intelligence has traditionally not extended to their relationships with prosecutorial and judicial actors because of certain inter-institutional conventions of long standing. Before embarking on these points, however, let us set out the main agencies involved. A number of intelligence, police and military services have responsibilities for the UK’s operational response to terrorism. Unlike in France, the roles of the British intelligence agencies are set out in legislation and their mandates have since their inception been distinct from each other, falling into the three categories of domestic, foreign and signals intelligence.244 The state’s foreign espionage agency, the Secret Intelligence Service – or MI6 – develops intelligence on overseas terrorist activity of interest to Britain. A second agency, the Government Communications Headquarters (GCHQ), is mandated to intercept communications such as telephone and Internet exchanges, including those of suspected terrorists.245 Both of these agencies report to the British Foreign Secretary, in contrast to their French equivalents, which report to the French Defence Minister. Since 1909, the UK has had one domestic intelligence agency, the Security Service – or MI5 – which reports to the Home Office and is

243 244

245

Chapter 4 includes a brief discussion of the anti-terrorist magistrates that have emerged in recent years after the retirement of Judge Bruguière. The main statutes are the Security Service Act 1989 and the Intelligence Service Act 1994, although their provisions have been amended by subsequent legislation. See Cabinet Office, National Intelligence Machinery, pp. 2–3. ‘Defence Intelligence’ within the Ministry of Defence, though not a stand-alone agency, collects intelligence in support of military operations and policy. Ibid., pp. 6–9.

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responsible for developing intelligence on terrorist threats to the national territory. The police in Britain have a mandate for both intelligence-gathering and law enforcement actions (see below). If a police force decides that it may need support from the Armed Forces, it can request what is known as Military Aid to the Civil Power (MACP); for instance, the Army has often been called upon for its bomb disposal capabilities. The Royal Air Force has also publicised its readiness to intercept renegade aircraft or hijacked planes, which they may do on the order of the Prime Minister.246 However, the agencies with everyday responsibility for countering terrorism in the UK – and exclusive competence for intelligence and law enforcement – are essentially MI5 and the police services. In the area of general policing, there is a network of 51 territorial police forces spread across Great Britain. However, counterterrorist law enforcement has been organised from the centre by the authoritative terrorism division of the London Metropolitan Police, known for many years as the Anti-Terrorist Branch (this changed in 2006, as we shall see below). The leading counterterrorist official at the Metropolitan Police is also the National Co-ordinator of Terrorist Investigations (NCTI) and the London branch has for decades had a mandate to carry out law enforcement investigations into terrorist activity anywhere in Great Britain, supported by local police forces if necessary.247 For many years until 2006, the police’s intelligence-collection activities were led by the London Metropolitan Police Special Branch, which had a mandate for terrorism intelligence covering all of Great Britain, supported by a network of provincial ‘Special Branches’.248 Thus, for most of the period under study here, Britain had simply one intelligence agency – MI5 – and two London police units directing and managing its domestic operational response to Islamist terrorism, supported by many provincial police forces. Let us now consider how they have worked together, first in the area of intelligence and then, law enforcement. Formal organisational routines: intelligence and law enforcement The Security Service (MI5) today has a clear lead responsibility for the development of terrorism intelligence, in which it is assisted by the Metropolitan Police and Britain’s other police forces. The situation was less clear-cut during most of the Northern Ireland conflict, when police, intelligence and 246 247 248

HM Government, Countering International Terrorism, p. 28. Bamford, ‘The United Kingdom’s ‘War Against Terrorism”’, 741–2. Ibid; interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

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military services all had substantial and overlapping responsibilities for the development of intelligence on terrorism.249 A new division of labour began to emerge in 1992, however, in the context of a British government review of MI5’s role in the post-Cold War era. After some apparently fierce wrangling within the government and agency leadership circles, MI5 took over from Metropolitan Police Special Branch the lead responsibility for intelligence on the activities of Irish terrorist groups in mainland Britain.250 The service already had the lead for intelligence on other, mainly international, forms of terrorism in the UK. Thus, the decision to also give MI5 the intelligence lead on what was then the main terrorist threat to Britain was significant. A Special Branch officer said that this was the beginning of ‘Security Service primacy’ on terrorism intelligence. It was, he explained, ‘a shift of responsibility, a shift of primacy away from Metropolitan Police Special Branch towards a more politically-adept Security Service’.251 Having lost its main raison d’être with the end of the Cold War, MI5 was taking on a greater role in terrorism intelligence, and to a lesser extent with regard to organised crime, both at the expense of Special Branch.252 In 1994, a revised version of the ‘Special Branch Guidelines’, an official government statement outlining the service’s role, confirmed that MI5 was now the ‘lead agency’ on terrorism intelligence and that police Special Branch’s role was to ‘assist’ MI5 in this area.253 In recent years, as will be discussed below, the police in Great Britain have made internal reforms to their intelligence-gathering structures, including the merger of the London Metropolitan Police’s Special Branch and Anti-Terrorist Branch into a new Counter Terrorism Command in late 2006. While the London Special Branch thus no longer exists as a separate entity, the provincial police Special Branches continue to this day. Indeed, notwithstanding these recent internal police reforms, MI5 and the police’s work on the gathering of terrorism intelligence has been based on rules and procedures that were developed in the early 1990s and which have continued to be the basis for their joint work ever since. The fundamental rule, set out by the government since 1992, is that 249

250 251 252 253

Peter Gill, ‘Security and Intelligence Services in the United Kingdom’, in Jean-Paul Brodeur, Peter Gill and Dennis Tollborg (eds.), Democracy, Law and Security: Internal security services in contemporary Europe (Aldershot: Ashgate, 2003), pp. 271–74. Ibid., p. 271. Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007. Gill, ‘Security and Intelligence Services in the United Kingdom’, pp. 277–78. Her Majesty’s Inspectorate of Constabulary, A Need to Know: HMIC Thematic Inspection of Special Branch and Ports Policing (London: Home Office, 2003), p. 18; ‘UK Special Branch Guidelines’, Statewatch, 4:6 (November 1994): www.statewatch.org/news/2004/ mar/special-branch-1995.htm.

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MI5 leads the work. The most recent version of the government’s guidelines states that ‘the Security Service [MI5] sets the priorities for the gathering of counterterrorist . . . intelligence by Special Branch’.254 The guidelines also state that ‘all intelligence about terrorism obtained by Special Branch is provided to the Security Service’.255 A senior counterterrorist police officer confirmed that this rule is generally respected in practice. ‘All intelligence’ on terrorism and national security goes to MI5, he said, ‘there is no point in one police force developing intelligence . . . in isolation . . . It has to go to the Security Service.’256 Britain’s domestic intelligence and law enforcement responses to terrorism have thus been directed and managed by a relatively small number of agencies – until 2006, MI5, Metropolitan Police Special Branch and the Anti-Terrorist Branch (the latter’s role is outlined below). These agencies have had distinct mandates, based on formal rules laid down by the government, specifying their respective roles and the type of interagency co-operation that is expected of them. These conditions have given rise to organisational routines of close formal co-operation between the British agencies, the main indicators of which are their regularised co-operation procedures, which tend to reflect the government guidelines outlined above. We have seen how for many years the two French domestic intelligence agencies tended to plan their work based on the assumption that they would do their own operations until ‘we perceive . . . that we are working on the same individuals’.257 It is also normal practice for France’s counterterrorist police and intelligence agencies to mount separate operations. The inter-agency co-operation that results in such contexts is irregular and organised on an ad hoc basis. In the British case, by contrast, MI5 and the police have in recent decades planned their intelligence work based on the assumption that their officials will be regularly carrying out operations together. Because MI5 receives all terrorism intelligence both from its own agents and from the police, it has the main responsibility for collating and processing incoming information and making decisions on which direction the intelligence-gathering should go.258 In a particular intelligence operation, the 254

255 256 257 258

Home Office, Scottish Executive and Northern Ireland Office, Guidelines on Special Branch Work in the United Kingdom, March 2004, p. 7: www.scotland.gov.uk/ Publications/2004/03/19162/35117. Ibid. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005.

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MI5 desk officer often takes the lead role in tasking agents. These may equally be other MI5 personnel or police officers specialised in intelligencegathering, according to a senior police officer with secondment experience in MI5. He said: ‘The desk officer can go back to the intelligence collectors and re-task them, so he might ask that police Special Branch do some more surveillance . . . or he might go to a Security Service agent handler and say it to them, to see if they can go and recruit somebody. The desk officer is the one . . . who has all of those assets.’259 The police officer added that when individual desk officers change post (usually, after two years), the co-ordination of work continues because the arrangements behind it are ‘institutionalised’ as he put it. ‘The strength of what they [MI5] are doing is in their systems, in their methodologies and in their records’, he said. MI5 is thus ‘a knowledge-based organisation’, he argued, contrasting this with some of the mainstream British territorial police forces, which he believed were ‘experienced-based’ organisations.260 Apart from joint work between MI5 desk officers and the police, it also appears quite normal for MI5 and police officers to be tasked to work together ‘on the ground’. Regarding the recruitment of informers, for example, one leaked intelligence document showed how an MI5 agent and a Metropolitan Police Special Branch officer went together to the London home of Jamil el-Banna on 31 October 2002 in an attempt to get him to co-operate with the authorities and provide information on his contacts who were allegedly involved in Islamist terrorism.261 Another practice is for MI5 and the police to pass an informer from one agency to the other. For example, Special Branch ran Reda Hassaine as an agent for six months in 1998/99, before passing him into the control of MI5 who ran him for a further period of time.262 Whatever the reasons for this change or for their joint attempt to recruit Mr el-Banna, such examples indicate a close relationship between the two agencies in a sensitive area: the recruitment and handling of human sources of intelligence. According to a former senior government official who worked directly with the intelligence agencies, MI5 and the Metropolitan Police’s counterterrorist officers may share information on the sources of their intelligence, including on each other’s agents. The two services have what he called ‘a high degree of visibility’ on each other’s agents and operations on Islamist terrorism, 259 261

262

Ibid. 260 Ibid. Mr el-Banna did not co-operate with the British authorities and was covertly captured by the CIA soon afterwards. An MI5 document on this meeting was later leaked to the press and published in full. See Vikram Dodd, ‘Four years in Guantanamo – the man who said no to MI5’, The Guardian, 4 April, 2007. Sean O’ Neill and Daniel McGrory, The Suicide Factory: Abu Hamza and the Finsbury Park Mosque (London: Harper Collins, 2006), pp. 137–41.

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something that did not happen between the British agencies in Northern Ireland during the conflict there, he said.263 This high level of ‘visibility’ between two services may also be contrasted with the situation in France, where there has been a relatively low level of co-operation between the equivalent intelligence and police agencies – the DCRI and the SDAT. Even where agencies have co-operated, they have tended not to share information on sources. Speaking about co-operation between the RG and the DST – France’s two main domestic intelligence agencies until 2008 – a former senior DST official said: ‘The sources, it’s an absolute protection . . . we never exchange the names of sources. Impossible.’264 In sum, MI5 and the Metropolitan Police’s intelligence personnel have regularised procedures for co-operation on terrorism intelligence and they have trusted each other enough to share information on – and carry out joint operations in – sensitive areas. The formal routines that we observe in the British case do not mean that there are no problems in inter-agency co-ordination. As we shall see, there have been gaps in intelligencesharing between MI5 and some provincial Special Branches. However, because rules set out by a central authority give each service a fairly clear understanding of how its mandate differs from that of the others, formal routines do reduce the likelihood of inter-agency conflict. While MI5 has a clear lead on terrorism intelligence, the agency – unlike its French counterpart, the DCRI – has no competence to make arrests or lead law enforcement investigations, the results of which could be used as evidence against a suspect in a trial court. The British police, rather, have the mandate to carry out such law enforcement actions. The Metropolitan Police’s AntiTerrorist Branch (ATB) was for many years the main terrorism investigation agency of the police in Great Britain, until late 2006 when it became the Counter Terrorism Command (CT Command). Let us now turn to consider how the British agencies manage the relationship between intelligence collection and law enforcement in terrorism cases. These procedures, which applied during the ATB era, are still in place under the new CT Command. When intelligence indicates that a group (or individual) is engaging in terrorist activity such that an arrest operation may be considered, an interagency Executive Liaison Group (ELG) of intelligence and law enforcement officials is formed to make operational decisions on the case (the precise point at which law enforcement investigators become involved is discussed below). This group comprises senior officials from MI5 and the 263 264

Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007.

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Metropolitan Police CT Command (including the National Co-ordinator of Terrorist Investigations on important cases).265 In cases that concern police forces from outside London, senior officers from those forces attend the ELG meetings.266 According to a former senior government official, an MI6 representative also attends ‘when [the case] has an international dimension’ and there would ‘perhaps be someone from GCHQ’ (the signals intelligence agency). Whether the ELG has representatives from two or five agencies, it is generally ‘a small group’, said the official, mostly comprising ‘the people who are actually running the operation’.267 Reflecting the police’s lead responsibility for law enforcement investigations, the chair of the ELG is a police officer, and it is the police who make the operational decisions following a discussion with MI5 and possibly other intelligence agencies on the case. A former senior police officer explained: ‘The Security Service would formally come to him [the senior police officer] and say: “This is what we’ve got”, and there would be a meeting around a table . . . the Security Service would present their case. There would then be a discussion about which would be the best way forward. [The senior police officer] would be the person who makes that decision.’268 The main options facing an ELG are either to arrest or otherwise disrupt the group, or continue surveillance. For example, ‘If there are explosive materials in a house’, said a senior government official, ‘do you leave them there and monitor them, or do you intervene?’ ‘It is up to the judgement of the police ultimately’, he said, to weigh up ‘the risk to the public’ against the need to gather sufficient court-admissible evidence or the interest in developing the intelligence picture.269 In the experience of the former senior police officer, if a terrorist cell was already under surveillance by MI5, one option was to put the group under police (Special Branch) surveillance if it was felt that information gathered by police officers might be more easily admitted to court than information collected by the intelligence agency.270 ELGs appear to meet regularly,

265

266 267 268 269 270

Intelligence and Security Committee, Could 7/7 Have Been Prevented? Review of the Intelligence on the London Terrorist Attacks on 7 July 2005, Cm 7617 (London: TSO, May 2009), p. 8. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005.

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even on a daily basis for major operations. For example, on Operation Crevice (the fertiliser bomb plot led by Omar Khyam) in early 2004, fifty ELG meetings were held during the fifty days of the operation.271 Both in statute and in practice, MI5 and the police have a clear lead in the fields of terrorism intelligence and law enforcement respectively. These distinct mandates and their regularised co-operation procedures indicate that the British counterterrorist police and intelligence agencies adhere to formal organisational routines, in which context they have developed a closer form of collaboration than that which pertains between their French equivalents. Separating inter-institutional conventions: security vs justice? Notwithstanding this high level of police–intelligence co-operation, the relationship between this ‘security’ sphere and the prosecutorial/judicial world in Britain has been less fluid. While the French have managed to establish co-operation between intelligence and elements of the judicial system, there has traditionally been little contact between intelligence agencies and the prosecutorial/judicial sphere in the UK. The relationship between counterterrorist police and prosecutors in Britain has changed and become closer since 2004, but the extent and nature of this co-operation is still different from that which pertains between the equivalent actors in France. To understand this, we first need to appreciate the diverse ways in which the prosecutorial and judicial functions have been understood in the English and French legal systems and how this has resulted in different configurations of legal actors in the two countries. In the French inquisitorial legal system, the judicial function is broadly defined, encompassing not only the trial judge, but also the investigating magistrate or judge (juge d’instruction), who works directly with security agencies on investigations. The common law world, however, understands the judicial function more narrowly as simply the adjudication of issues, primarily at trial, but also in certain other specific situations.272 In the UK, there are two such non-trial situations during counterterrorist investigations, in which police have contact with the judiciary. The police must formally apply to judges for warrants to search premises and for permission to extend the pre-charge detention of individuals beyond forty-eight hours after their arrest. There are two cadres of Circuit Court and District Court judges who deal with these two kinds of applications respectively.273 These judges can be considered specialised, since 271 272 273

Intelligence and Security Committee, Could 7/7 Have Been Prevented?, p. 79. Hodgson, French Criminal Justice, p. 66. Lord Carlile, Report on the operation in 2005 of the Terrorism Act 2000 (London: TSO,

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the search warrant magistrates receive some specific training to this end, while the other judges’ scrutiny of extended detention applications gives them a role ‘with some case-management elements’, as one legal expert put it.274 However, this is as far as judicial involvement in counterterrorist investigations goes; it is very much a role of scrutinising and ruling on specific applications made by the police. It is not a role that involves the development of close working relations between judges and police officers. The British police’s relationship with judges is nothing like the relationship that the French police and DCRI intelligence agency has with investigating magistrates. The English legal system does not have an equivalent office to that of the investigating magistrate – a judge who works directly with the police on the investigation and presentation of evidence. This is not only because it has a narrower understanding of the judicial function, but also because of a separating inter-institutional convention, rooted in English common law tradition, which places a premium on the judiciary maintaining its independence from the government and its agencies’ management of security issues. Further indications of this convention will be outlined below. While they have little contact with judges, police in Britain do work with prosecutors. Indeed we may compare the role of English prosecutors with the roles of French prosecutors and investigating magistrates in this context because in French terrorism cases, the public prosecutor immediately refers the vast majority of cases to an investigating magistrate. Thus, despite the difference in status between the two actors,275 the English prosecutor of terrorism cases is that country’s closest equivalent to a French investigating magistrate. Once again, however, the comparison merely serves to show that the British police have a different type of interaction with the prosecutorial/judicial world to that of their French counterparts. Traditionally, the British police were in charge of both investigation and prosecution, and police forces merely employed in-house lawyers to advise on the second function. It was not until 1985 that the British government established the Crown Prosecution Service (CPS) an as independent check on whether available evidence justified proceeding with charges or not.276 Reflecting these recent and relatively

274 275 276

2006), p. 20; Lord Carlile, Proposals by Her Majesty’s Government for changes to the laws against terrorism (London: Home Office, 2005), paragraph 64: http://old.cageprisoners. com/articles.php?id=9994. Interview with Lord Carlile [UK-D], London, 1 December 2006. Lord Carlile was the independent reviewer of British terrorism legislation between 2001 and 2011. This difference in status becomes especially important in the context of trials. See Chapter 4. Hodgson, French Criminal Justice, pp. 72–73.

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humble origins, the CPS has less of a role in police investigations than that of French prosecutors and investigating magistrates. The French investigating magistrate, as we have seen, directs the police’s counterterrorist investigations. In Britain, however, the police retain sole responsibility for the investigation of terrorism, and they direct their own inquiries.277 Secondly, the French investigating magistrate (or prosecutor) must approve the police’s arrest and initial detention of individuals. The British police, however, authorise their own arrest and initial detention of individuals, without needing the approval of the CPS, nor of a judge for the first 48 hours.278 Thirdly, in France it is the investigating magistrate who charges individuals or decides to free them. In Britain, however, charging was traditionally a police prerogative, although the CPS gained powers in this area in 2004 (see below). The French counterterrorist police and intelligence agencies have depended on prosecutors and especially on investigating magistrates for the overall direction of their judicial investigations, for their arrest and detention powers, as well as for the charging of suspects. Against this background, close co-operation developed between certain investigating magistrates and sections of the French intelligence and police agencies. In the British case, however, the common law convention of separating police from judges, and the traditional independence of law enforcement investigations from prosecutors, meant that the British police did not build up as close a working relationship with these legal actors as the French police did with their prosecutors and investigating magistrates. Police in the UK had little contact with judges and, as the then Attorney General recognised in 1998, only limited co-operation with prosecutors.279 The traditional practice in British investigations was for the police to arrest an individual, put a case together and then hand the file over to the CPS.280 Although police–CPS co-operation increased after 2004, the overall level of co-operation between the intelligence/policing world and the judicial/prosecutorial sphere in the UK remains lower than in France. This difference is reflected in the two states’ divergent rules and practices in some important areas of terrorism investigations. First, as noted above, when deciding whether or not to charge an individual, the French investigating magistrate can take into account non-judicial intelligence material shared with him by the DCRI intelligence agency. English prosecutors, however, cannot do likewise. The 277 279 280

Ibid., p. 73 278 Ibid., p. 68. A member of the Cabinet, the Attorney General is the chief legal advisor to the British government. Quoted in: Jacobson, The West at War, p. 44. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006.

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CPS has less contact with intelligence services than its closest French equivalent, and its decisions about suspects must be based on courtadmissible evidence only – without reference to sensitive intelligence material on the individual in question.281 From a purely investigatory point of view, the French have an advantage here. Secondly, we have seen how the French legal system facilitates the admission of sensitive intelligence information as evidence in trials, including intercept material (from telephone-taps, emails and Internet communications). In the UK, however, the customary divide between intelligence agencies on the one hand and prosecutors and judges on the other, complicates efforts to bring certain forms of intelligence before the English trial courts. Whereas intelligence agents in France have relatively few fears about sharing intelligence with investigating magistrates, whom they have got to know personally, the British intelligence agencies see the English judicial system in a rather different light. They and the government believe that the country’s adversarial legal system gives English defence lawyers greater rights to probe evidence and seek further information than their counterparts who work in the inquisitorial legal systems of other European countries such as France.282 According to the Home Office – the department which oversees and most closely reflects the views of MI5 – this means that ‘finding a way of limiting the exposure of sensitive material in courts is extremely difficult’ in the English adversarial legal system.283 Indeed, it is true that – against a background where nondisclosure of evidence resulted in appalling miscarriages of justice in the past – the English legal system has developed a strong emphasis on full disclosure of relevant evidence in court.284 In this context, the government’s policy – reflected in law – has been that intercept material, collected by the intelligence agencies and the police, could not be admitted as evidence in a court case. According to a Home Office statement in 2005, the intelligence agencies believed that the admittance of their intercept material as evidence in 281

282

283 284

Evidence given by the CPS to: Joint Committee on Human Rights, Counterterrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HC 1576 (London: TSO, August 2006), p. 35; Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. Home Office, ‘Frequently asked questions regarding terrorism legislation’: www.home office.gov.uk (last accessed on 14 April 2005, but since removed; print copy in author’s possession). See also David Omand, ‘Security Dilemmas’, Prospect, December 2006, pp. 12–13. Home Office, ‘Frequently asked questions regarding terrorism legislation’. Jacqueline Hodgeson, ‘The Complexity of Terrorism’, University of Warwick, 11 February 2010: www2.warwick.ac.uk/newsandevents/warwickbooks/complexity/ jacqueline_hodgson/.

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trials could ‘lead to the exposure in court of their techniques and capabilities’.285 In contrast to the situation in France, therefore, the British government stated that intercept material was to be collected as ‘intelligence, not evidence’ by its security agencies.286 This ‘intelligence-only approach’, as the Home Office called it, extended to other sensitive areas of intelligence, including certain forms of surveillance and agent reporting.287 Reflecting the ‘intelligence-only approach’, Eliza ManninghamBuller, the head of MI5 from 2002 to 2007, argued that the ‘use [of intelligence] in open courts needs to be carefully handled’. In a speech given in 2005, she spoke of situations in which the British police have not been able to prosecute suspected terrorists whose plots were ‘too embryonic’ or where ‘the intelligence [against them] may be highly sensitive and its exposure would be very damaging as revealing either the source or our capability’.288 Indeed, the British intelligence agencies’ concerns about the admittance of certain forms of intelligence material to the English adversarial courts have surfaced in numerous cases. From late 2001 to early 2011, fifty-five suspected terrorists were detained or controlled by the authorities in administrative ways but never prosecuted through the English courts.289 The government said that the intelligence against these individuals showed that they were involved in terrorist activity. An independent assessor reviewed the intelligence seen by the authorities and said that he agreed with the government’s judgment on these cases.290 The government stressed, however, that this intelligence ‘could not be used [in court] without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting lives at risk’.291 As we shall see, the complicated relationship between police/intelligence and prosecution/justice in the UK was one element that led to a perception within the British government in the years after 9/11 that it was 285 286 287

288

289 290 291

Home Office, ‘Frequently asked questions regarding terrorism legislation’. Home Office, ‘Use of Interception’: www.homeoffice.gov.uk (last accessed on 17 February 2007, but since removed; print copy in author’s possession). Home Office, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society, Cm 6147 (London: TSO, 2004), pp. 11–12; Home Office, ‘Interception as evidence review’: www.homeoffice.gov.uk (last accessed on 17 February 2007, but since removed; print copy in author’s possession). Eliza Manningham Buller, ‘The international terrorist threat and the dilemmas in countering it’, Speech to the AIVD (Dutch Security Service), The Hague, 1 September 2005: www.mi5.gov.uk/output/director-generals-speech-to-the-aivd-2005. html. Seven were subject to detention alone, while 48 were subject to detention and/or control orders. See Chapter 4 for details on these regimes. These annual reviews, conducted by Lord Carlile, the independent reviewer of British terrorism legislation until 2011, are discussed in Chapter 4. Home Office, ‘Frequently asked questions regarding terrorism legislation’.

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difficult to prosecute and convict terrorist suspects under the English legal system. In the next section, I consider how this perception led to a number of efforts to better link English prosecutors and, to a lesser extent, the judiciary to the police and intelligence agencies working in the field of counterterrorism.

Reforms to the co-ordination of British counterterrorist agencies The British government and agency leaderships have been highly active since 2001, implementing a series of formal, ‘top-down’ reforms to intelligence analysis and capability, as well as developing the roles of the police and intelligence agencies in counterterrorism. However, I begin the discussion of the UK’s post-9/11 reforms in an area in which some proposed changes were implemented, while others were notably rejected. Hesitancy in linking intelligence and police to prosecution and justice A number of efforts to increase co-operation between police and intelligence work on the one hand, and the functions of prosecutorial and judicial actors on the other, have been made in the UK over the last decade. While some of these can be traced back to the late 1990s and have their origins in general criminal justice measures, the most important changes relevant to counterterrorism were made in 2004 and 2005. These reform efforts were either led directly by the government, or made by the agency leaderships in line with government policy. In the area of prosecution, there has been a change to the mandate of the Crown Prosecution Service (CPS) and a number of efforts to increase its co-operation with the police on criminal cases, including terrorism. The CPS introduced pilot projects and then, in 2003, a nationwide programme to locate prosecutors at police stations, allowing them to advise the police in the early stages of an investigation.292 Such efforts by the CPS to be ‘more proactive’ in investigations and on prosecution were reinforced by the government’s decision in the Criminal Justice Act 2003 to increase the service’s role in the charging of suspects.293 When this provision came into force in June 2004, the CPS took over from the police the responsibility of deciding whether to bring charges and what charges to bring.294 This increase in the role of the CPS across the board and the improvement in its relationship with the police were amplified in the area of 292 293 294

Jacobson, The West at War, p. 45. Crown Prosecution Service, Annual Report 2002–2003, HC 870 (London: TSO, July 2003), p. 3. Hodgson, French Criminal Justice, pp. 73–74.

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counterterrorism. Already, after the 2001 attacks on America, police had begun consulting with the prosecution service earlier in some investigations than had traditionally been the case. A senior counterterrorist police officer said that because terrorism arrests after 9/11 were mostly ‘preventive’ in nature, the police sometimes had ‘early case conferences with the CPS . . . [so that the latter could] review and give advice on the investigation’.295 CPS officials also told of their early involvement in a prominent terrorism case at the beginning of 2004 ‘before the suspects were arrested’.296 At this time, however, the CPS would ‘advise [the police] unofficially’, according to a senior government legal officer who has worked directly with the CPS. Recalling how police and prosecutors traditionally ‘didn’t work together as a team’, the official pointed out that there was ‘a split between the police charging [an individual] and the CPS coming in and prosecuting’ before 2004.297 As such, the CPS’s assumption of the charging function in June 2004 has been crucial to the development of closer co-operation between police and prosecutors. In this context, CPS ‘advice’ is taken seriously by the police because the final decision on charges now rests with the prosecution service. As a counterterrorist police officer said, ‘We now have to get permission from the CPS to charge.’ In this context, he added, the police’s Senior Investigating Officer meets regularly with the CPS and feeds their advice back to investigators. The CPS’s advice usually concerns whether the evidence gathered by the police is likely to be sufficient to charge and convict the individual in court. ‘[If] the CPS advise that we need more on this, whatever happens, it will get done’, said the police officer.298 The head of the Crown Prosecution Service has also been reported as saying that ‘in practice the police followed [CPS] advice’.299 The improvement in police–CPS co-operation was also helped in 2005 by a prosecution service initiative in the area of counterterrorism. Up to then, the CPS had a ‘branch’ responsible for terrorism ‘and other complex and serious criminal cases’.300 In May 2005, however, it created a separate 295 296 297 298 299

300

Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. CPS Press Release, ‘“Fertiliser bomb plot,” one of biggest terrorism trials for CPS’, 30 April 2007: www.cps.gov.uk/news/press_releases/128_07. Interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. Evidence given by the then Director of Public Prosecutions, Sir Ken MacDonald, to a UK parliamentary committee. See Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, p. 25. CPS Press Release, ‘CPS terrorism specialist in New Year Honours’, 30 December 2004: www.cps.gov.uk/news/press_releases/151_04.

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‘Counter-Terrorism Division’ which, it said, ‘draws together the skills and knowledge of the CPS’s most experienced terrorism lawyers’.301 It was also decided that all terrorism cases, regardless of what part of the country they originated from, would be referred centrally to the London-based Counter-Terrorism Division of the CPS. This centralisation of cases and development of a single specialised unit of terrorism prosecutors followed a model that France had embraced twenty years earlier in its judicial reform of 1986. It was also a signal for the CPS to increase its public profile by giving press conferences for the first time, sometimes jointly with the police, on major terrorism investigations.302 This indicated both parties’ concern to show that police and prosecutors can work together on the investigation and charging of terrorist suspects. There was also evidence that co-operation behind the scenes between the CPS and police became more intense after 2004–5. For example, Susan Hemming, the head of the CPS Counter-Terrorism Division, advised the police before and after a major arrest operation in 2006. When she charged some of the individuals just over a week after their arrest, she said that, ‘Together with another senior CPS lawyer, I have been working with the police full-time at New Scotland Yard [the Metropolitan Police headquarters] for the last eight days.’303 The centralisation and specialisation of CPS case work on terrorism, its new responsibility for charging and its increased co-operation with the police were changes that brought it a number of steps closer to the French model of counterterrorist investigating magistrates. These reforms took place in the context of a debate in Britain on the potential weaknesses of the English legal system concerning the prosecution of terrorism, relative to other models. For example, a major parliamentary report ‘welcomed’ the reforms to the CPS, saying: ‘We regard the growing role of the CPS in relation to the investigation of terrorist offences as going some way towards securing some of the advantages which are claimed for the system of investigating magistrates’.304 A counterterrorist police officer also said: ‘We are moving closer to the French system. Where [we are], on a sliding scale, I don’t know exactly, but we are getting closer.’305 Notwithstanding

301 302 303 304 305

CPS Press Release, ‘CPS statement on the conclusion of Andrew Rowe trial’, 23 September 2005: www.cps.gov.uk/news/press_releases/146_05. ‘Three charged over 7/7 bombings’, BBC News Online, 5 April 2007: http://news.bbc.co. uk/1/hi/uk/6529643.stm. CPS Press Release, ‘CPS authorises charges in alleged aircraft terror plot’, 21 August 2006: www.cps.gov.uk/news/press_releases/149_06. Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, pp. 25–6. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006.

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the convergence in these areas, however, the CPS’s overall involvement in terrorism investigations remains considerably different from that of their closest equivalent in France. While French investigating magistrates usually direct the police’s inquiries, the CPS does not take part in the police’s terrorism investigations as such, nor does it seek any powers to direct the police.306 As collaboration between police and the CPS increased considerably, some efforts were also made to better connect the traditionally separate domains of intelligence and the judicial system. MI5 increasingly collected intelligence in ways that enabled it to be converted into courtadmissible evidence, notably by working more closely with the police in this area (this is discussed below). MI5 also meets with prosecutors, and Susan Hemming of the CPS has written of a ‘strong trilateral relationship’ between prosecutors, police and the intelligence agencies. Yet it seems clear that the CPS’s main relationship is with the police. Whereas Hemming states confidently that ‘police officers and prosecutors together embody the ethos of the prosecution team’, she writes in a more detached fashion that meetings are held between the CPS and the intelligence agencies ‘as and when required’.307 Though MI5 was contributing to prosecutions, it remained wary of the English courts. Whereas in France the links between intelligence officials and judges were significantly strengthened in the context of the fight against Islamist terrorism, their British equivalents were sceptical about proposals that would have established a greater connection between their respective domains. The government launched two official reviews, in 2003 and 2007, of its policy that ruled out the admission of intercept intelligence at court. The then Prime Minister Tony Blair was in favour of changing the policy and his government raised the issue with the intelligence agencies on a number of occasions.308 The agencies, however, were concerned about the exposure of sensitive intelligence material in the adversarial court system and opposed any change to the intercept policy. In this context, the first official review carried out by the government concluded in 2005 that intercept should remain as an ‘intelligence, not evidence’ tool and decided against any change in the area.309 Two years later, the government set up a Privy 306 307

308 309

Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, p. 25. Susan Hemming, ‘The practical application of counterterrorism legislation in England and Wales: a prosecutor’s perspective’, International Affairs 86:4 (2010), 956–7, 959. ‘PM meets police and intelligence’, BBC News Online, 21 July 2005: http://news.bbc.co. uk/1/hi/uk_politics/4701823.stm. Home Office, ‘Use of Interception’.

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Council review, in which a high-ranking civil servant and three senior members of Parliament examined the issue once again. In January 2008, this second review recommended tweaking the policy to allow the admission of intercept material as evidence to court, if certain stringent conditions concerning the protection of intelligence techniques and capabilities could be met.310 Government officials tasked with implementing the review’s findings reported back almost two years later that they had not found a model that could both protect intelligence techniques from exposure and satisfy the English adversarial legal system’s demanding rules concerning full disclosure of relevant evidence in court.311 The then Home Secretary, Alan Johnson, asked officials to continue to analyse and review the issue, a process that carried on past the change of government in 2010 and was still continuing in late 2011. Thus, the concerns of the intelligence agencies about the English legal system have stopped any closing of the judicial-intelligence divide in this particular area for at least eight years. Britain remains unique among western states for the extent of its reluctance to admit intercept intelligence material as evidence to court. During 2004 and 2005, the government considered a second reform proposal, which could have enabled more intelligence material to be admitted to court. The idea was to introduce ‘security-cleared judges’, whose function would be to carry out a pretrial review of sensitive intelligence material. Some of this material would then go forward to trial, presided over by a different judge, and the part of the trial that considered the sensitive material could be held in private.312 This was an effort by the Home Office to introduce aspects of the continental investigating magistrates system to the UK, a fact acknowledged by David Blunkett and Charles Clarke – two successive Home Secretaries who strongly supported the proposal. The latter even declared that the ‘investigating magistrates regime is very superior to the system that we have in this country’.313 After a two-year consideration, the proposal was not pursued 310

311 312

313

Some of these conditions were also concerned with not requiring the agencies to store or transcribe an overwhelming amount of intercepted material. See Sir John Chilcot et al., Privy Council Review of Intercept as Evidence, Cm 7324 (London: TSO, 2008), pp. 23–4. See Lord Carlile, Sixth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (London: TSO, 2011), pp. 25–30. Interview with David Blunkett, UK Home Secretary 2000–2004 [UK-G], London, 23 January 2007; Alan Travis, ‘Secret courts for terror cases’, Guardian, 9 August 2005; Alan Travis, ‘Anger over plan for secret courts’, Guardian, 10 August 2005. Ibid; Evidence of Charles Clarke MP to: Home Affairs Committee, Terrorism Detention Powers: Oral and Written Evidence, HC 910-II (London: TSO, 2006), Ev 67 (Q333). See also ‘Clarke touts terror trial changes’, BBC News Online, 9 February 2005: http://news. bbc.co.uk/2/hi/uk_news/politics/4248061.stm.

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by the government, partly because it was thought to violate the right of suspects to see the evidence against them. However, the debate on the issue in Britain also revealed a widespread suspicion of the idea of judges co-operating closely with the police and intelligence agencies, linked to a belief that such collaboration was inconsistent with the UK’s common law traditions. One counterterrorist police officer, for example, was sceptical about the proposal, saying: ‘They are judges and they’re just dealing with the judicial side of it. This is, like, [for] generations. I don’t know why you’d need a judge who would then suddenly get the intelligence fed into him, because that would go right against the precepts of the system.’314 A prominent British parliamentary committee also concluded that the ‘security-cleared judges’ proposal showed the danger of borrowing certain aspects of the investigating magistrates system. In a revealing reaction, the committee pointed out that this system require[s] a very close relationship between the investigating magistrate and the police and intelligence agencies. As Judge Bruguiere, a most experienced juge d’instruction in terrorist cases, put it to us, in France the intelligence services, law enforcement agencies and the judiciary ‘worked in synergy’. Such a collaborative relationship would, in our view, in this country, be incompatible with the nature of the judicial function as it has traditionally been understood.315

British judges themselves took a similar view. According to David Blunkett, ‘the judges were reluctant to see themselves too closely involved’ in a procedure which they felt might undercut their traditional independence from the government and its agencies.316 Indeed, the government itself was split on the idea of security-cleared judges. While the two Home Secretaries in office during this period both argued in favour, other members of the Cabinet were against, a caution reflected by one former senior government official who revealed that there was ‘no consensus’ in Cabinet on this issue. ‘Some people want to import some aspects of the French system’, he said, ‘I think you can’t have both. We have a common law system.’317 Even after considerable reforms, chiefly the improved co-operation between police and prosecutors, the UK still takes a more restrictive approach than France to linking the intelligence and police domain to that of prosecution and justice. With its proposal on ‘security-cleared 314 315 316 317

Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. My emphasis. Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, p. 23. Interview with David Blunkett, UK Home Secretary 2000–2004 [UK-G], London, 23 January 2007. Interview with a former senior UK government official [UK-A], London, 4 November 2005.

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judges’, the Home Office had suggested a reform that would have had the effect of modestly increasing co-operation between police/intelligence and the judiciary. However, judicial and some government actors responded that this was inconsistent with what they saw as the customary requirements of their common law system for judges to be independent and to exercise a narrow, mostly adjudicative, function. The proposal was thus stymied by a separating inter-institutional convention, rooted in English legal tradition, which lays great emphasis on the judiciary maintaining its independence from the government and its security agencies. The British intelligence agencies also remained wary of submitting sensitive intelligence material such as intercept to English courts that they believed could reveal their sources and methods. These institutional constraints on the relationship between intelligence and justice had important practical consequences. For some years after 9/11, there was – as a former senior official put it – ‘frustration’ in government about the apparent difficulty of prosecuting and convicting terrorist suspects through the English courts (this is discussed in more detail in the next chapter). It was this frustration, he said, that drove officials to explore reforms such as security-cleared judges and the introduction of intercept evidence in court cases.318 It was also against this background that the police and the CPS improved their co-operation on prosecutions and by 2007, this seemed to bear fruit as their work, along with that of the intelligence agencies, resulted in several substantial convictions in terrorist trials.319 Yet if the frustration of the government was reduced by these developments, it was not entirely dissipated either. Overall, between 2001 and 2010, the authorities had a 73 per cent conviction rate in terrorismrelated prosecutions in Great Britain.320 They have achieved many significant convictions, particularly since 2007, but have also suffered some high-profile reversals, notably in the ricin trial of 2005 and in the first liquid explosives trial in 2008. The latter case involved eight men who were charged with conspiring to blow up several transatlantic flights in August 2006 – a plot that prompted a major shift in airport security across the western world, with governments restricting the bringing of liquids onto aircraft. For this and other reasons, it 318 319

320

Ibid. The most prominent of these convictions were the ‘Operation Crevice’ trial (April 2007), the cases of Dhiren Barot and associates (November 2006 and May 2007) and the conviction of the group that attempted to attack the London transport system on 21 July 2005 (July 2007). For more on these cases, see Chapters 1 and 5. Of the 330 people prosecuted, 240 were convicted. See Home Office, Statistical Bulletin 04/11, 24 February 2011, p. 9: www.homeoffice.gov.uk/publications/science-researchstatistics/research-statistics/counterterrorismcounterterrorism-statistics/hosb0411/

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was important to the British government to demonstrate in a court of law that this case was as dangerous as it had claimed. However, when the case came to trial two years later, only three of the men were convicted of conspiracy to murder, and none of the eight were convicted of conspiracy to cause explosions on an aircraft, a result that provoked many questions and criticisms in the media.321 It took two retrials to secure substantial convictions against the eight men and to demonstrate in court that there had been a conspiracy involving three of them to blow up aircraft.322 It emerged during the course of these trials that the British intelligence agencies had intercept material – emails exchanged between some of the plotters – that provided evidence of terrorist intent. Yet in keeping with the normal policy, this intercept material was not submitted as evidence to the first trial. At the retrial, prosecutors circumvented this problem by obtaining archive versions of the emails from Yahoo! in California, which were identical to the intercept material. These archives – unlike the British intelligence intercepts – could be submitted as evidence to court and proved, according to The Times, a ‘critical difference’ which allowed prosecutors to secure key convictions in the second trial that they were unable to achieve in the first.323 Yet the total cost of these two trials alone was estimated to be approximately £10 million.324 For some, the episode showed that Britain’s approach to intercept material was not only constraining its ability to prosecute terrorist suspects but also, in this case, imposing costs on the government’s finances and credibility.325 Intelligence and police strengthen their co-operation While it has sometimes proved complicated to link the work of British security agencies with the judicial system, joint operations within the intelligence and policing world have intensified with little hesitation since 2001. One public manifestation of this was the merger of the London Metropolitan 321

322 323 324

325

Sean O’Neill, ‘Questions remain after long pursuit and trial that had to end in success’, Times, 8 September 2009; ‘Astonishment at terror verdicts’, BBC News Online, 9 September 2008: http://news.bbc.co.uk/2/hi/uk_news/7605583.stm. ‘Airliners plot: The Verdicts’, BBC News Online, 8 July 2010: www.bbc.co.uk/news/ 10455923. ‘The Airline Plot’, Times, 8 September 2009. O’Neill, ‘Questions remain’. The estimates quoted in the press came from Metropolitan Police officials. The cost of the intelligence and police operation was said to be £40 million. Critics of the British reluctance to use intercept as evidence include the former Director of Public Prosecutions, Lord MacDonald. See ‘Allow Intercept Evidence’, BBC Radio 4, 8 September 2009: http://news.bbc.co.uk/today/hi/today/newsid_8243000/ 8243367.stm.

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Police’s Special Branch and Anti-Terrorist Branch in 2006 to form the Counter Terrorism Command. More than just a rebranding, British police officers say that this reform is an organisational recognition of changes that began in the years after 9/11 concerning how the agencies relate intelligence collection to law enforcement. Traditionally (in the pre-9/11 context), according to one police officer, ‘under UK legislation, you’d make a complete difference between the intelligence and the evidential field’. MI5 worked purely on intelligence, he said, police Anti-Terrorist Branch (ATB) worked purely on law enforcement (the evidential field), and police Special Branch ‘straddled the line’ between the two, working on both intelligence and evidence.326 Intelligence gathered by MI5 was not considered as evidence that could be admitted to court, confirmed a former MI5 official.327 The intelligence agency did not gather information in a way that would allow it to be easily transformed into evidence suitable for a trial. As alleged facts gleaned through MI5 surveillance or intelligence sources were effectively useless for court purposes, this meant that such facts had to be independently proven by police. As the police officer recalled, MI5 would communicate the intelligence to the London Metropolitan Police, which has the national lead on terrorism investigations, and ‘our job would be to find a way of attributing that to an open source’.328 According to a Special Branch officer, because Special Branch was ‘often involved with the Security Service in the development of intelligence’, it was usually the job of this branch of the London police to find independent evidential proof of that which intelligence sources indicated. This task was ‘left with Special Branch primarily’, he said. ‘That was part of the case management.’329 ‘Only at the very last moment would the Anti-Terrorist Branch be involved when arrests were to be made’, he emphasised. ‘Evidential questions . . . were not given to the Anti-Terrorist Branch to work on until a very late stage’, he added (the ATB needed to have an evidential case at some point – preferably before arrest – but certainly for the charging of an individual). Indeed, he continued, ‘the broad judgement then was that the investigators had a different role . . . the Anti-Terrorist Branch was postincident. An Anti-Terrorist Branch officer had no real expectation to be involved before the bomb went off.’330

326 327 328 329 330

Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. ‘Former MI5 officer’, interviewed by and quoted in: Jacobson, The West at War, p. 45. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007. Ibid.

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The head of the ATB between 2002 and 2008, Peter Clarke, did not go quite as far as this officer, but he did admit that during the years of the Irish Republican Army (IRA) campaign, the ATB would sometimes be briefed about a terrorist plot at a late stage ‘after there had been a great deal of [information-gathering] by the intelligence agencies’. Waiting ‘until the terrorist is at or near the point of attack’, he said, gave the police ‘the strongest evidence – to capture the terrorist with the gun or the bomb’.331 This approach was sustainable because Irish terrorism ‘operated within a set of parameters’. IRA operatives ‘had no wish to die’, he explained, and they often issued warnings prior to bombs being exploded which, though ‘cynical’, did have the effect of ‘restricting casualties’. Clarke believed, however, that contemporary Islamist terrorism was ‘the reverse of many of these characteristics’: suicide bombing as a tactic, no warnings given, and an intention ‘to kill as many people as possible’. According to the police chief, this change in the nature of the terrorist threat ‘has changed everything’ in how the police try to counter it. The intention of Islamist militants to maximise casualties means that it is no longer tenable to wait until after – or even just before – a terrorist attack is committed.332 Clarke and the British counterterrorist agencies perceive Islamist terrorism in a similar way to their French counterparts, and like the French, they interpreted it as meaning that they had to switch to a preventive logic in terrorism investigations. In this context, the British police – like the French – arrest Islamist terrorists earlier than was the case when they were tackling previous forms of terrorism. This requires them to make extra and earlier efforts to gather sufficient court-admissible information to successfully prosecute the suspects. In France, this requirement has underpinned the development of closer co-operation between intelligence officials and judicial actors. The UK has not gone down this route, as we saw above. For the British intelligence agencies, the main implications of the preventive logic have been rather for MI5’s own procedures and for its co-operation with the police. This in turn has spawned a development in the role of counterterrorist law enforcement investigators. On the first score, MI5 has modified its procedures so that it gathers more intelligence in ways that enable the information to be converted into court-admissible evidence. While the first steps towards this change were made in 1996 when the government mandated MI5 to provide intelligence and evidence on serious crime, the change was bedded down after 9/11 by the specific investigatory challenges posed by Islamist

331

Peter Clarke, ‘Learning from Experience’.

332

Ibid.

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terrorism.333 Peter Clarke has spoken of a shift in the way that MI5 collects information and, according to another Metropolitan Police officer, this change really took hold after 2001. ‘After 9/11’, he said, ‘of necessity, MI5 were beginning to have to conduct this stuff in an evidential way, having to keep logs etcetera. It was no good not recording what was happening. You’d have to evidentially bind that down.’334 For example, recordings made by MI5 and the police with bugging devices in February 2004 were later heard in a prominent court case and were important for the conviction of five suspects.335 MI5 agents also began to give evidence in court in some terrorism cases, sitting behind screens in order to protect their identities. Usually, they attend in order to testify that they monitored a suspect at a certain time and place, or that they saw him meeting with another suspect.336 Indeed, MI5’s resources for seeking legal advice were increased in the context of its increased involvement in evidential issues.337 A second, related change stemming from the preventive logic was that MI5 began to work more intensively with the law enforcement officers of the Anti-Terrorist Branch (ATB). According to Peter Clarke, the ATB began to ‘work [with MI5] in every case from a much earlier stage than would ever have happened in the past’.338 A police officer added that ‘the senior investigating officer would have access to the intelligence’ now to a greater extent than in the past, while another official commented: ‘The police are now involved in things that, ten years ago, MI5 would have had fits about.’339 Operation Crevice in 2004 was a significant example of police ATB being involved at an earlier stage of an intelligence operation, as it worked directly with MI5 to gather court-admissible evidence for two months before the suspects were arrested. For the then head of

333 334 335

336

337 338 339

Frank Foley, ‘The Expansion of Intelligence Agency Mandates: British Counterterrorism in Comparative Perspective’, Review of International Studies 35:4 (October 2009), 984. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. The comments of Peter Clarke are cited in: Jacobson, The West at War, p. 44. MI5 may admit the results of bugging devices (placed in cars or homes, for example) to court cases. This must be distinguished from telephone taps or intercept, which it does not admit to court. See ‘Fertiliser bomb trial: Bugged Talk’, BBC News Online, 30 April 2007: http://news.bbc.co.uk/1/hi/uk/6466817.stm. Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. For an example, see ‘Terror cell bugged, court hears’, BBC News Online, 16 May 2006: http://news.bbc.co.uk/1/hi/uk/4988002.stm. Jacobson, The West at War, pp. 43–44. Peter Clarke, ‘Learning from Experience’. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006; ‘Senior Scotland Yard official’, interviewed by and quoted in: Jacobson, The West at War, p. 43.

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the ATB, Peter Clarke, ‘this was a classic case of . . . “running a case long”’.340 These developments had implications for the role of Special Branch. In the past, MI5 concerned itself less with converting intelligence into evidence, Special Branch effectively covered this area, and the ATB’s law enforcement officers usually only came in at the end of the intelligence inquiry. After 9/11, however, according to one police officer, as MI5 began to move ‘forward’ into the evidential sphere and police ATB began to move ‘back’ into the intelligence sphere at an earlier stage of inquiries, the question was asked, ‘Do we still need Special Branch in the middle straddling the line between the two?’341 The answer in London was no. Against the background of these changes on the ground since 9/11, the Metropolitan Police decided to merge Special Branch with Anti-Terrorist Branch to form the Counter Terrorism (CT) Command. Launched in October 2006, the new command brings together the traditional métiers of the two old branches: intelligence collection and law enforcement. Reflecting the greater involvement of the Anti-Terrorist Branch in the intelligence sphere, the head of the ATB, Peter Clarke, was made the first head of the new CT Command.342 For one Special Branch officer, this reform showed that the organisation of the Metropolitan Police’s work on terrorism intelligence and evidence had ‘fundamentally changed’. Rather than Special Branch developing intelligence and only later addressing evidential questions with the ATB, ‘that is no longer Special Branch separate from the AntiTerrorist Branch’, he said. ‘That is now one unit that is now recognising that operational and evidential questions have to be addressed from Day One’.343 Yet this change was also related to the primary role played by MI5 on the management and analysis of terrorism intelligence after 1992, which was then reinforced after 9/11. While the intelligence-collection traditionally done by Metropolitan Police Special Branch continued to be a part of the police mandate under the new CT Command, its officers perceived a reduction in their analytical role. According to a long-serving member of the branch, the Metropolitan Police Special Branch traditionally had ‘a highly developed expertise’ on the community context of and motivations 340 341 342

343

Peter Clarke, ‘Learning from Experience’. See also, ‘Timeline: Operation Crevice’, BBC News Online: http://news.bbc.co.uk/1/hi/uk_politics/6207348.stm. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. Metropolitan Police Service, ‘New Counterterrorism Command launched’, 3 October 2006: http://policeoracle.com/news/New-Counter-Terrorism-CommandLaunched_11521.html. Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

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for militant activity. It is worth quoting him at length on how this changed in the years up to 2006: There has certainly been a gradual move away from what we used to think of as Special Branch desk responsibilities. There was a time when a typical Special Branch desk officer would mirror the same interest as a Security Service [MI5] desk officer. So you might have a Special Branch officer or a desk of officers dealing with the PKK [a Kurdish militant group] threat in London, for example. But there has been a move away from that. I think that is probably part of the shift towards the Security Service, and Special Branch becoming far more focused on operational support. You know, some Special Branch officers who have experienced both regimes, will sometimes talk a little wistfully about what’s been lost and how they have become more of ‘a glorified crime squad’, as they put it.344

For these officers, then, the absorption of Special Branch into the Counter Terrorism Command – which naturally has a major focus on law enforcement – was the logical outcome of a trend whereby they were already losing much of their intelligence analysis and community expertise anyway. Their intelligence collection continues under the new regime but it may be more focused on particular groupings and on the gathering of evidence that will be used in court – hence the phrase, ‘glorified crime squad’. The last version of the government’s Special Branch Guidelines seems to support such an interpretation. The document makes clear the wide-ranging intelligence mandate of MI5 as ‘the lead agency for the acquisition, assessment, dissemination and exploitation of national security intelligence’. By contrast, it states that ‘Special Branch exists primarily to acquire intelligence, to assess its potential operational value, and to contribute more generally to its interpretation’.345 Given this operational focus, the police are asked only to make a general contribution to intelligence analysis. Nevertheless, as the next section will indicate, given the massive resources that the government has pumped into counterterrorism, intelligence officers within the police, whether in London or in other parts of the UK, may have been able to rebuild some of their analytical and community expertise in the context of projects, such as Operation Rich Picture – a major MI5 and police project ‘intended to provide a wider understanding of the context of terrorist activity and radicalisation in this country’.346 Indeed, from a broader perspective, if MI5 has been boosted and confirmed as the clear leader on the intelligence side, those on the 344 345 346

Ibid. Home Office, Scottish Executive and Northern Ireland Office, Guidelines on Special Branch Work, pp. 6–7. HM Government, Pursue, Prevent, Protect, Prepare, p. 65; Jason Bennetto, ‘MI5 conducts secret inquiry into 8,000 al-Qa’ida ‘sympathisers’’, Independent, 3 July 2006.

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law enforcement side – the Anti-Terrorist Branch/Counter Terrorism Command – have also had their role enhanced. Law enforcement officers have earlier and greater access to intelligence than they did before 9/11, and the absorption of Special Branch personnel into the CT Command helps it to address evidential questions at an earlier stage of intelligence inquiries. Overall, a relatively balanced approach was taken, in which both intelligence and police agencies maintained important roles in counterterrorism. It was also clear that the pre-existing formal organisational routines of the British agencies favoured the introduction of formal changes to the co-ordination of intelligence and law enforcement after 9/11. These reforms were congruent with both contemporaneous and previous changes approved by the government to promote MI5 primacy on terrorism intelligence. This is not to deny that some important initiatives first emerged ‘on the ground’. Intelligence and police officers did innovate in the face of the dual demand to arrest terrorist suspects earlier and still gather sufficient evidence to prosecute them. The organisational routines of the British counterterrorist agencies were thus performed in creative ways by individuals. At the same time, the underlying formal routines were adhered to as individuals’ adaptive efforts were formalised with the creation of a new organisation, the CT Command. With the British agencies intercepting a number of substantial conspiracies in the decade after 2001, these efforts provided another example, alongside France, of how intelligence and law enforcement could be adapted to prevent and prosecute terrorism.347 Counterterrorism capability and regional expansion With its focus firmly on Northern Ireland for thirty years, Britain devoted relatively little of its intelligence resources to Islamist terrorism before 9/11. In the budgetry year 2001–2, for example, MI5 devoted 33 per cent of its overall budget to work on ‘Irish’ terrorism, and 23 per cent to countering ‘international’ terrorism (which included Islamist, but also other forms of transnational militancy) – a total of 56 per cent on counterterrorism.348 According to a parliamentary report, the service ‘knew of’ just 250 ‘investigative targets’ related to Islamist militancy during 2001, and not all of 347

348

These included the plots led by Omar Khyam and Dhiren Barot respectively, foiled in 2004, and the transatlantic liquid explosives plot of 2006. Against this, the British agencies failed to prevent the London bombings of 7 July 2005 and the botched attacks of 21 July 2005 and early June 2007. See Chapters 1 and 5; ‘Salute the Spooks’, Economist, 19 August 2006; and ‘Waiting for Al-Qaeda’s next bomb’, Economist, 3 May 2007. Intelligence and Security Committee, Annual Report 2001–2002, Cm 5542 (London: TSO, 2002), p. 9.

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these were monitored regularly.349 During the first few years after 9/11, there was also a concern that the intelligence agencies did not have enough staff with the appropriate language skills, and a ‘continual feeling’ in government, according to one former senior official, that the agencies had an inadequate level of coverage of militant Islamist networks in Britain.350 Yet little was done to address this situation until 2003–4, a delay that may be partly explained by the fact that the British authorities did not perceive a large number of Islamist terrorists engaged in operational attack planning in the UK until that time (see Chapter 5). In this context, and allowing also for what one police official called ‘political inertia’, the Treasury did not approve a dramatic increase to counterterrorism budgets for over two years after 9/11.351 However, the reforms, when they did come, proved to be substantial. The first steps were taken in the autumn of 2003 when officials from the Cabinet Office, including the Security and Intelligence Co-ordinator, made a presentation to Prime Minister Tony Blair’s ‘inner group’ and won agreement for their proposal to allocate additional funding for a major expansion of MI5.352 Initially announced in February 2004 as a ‘50 per cent’ expansion of MI5, involving the recruitment of 1,000 new staff, the government announced further increases in the following years.353 In the event, MI5 doubled in size, rising from a staff of 1,900 in 2004 to approximately 3,800 by 2008.354 Part of this expansion was focused on recruiting more people with skills in Arabic, Urdu and other languages perceived as relevant to the monitoring of Islamist terrorism. MI5 also sought to recruit more widely in the population, and it increased the proportion of people from black or ethnic minority backgrounds on its staff (from 4 per cent of the service in 2004 to 8 per cent in 2008), partly, one may assume, because some of these would be well placed to understand or infiltrate the Islamist milieu.355 Also, for the first time, MI5 349 350 351

352 353

354 355

Intelligence and Security Committee, Report into the London Terrorist Attacks on 7 July 2005, Cm 6785 (London: TSO, May 2006), p. 8. Second Interview with a former senior UK government official [UK-A], London, 25 January 2007; Intelligence and Security Committee, Annual Report 2001–2002, pp. 25–6. Special Branch police official, quoted in: Nick Davies, ‘Culture of muddle hinders fight’, Guardian, 10 November 2003. On the budget, see Fraser Nelson, ‘Fiasco Royal’, Spectator, 18 November 2006. Interview with a former senior UK government official [UK-A], London, 4 November 2005. ‘MI5 expands to meet terror threat’, BBC News Online, 22 February 2004: http://news. bbc.co.uk/1/hi/uk/3510611.stm; Frank Gardner, ‘One year on – Is the UK any safer?’, BBC News Online, 3 July 2006: http://news.bbc.co.uk/1/hi/uk/5140958.stm. HM Government, Pursue, Prevent, Protect, Prepare, p. 64; MI5, ‘Staff and Management’: www.mi5.gov.uk/output/staff-and-management.html. ‘MI5 expands to meet terror threat’, BBC News Online.

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opened regional offices around the UK. To understand the significance of this move, we need to outline how it fitted in with the developing role of counterterrorist police around Britain. The Special Branches of the UK’s territorial police forces have traditionally had a considerably greater combined staff than MI5. Figures from 2002, collected from official sources, showed that while MI5 had a staff of approximately 1,900, the Special Branches comprised some 4,247 officers (a figure which included 684 in Northern Ireland).356 Furthermore, as a senior police officer with secondment experience in MI5 pointed out, MI5’s ‘desk sections’ tended to be bigger than its ‘agent running sections’; hence its regular co-operation with Special Branch, which traditionally had a greater number of intelligence agents in the field.357 A former senior government official also said that the police Special Branches, ‘with their larger numbers’, did a great deal of intelligence collection.358 An official review by the UK police inspectorate in January 2003 reflected the widely held view among British intelligence practitioners that the Special Branches – part of the provincial police forces, but also with direct links to MI5 – served as a ‘golden thread’ or a ‘vital and direct link between the high level demands of national security and local knowledge [of local police forces]’.359 However, the review also found that the intelligence capabilities of the branches varied from force to force, with some Special Branches – the London one in particular – playing a significant supporting role to MI5 while others played only a minor role. ‘The disparity across the country . . . is of concern’, the review stated. Noting that ‘the nature of the threat is changing’, it warned that the possibility of a terrorist attack with unconventional weapons required ‘a concerted response to which many smaller Special Branches would find it difficult to contribute’.360 Some years later, a parliamentary inquiry and an inquest into the 2005 London bombings reviewed how one Special Branch – West Yorkshire – worked with MI5 around this time. MI5 had monitored two of the bombers, Mohammed Siddique Khan and Shehzad Tanweer, meeting with a prominent terrorist in 2004, but since they had not discussed any terrorist attack planning, the service did not make the two men a priority for surveillance. MI5 insisted that this was a reasonable decision, given that 356 357 358 359 360

‘Special Branch more than doubles in size’, Statewatch, September 2003: www.state watch.org/news/2003/sep/SB.pdf. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. Her Majesty’s Inspectorate of Constabulary, A Need to Know, pp. 16, 36. Ibid., pp. 19, 30.

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it had to concentrate its then more limited resources on many other Islamist terrorists that were showing a clearer intention to attack the UK.361 One of the inquiries showed that while MI5 and West Yorkshire Police were regularly exchanging information at this time, the nature of their relationship was that MI5 asked the police to run checks on people of interest, but did not always fully explain the detailed background behind those requests.362 Indeed some West Yorkshire police officers have spoken of how MI5 had not shared sufficient intelligence with them in the past.363 Thus, MI5’s high level of information sharing with the London Metropolitan Police, as described above, may not have been replicated with all of the provincial Special Branches in a context where the intelligence capabilities of those branches varied greatly and MI5 itself lacked a substantial presence in the regions of the UK. The government’s first attempt to bolster Special Branch capabilities was a modest one. Eight Special Branch Regional Intelligence Cells (RICs) were rolled out in 2003 and 2004, each one bringing together a number of provincial Special Branch forces.364 The budget for their creation was a relatively minor £3 million and they were reported to be small units.365 A more substantial strengthening of the provincial police forces’ intelligence collection capabilities would only come after the 2005 London bombings. Meanwhile, questions were also being raised around this time about how counterterrorist law enforcement investigations should be carried out around the regions of the UK. The Anti-Terrorist Branch/Counter Terrorism Command of the London Metropolitan Police has throughout its existence had a national mandate to conduct terrorism investigations in any part of Great Britain. As Peter Clarke, the head of the branch between 2002 and 2008, put it, ‘when terrorist activity was taking place outside London, what tended to happen is that the Metropolitan Police would gird up its loins and become an expeditionary force. The simple fact is that

361

362 363 364

365

Intelligence and Security Committee, ‘Could 7/7 Have Been Prevented?, p. 54; Lady Justice Hallett, Coroner’s Inquiry into the London Bombings of 7 July 2005, 6 May 2011, pp. 3–4: http://7julyinquests.independent.gov.uk. Intelligence and Security Committee, ‘Could 7/7 Have Been Prevented?, p. 52. Peter Taylor, ‘7/7: No more locked doors’, Guardian, 6 May 2011. Daniel Foreman and Chris Smith, ‘Blunkett urges debate on new anti-terror clampdown’, Politics Home, 25 February 2004: www.epolitix.com/latestnews/article-detail/ newsarticle/blunkett-urges-debate-on-new-anti-terror-clampdown. By way of comparison, the Home Office would later commit £30 million extra funding in 2006–07 and £60 million extra in 2007–08 to regional counterterrorism policing. See HM Government, Government Response to the Intelligence and Security Committee’s Report into the London Terrorist Attacks on 7 July 2005, Cm 6786 (London: Cabinet Office, 2006), p.6; and Nick Davies, ‘Culture of muddle hinders fight’.

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there was not a unit on the UK mainland dedicated to the investigation of terrorism outside London.’366 In the autumn of 2005, this organisation of counterterrorist law enforcement was still in place, and its procedures were explained by Ken Jones, the then chair of counterterrorism at ACPO (the national co-ordinating body for British police forces). ‘The Metropolitan Police are the lead counterterrorist investigative agency in the service’, he wrote. ‘Faced with a terrorist incident, a [provincial police force] hands over conduct of a local investigation to the NCTI’ (the National Co-ordinator of Terrorist Investigations, a post that is always held by the leading counterterrorist official at the Metropolitan Police). As Mr Jones confirmed, the ‘primary role [of the provincial force] is to support the NCTI’.367 Thus, the Metropolitan Police conducted the investigation with the local police force merely playing a supporting role. According to Peter Clarke, ‘this worked well enough until, I would say, about 2002 when during the ricin investigation we found ourselves spread across the UK. Then, over the ensuing years, the footprint of terrorism in the UK spread ever wider, and it was simply unsustainable, either in terms of scale or geography for the Metropolitan Police to continue in its traditional role’.368 The initial response to this increase in Islamist terrorist activity in terms of police resources was to double the number of Metropolitan Police staff devoted to counterterrorism, from around 700 in 2001 to approximately 1,500 officers by 2006, a number that the London force retained in the following years.369 Meanwhile, police forces outside London began to develop ‘modest dedicated counterterrorist capability’ from 2004–5 according to Ken Jones.370 The 2005 London bombings (which were prepared in the Leeds area) and many arrest operations between 2004 and 2007 highlighted the major growth of Islamist terrorism in the Midlands, northern England and elsewhere. The London bombings in particular were the catalyst for the government to approve a major increase in police counterterrorism resources focused on the regions of the UK.371 In 2007–8, three large regional Counter Terrorism Units (CTUs) were 366 367 368 369 370 371

Peter Clarke, ‘Learning from Experience’. Ken Jones, ‘After 7/7: Reflections on a new policing world’, Policing Today 11:3 (Autumn 2005), p. 18. Peter Clarke, ‘Learning from Experience’. Sean O’Neill, ‘Special Branch absorbed into counter-terror unit’, Times, 3 October 2006; Home Affairs Committee, ‘Project CONTEST’, Ev 14. Ken Jones, ‘After 7/7’, p. 18. This is according to senior police officers and a parliamentary committee. See Home Affairs Committee, The Home Office’s Response to Terrorist Attacks, HC 117 (London: TSO, 2010), paragraphs 18–19; and Home Affairs Committee, ‘Project CONTEST’, Ev 14.

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created in the major urban centres of Manchester, West Yorkshire (Leeds) and the West Midlands (Birmingham), with a smaller CTU also formed in Thames Valley. Following the model established by the Counter Terrorism Command in London, these new units do both intelligence work and law enforcement investigations. Four smaller Counter Terrorism Intelligence Units (CTIUs) were also created in the East Midlands, Eastern Region, Wales and the South West of England, tasked with doing intelligence work only.372 The pre-existing RIC intelligence cells were folded into these eight units, which together amounted to approximately 1,500 police officer positions dedicated to counterterrorism in the regions.373 This has enabled the development of focused terrorism expertise in regional units outside of London for the first time, with the human resources to put it into practice in intelligence and law enforcement investigations.374 According to senior police officers, the CTUs and CTIUs work closely with the pre-existing provincial Special Branches in their areas, thus addressing the intelligence capability gaps in some provincial police forces, identified by the police inspectorate in 2003. Both the Special Branches and the new counterterrorism units work under the control of the chief constable of the force area in which they sit.375 The Metropolitan Police Counter Terrorism (CT) Command remains by far the largest police counterterrorist agency in Britain, and it has retained lead responsibility for terrorism investigations. However, those provincial police forces with new capability no longer need to hand over terrorism investigations to the London branch. Joint investigations now take place, led by CT Command, and involving the CTUs in their force areas. These CTUs also generate their own lines of inquiry and lead terrorism investigations.376 With the creation of the new counterterrorism

372 373

374 375

376

HM Government, Pursue, Prevent, Protect, Prepare, p. 65; Home Affairs Committee, ‘Project CONTEST’, Ev 14. Senior police officers have spoken of 3,000 police counterterrorism officers in England and Wales. 1,500 of these are in the Metropolitan Police and a further 1,500 are in the regional CTUs and CTIUs. The CTUs alone were scheduled to have a combined staff of approximately 1,000. See Home Affairs Committee, ‘Project CONTEST’, Ev 13 (Robert Quick); Home Affairs Committee, The Home Office’s Response to Terrorist Attacks: Oral and Written Evidence, HC 117-II (London: TSO, 2010), Ev 15 (John Yates); Avon and Somerset Constabulary, ‘Letter from AC Andy Hayman’: www. avonandsomerset.police.uk (last accessed on 5 May 2007, but since removed; print copy in author’s possession). Home Affairs Committee, Home Office’s Response, paragraph 16. See the comments of Margaret Wood, John Yates and Robert Quick in: Home Affairs Committee, Home Office’s Response, Ev 12, Ev 20; and Home Affairs Committee, ‘Project CONTEST’, Ev 14. ‘Regional anti-terror unit formed’, BBC News Online, 2 April 2007: http://news.bbc.co. uk/2/hi/uk_news/england/6516829.stm.

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units, the government had provided additional funding to increase the police’s capability, but had the government and the police leadership done enough to ensure the co-ordination of such forces? Peter Clarke of the Metropolitan Police – and the then National Co-ordinator of Terrorist Investigations (NCTI) – acknowledged in 2007 that the CTUs were ‘a major step forward’ in terms of the ‘capacity’ of British police to carry out terrorism investigations. He appeared to believe, however, that the NCTI co-ordinating role would be insufficient in a context where the London CT Command was now sharing the terrorism investigation turf with at least three other substantial regional units. ‘I have to say that my personal view is that we are still very much in a transitional phase’, he said in early 2007. ‘I welcome the creation of the regional units, but I do sometimes wonder whether we have been quite bold enough. Did we, in our first move into developing the necessary capacity, achieve the clarity around governance and accountability that will surely be needed in the future? Time will tell, but I am certain we are headed in the right direction’.377 Mr Clarke believed that, in addition to the national co-ordinator, British terrorism investigations needed ‘some form of national structure which still draws on the traditional local links’.378 In October 2008, some of the clarity sought by Mr Clarke was attained when ACPO, the national police co-ordinating body, created the Police Counter Terrorism Network. Robert Quick, then the most senior counterterrorist officer in the Metropolitan Police, told a parliamentary committee in early 2009 that the network brings together the local Special Branches, the eight regional units and ‘at the top . . . is the Counter Terrorism Command in London’. As part of this development, he added, the Chief Constables of Britain’s various police forces agreed to give the NCTI in London ‘a wider remit’. This post was upgraded in status to that of Senior National Co-ordinator of Terrorist Investigations ‘to reflect his much broader role to co-ordinate the whole network operationally and, where necessary, direct it in operations’. Interoperability between counterterrorist police units is also aided by the fact that they have developed ‘common processes and operating procedures’ for their joint operations, he said.379 Notwithstanding this reaffirmation of the Metropolitan Police CT Command’s authority to direct counterterrorist law enforcement nationally, some former senior police officers called for further steps towards the establishment of a national police structure in 377 378 379

Peter Clarke, ‘Learning from Experience’. ‘Anti-terror chief seeks rethink’, BBC News Online, 16 February 2006: http://news.bbc. co.uk/1/hi/uk/4720678.stm. See Home Affairs Committee, ‘Project CONTEST’, Ev 11–12.

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this area.380 The government and serving police leaders rejected these calls, however, stating that focusing resources in a national body would risk cutting off the Special Branches and other police units, which are embedded in local communities and pick up important local intelligence.381 The debate on this issue indicated not only the desire of some to shore up the Metropolitan Police’s authority over counterterrorist law enforcement but also the value placed on formal, ‘top-down’ co-ordinating measures by British security practitioners. As argued above, the nature of mandates, distribution of authority and number of key agencies are crucial factors shaping organisational routines and counterterrorist co-ordination. The expansion of the number of key agencies since 2007–8, notably the CTUs, and their sharing of investigative responsibilities with CT Command increases the risk of inter-agency conflict. This risk will be offset in the British case, however, to the extent that the agencies maintain a clear understanding of lead investigative responsibility and continue to operate according to rules and procedures set out by a central authority. MI5 began its own expansion into the regions before the police’s regional counterterrorism units were set up. Between 2005 and 2007, it created six regional stations in England covering the South West, the South East, the East, the Midlands, the North East and the North West, as well as three bases in Northern Ireland, Scotland and Wales.382 It was due to have 25 per cent of its staff working outside London by 2011. The service also created a Northern Operations Centre to provide support for surveillance operations outside London. Indeed with its staff doubling in four years, MI5 increased its number of agent handlers and its operational staff in the field generally.383 As noted above, the operation of bases in the regions, along with substantial numbers of agents and staff in the field, has traditionally been the preserve of the police and the Special Branches in particular as part of their role as the ‘golden thread’ between local knowledge and national security structures. Thus a Special Branch officer noted the significance of the new developments: ‘Now the Security Service [MI5] is becoming national in a very real sense. The major growth in

380 381

382

383

See the comments of Sir Ian Blair and Andy Hayman, quoted in: Home Affairs Committee, Home Office’s Response, paragraphs 20–28. See comments by John Yates of the Metropolitan Police and Charles Farr of the Home Office in ibid., paragraphs 16–28 and Ev 20. See also Robert Quick of the Metropolitan Police, testimony to: Home Affairs Committee, ‘Project CONTEST’, Ev 11–13. Intelligence and Security Committee, Annual Report 2005–2006, Cm 6864 (London: TSO, 2006), pp. 14–15; Intelligence and Security Committee, Annual Report 2006–2007, Cm 7299 (London: TSO, 2008), p. 10. Intelligence and Security Committee, Annual Report 2007–2008, pp. 15–17.

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counterterrorism is within the Security Service, and a large part of that is the Security Service for the very first time becoming national, which means bases, real presence around the country . . . Certainly that is the way forward for counterterrorism over the next ten years: for the first time, a properly embedded Security Service nationwide’.384 As this comment indicates, there was no indication that MI5’s move into the police Special Branches’ ‘niche’ area in the regions provoked turf wars. While MI5 has long shared sensitive terrorism intelligence with the Metropolitan Police, we noted above evidence from 2004 which indicated that the service did not have as close a relationship with provincial police forces at that time. However, MI5’s development of permanent bases and staff in the regions along with the increase in police capability through the regional CTUs and CTIUs has, by all accounts, led to closer co-operation between the two sides. The parliamentary inquiry into the London bombings, which identified the MI5-police problems, also came to the conclusion that the regional developments on both sides had led to ‘considerable improvements to joint investigations and information sharing’.385 The inquest into the bombings by Lady Justice Hallett, which was highly critical of MI5 in some areas, concluded in respect of this issue that ‘on the evidence, the gathering of intelligence around the country and the liaison between the Security Service and the various police forces has changed beyond recognition and brought with it considerable benefits’.386 As an example of this liaison, the then head of MI5, Eliza Manningham-Buller, told of how her service’s regional station in the Midlands had worked with the regional police CTU and others on a sensitive operation which disrupted a plot to kidnap and kill a British soldier in early 2007: ‘It is clear to me that having an established station in [the West Midlands] that is able to work very closely with both the Special Branch and the CT unit in [the West Midlands] on this case is extremely helpful for coordination which involves also the Met[ropolitan Police]’.387 By 2010–11, the British government’s annual spending on ‘counterterrorism and intelligence’ was £3.5 billion, which is three times what it was spending on these activities prior to 2001.388 Apart from being a reaction to 9/11 and the London bombings, this unprecedented allocation of resources was also made in the context of preparations for the London 384 385 386 387 388

Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007. Intelligence and Security Committee, Could 7/7 Have Been Prevented?, p. 53. Lady Justice Hallet, Coroner’s Inquiry, p. 26. Intelligence and Security Committee, Annual Report 2006–2007, p. 10. See ‘Memorandum submitted by the Home Office’, in Home Affairs Committee, ‘Project CONTEST’, Ev 64.

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Olympics in 2012 – the largest peacetime security operation ever mounted in the UK. The focus of dedicated Olympics planning was mainly protective security and crisis management.389 Yet the expansion of the intelligence and police services over the previous decade and the range of operations mounted by them in the years up to 2012 (see chapter 5), though not specific to the Olympics, were perhaps the most important elements in the UK’s effort to prevent terrorist attacks on the games.390 MI5’s staff had doubled from 2001 levels to 3,800. Yet the police forces of the UK continued to have greater numbers than the intelligence agency working on counterterrorism and protective security broadly defined – approximately 7,700 officers in total.391 Of these, around 1,500 in the Metropolitan Police and a further 1,500 in the regional CTUs and CTIUs were devoted specifically to counterterrorist intelligence and law enforcement. In keeping with the British proclivity for formal methods of reform, inadequacies in the system were addressed through top-down measures, such as the establishment of new agencies. Central authorities at the agency and government levels drove these changes, with the latter using its resources to shape agency development on the ground. Thus, the shift to MI5 primacy on terrorism intelligence, which began in 1992 with the announcement of its ‘lead’ role in the area, was reflected after 9/11 in a tripling of its budget between 2001 and 2011 and a major expansion of its numbers in the field.392 Yet police forces in the regions were also given a greater capacity to support MI5 in this area, while the Metropolitan Police’s counterterrorism capacity was doubled and its primacy over law enforcement reaffirmed. The government thus took a broadly balanced approach to agency expansion, which helped to ensure an ongoing absence of police-intelligence rivalry in British counterterrorism. Change in the analysis and dissemination of terrorism intelligence While the British agencies improved their capacity to collect intelligence and link it to law enforcement, there were also efforts to reform how such intelligence was analysed and disseminated. The analysis of terrorism intelligence in the UK was reviewed following the failure of the British and other western security agencies to fully recognise the significance of Al-Qaeda before the 2001 attacks on America. MI5 set up a 389 390 391 392

See Home Office, London 2012: Olympic and Paralympic Safety and Security Strategy (London: COI, 2011), pp. 7–9, 13–14. On the importance of covert intelligence and the advance disruption of threats, see ibid., pp. 8, 13. This figure was provided by John Yates of the Metropolitan Police in late 2009. See Home Affairs Committee, Home Office’s Response, Ev 15. Intelligence and Security Committee, Could 7/7 Have Been Prevented?, p. 45.

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new Counter-Terrorism Analysis Centre after 9/11, but the government soon decided to replace it with a more substantial inter-agency body.393 According to the then Home Secretary, David Blunkett, the British intelligence services had considerable information on the Al-Qaeda network prior to 9/11 but had failed to put the pieces together to form an overall picture of the emerging threat.394 Against this background, a new Joint Terrorism Analysis Centre (JTAC) was established in May 2003. Located in MI5 headquarters in London, JTAC draws together approximately 160 officials from eleven security and government agencies, spanning the intelligence services, the police, armed forces and certain ministries. Each of these officials is seconded to JTAC, usually for two or three years, while still keeping their ties with their ‘home’ department (including their connection to the IT network of that department).395 This bringing together of analysts from all of the UK’s relevant agencies in one body was intended to provide a fully ‘joined up’ assessment of British terrorism intelligence and enhance the accuracy of the overall appraisal of the threat.396 JTAC is led by a senior official of one of the agencies and, according to a British intelligence official, it has established ‘its own identity’ while still drawing on its links in the different agencies when making threat assessments. He also said that having members of the agencies together in the same centre allows for a quicker exchange of information than had previously been the case.397 Like the French UCLAT, JTAC centralises the information provided to it by all of the counterterrorist agencies in the UK in order to write its threat assessments. It may receive assessed reports (or ‘products’) from the agencies or pieces of raw intelligence, according to a second intelligence official. Indeed, there is a system in place by which JTAC ‘automatically’ gets such raw material from the agencies, ensuring that JTAC analyses are genuinely ‘all-source’ assessments, she said.398 JTAC has taken on a central role in the analysis of British terrorism intelligence since its creation in 2003, a function that it shares with the pre-existing Joint Intelligence Committee (JIC). Apart from its responsibility 393 394 395

396 397 398

‘Cats’ eyes in the dark: Britain’s intelligence services’, Economist, 19 March 2005, pp. 30–32. See Intelligence and Security Committee, Annual Report 2001–2002, p. 22. Interview with two British intelligence officials [UK-H], London, 8 December 2006. With 100 officials in 2003, JTAC’s staff had grown to approximately 160 by 2009. See HM Government, Pursue, Prevent, Protect, Prepare, p. 64. Intelligence and Security Committee, Annual Report 2002–2003, Cm 5837 (London: TSO, 2003), p. 18. Interview with two British intelligence officials [UK-H], London, 8 December 2006. Ibid.

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to inform ministers’ decisions on intelligence priorities, the JIC committee is also charged with bringing together intelligence provided by all the agencies in order to provide ministers and senior officials ‘with co-ordinated inter-departmental intelligence assessments’.399 The JIC has its own ‘Assessments Staff’, which carries out analyses of the intelligence. As with JTAC, the JIC Assessments Staff consists of a range of intelligence analysts, seconded from different agencies and departments.400 Interviews and official documentation indicate how the division of labour between the two bodies has evolved since 2003. According to the government, JTAC sets the official threat level for the UK, issues particular threat warnings and provides ‘in-depth reports on trends, terrorist networks and capabilities for a wide range of customers’.401 This broad range of activity indicates JTAC’s primacy on analysing the overall terrorist threat to the UK and on tacticallevel analyses of terrorist groups’ capabilities and intentions. Such analyses include specific warnings, such as when a JTAC assessment led the Ministry of Transport to request the cancellation of a small number of flights out of London in January 2004.402 Apart from informing government departments on such issues, JTAC disseminates specific reports to ‘customers’ in other state agencies and public bodies.403 In terms of more general analysis, according to an intelligence official, JTAC has experts on different regions of the world and thematic analysts who ‘look at developments across countries’ and assess their impact on the threat to Britain.404 As part of this work, for example, one JTAC report assessed in 2005 that the British presence or ‘events in Iraq’ were acting as ‘a motivation and a focus of a range of terrorist-related activity in the UK’.405 Not just focusing on the homeland, JTAC also ‘assesses the threat to UK interests globally’, the official said.406 Government documentation states that the analyses of terrorism carried out by the JIC’s Assessments Staff ‘are more strategic [than those of JTAC] and place JTAC assessments in a broader geopolitical context for ministers and senior officials’.407 On the subject of terrorism, the specialised JTAC has taken on some of the globally-focused, ‘geopolitical’ ground covered by the JIC. Nevertheless, the JIC continues its ‘strategic’ thinking on the long-term

399 402 403 404 405 406 407

Cabinet Office, National Intelligence Machinery, p. 23. 400 Ibid. 401 Ibid., p. 25. Peter Beaumont, ‘Airline industry on frontline in Al-Qaeda’s war on the west’, Observer, 4 January 2004. Interview with two British intelligence officials [UK-H], London, 8 December 2006. Ibid. James Sturke, ‘Intelligence “warned of Iraq terror link”’, Guardian, 19 July 2005. Interview with two British intelligence officials [UK-H], London, 8 December 2006. Cabinet Office, National Intelligence Machinery, p. 25.

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evolution of terrorism along with other aspects of world politics408 and its focus on providing analyses solely to the government also distinguishes it from JTAC, which has a broader ‘customer’ base. Viewing JTAC in comparative terms, it holds similar intelligence centralisation and analysis functions to the French UCLAT, although some specific differences between the British and French units are noteworthy. UCLAT, operating under the Interior Ministry, makes threat assessments that provide the basis for France’s official terrorist threat level, but the decision on this is actually made further up the bureaucratic hierarchy in the national security secretariat, which is under the Prime Minister.409 JTAC, on the other hand, both issues threat analyses and makes the decision on what the official threat level should be (from five options: ‘low’, ‘moderate’, ‘substantial’, ‘severe’ and ‘critical’). JTAC’s threat level then informs the decisions of local security practitioners in public bodies, the police and the transport sector concerning the kinds of protective security measures that will be implemented in the areas or sites under their authority.410 There is thus a greater concentration of decisionmaking power regarding the official terrorist threat level in JTAC than there is in UCLAT. Concerning the dissemination of intelligence assessments, government ministers usually read reports from JTAC and the JIC only, according to a British intelligence official.411 A former senior government official, who worked with the agencies, also described how the British services adhere to a ‘concept of community reporting’, according to which they feed streams of information to JTAC and the JIC, which in turn provide a joined-up assessment and disseminate it to ministers.412 In France, on the other hand, there has been a tradition of individual agencies supplying their own ministers with reports, which UCLAT has not supplanted.413 The fact that JTAC has over 160 officials, while UCLAT has 50 may also be an indication of the relative importance of these central co-ordinating units to their respective intelligence systems. Here, as elsewhere, Britain 408 409 410

411 412 413

‘Cats’ eyes in the dark: Britain’s intelligence services’, Economist. Its full name is the Secrétariat Général de la Défense et de la Sécurité Nationale. See above, this chapter. MI5 and JTAC, ‘What are threat levels?’: www.mi5.gov.uk/output/what-are-threatlevels.html; MI5 and JTAC, ‘The UK’s Threat Level System’: www.mi5.gov.uk/out put/the-uks-threat-level-system.html; HM Government, CONTEST (2011), p. 9. Interview with two British intelligence officials [UK-H], London, 8 December 2006. Second Interview with a former senior UK government official [UK-A], London, 25 January 2007. As we saw above, it is not clear that France’s reforms to intelligence governance in 2008–09 signal the end for such practices since the different agency heads have maintained their prerogatives under the new system.

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uses formal and centralised methods to a larger extent than France where several important agencies have retained their prerogatives despite the presence of centralising bodies. Apart from JTAC, another change to the dissemination of terrorism intelligence was made in respect of the provision of information to ordinary ‘ground level’ police. We saw above how MI5 communicates intelligence with the specialised police investigators of the Counter Terrorism Command, which the latter then uses to carry out arrest operations against suspected terrorists. While these arrangements are felt to be working well, they are confined to the relationship between these elite units working on counterterrorism. A post-9/11 review of police–intelligence relations, carried out by a senior police officer, concluded that police Special Branch and MI5 had only a limited ability to go outside of such elite units and engage the wider network of UK police forces in counterterrorism awareness and support activity.414 Yet it was felt that ordinary police officers would also be in ‘the front line’ of the UK’s response to terrorism, for example, when they came across suspicious activity in their day-to-day work. In this context, the Police International Counter Terrorism Unit (PICTU) was established in February 2002, with the intention of improving the dissemination of information and counterterrorism awareness across the UK’s police forces. This small unit of around 12 people receives assessed intelligence from MI5 and JTAC, which it uses to produce sanitised reports containing information about terrorism for dissemination to a broad network of police officers.415 In 2004, for example, based on intelligence that terrorists were interested in peroxide-based and other home-made explosives, PICTU issued a report that informed police forces about certain domestic materials which, if found in somebody’s possession together and in large quantities, could indicate involvement in terrorism.416 Overall, British practitioners have confidence in the way that their security agencies co-ordinate the assessment and dissemination of terrorism intelligence, and they see the JTAC and PICTU reforms as building on their strengths in these areas.417

414 415 416 417

Unpublished paper on PICTU, by a Detective Chief Superintendent and former head of PICTU, August 2005, p. 1 (copy in author’s possession). Ibid., pp. 2–3; interview with two British intelligence officials [UK-H], London, 8 December 2006. Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Several government and police officials interviewed expressed their confidence in JTAC in particular.

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Explaining France and the UK’s divergent counterterrorist reforms French and British officials perceive the threat from Islamist terrorism in a similar way and they have drawn similar implications from this assessment in their common embrace of a preventive logic of investigations. Informed by this logic, both states have made organisational changes that enable the gathering of court-admissible information at an earlier stage of terrorism investigations. Given this important similarity in their response, France and the UK’s counterterrorist reforms can be partly explained with reference to their threat perceptions in a manner consistent with balance of threat and strategic choice theory. As these theories would expect, counterterrorist agencies in the two states did modify their approaches in response to developments in the perceived threat environment. Indeed, the British and French cases give the lie to the belief (found most commonly in the United States) that law enforcement agencies are by nature reactive and ill-suited to preventing terrorism.418 From this point of view, the focus of police forces on gathering evidence for particular cases and making arrests brings them into conflict with the broader goal of developing a fuller intelligence picture.419 In Britain and France, however, the traditional tension between intelligence and law enforcement goals no longer causes inter-agency friction. Close relationships – between MI5 and the police in the UK, and between intelligence officials and magistrates in France – have resulted in sophisticated solutions to the problem. The adaptive efforts of agencies in both countries to prevent and prosecute terrorist plots shows that law enforcement approaches can be reconciled with intelligence and provide a sustainable approach to preventing terrorism. Notwithstanding these important features common to the two cases, there have also been major differences between France and the UK’s counterterrorist reforms, which cannot be explained by a rationalist focus on threat and threat perception. Even though counterterrorist agencies in the two states had a common imperative – to make extra and earlier 418

419

For a scholarly example of this view, see Matthew Kroenig and Jay Stowsky, ‘War Makes the State, but Not as It Pleases: Homeland Security and American Anti-Statism’, Security Studies 15 (2) (April–June 2006), 265. The authors write: ‘Law enforcement agencies are reactive, structured to catch and prosecute people who have already committed a crime’. This view has been echoed by many observers and practitioners of US counterterrorism and appears to be largely based on their perception of the FBI. See, for example, Richard A. Posner, Countering Terrorism: Blurred Focus, Halting Steps (Lanham: Rowman and Littlefield, 2007), pp. 106–25, 231. See Amy Zegart, Spying Blind: The CIA, the FBI and the Origins of 9/11 (New Jersey: Princeton University Press, 2007), pp. 190–93.

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efforts to gather court-admissible evidence – they nevertheless translated this imperative into quite different types of organisational reforms. To understand this, I focused on the diverse organisational routines of the British and French counterterrorist agencies and the contrasting interinstitutional conventions of the two states. These factors have favoured different outcomes across four dimensions. First, the divergent organisational routines of the two cases have favoured different methods of counterterrorist reform. Britain – relying on its pre-existing formal routines – has employed formal methods of change: the creation of new agencies or centres, officially announced by the government or the agency leaderships and co-ordinated across the relevant counterterrorist services. Since 9/11, these new or reformed bodies have included JTAC, the Metropolitan Police Counter Terrorism Command, the regional police CTUs and the Counter-Terrorism Division of the Crown Prosecution Service. France’s informal organisational routines, on the other hand, have favoured the introduction of informal changes, set in train by entrepreneurial actors and implemented ‘on the ground’ without being formalised at official level and without being co-ordinated with all of the relevant security agencies. Examples of this include investigating magistrates working directly with intelligence officers, the DST’s move into the area of counterterrorist law enforcement, the marginalisation of the Police Judiciaire in this sphere and the internal reforms later made within that organisation in an attempt to regain a foothold in investigations of Islamist terrorism. Some formal intelligence reforms driven by President Sarkozy after 2007 – notably the merger of the DST and RG – departed from previous trends. Yet, even the powerful President did not have it all his own way as overlapping mandates and informal routines continued to be the central features of the organisation of French intelligence and police. The second important difference between the two cases concerns the balance that organisational reform achieves (or fails to achieve) between the responsibilities of intelligence and police services. The French and British cases share one similarity in this domain. Domestic intelligence agencies in both states have experienced an increase in their counterterrorist roles – providing evidence for trials – although the French agency went considerably further than its British counterpart in this respect. The preventive logic, associated with France and the UK’s similar perceptions of Islamist terrorism, has contributed to a rise in the fortunes of intelligence agencies. However, the enhancement of these agencies’ roles has been carried out in different ways and with different outcomes in the two states. The formal organisational routines of British counterterrorism meant that its reforms

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Law enforcement

MI5 Britain:

France:

Police DST/DCRI

Figure 3: Agency roles in countering Islamist terrorism

were initiated by government or the agency leaderships in co-ordination with each other. In this context, MI5’s move ‘forward’ into the evidential/ law enforcement sphere after 2001 was balanced out by an equivalent moving ‘back’ of police investigators to play an earlier and greater role in the intelligence sphere (see Figure 3). Overall, the formal routines of British counterterrorism favoured the introduction of a balanced set of reforms to both the roles and the resources of its intelligence and police agencies. In contrast, the informal organisational routines of French counterterrorism meant that several of its most important reforms were carried out not by central authorities but were set in train instead by entrepreneurial actors on the ground and were not done in co-ordination with all the relevant agencies. In this context, the move ‘forward’ of the DST intelligence agency into the law enforcement sphere was not balanced out by any equivalent move ‘back’ of the police into the intelligence sphere. Instead, the DST actually took over the police’s role in the most important area of terrorism law enforcement with the latter being excluded from Islamist cases (see Figure 3). The informal routines of French counterterrorism thus favoured the introduction of an unbalanced set of reforms to the roles of the intelligence and police agencies. Balanced change in the UK and the unbalanced nature of the French reforms have helped to reinforce certain prior patterns of intelligencepolice co-ordination in the two states. One example of this was the abolition of the Metropolitan Police Special Branch in 2006 (then one of the country’s two major police counterterrorist units) and its absorption into the new CT Command. As part of the process leading up to this reform, some of Special Branch personnel’s traditional strengths in intelligence analysis and community expertise were de-emphasised in favour of a greater focus on operational support for intelligence and law enforcement investigations – a development which at least some officers regretted. Yet no major conflicts within or between agencies ensued from these changes. Two factors help to explain why. First, the UK’s formal organisational routines – manifested in explicit government guidelines – meant

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that there has been an expectation among Special Branch officers since the early 1990s that MI5’s role in terrorism intelligence would continue to be enhanced – at their expense.420 As the ultimate outcome of what one former Special Branch officer called a set of ‘incremental changes’,421 the decision of the Metropolitan Police leadership to put an end to Special Branch as a distinct entity was wholly in tune with the established trend. Secondly, the impact of this change has been softened by the overall balance that the UK’s post-9/11 reforms have maintained between the roles of the intelligence and police agencies. While the domestic intelligence agency saw its role enhanced, the police – in particular those working on law enforcement – also saw an increase in their role and resources. As these changes were introduced incrementally, had the authority of the government behind them and were well balanced between the intelligence and police services, they did not provoke any major inter-agency competition. Building on their routines of close, formal co-ordination, the relevant agencies continued and, in some respects, intensified their co-operation on counterterrorism. In France, on the other hand, the initial situation of a proliferation of agencies with overlapping mandates, unregulated by a central authority, favoured the development of informal organisational routines and competition between the services. When such routines enabled certain actors within the system (not supported by any central authority) to stimulate an unbalanced change to the roles of the intelligence and police services in counterterrorism after 1998, inter-agency competition was given a fresh impetus. We saw above how in the years after 9/11, the Police Judiciaire grew increasingly unhappy with its exclusion from – and the DST’s monopoly over – law enforcement investigations into Islamist terrorism. Indeed officers from both sides admitted that there was relatively little cooperation between their two agencies on terrorism investigations. The DST/DCRI has such a capability that it may feel that it does not need the co-operation of the Police Judiciaire to counter Islamist terrorism. Yet – as the attacks by Mohamed Merah in March 2012 showed – terrorist cases can arise which force the two agencies to work together. The question in this context is: if the DCRI and the police have tended under normal circumstances not to co-operate very closely in recent years, has this

420

421

Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007; interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. See also ‘UK Special Branch Guidelines’, Statewatch (these are the 1994 guidelines discussed above in this chapter). Interview with a senior Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-K], London, 5 July 2007.

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undermined their ability to work together in periods of greater urgency to identify threats and prevent terrorist attacks?422 The third dimension of the cross-case variation reflects better on the French approach to counterterrorist co-ordination. The British model of close and regularised inter-agency co-operation is strongest in the domain of conventional security agencies – intelligence and police. In French counterterrorism, on the other hand, there is a co-operative relationship – selective and informal though it may be – which extends all the way from intelligence to justice; from the DCRI intelligence agents and law enforcement officials directly to the investigating magistrates who prepare a case for court. Britain, with its traditional divide between the intelligence/ policing world and the prosecutorial/judicial sphere has tried to close this gap in response to the advent of Islamist terrorism. In this context, London-based prosecutors took a number of steps towards a French-style co-operative relationship with the police. However, English prosecutors still play less of a role in investigations and have less contact with intelligence agencies than their closest French equivalents. Meanwhile, proposals by the government, which would have modestly increased collaboration between police/intelligence agencies and the judiciary, have been stymied. With security agencies in France more closely linked to prosecutors and, in particular, to the judiciary than is the case in the UK, the French system entails an extensive form of co-operation between the diverse actors in these areas, while Britain adheres to a relatively restrictive model of co-operation between these domains. Why have the French reforms produced a more extensive counterterrorist system than that which has been possible in the UK? Many analysts and practitioners answer that France has advanced further than others in this respect because it has faced Islamist terrorism for longer than others have, the implicit assumption being that this was a greater terrorist threat than that faced by other states. Yet, as Chapter 1 showed, there are good reasons to doubt that France has faced a greater terrorist threat than the UK in recent decades. Given that neither historical nor current threat levels do not answer the question, this chapter developed an explanation based on the institutional and organisational features of the two cases. The British state’s separating inter-institutional conventions, which developed partly out of the English common law system, prohibit 422

As this book was being completed, the shootings by Mohamed Merah raised questions about why the French security agencies were unable to prevent the attacks. While it was not possible to include an analysis of this issue in the book, initial press reports on the episode chimed with this chapter’s account of inadequate co-operation between the DCRI and the Police Judiciaire, and indicated that it may have played an important role in their failure to identify the killer before his third attack.

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close collaboration between the judiciary and security agencies which fall under the responsibility of the government. This helped to ensure that post-9/11 proposals for closer judicial-intelligence co-operation in the UK did not get very far. In France, on the other hand, the state’s integrating inter-institutional conventions, as reflected in its inquisitorial legal system, have permitted judicial actors to work directly with security services. Much of the power of these institutional conventions comes from constitutive norms that define the identities of actors. Rules and procedures may set out the functions of French investigating magistrates, for example, but these actors do not need to look at any rule book to know that they can work directly with security agencies on investigations. Such collaboration is a part of their professional identity. Conversely, there is no British judge whose professional identity permits him to collaborate with security agencies in this way. Moreover, regular interactions between French magistrates and officials of the DCRI intelligence agency have become part of the counterterrorist organisational routines of that country. Something that would be regarded as abnormal in the UK has thus been normalised across the English Channel. The informal routines of the French agencies facilitated the development of this direct judicial-intelligence co-operation in a quick and ad hoc way that may not be possible in Britain with its more formal organisational routines. Thus, it is the differences between the two states’ institutional conventions, transmitted into the informal organisational routines of the French agencies, which explain why France has a more extensive counterterrorist system than Britain.423 Counterterrorist reforms in the two states have also differed along a fourth dimension – their scope. One can identify two reasons why organisational reform and the expansion of agencies has been of a greater scope in Britain than it has been in France. An important factor here has been the contrast between France’s informal organisational routines, which for decades implied relatively minor government involvement in changes to counterterrorist agencies, and the UK’s formal routines which have entailed significant governmental involvement in such reforms. These pre-existing routines were reinforced by the high level of confidence that the French government and security practitioners had in their intelligence coverage of the Islamist milieu and, conversely, by the low level of confidence that their British counterparts had in their own intelligence coverage in this respect. Therefore, I take seriously – not the idea that France has faced a greater terrorist threat – but the fact that France has faced an 423

However, as Chapter 4 will discuss, close French-style judicial-intelligence collaboration may compromise the checks and balances of the judicial system.

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Islamist terrorist threat for longer than Britain. France has had more time to build up intelligence coverage of the Islamist milieu in its country, something that was widely perceived in Britain in the years after 9/11 as a task that the state was not yet doing adequately. The UK was a ‘latestarter’ – not generally, since it faced a serious anti-state terrorist threat earlier than most European countries – but solely in respect of Islamist terrorism. The perceived need to rapidly build up better intelligence on Islamist extremism was the main reason why the UK drastically expanded its intelligence and police resources for counterterrorism. Britain tried to build up in approximately four years the kind of intelligence expansion into the Islamist milieu that France has done more gradually over 10 to 20 years. The French have thus relied on the informal changes made after 1998 by its counterterrorist practitioners and on the widespread confidence in its intelligence coverage, two factors which served to reinforce the government’s relatively low level of involvement in counterterrorist organisational reform. Institutional and organisation theories are often invoked to explain ‘suboptimal’ outcomes or even outright failure.424 This book offers another perspective. The British and French approaches to counterterrorist co-ordination each have their own strengths and weaknesses, and the drawbacks and dysfunctions of organisational reform have been important themes of the analysis offered here. Yet this study draws attention not just to these problems but also to the puzzle of different perceived routes to ‘success’. We have seen how two states, faced with a similar threat, perceiving it in a similar way and drawing the same broad implications for their terrorism investigations can still end up putting in place different types of organisational reforms ‘in response’ to that threat. It is striking that counterterrorist practitioners in the two states can develop what are to some extent two contradictory organisational responses to a common problem, yet believe strongly in the ‘success’ of their own model even as their counterparts across the English channel equally believe in the ‘success’ of their quite different method. The influence of organisational routines is a good example of this phenomenon. Typifying the British confidence in its formal organisational response to terrorism, one police officer said: ‘I think the strength of the UK model of counterterrorism is this ability to co-ordinate and co-operate, and do that at all levels: right from the top with policy, strategy, right down to the operational strata. That’s a UK strength that we’ve built up over many years, and I know [it] is enviously looked at in 424

See, for example, Lynn Eden, Whole World on Fire: Organizations, Knowledge and Nuclear Weapons Devastation (Ithaca: Cornell University Press, 2004); and Zegart, Spying Blind.

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other parts of the world, who don’t have quite that level of integration’.425 For a contrary expression of confidence in France’s informal organisation of counterterrorist agencies, one only has to recall the former French investigating magistrate who spoke proudly of how police, intelligence officials, judges and prosecutors went jogging together on a Sunday morning.426 Antoine Garapon – a judge and the head of the French judiciary’s official research institute – also believed that the informal methods of French counterterrorism were absolutely appropriate. There is, he wrote, a ‘homothetic relation between forms of terrorism and the institutions that fight it. If large bodies were once needed to face the challenge of interstate confrontation, counterterrorism bodies now need flattened flow charts, shortened (perhaps even un-hierarchic) chains of command and networking operations that copy those of terrorist organisations’.427 For the French judge, in other words, it takes a network to fight a network.428 But many British practitioners would not necessarily agree. Whether it concerns formal ‘top-down’ co-ordination or informal ‘networking operations’, the different organisational routines of British and French counterterrorism can be articulated and legitimated when necessary. Nevertheless, they have a taken-for-granted quality for those who practice them, which helps to ensure their persistence in organisational life. These routines – along with inter-institutional conventions – are powerful factors for ongoing divergence in how Britain and France co-ordinate their respective responses to terrorism.

425 426

427

428

Interview with a Metropolitan Police counterterrorist officer [UK-I], London, 21 November, 2005. Cited above: Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Antoine Garapon, ‘Is There a French Advantage in the Fight Against Terrorism?’ p. 7. Mr Garapon is Secretary General of the Institut des Hautes Etudes sur la Justice. For further information, see: www.ihej.org. On this idea, see the work by two US academics: John Arquilla and David Ronfeldt (eds.) Networks and Netwars: The Future of Terror, Crime, and Militancy (Santa Monica: RAND, 2001), pp. 54–5.

4

Justice for suspected terrorists?

While intelligence and police work against terrorism tends to be shrouded in secrecy, counterterrorism emphatically enters the public sphere where it concerns legislation for the application of justice to suspected terrorists. Proposals made by governments, often in the aftermath of terrorist attacks, are debated in the media and in Parliament, which provides a touchstone for public understanding of counterterrorism and for how stringent the state and society’s response to the threat will be. The underlying question posed in these debates is fundamental. What powers will the state endow itself with when dealing with suspected terrorists? I break this question down into three specific issues. First, how long can the state detain an individual before charge and before trial, and under what conditions? Secondly, do suspected terrorists get a judicial trial at all? In other words, can administrative (government-controlled) procedures be used for the judgment of terrorist suspects?1 If they do receive a trial, is it an ordinary court or a special court that decides their guilt or innocence? Thirdly, how wide does the state cast the net when deciding what activities constitute or relate to terrorism? This is a question concerning terrorist offences. What acts do they cover? How broadly are they defined? And how are these terrorist offences applied in practice? It is these three issues – pretrial detention, judgment procedures and terrorist offences – that concern us in this chapter. Other important aspects of terrorism-related legislation include provisions for the surveillance of people and their communications (which raise privacy issues), border controls and emergency laws.2 However, the issues of detention, judgment procedures and terrorism offences have been at the forefront of terrorism legislation reforms and public debates in 1

2

Administrative procedures are procedures controlled and implemented by the government (executive) – not by a judicial authority – which provide for the judgment and detention of suspects. The resulting administrative detention is detention by the government without a judicial trial. See James Beckman, Comparative Legal Approaches to Homeland Security and Anti-Terrorism (Aldershot: Ashgate, 2007).

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western states since 9/11. Military tribunals in the United States and, to a lesser extent, other countries’ departures from traditional principles in this area, have made it a continual focus of international discussion. Indeed, the powers that the state accords itself to detain, prosecute and judge suspected terrorists are arguably the most important areas of terrorism legislation. Thus, rather than giving an exhaustive account of that legislation in its entirety, I focus on measures pertaining to detention, terrorism offences and judgment procedures, outlining both the provisions that have been enacted as well as options that were considered or proposed but not permanently adopted. By considering the circumstances under which some options were pursued and others dropped, I analyse the mechanisms shaping counterterrorist policy and legislative change. It is important to clarify at this point what I mean by certain terms; these fall into three categories. First, this chapter will seek to compare the relative flexibility of British and French laws (terrorist offences) and procedures. The concept of flexibility is operationalised with reference to the degree of constraint entailed in the formal rules which regulate the authorities’ actions, balanced against the margin of informal interpretation allowed to the authorities. Indicators of the degree of flexibility include: the types of independent checks on counterterrorist investigators (police and investigating magistrates); whether terrorist offences are broadly or more narrowly defined; which actors judge suspected terrorists (the government or independent judges?); and in which context (ordinary courts or special courts?). At each step of the judicial (or administrative) process, I ask: which state’s laws and procedures afford greater flexibility to the authorities in respect of their ability to control, detain, prosecute and secure the conviction of terrorist suspects? These steps are: the arrest of individuals, their initial detention, their charging and post-charge detention, their trial and the offences for which they are tried. While it is important to study the ‘powers’ (laws and procedures) that a state gives itself, we also need to study how they use these powers; in other words, the application of the law. Thus, the second type of observation made in this chapter will concern how draconian the state is in its application of its laws and procedures. The main indicator of this will be how many ‘suspected’ individuals – absolutely and in proportionate terms – have been affected by the application of the state’s most flexible terrorism laws and procedures. In this context, it will also be important to specify how such individuals have been affected, whether it is through detention or other forms of control. It is true that the application of the law partly depends on factors exogenous to the state, such as the level of the terrorist threat. However, even taking this into account, I argue that some conclusions about the state can be drawn from such comparisons. I will also

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consider the testimony of the police, as well as prosecutorial and judicial actors on how they apply the law in practice. Just as there is a close relationship between the law and its application, there is also a clear connection between the flexibility of a state’s laws and how draconian it is in its application of the law. As we will see, however, there is not a complete correlation between these two elements. This raises the question of why states, which have made considerable efforts to take on flexible laws, may still differ in the application of such laws. Finally, observations will be made on policy consistency and on the degree of legislative reform in the two cases. The chapter is divided into three parts. First, I offer a thematic comparison of France and the UK’s anti-terrorist legal regimes in the areas of pretrial detention, judgment procedures and terrorist offences in turn. Much of this covers laws and procedures that were introduced some years before 9/11 and remain in force today. This comparison is important for an understanding of the different degrees of legislative reform pursued in the two states since 2001. The second part of the chapter outlines these reforms in detail. I consider why France has made only minor changes to its terrorist offences and judicial procedures since 1996, while the UK has made repeated and sometimes inconsistent reforms of its terrorism legislation since 2001. Finally, I summarise the findings of this chapter and consider how we can best explain the divergent legal responses to terrorism pursued in the two states. The contrasting legislative frameworks of France and the UK Pre-trial process: the charging and detention of terrorist suspects Before going into the rules and procedures of the pre-trial phase, let us first consider those who implement them. We saw in the last chapter how the Crown Prosecution Service is England’s closest equivalent to the French cadre of investigating magistrates.3 Yet in the context of questions of procedural flexibility, there is more to say about the roles and identities of these two actors. It is a cornerstone of the French inquisitorial system that the same magistrate can direct an investigation, charge the suspects and prepare a detailed case file for the public prosecutor, which is then presented before the trial court. Tasked with carrying out an impartial ‘search for the truth’, French investigating magistrates have a duty to look 3

As in Chapter 3, I refer to the legal system of England and Wales simply as ‘English’, for simplicity’s sake.

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for both incriminating and exculpating evidence (‘à charge et à décharge’).4 In practice, however, there has been a tension between this claim to neutrality and the close working relationships that investigating magistrates enjoy with prosecutors, police and security agencies.5 Indeed, such relationships may compromise the checks and balances of the judicial system. In the Outreau scandal, which became public in 2004, six people who were kept in pre-trial detention for almost three years said that the investigating magistrate on the case was biased against them and had failed to challenge the police’s account of events. As their claims were substantiated, the Justice Minister apologised publicly to the group and introduced reforms designed to increase the transparency of the investigatory process, including, for example, a requirement that investigating magistrates’ questioning of suspects be tape-recorded.6 However, these new procedures were not applied to judges investigating terrorism or organised crime.7 This is somewhat ironic, because the general tension between investigating magistrates’ ‘impartiality’ and their close collaboration with the police is even more apparent among those magistrates who investigate terrorism (my references to police in the counterterrorist context include the Direction Centrale du Renseignement Intérieur [DCRI]).8 The public profile of counterterrorist magistrates and the testimony of those who work with them indicate that they are not disinterested arbiters but are, rather, ‘reinstated at the side of the police’, as one French researcher has put it.9 Routinely referred to as ‘anti-terrorist judges’ by the police and the media, the investigating magistrates do not reject this label and have, on the contrary, through their investigations and media awareness, built up reputations as watchful and implacable opponents of terrorism in defence

4

5

6 7 8

9

Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Oxford: Hart, 2005), pp. 140, 225; interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. This tension was recognised by Government-commissioned reviews, such as the report of the Delmas-Marty Commission in 1991. See Hodgson, French Criminal Justice, pp. 71, 222–8. Ibid., pp. 225–6. ‘Le projet de réforme de la justice validé conseil des ministres’, Le Monde, 24 October 2006. While this chapter refers generically to counterterrorist police, we may recall that in France, it has actually been the DST/DCRI intelligence agency that has done the vast majority of law enforcement investigations into Islamist terrorism since 1998. As Chapter 3 outlined, the DCRI’s ‘double hat’ allows it to both do its work as an intelligence agency and carry out investigations in its capacity as a judicial police service. Nathalie Cettina, ‘The French approach: vigour and vigilance’, in Marianne van Leeuwen (ed.), Confronting Terrorism: European Experiences, Threat Perceptions and Policies (The Hague: Kluwer Law International, 2003), p. 82.

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of the people and the state.10 Jean-Louis Bruguière, the leading counterterrorist magistrate for twenty years, used insights provided to him by his contacts in the security services to regularly tell the media that the terrorist threat was ‘constantly increasing’.11 As the then head of the Police Nationale, Claude Guéant, recognised in 2005, Bruguière ‘has a broad conception of his role. As time passes, he gives the impression of being less of a judge and more of an expert. That goes a little too far.’12 Another senior police officer was more positive in his acknowledgement that Bruguière had ‘a certain flexibility’ (‘souplesse’), as he put it.13 This flexibility was evident in the approval given by Bruguière and other magistrates to the police for mass arrest operations against suspected Islamist terrorists (see Chapter 5).14 Since Bruguière’s retirement in 2007, new anti-terrorist magistrates have emerged, including Marc Trévidic who has shown himself to be more independent of the higher levels of government than his predecessor was. Nevertheless, the new magistrates, like the old, place a high value on their close working relationship with the DCRI security service and highlight the importance of this judicial-intelligence co-operation for the fight against terrorism.15 As we shall see, counterterrorist investigating magistrates’ relationships with police and security agencies tend to be based on collaboration, rather than control. In the context of the English adversarial legal system, there is no claim that members of the Crown Prosecution Service (CPS) are impartial or neutral adjudicators. As we saw in the previous chapter, the CPS has fewer investigatory powers than the French magistrates, its main role being to decide whether the available evidence justifies charging an individual or not. Like the magistrates, English prosecutors – though they are independent of the police – have taken steps to improve their collaboration with the police in recent years. Unlike some of the French magistrates, they have been cautious about giving general warnings on the terrorist threat, apparently considering that this is a subject better left to the government and security services to communicate on. Instead, they 10

11 12 13 14 15

Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006; Fédération Internationale de Ligues des Droits de l’homme (FIDH), France: Paving the way for arbitrary justice, Report No. 271–2, March 1999, p. 4: www.fidh.org/Paving-theway-for-arbitrary. On magistrates, see also Chapter 3 above. See, for example, ‘French anti-terrorism judge warns threat of attacks by radical Islamists in Europe is “constantly increasing”’, International Herald Tribune, 14 February 2007. Piotr Smolar, ‘Jean-Louis Bruguière, un juge d’exception’, Le Monde, 6 January 2005. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. Henri Astier, ‘France’s top anti-terror judge’, BBC News Online, 1 July 2003. See Marc Trévidic, Au coeur de l’antiterrorisme (Paris: JC Lattès, 2011), pp. 245–6, 250–1.

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confine themselves to statements on particular cases only.16 The head of the CPS, Keir Starmer, has a background as a human rights lawyer, while his predecessor, Lord Ken MacDonald, is a civil liberties advocate and lawyer who has defended leading IRA and Middle Eastern terrorist suspects. During his term of office, he warned against legislative overreactions to terrorism, even speaking out against the adoption of particular policies that the British government had proposed for public consideration (see below). Overall, the point of this comparison is to indicate that the fact that the French actors are judges and the English equivalent are prosecutors should not lead to an assumption that the British system is, by virtue of that fact, more flexible than the French one. This is an empirical question, which we will now address in stages. The rules governing the arrest and initial detention of terrorist suspects in France and the UK are a mix of general criminal procedures and provisions specific to terrorism cases. In Britain, the police authorises its own arrest and initial detention of individuals without needing the approval of the Crown Prosecution Service or a judge.17 In France, the police can arrest and detain, but these decisions must be immediately confirmed by an investigating magistrate or prosecutor.18 In terrorism cases, as we saw in Chapter 3, it is the magistrates who usually play this role, and in the vast majority of cases they are involved at an early stage and give their approval in advance for the arrest of suspects. The investigating magistrate must also approve the detention of the suspect for an initial period after arrest, during which time the police can question the individual in the police station. Empirical research has shown, however, that the relationship between magistrates, prosecutors and police in France is not understood as one in which the judicial actors exercise control over the police. In an extensive series of interviews with police, procureurs and investigating magistrates, as well as direct ‘participant observation’ research, Jacqueline Hodgson found that ‘the centrality of trust was emphasised to us over and again’. One prosecutor told her, for example, that it was ‘better . . . to improve this collaboration [between police and prosecutor] in this climate of confidence. It is much more meaningful, it seems to me . . . than to develop systems of control, which . . . one way or another can go wrong’.19 Commenting on the police-investigating magistrate relationship, one officer said similarly: ‘it is not a question of permission. It is a question of trust’.20

16 17 19

See, for example, CPS Press Release, ‘CPS statement on the conclusion of Andrew Rowe trial’, 23 September 2005: www.cps.gov.uk/news/press_releases/146_05. Hodgson, French Criminal Justice, p. 68. 18 Ibid., pp. 62, 67–8. Ibid., pp. 156–69. 20 Ibid., pp. 202–3.

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In Britain, police interrogations of suspects must be tape-recorded and terrorist suspects have the right to have a lawyer present and receive legal advice ‘at any time’ from the beginning of their detention.21 In France, police interrogations of suspects are not tape-recorded and in terrorism cases, the right of the suspect to see a lawyer can be delayed for up to three days after their arrest.22 A French counterterrorist police officer with knowledge of the two regimes recognised the implications of not having a lawyer present during police interrogations. ‘That is a massive difference [between the French and British systems]’, he said. ‘It’s a big difference. Some people may say that it can raise a question in relation to human rights and to be honest, it’s true. Because it [the lawyer not being there] is a pressure – not a physical pressure – but it is a pressure.’23 When the lawyer is allowed in, under reforms introduced in 2011, he can now immediately offer legal advice to the suspect (before this, he had to wait some days before being allowed to give legal advice).24 However, only when the period of initial detention is over (usually four days after arrest), is the lawyer given access to the case of evidence against the individual concerned. Despite the concealed nature of police interrogations, prosecutors or magistrates do not supervise the police’s questioning of suspects.25 In sum, while the British police are not checked by judicial actors in their arrest and initial detention of terrorist suspects, it also appears that the French police have considerable flexibility in practice here, owing to the collaborative nature of their relationship with investigating magistrates. The British provisions for tape recording, legal advice and the presence of a lawyer during interrogations offer greater protections to the individual terrorist suspect than the French procedures in this area. 21 22

23 24

25

Home Office, Police and Criminal Evidence Act 1984: Code of Practice C (London: TSO, 2006), p. 18. Until 2011, suspects had minimal rights to see a lawyer during the initial detention period (garde à vue). This changed following rulings by European and French courts that the garde à vue regime violated the suspect’s right to receive legal advice. While suspects in most ordinary criminal cases may now have a lawyer present during police interrogations, the public prosecutor can delay legal advice in terrorism cases for up to three days. See Professor Jacqueline Hodgson, ‘Extending the right to legal advice to suspects in police custody in France’, University of Warwick, 3 February 2011: http://blogs.warwick.ac.uk/ jackiehodgson/entry/reforming_the_french; Ministère de la Justice, La lègislation antiterroriste française, p. 2 (official legislative summary: copy in author’s possession); Hodgson, French Criminal Justice, p. 158. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010. Under the old system, the lawyer’s role at this point was ‘not to start getting involved in the case’, as the Justice Minister put it in 2000, but merely to check the conditions of detention and offer moral support to the suspect. See Hodgson, French Criminal Justice, pp. 133–5. Ibid., pp. 157–9.

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The initial period of detention after arrest is called the garde à vue in France and, under the 1986 terrorism legislation, it may last for four days, at which point the suspect is either released or he is ‘put under examination’ (mis en examen). Legislation in 2006 provided for a garde à vue of six days, if there exists ‘a serious, imminent risk of a terrorist act’ or a risk of an attack that would require international co-operation.26 In the vast majority of cases, it is the investigating magistrate who authorises the garde à vue detention.27 In the UK, the maximum period of initial or ‘pre-charge’ detention (as it is called) for terrorist suspects has fluctuated over the last decade. The Terrorism Act, passed in 2000, increased the maximum period to seven days. This was extended by further legislation to fourteen days in 2003, and to twenty-eight days in 2006, before being reduced again in 2011 to fourteen days (the context for these changes is discussed below). If the police want to detain a terrorist suspect for more than fortyeight hours after his arrest, they must apply for extensions (of seven days each, up to a maximum of fourteen days) to a senior district court judge.28 After fourteen days, the suspects must be charged or released. The problem with comparing these two regimes is that what happens at the end of these initial detention periods – usually four days in France and a maximum of fourteen days in Britain – is not the same in the two cases. To be ‘put under examination’ is not the same as being ‘charged’. The level of evidence required to put a suspect ‘under examination’ in France is less than the level of evidence required to ‘charge’ someone in the UK. As a study group from the British Parliament’s Joint Committee on Human Rights, which went to France and met senior judicial figures, concluded: ‘it was clear to us that the threshold which had to be reached by the end of the 96 hours [in France] . . . was considerably lower than the threshold for charging someone in England and Wales’.29 A French investigating magistrate agreed that putting an individual ‘under examination’ in France was not the same as ‘charging’ someone in the UK. He believed that the nature of the British charge was closer to a later stage in the French process: ‘[It] is more or less a mis en accusation’, he said.30 The 26 27

28 29 30

Code de la Procédure Pénale, Art. 706–88; Ministère de la Justice, La lègislation anti-terroriste française, p. 2. The investigating magistrate has the power to authorise the usual four-day garde à vue detention. A different judge is required only in the exceptional cases where the extended six-day detention is requested. Terrorism Act 2000, Schedule 8, Detention (Part III); Lord Carlile, Report on the Operation in 2005 of the Terrorism Act 2000 (London: TSO, 2006), p. 20. Joint Committee on Human Rights, Counterterrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HC 1576 (London: TSO, August 2006), p. 34. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

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mis en accusation is the document detailing the final accusations against an individual, which is submitted to the court before the trial begins. This document can be furnished at any time, from several months later up to a maximum of four years after arrest (see below). Thus, the level of evidence required in the UK after fourteen days does not have to be provided in France until much later. At the beginning of the process, four days after arrest, in order to put someone ‘under examination’ the French authorities need to have what one police officer called ‘serious and concordant indications’ that an offence has been committed.31 However, French practitioners also recognise that the individual magistrate has a power of discretion at this point. One investigating magistrate said: ‘There is not a . . . [pause] – it is an assessment of the magistrate . . . it depends on how he works. He can be very good or very bad. It’s a little hard to say it, but it’s because of that that I spoke to you of an individual assessment of the cases, of the files.’32 Another magistrate, Gilbert Thiel, said that he and his colleagues could anticipate evidence in borderline cases: ‘everybody understands that when we are really at the frontier, often it is not completely impossible to anticipate a little what you hope to discover later. But it is necessary in such a moment to discover it quickly’.33 The English CPS – in order to charge a suspect – must usually apply what their code calls a ‘full code test’. To pass this test, they must have ‘sufficient evidence to provide a realistic prospect of conviction’. This is defined as meaning that a jury is ‘more likely than not to convict the defendant of the charge alleged’.34 Like the French, if they do not have sufficient evidence to pass the ‘full code test’ in time for the deadline, they can anticipate to some extent. In these circumstances, the CPS must apply ‘the threshold test’, which means that there is ‘at least a reasonable suspicion that [the suspect] has committed the offence’ and that there is a reasonable belief that sufficient further evidence will become available.35 The threshold test is applied in many terrorist cases, according to a former head of the CPS.36 Whereas the French leave this anticipatory judgment 31 32 33 34 35 36

Interview with a counterterrorist investigator of the Police Judiciaire [FR-G], Paris, 9 February 2007. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Crown Prosecution Service, The Code for Crown Prosecutors, February 2010, pp. 7–8: www.cps.gov.uk/publications/code_for_crown_prosecutors. Ibid., pp. 16–8. Evidence given by Sir Ken MacDonald to Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, p. 35.

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in the hands of one person (the investigating magistrate who is directing the investigation), the CPS is checked by a judge, who is independent of the investigation concerned. If the CPS apply the ‘threshold test’, they must justify this to the judge at a preliminary hearing within 14 days of the charge being brought. The judge then sets a timetable by which time the CPS must provide the additional evidence required to pass the ‘full code test’.37 As was mentioned in the previous chapter, the CPS cannot take intelligence into account when deciding whether or not to charge an individual.38 However, the French investigating magistrates can take into account non-judicial intelligence material shared with them by the DCRI intelligence agency when deciding whether or not to move an individual from the garde à vue to the status of being ‘under examination’. According to investigating magistrate Gilbert Thiel, ‘when we are a little at the frontier, at the end of the garde à vue, and we have some elements [of evidence] and we say, “that will not be sufficient to go to the court, other things are necessary” . . . if we know from the intelligence services that there are other things which there is a good chance of discovering in short time’, then that intelligence can be taken into account in the magistrate’s decision. He stressed, however, that the magistrate’s decision is mostly based on judicially authorised evidence material.39 Mr Thiel, who has worked mainly on Corsican and Basque terrorism cases (with the Police Judiciaire), acknowledged nevertheless a danger in the fact that the DCRI intelligence agency does both intelligence-gathering and law enforcement investigations on Islamist terrorism. ‘There is always a danger’, he said, ‘when one has an intelligence service that equally does judicial police [investigations]. There is the temptation to keep certain things [information], and then there can be a temptation to manipulate. So a real question poses itself.’40 This concern was shared by another investigating magistrate: ‘We may ask if they [the DCRI] give us all the information . . . it is them who in the end have the choice to retain the information or not . . . nothing is perfect.’41 The magistrates’ ability to take intelligence material into account increases their flexibility and room

37 38 39 40 41

Evidence given by the CPS to Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, p. 36. Ibid., p. 35; second interview with a former senior UK government official [UK-A], London, 25 January 2007. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Ibid. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007.

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for manoeuvre when making decisions on terrorist suspects. Indeed their acknowledgement of the possibility of manipulation by the DCRI indicates how this flexibility may in practice reduce the level of legal protection given to suspects. The procedures for the detention of suspects in custody pending trial have historically been different in France and the UK, but they have converged in recent years. After a person has been charged in Britain, the police and CPS must formally apply to a judge, who is independent of the investigation, in order to get approval to detain the suspect pending trial. The judges usually agree to such applications in the cases of those facing serious terrorism charges.42 In France, such decisions were traditionally the prerogative of the investigating magistrate who was directing the investigation concerned. However, the functions of investigation and judicial decision on an individual’s liberty were separated in a general reform of the criminal justice system passed in 2000, which came into force in 2002.43 Thus, when an investigating magistrate decides to put a person ‘under examination’, he now must apply to a juge des libertés et de la detention to have the suspect detained in custody.44 In practice, as a senior member of the judiciary put it, this has made little difference to the process.45 A French lawyer also said that in his experience the independent judges usually agree to requests to detain terrorist suspects in custody.46 While the procedures for detaining suspects pending trial are broadly similar in Britain and France, the length of this custody varies in practice between the two countries. In Britain, the CPS may apply to the independent judge for extra time in complex cases, but the maximum period of time that it has taken it to complete its inquiries in any case has been six months.47 During this time, it is required to report back to the judge who checks if they are acting expeditiously.48 Taken together with the time required to complete other procedures, this amounts to a maximum of

42 43 44 45 46

47 48

Interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006. Hodgson, French Criminal Justice, p. 71. Interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006. Interview with a member of the French Conseil Constitutionnel [FR-Q], Paris, 22 February 2007. Interview with Michel Tubiana, experienced defence lawyer on terrorism cases and President of the French Ligue des Droits de l’Homme (2000–5) [FR-P], Paris, 23 February 2007. See Joint Committee on Human Rights, Counterterrorism Policy and Human Rights, p. 36. Ibid.

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eight and a half months between arrest and the lodging of the indictment against the suspect. In France, however, there have been cases of delays of up to three years and three months between arrest and the lodging of indictments (mis en accusation) against suspects.49 The subsequent period – between indictment and the beginning of the trial – appears to be longer in the UK because of differences between adversarial and inquisitorial legal systems concerning the nature of investigations and trials (see below). Even taking that into account, however, the difference between the two countries is still striking. The maximum length of time between arrest and the beginning of the trial is four years in France, while two years has been the maximum in the UK.50 Legal scholars warn that comparisons between different legal systems are difficult to make and can be misleading without a full understanding of the context in which they operate.51 However, even if one adopts the due caution implied by this perspective, some conclusions can still be drawn from the preceding discussion of pre-trial procedures for terrorism cases. While the British police do not need judicial authorisation to make arrests, the French counterterrorist police need the approval of a magistrate or public prosecutor, although the collaborative nature of these relationships and a record of large scale arrest operations do not suggest any reduction in the French police’s flexibility on this score. The UK offers greater legal and practical protection to terrorist suspects than France during the initial period of detention after arrest, notably concerning the right to have a lawyer present during police interrogations. This initial period is longer in Britain (fourteen days) than it is in France (four days). While both the English CPS and French investigating magistrates may anticipate evidence when making their decisions on suspects, the magistrates have more powers than the CPS to make such decisions on their own. Also unlike the CPS, the French investigating magistrates may take sensitive intelligence into account and they have a reliance on an intelligence agency, which they admit raises the potential for manipulation of evidence. The British police and CPS have to reach an evidence threshold after fourteen days that the French do not have to reach until much later – between several months and four years after arrest, depending on the case. 49 50

51

FIDH, France: Paving the way for arbitrary justice, p. 12. Interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006; interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006. Beckman, Comparative legal approaches to homeland security and anti-terrorism, pp. 7–8; see also the discussion in: Michael Jacobson, The West at War: U.S. and European Counterterrorism Efforts, Post September 11 (Washington DC: Washington Institute for Near East Policy, 2006), p. 3.

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It appears that the French magistrates can detain suspects for longer on less evidence than their British counterparts can. They may also keep the suspects in custody for up to four years before trial, whereas two years has been the maximum in the UK. Overall, it is reasonable to conclude that France’s pre-trial rules and procedures for terrorism cases are more flexible than those operating in the UK. Judgment procedures: ordinary trials and special terrorism courts While the previous section outlined pre-trial procedures as they are today, the area of judgment procedures is more complex, which is why I present it in two steps. First, in this section, I outline Britain’s and France’s procedures for the judicial trial of terrorist suspects. These procedures were in place during the 1990s and they remain in place to this day. Then, in a later section on post-9/11 reforms, I outline how Britain supplemented its judicial trial process after 2001 with new procedures for the administrative judgment and detention of suspected terrorists. The formula used for terrorist trials in Britain today cannot be fully understood without reference to the procedures that were previously in place for over thirty years to deal with terrorism arising out of the Northern Ireland conflict. In the context of several terrorist attacks in Great Britain and Northern Ireland, the British government put in place a number of supposedly ‘temporary’ statutes between 1971 and 1974, which actually formed the legal basis of their response to Irish terrorism over the next quarter-century.52 The most important measures were the Northern Ireland Emergency Provisions Acts (NIEPA) and the Prevention of Terrorism Acts (PTA), which provided for administrative detention without trial, a modified criminal justice system within Northern Ireland, and extrajudicial means of administrative control in the UK as a whole.53 The latter provision was a system of exclusion orders, under which individuals were excluded from Great Britain (i.e. exiled to Northern Ireland), based only on government suspicion that they were related to terrorism, and without recourse to a judicial hearing. Secondly, within Northern Ireland only, a law permitting internment was applied from 1971 to 1975, with approximately 600 people being detained indefinitely without trial.54 A third measure, which was to prove more 52 53 54

Clive Walker, The Prevention of Terrorism in British Law (Manchester University Press, 1986), pp. 22–3. Bradley W. C. Bamford, ‘The United Kingdom’s “War Against Terrorism”’, Terrorism and Political Violence 16:4 (Winter 2004), 747. Gerard Hogan and Clive Walker, Political Violence and the Law in Ireland (Manchester University Press, 1989), pp. 93, 96.

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sustainable, was the introduction of a modified criminal justice system of special non-jury courts in Northern Ireland alone. Presided over by a single judge, these ‘Diplock’ courts departed from British common law traditions of trial by jury and were controversial because of their relaxed evidential requirements and because many of their convictions were obtained on the basis of confessions.55 Concentrating their most flexible judicial procedures for dealing with terrorism in Northern Ireland, the UK authorities did not introduce special courts on the British mainland to deal with terrorism cases. While the level of violence was much higher in Northern Ireland, Great Britain also experienced many terrorist attacks during these decades, with its overall level of terrorism being broadly comparable to that of mainland France. Nevertheless, the traditional system of ordinary courts continued in Great Britain. Though constitutionally an integral part of the United Kingdom, Northern Ireland was a place apart in terms of justice. As the Irish terrorist threat began to wane, the ‘temporary’ NIEPA and PTA were repealed and replaced by the Terrorism Act 2000, which was designed to provide permanent UK-wide legislation and cover all forms of terrorism.56 The highly flexible provisions for internment and exclusion orders were dropped (although the Act expanded the law in other areas, such as the police’s powers to stop and search individuals).57 However, the special Diplock courts continued into the new century in Northern Ireland, a part of the UK which at that time no longer faced a major threat, either by local paramilitary groups (by then ineffective, or on long-term ceasefires) or by the newer threat from Islamist terrorism. There was only one Islamist-linked trial under the non-jury Diplock system in Northern Ireland, of an Algerian man convicted of possessing information of use to terrorists in 2005.58 Whereas in quiet Northern Ireland in the years after 9/11 the UK authorities had recourse to a flexible judicial process that readily facilitated convictions, on the British mainland they were bringing dozens of suspected Islamist terrorists before the ordinary courts where it was relatively harder to convict and imprison suspects. This apparently illogical state of affairs was one example of how British counterterrorism after 2001 was affected by historically grounded or path-dependent 55 56

57 58

Bamford, ‘The United Kingdom’s “War Against Terrorism”’, 747. Council of Europe Committee of Experts on Terrorism, ‘United Kingdom’, April 2007, p.1: www.coe.int/t/dlapil/codexter/country_profiles_en.asp (this document is based on a submission by the UK government). Beckman, Comparative Legal Approaches to Homeland Security and Anti-Terrorism, pp. 59–66. ‘Al-Qaeda terror suspect is jailed’, BBC News Online, 20 December 2005: http://news. bbc.co.uk/1/hi/northern_ireland/4545692.stm.

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institutional legacies, which continued to play out their effects in the post9/11 context. In the event, the special Diplock courts were finally phased out in Northern Ireland in 2007. As we will see, however, post-9/11 debates and decisions on judicial responses to ‘new’ terrorism have been influenced by the Diplock courts experience, the memory of internment and some infamous miscarriages of justice related to the Northern Ireland conflict. Since 2001, the ordinary English courts have been dealing with an increasing number of trials related to Islamist terrorism. Some administrative changes were made by the judiciary in this context to better process and co-ordinate the high volume of cases facing the courts. In January 2007, the deputy Lord Chief Justice, Sir Igor Judge, issued a protocol stating that all terrorism cases were to be managed in a list and a judicial officer was appointed to monitor the progression of cases on the list.59 Twenty High Court judges were also nominated to be in charge of terrorism trials.60 They preside over the trials, ensure that they are conducted in accordance with procedure and issue rulings on whether evidence can be admitted to court or not.61 However, it is a jury of twelve lay persons that decides on the guilt or innocence of suspects. A representative of the Crown Prosecution Service (CPS), which has prepared the evidence against the defendant, is in court to assist the prosecution advocate, a barrister or solicitor who presents the case for the prosecution.62 On the other side, the defence advocate, who is also a barrister or solicitor, presents evidence on behalf of the defendant. In the context of this adversarial practice, British terrorism trials since 2001 have generally taken long periods of time and featured extensive public consideration of the evidence in court. The most important trials since 2001 have taken between several months and a whole year to finish.63 The first major terrorism trial in the UK after 9/11 resulted from Operation Springbourne in January 2003, in which the police made several arrests and discovered recipes and the ingredients for making ricin and other poisons. As noted in the last chapter, one of the arrested men killed a police officer during the operation and he was convicted of

59

60 61 62 63

A Protocol issued by the President of the Queen’s Bench Division, ‘Management of terrorism cases’, 30 January 2007, p. 2: www.judiciary.gov.uk/publications-and-reports/ guidance/index/mgt-terrorism-cases. Jon Silverman, ‘Terror trial put system under strain’, BBC News Online, 1 May 2007: http://news.bbc.co.uk/1/hi/uk/6565317.stm. Hodgson, French Criminal Justice, p. 72. Crown Prosecution Service, ‘The Roles and Responsibilities of the Prosecution Advocate’: www.cps.gov.uk/publications/prosecution/farqbooklet.html. Silverman, ‘Terror trial put system under strain’.

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this murder and of conspiracy to cause a public nuisance with poison in April 2005.64 However, he was not found guilty of the charge of conspiracy to murder in relation to his recipes and ingredients for poison. The eight other men on trial with him were cleared of both conspiracy to murder and conspiracy to cause a public nuisance with poison. A number of them were convicted on lesser charges such as fraud or the possession of false passports, although the judge on the case raised more serious concerns about two of the men. Notwithstanding their acquittal by the jury on the conspiracy charges, he considered them to be dangerous, and recommended that they be deported because he believed that they were ‘a detriment to this country’.65 For five years after 9/11, the only other notable convictions for terrorist-related offences were of two individuals, Andrew Rowe and Saajid Badat.66 This all changed in 2007 when several important cases came to trial and resulted in a number of suspects being convicted of substantial terrorist offences.67 However, government perceptions of the ordinary courts’ treatment of terrorism cases had been significantly affected by the earlier trials, and in particular by the long evolution of the Springbourne trial in 2004–5 and its ultimate failure to secure substantial convictions. A senior British government official working on legal aspects of counterterrorism said that there was concern in government at the failure of the Springbourne trial. She said that the defence in the case exploited the procedures of the English adversarial court system to extensively probe and question the evidence produced by the prosecution. This led to lengthy legal argument, which required the jury to be absent from a large part of the trial, during which time they may have lost the logic and flow of the evidence, she believed.68 A second issue raised by the government and the counterterrorist agencies in this context was what they believed to be a defence lawyer tactic of probing the evidence in an attempt to discover sensitive intelligence information, provided by MI5, MI6 or foreign security agencies, in the prosecution’s case. This tactic can disrupt the prosecution or even halt a trial if the defence hit on a piece of sensitive information that the state will not fully disclose because of concerns about the protection of 64 66 67

68

Jacobson, The West at War, p. 78. 65 Ibid., pp. 78, 92. HM Government, Countering International Terrorism: The United Kingdom’s Strategy (London: TSO, 2006), p. 18. As was indicated in Chapter 3, the most prominent of these convictions related to ‘Operation Crevice’, Dhiren Barot and associates, and the group that attempted to attack London on 21 July 2005. Details of these cases are given in Chapter 5. Interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006.

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intelligence sources.69 Peter Clarke, the then head of counterterrorism at the Metropolitan Police, told a parliamentary committee in 2006 that the Springbourne trial was an example of how defence lawyers were trying to probe sensitive information provided by foreign security agencies to British terrorism cases ‘to the point where the prosecution are required to . . . throw out the case because it would cause such jeopardy to international relations were we to proceed’. Expressing his concern at this tactic, Mr Clarke was unsure that the English criminal justice system was equipped to deal with it.70 A third problem with terrorism trials in the ordinary English courts, according to prosecutors, has been the relatively strict rules of evidence that apply. An experienced British barrister said that the main reason that terrorism prosecutions fail in the UK relates to the rules of evidence and resulting evidential difficulties.71 According to the English courts’ rules of evidence, information that does not meet the reliability standards, is unfairly prejudicial or is judged to be hearsay cannot be admitted to the trial record.72 This, as we will see, is less of a problem for the French courts. Against the background of these and other issues, the then Home Secretary, Charles Clarke, said in 2006: ‘I think that . . . [an] investigating magistrates regime is very superior to the system that we have in this country . . . I do not think the adversarial system has been a particularly effective means of securing justice.’73 Though he said this was his ‘personal view’ only, it was nevertheless a remarkable signal of the government’s lack of confidence in the ordinary English courts’ treatment of terrorism cases in the years after 9/11. It was in this context that the government proposed several rounds of legislative reform during that period, as we shall see below. One does not find French government ministers making similar statements about their country’s judicial system for the trial of terrorist suspects at any point over the last twenty years. Their current system is the successor to the quasi-military Cour de Sûrete de l’Etat, which was established in 1963 in the context of terrorism stemming from the Algerian war of independence. This earlier ‘state security court’ was partly composed of

69 70 71 72 73

See the comments of the CPS, as reported in: Sean O’ Neill and Frances Gibb, ‘Terrorism cases run out of courtrooms and judges’, Times, 26 October 2006. Evidence of Peter Clarke to: Home Affairs Committee, Terrorism Detention Powers: Oral and Written Evidence, HC 910-II (London: TSO, 2006), Ev 52 (Q226). ‘Experienced British barrister’, interviewed by and cited in: Jacobson, The West at War, p. 104. Ibid., pp. 104–5; David Omand, ‘Security Dilemmas’, Prospect, December 2006, p. 13. Evidence of Charles Clarke MP to: Home Affairs Committee, Terrorism Detention Powers: Oral and Written Evidence, Ev 67 (Q333).

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military officers, its proceedings were secret and it had no provision for appeal.74 It continued for almost twenty years to process terrorism cases but was regarded by many, particularly on the political left, as an illegitimate tool of repression. The result was that François Mitterrand abolished the court on assuming power in 1981 and left terrorism cases to be dealt with through the ordinary French courts.75 Yet this approach was soon deemed insufficient, following a series of terrorist attacks carried out by Middle Eastern-related groups in France in 1986. Legislation passed later that year, which created a special section of counterterrorist investigating magistrates, also centralised all terrorism trials in the Palais de Justice or Trial Court of Paris. Against the background of some cases where the left-wing terrorist group, Action Directe, had threatened jurors, it was also decided to abolish jury trials for terrorism cases.76 Thus, since 1986, France has had a two-fold system of special courts for the trial of terrorist suspects. First, those charged with crimes – the more serious terrorist offences punishable by eleven years or more in prison – are sent before a Cour d’Assises, which is dedicated to terrorism cases. Instead of a popular jury, a bench of three judges who are specialised in adjudicating on terrorism cases and a jury of nine other professional judges considers the evidence and decides on the guilt or innocence of the defendant.77 This is a departure from ordinary French judicial procedure, since crimes are usually judged by three judges and nine lay jurors.78 Secondly, those charged with délits – less serious terrorist offences punishable by a maximum of ten or (since 2006) fifteen years in prison – are sent before a Tribunal Correctionnel, which is composed of a bench of three judges only who consider the evidence and decide on the verdict. This lower court is not a major departure from ordinary French judicial procedure, since délits are normally adjudicated on either by a single judge or a bench of three judges.79 Nevertheless, even though this is not formally a specialised terrorism court like the Cour d’Assises, its cases are de facto always heard by the same panel of judges.80 The government and the judiciary concur that their system of special non-jury terrorism courts is a derogation from ordinary French judicial

74 75 76 77 78 80

Jeremy Shapiro and Benedicte Suzan, ‘The French experience of counterterrorism’, Survival 45:1 (Spring 2003), 77. Ibid., 77, 89. Antoine Garapon, ‘Is there a French advantage in the fight against terrorism?’, Analyses of the Real Instituto Elcano 110 (1 September 2005), p. 6: www.realinstitutoelcano.org. Code de la Procédure Pénale, Art. 706–25; interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006. Hodgson, French Criminal Justice, p. 67. 79 Ibid. Interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006.

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procedure, but they also agree that the exception is justified in this case. Alain Marsaud, a former judge and centre-right politician, has written two official parliamentary reports on French terrorism legislation. He believes that the French response to terrorism has involved ‘derogating legislation but [one] which is also respectful of the principles of the State of law’.81 The Socialist Party initially criticised the 1986 judicial reforms and referred them to the Conseil Constitutionnel, which is the highest constitutional authority in France, with responsibility for ruling on whether bills conform or not to the constitution.82 However, the Council ruled that the special terrorism court reforms were constitutional, in an opinion that embodied the consensus that has held sway for the last quarter-century in France on its judicial response to terrorism. According to the Council, the French constitution allows the legislature to introduce ‘different rules of procedure according to the facts, situations and persons to which they apply’. The Council took into account the government’s submission that ‘rules of . . . procedure which derogate from the common law . . . [find] their justification in the specific characteristics of terrorism’. ‘This difference of treatment does not therefore arise out of an unjustified discrimination’, the Council concluded, as it pronounced that the special judicial procedures that would be used for terrorism cases were a justified derogation from standard practice.83 Much of what happens in open court in England – including the testing and evaluation of evidence or the questioning of defendants and witnesses – is done in France by the investigating magistrate before the trial opens. Whereas the adversarial system requires the prosecution and defence to do such tasks and to contest each other’s submissions in open court, the inquisitorial system relies on the ‘impartial’ investigating magistrate to do most of this himself before the trial proper. As one (non-counterterrorist) investigating magistrate has said: ‘It is in the hands of the magistrate . . . usually it takes place before trial . . . In England it happens at court, and here it takes place in my office. It is not done in public . . .’.84 Whereas English prosecutors and police merely gather evidence and assemble their case 81

82 83

84

Alain Marsaud, ‘Lutte contre le terrorisme, sécurité et contrôles frontaliers’, Commission des lois constitutionnelles, de la législation et de l’administration générale, Rapport N° 2681 (Paris: Assemblée Nationale, November 2005), pp. 14–15. Robert Elgie, Political Institutions in Contemporary France (Oxford University Press, 2003), p. 179. Conseil Constitutionnel, Décision n° 86–213 DC du 3 septembre 1986: Loi relative à la lutte contre le terrorisme et aux atteintes à la sûreté de l’Etat: www.conseil-constitutionnel.fr/ decision/1986/86213dc.htm. When French actors speak of the ‘common law’ (‘droit commun’), they are referring to the ordinary procedures of the French legal system (as opposed to derogating or special procedures). Investigating magistrate quoted in: Hodgson, French Criminal Justice, p. 222.

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during the pre-trial phase, the French investigating magistrate does much more than that. He is charged with gathering and evaluating all the relevant evidence about the case and the defendant, both incriminatory and exculpatory. Any challenges to the evidence or procedures, made by the parties, will be resolved by him during this pre-trial phase and not in court.85 As such, the magistrate’s pre-trial work is regarded not just as an investigation, but is in fact, as its official title states, an ‘information judiciaire’ – that is, a judicially supervised inquiry into the crime and the evidence surrounding it.86 The key role played by the investigating magistrate in the pre-trial phase has important implications for the trial itself. First, the rules of evidence that apply in the French context are not as demanding as those pertaining to the English courts. Investigating magistrates in inquisitorial systems are allowed to use their discretion and experience in deciding how to assess information, including evidence that would be regarded as hearsay in Britain. They have, on the whole, more latitude to consider and admit to their deliberations information that would be excluded from the record of English trials.87 French magistrates also work directly with the DCRI intelligence agency on the production of evidence for terrorism trials and they can admit intercept material as evidence to court, something which does not happen in the UK.88 Secondly, relative to the adversarial system, there is less scope for French defence lawyers to probe and test evidence in open court. The disruptive tactics that have been used by some English lawyers have never been possible in French trials, since most of the testing of evidence is done in the pre-trial phase during the investigating magistrate’s information judiciaire. Indeed defence lawyers play a relatively minor role across the board in the French inquisitorial system, in the context of an official ideology which holds that the state – in the person of the ‘impartial’ investigating magistrate – will both safeguard the rights of defendants and act in the public interest.89 Thirdly, the investigating magistrate’s pre-trial work means that the trials themselves are much shorter in France than they are in England, with most taking less than a month. One high-profile trial in 2007, which resulted in a nine-year prison sentence for Willy Brigitte, took just three days, a period that is not unusual, according to an experienced member of the Presse Judiciaire.90 Finally, because much of the testing of evidence and 85 88 89 90

Ibid., p. 222. 86 Ibid., p. 116. 87 Jacobson, The West at War, pp. 104–5. See Chapter 3. This point is made in detail in Hodgson, French Criminal Justice, pp. 101–4, 112–38. Interview with a member of the Presse Judiciaire (Associated Press correspondent, with eight years experience of reporting on cases in the Palais de Justice) [FR-R], Paris, 21 February 2007.

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questioning of witnesses has already been done by the investigating magistrate, the trial itself is more of a review of the magistrate’s investigation than a detailed consideration of the evidence. As a senior member of the judiciary said, ‘We do not reopen the charges and the dé-charges [incriminating and exculpatory evidence] during the trial.’91 The judge who presides over a trial in France does play an active role in examining the evidence and questioning witnesses and defendants.92 However, he and the other judges who decide on the verdict rely heavily on the report (ordonnance de mis en accusation) prepared for the trial by the investigating magistrate. Some indication of the weight attached to this report can be gleaned from the comments of a counterterrorist investigating magistrate. Drawing an analogy, he said: ‘When you are a judge in the trial . . . we send you a dossier which has been prepared by somebody else. It’s a dish, let’s say, a tart. It has perhaps a good appearance but you don’t know much about the ingredients. You don’t know if the dish could have been made better . . . because you did not participate in the making of the tart!’ In other words, he added, you (the trial judge) do not know if all leads in the investigation were followed up, ‘you were not in the discussion with the investigators’. This is where the role of the investigating magistrate comes in, he said, to carry out an information judiciaire covering both incriminating and exculpatory evidence: ‘to see’, he said, ‘if we are privileging one lead over another, or [if we are privileging] incriminating elements over exculpatory elements’. He stressed that having an independent magistrate at the centre of the pretrial inquiry (and producing the report) was a basic principle of the French legal system.93 Thus, much importance is placed on investigating magistrates’ first-hand knowledge of the cases. Significantly, their reputation among trial judges does not seem to have been impaired by their close collaboration with the police and, for counterterrorism, the DCRI intelligence agency. This may be because of the close collegial and professional ties between judges who carry out quite different functions. Investigating magistrates, adjudicative trial judges (and prosecutors, for that matter) all complete a common training at a centralised school, the Ecole nationale de la magistrature.94 One (non-counterterrorist) investigating magistrate spoke of ‘the unity of a single corps’ in this context. Interviewed by the legal scholar Jacqueline Hodgson, he said: ‘We are the same, we come out of the same school, we know each other.’95 In addition to 91 92 93 94 95

Interview with a member of the French Conseil Constitutionnel [FR-Q], Paris, 22 February 2007. Hodgson, French Criminal Justice, pp. 71–2. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Hodgson, French Criminal Justice, p. 69. Investigating magistrate quoted in: Hodgson, French Criminal Justice, pp. 69–70.

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moving in the same professional circles, investigating magistrates and trial judges also share the same status as magistrats. With the trial structured so as to place considerable importance on the information judiciaire of the investigating magistrate, who shares a common status with other judges, it is perhaps unsurprising to learn that the vast majority of prosecutions are successful in France. The acquittal rate for the Cour d’Assises in general is ‘extremely low’, according to research carried out by Jacqueline Hodgson. Several investigating magistrates whom she interviewed only reported two or three acquittals in the cases that they had sent to court over the previous ten years.96 In the particular area of counterterrorism, the acquittal rate is even lower, according to investigating magistrate, Gilbert Thiel. He told me: ‘I even think that it happens less often, to see a contrary decision by the jurisdiction of judgment, [in terrorism cases] than in common law.’97 Mr Thiel’s reference to a ‘contrary decision’ also indicates how the trial judges’ verdict may not just be a decision about the guilt or innocence of the individual, but also an implicit ruling ‘for’ or ‘against’ the conclusions of his peer, the investigating magistrate. Indeed, according to Antoine Garapon, the head of the French judiciary’s official research institute, ‘the personality of the specialised [counterterrorist] investigating magistrates, who have since taken on a high profile in the French media and even abroad, was a decisive factor in the success of a certain number of cases’.98 Bénédicte Suzan and Jeremy Shapiro went further in their study of French counterterrorism, stating that the counterterrorist investigating magistrates’ conclusions are ‘usually accepted uncritically by other actors in the judicial system, with very little oversight by any outside authority’.99 While not going this far, a member of the Presse Judiciaire said that during her eight years of reporting on cases in the Palais de Justice, trial judges on terrorism cases did ‘have a record of approving investigating magistrates’ conclusions’. She also cited a number of cases where she believed that the trial judges had not sufficiently questioned the case against the suspects and had accepted the investigating magistrate’s conclusions without due rigour.100

96 97 98 99 100

Ibid., p. 222. Interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007. Garapon, ‘Is there a French advantage in the fight against terrorism?’ p. 5. Shapiro and Suzan, ‘The French experience’, 85. Interview with a member of the Presse Judiciaire, [FR-R], Paris, 21 February 2007. This was the reporter’s only major criticism of the French judicial response to terrorism. Having reported on terrorist cases for eight years, she defended the need for France’s special terrorist offences and procedures, whilst arguing that some trial judges needed to do more to ensure that the law was applied fairly in practice.

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The investigating magistrate is accorded a central role in the judicial process by which terrorist suspects are found guilty or not guilty in France. He gathers and evaluates all the relevant evidence and his pre-trial inquiry forms the basis for the trial proper. The value attached to his in-depth knowledge of the case and his status as an independent magistrate contributes to a situation in which trial judges tend to accept the conclusions of the investigating magistrate. This concentrates considerable de facto power in one person in relation to the judgment process, which has no equivalent in any actor from the English adversarial system. The investigating magistrate’s testing of evidence during the pre-trial inquiry also gives the French system more flexibility in relation to the admittance of information to court than is the case under the English regime, with its more demanding rules of evidence. In contrast to the French system of special courts, terrorism cases are dealt with through the ordinary courts in England. The role of the popular jury in English cases adds an element of uncertainty to proceedings (from the government’s point of view), which is reduced in France where specialised judges decide the verdicts in terrorism trials. It is for these reasons that I consider France’s procedures for the judicial trial of terrorist suspects to be more flexible than those that apply in England. These different degrees of flexibility have led to different perceptions in the British and French governments of their respective court systems for terrorism trials. While British ministers have been openly sceptical about their courts at various times, the French government and police are, as we will see below, completely satisfied with their country’s judicial response to terrorism. Terrorist offences: ‘casting the net’ While procedures for the trial of terrorist suspects tell us much about the state’s legal response to terrorism, we also need to know about the offences for which those suspects are tried. Some of these are ‘post-attack’ offences which are straightforward and common to many states. These include general criminal law offences such as murder, criminal damage and causing explosions. However, terrorist-related offences have also had an important preventive component over the last thirty years in Europe. We saw in Chapter 3 how a preventive logic of counterterrorism began to influence the organisation of the British and French counterterrorist agencies in the context of their perceptions of and responses to Islamist terrorism. However, this preventive logic was already influential in the legislative sphere for many years before the advent of contemporary

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Islamist terrorism. During previous terrorist campaigns, when the authorities succeeded in stopping attacks, they wanted to have the legal tools to charge the suspects that they arrested in this preventive context. This involved criminalising a number of activities that were seen as contributing or preparatory to terrorist attacks, a logic that has been reinforced over the last decade. As states make different choices in this context, it begs the following questions. What kinds of activities constitute or relate to terrorism in Britain and France, and how broadly are these offences defined? The UK’s Terrorism Act 2000 reflects the view, widely held in the government and judiciary in Britain, that terrorists pose a more fundamental threat to society than criminals and are difficult to prosecute without the creation of a number of special offences.101 Individuals or groups are distinguished from criminals if they fall under the Act’s definition of terrorism, which can be summarised as the use or threat of violence designed to influence the government or the public for the purpose of advancing a political, religious or ideological cause.102 For those considered to match these criteria, British legislation provides, first, for a number of ‘low-level’ terrorist offences. Reviewing the statistics on their application, one finds that, while many of these offences have rarely been used in prosecutions, a relatively small number have been used repeatedly. The most common low-level terrorist offences used in successful prosecutions in Islamist cases between 1999 and 2009 were: (i) collecting or possessing documents containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, (section 58, Terrorism Act 2000); (ii) possessing an article for a purpose connected with the commission, preparation or instigation of an act of terrorism (section 57, Terrorism Act 2000); and (iii) failing to disclose information about an act of terrorism (section 38, Terrorism Act 2000). Certain terrorist training and fund-raising offences have also been used numerous times.103 The penalty for these kinds of low-level offences is imprisonment up to a maximum period which varies between ten and fourteen years, depending on the offence. Such offences are tied to

101 102 103

See Lord Carlile, Report on the Operation in 2004 of the Terrorism Act 2000 (London: TSO, 2005), p. 6. Council of Europe Committee of Experts on Terrorism, ‘United Kingdom’, p. 1. Robin Simcox, Hannah Stuart and Houriya Ahmed, Islamist Terrorism: The British Connections (London: Centre for Social Cohesion, 2010), p. 246. Taking into account all prosecutions (successful and unsuccessful), these offences also tend to be the most commonly used. See Lord Carlile’s reports on the Terrorism Act 2000; for example: Lord Carlile, Report on the Operation in 2005 of the Terrorism Act 2000, p. 51.

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specific acts and they have been subject to further specification by senior judges. The Law Lords and the Court of Appeal issued rulings on the first two offences listed above, which clarified the extent of conduct required to be guilty and narrowed the scope of the offences. On the second offence (section 57), for example, the Court of Appeal ruled that there must be a direct and obvious connection between the article possessed and the intended future act of terrorism.104 The Terrorism Act 2000 also provides for the proscription of terrorist organisations, and forty-seven ‘international’ terrorist groups were proscribed by 2011.105 Membership of one of these groups is an offence, and Al-Qaeda and other militant Islamist groups are included on the list. Yet the informal nature of their networks in Britain means that ‘membership’ of such a group is difficult to prove. Only two Islamist terrorists were convicted of this offence between 1999 and 2009.106 The second group of terrorist-related offences in British legislation is what may be called the ‘high-level’ offences. Reviewing their application in cases of Islamist-inspired terrorism, it is clear that the most important offences at this level have been: (i) conspiracy to cause an explosion likely to endanger life or property (section 3, Explosive Substances Act 1883/ section 62, Terrorism Act 2000); and (ii) conspiracy to murder (section 1, Criminal Law Act 1977).107 Concerning their application in court, a prominent defence lawyer, Baroness Kennedy, summed up the elements that are needed to convict a defendant of such charges. ‘To be guilty of conspiracy’, she said, ‘you have to have knowledge, agreement and participation.’108 A senior legal official of the government confirmed that evidence must be given in court showing that all suspects had the same intention (to murder or cause explosions), and that they had agreed to carry it out.109 This is a relatively high bar for the prosecution to pass in order to secure a conviction on such charges, one that they failed to pass in some prominent terrorism trials, such as the ‘Springbourne’ and liquid explosives cases. However, when charges of conspiracy to murder or cause explosions are proven, as they have been in several cases since 2007, the person convicted faces a penalty of thirty years to life imprisonment. 104

105 106 108 109

Susan Hemming, ‘The practical application of counterterrorism legislation in England and Wales: a prosecutor’s perspective’, International Affairs 86: 4 (2010), 962–3; Vikram Dodd, ‘Appeal judges clear Muslims of terror charges’, Guardian, 14 February 2008. Home Office, ‘Proscribed terrorist groups’, 11 November 2011: www.homeoffice.gov. uk/publications/counterterrorismcounterterrorism/proscribed-terror-groups. Simcox et al., Islamist Terrorism, p. 246. 107 Ibid. Baroness Helena Kennedy QC, quoted in: ‘Terror trial lawyer defends jury’, BBC News Online, 19 February 2007: http://news.bbc.co.uk/2/hi/uk_news/6376833.stm. Interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006.

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The approximately half-dozen offences outlined here have been the most commonly used ones in the British response to Islamist terrorism since the passing of the Terrorism Act 2000, although one important addition was made in 2006 (see below). While the entire schedule of British terrorism offences is broader than this, my survey of the most important provisions exemplifies two trends in UK legislation. It shows that Britain uses several low-level terrorist offences, which are specific and defined in a relatively narrow way. Secondly, it indicates how a high evidential bar is set for the prosecution of the most serious terrorist-related offences in the UK, but that if such charges are proven, the British state imposes severe penalties on the guilty parties. The French definition of terrorism consists of two elements, the first being a long list of illegal acts including hijacking, ‘destruction’ and ‘damage’, the possession or buying of weapons, and money laundering. Such acts constitute terrorism, according to the Code Pénal, when they are ‘committed intentionally in connection with an individual or collective undertaking, the purpose of which is to seriously disturb public order through intimidation or terror’.110 Like the UK, France has both highlevel offences related to terrorism (crimes) as well as lower-level offences (délits). At the higher level, France has a series of straightforward offences covering terrorist attacks that have already been committed. In terms of preventive legislation, when prosecuting the most serious or advanced terrorist conspiracies, France has the offence of ‘attempted attack’, a crime that carries a penalty of thirty years to life imprisonment. Yet this offence usually cannot be applied in practice, as investigating magistrate, Jean François Ricard, explained in 2006: ‘A commencement in the execution of the crime is necessary [to convict someone of this crime]’, he said. ‘It is therefore a bomb which by chance has not exploded. Or one has to follow the groups that one suspects of committing an attack until the moment when they leave to plant the device. It’s unthinkable and too dangerous.’111 ‘Attempted attack’ was the main high-level terrorist offence for the preventative prosecution of conspiracies for many years, until a reform was introduced in 2006 (see below). In terms of lower-level offences, France has an offence of possession of weapons in relation to terrorism, which has been occasionally used, and one of financing terrorism, which has rarely been used.112 There has been,

110 111 112

Code Pénal, Art. 421–1. Quoted in: Verena von Derschau, ‘Les difficultés de la prévention antiterroriste’, AP (Associated Press), 24 March 2006. Casier Judiciaire Nationale, Condamnations prononcées pour des crimes et délits en matière de terrorisme: 1995–2005 (copy in author’s possession).

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rather, an overwhelming reliance on an offence popularly known by the phrase, ‘association of wrongdoers in relation with a terrorist enterprise’. Between 1995 and 2005, for example – for all forms of terrorism including Corsican and Basque – 592 convictions were laid down by French courts, of which 403 were for the offence of ‘association of wrongdoers’.113 If one considers Islamist terrorist cases alone, the proportion of convictions for this offence rises to approximately 70–80 per cent of all cases, according to investigating magistrates.114 Although a pre-existing criminal ‘association’ law was used de facto in terrorism cases during the 1980s and 1990s, it was decided to formally bring this concept into the terrorism arena in 1996. A new terrorism ‘association’ offence was created as part of a legislative package introduced to Parliament following the series of terrorist attacks on France in 1995. The Code Pénal defines the offence as: ‘The participation in any group formed or association established with a view to the preparation, marked by one or more material actions, of . . . acts of terrorism.’115 What does it mean to ‘participate’ in an association that has been established with a view to carrying out acts of terrorism? The text states that, under this offence, such participation must be marked by a ‘material action’. This broad definition leaves considerable scope for the authorities to interpret a wide range of actions as evidence of participation in an association of terrorist wrongdoers. In interviews with two Ministry of Justice officials and two investigating magistrates, the following examples were among those cited as actions that are covered by this offence: buying explosives, providing false documents (passports etc.) to terrorists, providing lodgings or providing phones to terrorists, and putting a vehicle at the disposal of terrorists.116 Thus, both illegal and otherwise legal actions fall under the scope of this offence if they are connected to people engaged in terrorist planning. However, the nature of this connection has sometimes been a tenuous one, such has been the way that the ‘association of wrongdoers’ charge has been applied in practice.

113 114

115 116

Ibid. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007; interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Code Pénal, Art. 421–2–1 (my emphasis). Interview with a Ministry of Justice counterterrorism official [FR-L], Paris, 10 July 2006; interview with a senior Ministry of Justice official, responsible for terrorism legislation [FR-S], Paris, 15 February 2007; interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007; interview with Gilbert Thiel, an investigating magistrate specialised in terrorism [FR-K], Paris, 22 February 2007.

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A counterterrorist investigating magistrate said that because Islamist terrorism often comprises small groups with no clear referents (in contrast to groups such as ETA or the IRA, for example), the magistrates had to ‘change [their] reasoning’. To illustrate what this change involved, he gave the example of an individual who gives his passport to people involved in terrorism: ‘He [the individual] knows roughly that it is for a group which is more or less terrorist. He does not know a lot about what they are going to be able to do, or not to do . . . it is not very clear. He does not know the aim of the group, broadly speaking. He knows in any case that it has an aim which, overall, is terrorist in nature. So he accepts to give his passport, to participate in this terrorist understanding without knowing where it will go or where it will not go. It is a participation which is not evident.’117 Despite the at best peripheral involvement of this person in terrorism, the magistrate affirmed that such an individual would be convicted in a French court of participating in a terrorist ‘association of wrongdoers’. In considering this example given by the magistrate, the point is not that this kind of suspect is necessarily innocent of having substantial connections to terrorist activity. He may well have such connections. Nevertheless, the key question is, rather: what degree of evidence is necessary in order to convict him for participation in an ‘association of wrongdoers’? It is apparent that evidence of a minor action, such as providing lodgings or giving one’s passport to terrorists, will suffice without any further evidence showing that the suspect had knowledge of, or intended to assist, the terrorist activity concerned. There are other minor actions, which suffice for conviction if magistrates are satisfied that they are connected to terrorism. One oft-cited example is that of Adel Mechat, who was convicted of ‘association of wrongdoers’ on the basis that he made a telephone call (from his cell in a French prison) to a suspected militant in the Netherlands while the 2000 European Football Championship was being played there. Already in French custody since 1998 on suspicion of being linked to an alleged plot to attack the 1998 World Cup in France, he was not convicted of these charges. He remained in prison, however, and this phone call from his cell was enough to have him convicted in 2003 of participation in a terrorist ‘association of wrongdoers’.118 A former counterterrorist magistrate and parliamentarian, who was involved in the drafting of the ‘association of wrongdoers’ offence, said 117 118

Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. ‘Téléphone en prison: six ans confirmés en appel contre un islamiste’, AP (Associated Press), 12 January 2004; FIDH, France: Paving the way for arbitrary justice, p. 30.

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that it was an ambiguous law and that it was effective from the point of view of securing convictions in court. In an interview in 2006, he told me: It has actually permitted us to succeed in most of the big terrorist cases. [With] association of wrongdoers . . . we have transformed [justice] into preventive justice, which says that we intervene before the commission of the act. It is in this sense that this provision is very ambiguous. It is very effective. It is very effective . . . Today, I believe that there are over 200 Islamist detainees in French prisons. That means that this is the country which has the most Islamist detainees, and they are – around 80 or 90 per cent of them – [convicted] under the law of association of wrongdoers.119

The law ‘is difficult to implement’, he admitted, adding: ‘it is necessary to count on the integrity of magistrates and intelligence agents’. This is because it is often difficult to distinguish between ‘purely intellectual’ terrorist schemes and a ‘realisable project’. Although he was a strong believer in the ‘association’ law, he added: ‘I am in any case prudent, saying: be careful of the way in which one interprets this law’.120 It is a general legal principle that offences should be precise and narrowly defined.121 In this way, constraints are built into the law itself and a suspect does not have to rely on the restraint or ‘integrity’ of individuals such as magistrates, police or intelligence agents. However, in warning his peers to interpret the ‘association’ law in a restrained way, the former investigating magistrate betrayed the fact that this law is open to broad interpretation. Indeed the law has often been interpreted in ways that maximise the flexibility of the French authorities and enable them to carry out extensive counterterrorist investigations and prosecutions. During the 1990s, both the criminal and terrorist variants of the ‘association’ law were used to round up and bring hundreds of alleged Islamist terrorists and sympathisers before the courts. A mass trial of 138 people in 1998–9 represented the apogee of this approach. More than a third of the accused were acquitted, in what was an unusual result for a French terrorism trial (see Chapter 5 for further details). Of this trial, the former investigating magistrate said: ‘The Chalabi trial was an error . . . to charge a very large number of people in one case. It was no longer manageable.’ It was also, he admitted ‘a flagrant violation of human rights’.122

119 120 122

Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Ibid. 121 FIDH, France: Paving the way for arbitrary justice, pp. 9–10. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006.

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The broad scope of the ‘association of wrongdoers’ offence is offset to an extent by the fact that it is a délit (lower-level offence) and thus for many years was punishable by a maximum of ten years’ imprisonment (although this was increased to fifteen years in 2006). There seems to have been a trade-off between the creation of a broad offence, which facilitates the conviction of large numbers of suspected terrorists, and the proviso that they will serve no more than ten (now fifteen) years in prison for this offence. This can be seen in the comments of a senior official of the French Interior Ministry, who drew a contrast between his country’s approach and that of the UK. The English judicial system ‘requires a lot of evidence’, he said, ‘but it punishes very heavily’. In France, on the other hand, he said: ‘we can cast the net very widely, but with penalties which are much more moderate’.123 If this is the trade-off, it is still a favourable one for police and magistrates. It allows them to arrest and charge many people, often on the basis of substantial evidence, but also in many cases based only on evidence of a minor connection to terrorism. At the very least, these suspects are then released on restrictive bail conditions or they may be detained for up to three years before trial (the official two year limit for délits can in practice be extended by magistrates to three years through the use of certain legal procedures).124 While some are acquitted at that point, most are convicted and spend more years in prison. Comparing high-level terrorist offences in our two cases, it is clear that the French ‘attempted attack’ law is a more restrictive offence than the British conspiracy laws (to cause explosions, or to murder).125 The British conspiracy laws are, however, considerably more specific than the French ‘association of wrongdoers’ offence. When comparing low-level offences in the two cases, one finds that Britain uses several such laws, each of which has a specific definition and scope (and is subject to restriction by the courts). France on the other hand generally uses just one low-level offence, which is broadly defined and leaves wide scope for interpretation. The UK’s laws do allow the authorities to cast the net low in criminalising such low-level activity as, for example, collecting information useful to a person committing an act of terrorism. However, such specific offences do not permit the British to cast the net as wide as the French can with the ‘association of wrongdoers’ law. In the failed ‘Springbourne’ trial, for 123 124

125

Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. FIDH, France: Paving the way for arbitrary justice, p. 26; interview with Michel Tubiana, experienced defence lawyer on terrorism cases and President of the French Ligue des Droits de l’Homme (2000–5) [FR-P], Paris, 23 February 2007. Nevertheless Britain has laws comparable to this French offence, such as ‘attempted murder’, which was used in two cases of Islamist terrorism. See Simcox et al., Islamist Terrorism, p. 246.

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example, whereas the British could only convict most of the suspects on minor non-terrorist offences such as fraud and possession of false passports, the French would have been able to sweep them into the ‘association’ net and imprison them for some years. As the example given by the investigating magistrate (discussed above) indicates, such minor ‘material actions’ can be connected to terrorism in France without the prosecution having to show that the suspect had knowledge of any terrorist planning. Overall, the ‘association of wrongdoers’ offence gives the French authorities more flexibility than that afforded to the British, whose terrorism offences are narrower and leave less room for wide interpretation than is the case in France (although some of them carry severe penalties). Considering the various elements of French counterterrorist justice – the special terrorism courts, the considerable de facto powers of investigating magistrates and the scope given to them to interpret the broad ‘association of wrongdoers’ offence – it is clear that France has recourse to a highly flexible array of judicial procedures in its response to terrorism. Antoine Garapon, a judge and the head of the French judiciary’s official research institute, is worth quoting at length in this context: The [anti-terrorist] measures in question introduce permanent derogations from common law procedure (length of police detention, length of pre-trial detention and composition of the trial court). Many writers have insisted on the fact that the implementation of these measures, especially the prosecution of [an association of wrongdoers] in relation with a terrorist undertaking, generally comes down to the court’s discretionary judgment. They also point out that control over the courts is weak. Although these fears are well founded, they are simply an aggravated example of trends that are present throughout the French penal system. It is thus more a question of degree than nature. The flexibility and personal latitude enjoyed by the courts are characteristics of French judicial culture in general.126

The flexibility of French counterterrorist justice is also recognised by its international partners. For example, it has been reported that the German authorities – who were concerned that there was not enough evidence to prosecute a leading Al-Qaeda figure about to enter their country in mid2003 – turned to their French colleagues to do the job. The man, Christian Ganczarski, was duped into entering France before being arrested, charged and placed in preventive detention. Asked if France puts its judicial tools for dealing with terrorism at the service of its allies for some such cases, a ‘senior French intelligence official’ was quoted as saying: ‘Yes, without a doubt, there are some cases where we participate that way.’127 In another case, Willy Brigitte, who could not be prosecuted 126 127

Garapon, ‘Is there a French advantage in the fight against terrorism?’ p. 7. Dana Priest, ‘Help from France key in covert operations’, Washington Post, 3 July 2005.

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in Australia for his alleged terrorist plotting there, was extradited to France and convicted of participation in a terrorist ‘association of wrongdoers’ (this covered his activities in Australia, France, Pakistan and Yemen).128 France’s flexible judicial toolbox has direct operational implications, enabling it to conduct certain types of counterterrorist arrests and prosecutions that other liberal democracies apparently cannot do. Overall, the procedures of English justice in terrorism cases are less flexible than those of France both at the pretrial stage and during the trial itself. British terrorism offences are also narrower in scope than is the case in France. It was in this context that the British and French governments developed rather different attitudes to their respective judicial systems for dealing with terrorism. In Britain, apart from one Home Secretary (Charles Clarke), saying that ‘the adversarial system’ had not been ‘a particularly effective means of securing justice’, as cited above, his predecessor, David Blunkett, also said that he was concerned about what he called the difficulty of securing terrorist convictions through the ordinary courts.129 Asked in late 2005 about the government’s attitude, a recently retired senior official said: ‘There is frustration there. It’s hard to prove a conspiracy charge. The British criminal justice system is meant to provide the strongest defence possible.’ On the other hand, he stressed that maintaining public confidence in the impartiality of the justice system was part of the government’s CONTEST strategy to undermine support for Islamist terrorism over the longer term.130 The view of French government officials was epitomised by the official Livre Blanc review of 2006, which outlined what it called ‘three unique aspects to our anti-terrorist penal system’. First, referring to the association of wrongdoers offence, the review stated: ‘it is without question the cornerstone of the system . . . it is thanks to this law that the terrorist networks’ logistical cells and the peripheral structures around them can be dismantled’. ‘The second specificity of the French system’, according to the Livre Blanc, was in the pre-trial phase where there are ‘procedural rules which are more flexible than for normal offences’. Finally, the review highlighted France’s special non-jury terrorism courts and the 128

129 130

Both Alain Chouet (a former French intelligence official) and Brigitte’s lawyer highlighted the anomaly of a French court being able to convict a man for activities in Australia and elsewhere – even though the case could not be prosecuted under the Australian justice system. See James Button, ‘At last – Brigitte’s day in court’, The Sydney Morning Herald, 7 February 2007; and Peter Wilson, ‘French sentence Brigitte to nine years’, The Australian, 16 March 2007. Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007. Interview with a former senior UK government official [UK-A], London, 4 November 2005.

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‘specialisation of the magistrates [which] has made it possible over time to develop a genuine counterterrorist culture: the terror network’s evolution is better controlled’. ‘All in all’, the Livre Blanc concluded, ‘the French judicial system for counterterrorism . . . gives cause for satisfaction. It does not need major reform.’131 Both the French government and the judiciary have long been proud of their country’s judicial response to terrorism, which they see as sufficiently ‘flexible’ to take on a severe threat, while still avoiding recourse to military or other forms of extraordinary justice practised in the United States and other countries.132 Meanwhile, the British government was concerned that its courts and judicial procedures were too inflexible to deal robustly with what they also perceived as a severe threat. The English judiciary, as we will see, took a different view. It was in these two very different contexts that the British and French governments reviewed their laws and judicial procedures for dealing with terrorism in the years after 9/11.

Reforming terrorism legislation after 9/11 After the 2001 attacks on America, the British and French, like many liberal democratic governments, took the opportunity to review their respective sets of terrorist offences and their procedures for the control, judgment and detention of suspected terrorists. Some of the literature on these developments discusses the legislative reforms that followed in a manner which gives the impression that liberal democracies are uniformly bolstering their terrorism legislations in the post-9/11 world.133 If one looks closer, however, one finds that states’ responses are more varied than that. In the British and French anti-terrorist legal regimes, there were areas where no reforms were proposed after 9/11, areas where reforms were proposed but not pursued, areas of gradual change and areas of rapid change. By considering the circumstances under which these different outcomes have been possible, I analyse the mechanisms that shape 131

132

133

French Government, Prevailing Against Terrorism: White Paper of the Government on internal security in the face of terrorism (Paris: Documentation Francais, 2006), p. 54. This reflects the government and judiciary’s views on the strengths of the French system. Similar views were expressed in many interviews, such as: interview with a senior Ministry of Justice official, responsible for terrorism legislation [FR-S], Paris, 15 February 2007; and interview with a member of the French Conseil Constitutionnel [FR-Q], Paris, 22 February 2007. This was a view expressed by the Conseil Constitutionnel member, cited in the previous note, and several counterterrorist officials, including two from the Ministry of Justice, one from the Interior Ministry and two investigating magistrates. See, for example: Jenny Hocking and Colleen Lewis (eds.), Counter-Terrorism and the Post-Democratic State (London: Edward Elgar, 2007).

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counterterrorist legislative change. In this section, I first outline the British and French governments’ efforts in the area of terrorist offences before proceeding in the second part to consider the extensive reforms introduced in the UK since 2001.

Reinforcing the preventive logic of terrorist offences In the years after 2001 the British government showed considerable interest in creating new terrorist offences, which would go beyond the confines of the specific charge of conspiracy to cause explosions. It looked somewhat enviously across the English Channel at France’s ‘association’ law, stating in one discussion document: ‘The definition of the offence is sufficiently wide to allow the successful prosecution of someone with only a passing interaction with a terrorist group and has been used in France for several years. The offence is much wider than the English law of conspiracy, enabling a greater number of prosecutions.’134 In early 2004 the then Home Secretary, David Blunkett, raised the French law briefly in the media, as he wanted to introduce a modified version of it to the UK. This would have involved creating an ‘association’ civil order which would permit the authorities to prohibit an individual from associating with other suspected individuals. If the person concerned violated this prohibition, they would then be charged with an offence.135 However, he did not secure the agreement of his Cabinet colleagues from other departments to this proposal.136 A senior legal official of the government (from a different department) said: ‘We couldn’t understand it’ [the French ‘association’ offence]. She said that the idea of a ‘criminal group’ was not very well established in the English legal system, adding: ‘The idea that you are guilty by being associated with someone is fairly new.’137 In the context of such scepticism, the proposal to introduce a modified version of the French ‘association’ law to the UK quickly died. However, the Home Office and other parts of the government remained frustrated at what they perceived as the difficulty of gaining convictions in the ordinary courts. The failure of the ‘Springbourne’ prosecutions in April 2005 reinforced this view. The Home Office developed an offence 134 135 136 137

Home Office, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society, Cm 6147 (London: TSO, 2004), p. 12. Gaby Hinsliff and Martin Bright, ‘Now Blunkett plans to jail friends of terrorist suspects’, Observer, 11 April 2004. Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007. Interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006.

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called ‘the preparation of terrorist acts’, which was included in a legislative reform made after the 2005 London bombings and passed in early 2006. It was defined as follows: ‘A person commits an offence if, with the intention of – (a) committing acts of terrorism, or (b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention.’138 The offence carries a maximum penalty of thirty years’ imprisonment (though in practice it has attracted a wide range of sentences139) and it lowers the bar from the high standard of evidence required to prove a conspiracy charge. A senior government legal official said that the ‘preparation’ offence allows the authorities to prosecute direct support to terrorist activity in cases where it is not possible to use a conspiracy charge. Asked to give examples, she cited such ‘low-level’ activities as the provision of false passports, or information on how to get past security checks with an explosives device. However, she added that, to convict someone of this charge, the prosecution needs to (i) show ‘a causal link’ between such an action and the preparation of a terrorist attack, and (ii) produce evidence of an ‘intention’ on the part of the person to assist a terrorist act.140 As such, the then independent reviewer of British terrorism legislation, Lord Carlile, was justified in his conclusion that the British ‘preparation’ offence requires a much higher degree of evidence than the French ‘association of wrongdoers’.141 The offence proved to be an important one and has been used to successfully prosecute numerous individuals since 2006.142 As we have seen, France’s reliance on the ‘association of wrongdoers’ délit overshadowed the fact that it lacked a workable crime or ‘high-level’ terrorist offence, comparable to the British ‘conspiracy’ charge. Taking the London bombings of July 2005 as its pretext and impetus for reform, the French government introduced new terrorism legislation, long called for by the Interior Ministry, magistrates and the counterterrorist agencies, part of which dealt with this perceived gap in their terrorist offences. Passed in January 2006, this legislation created a new crime, referred to by the authorities as ‘association of wrongdoers with a view to committing an attack’.143 The law states that a ‘group or an understanding’ (as defined by the classical ‘association’ law) commits a crime, punishable by up to twenty years in prison, when it aims to prepare terrorist acts ‘susceptible of 138 140 141 142 143

Terrorism Act 2006, s. 5. 139 Hemming, ‘The practical application’, 964. Interview with a senior UK Government official working on legal aspects of counterterrorism [UK-F], London, 7 December 2006. Interview with Lord Carlile [UK-D], London, 1 December 2006. Simcox et al., Islamist Terrorism, p. 246. Verena von Derschau, ‘Les difficultés de la prévention antiterroriste’, AP, 24 March 2006.

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involving the death of one or many people’.144 The penalty rises to thirty years in prison for those who ‘direct or organise’ such a group. Yet the key ‘preventive’ offence remained the more loosely defined ‘association of wrongdoers’ délit, which has been used in France in one form or another since the 1980s. Prevention has long been at the centre of French and British anti-terrorist legislation. The advent of contemporary Islamist terrorism has reinforced this logic, albeit to a lesser extent in France, which has long had the ‘association’ offence, and to a greater extent in Britain, which introduced an important new ‘preparation’ offence to prosecute cases where the police were intervening much earlier against terrorist attack planning than they did in the past. Just as it had already in November 2001 increased the police’s powers to stop and search individuals, the French government passed other terrorism-related laws in January 2006, notably one permitting a greater use of closed-circuit television (CCTV) in France.145 However, as regards the core areas of terrorism legislation covered in this chapter – pre-trial detention, trial procedures and terrorism offences – the only notable reforms in the decade after 9/11 were the introduction of the ‘association’ crime and the extension of the garde à vue (initial detention period) from four to six days in exceptional circumstances. Both of these measures were passed in January 2006.146 A senior Ministry of Justice official, responsible for terrorism legislation, explained that the necessary reforms had already been ‘well done’ in 1986 and 1996. There was no need to change the system now.147

British reforms to the detention and judgment of terrorist suspects The British government entered the post-9/11 era already armed with a recently passed, comprehensive piece of legislation, the Terrorism Act 2000. It nevertheless went on to introduce five major terrorism legislation reforms in the decade between 2001 and 2011. Some of these reforms reflected the government’s belief that it needed more flexibility to deal with certain hard cases than would be possible in the ordinary English courts. This section outlines three measures that the government took in this context: administrative detention, control orders and deportations. It then considers why a broader reform of terrorism trials was never pursued, 144 145 146 147

Code Pénal, Art. 421–6. Cettina, ‘The French approach: vigour and vigilance’, p. 87. The garde à vue reform is outlined above in this chapter. Interview with a senior Ministry of Justice official, responsible for terrorism legislation [FR-S], Paris, 15 February 2007.

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before concluding with an analysis of the contentious debate on precharge detention times. Administrative detention and a special court The government’s immediate legislative reaction to 9/11 was the Anti-Terrorism Crime and Security Act 2001, passed within three months of the September attacks. The most controversial part of the Act was the government’s response to those cases where there was intelligence indicating that individuals on UK soil were involved in international terrorism, but insufficient court-admissible evidence to be able to secure their conviction in an ordinary English court.148 The government focused its efforts on foreign nationals who they believed fell into this category, and dealt with them by introducing a major procedural change in the area of deportation. Part IV of the 2001 Act permitted the state to detain indefinitely without trial foreign nationals who were suspected of links to terrorism, but who could not be deported for whatever reason.149 In most cases, the government could not deport them because they had successfully appealed their deportation on human rights grounds. Since the incorporation of the European Convention on Human Rights (ECHR) into UK law in 1998, the British courts have interpreted Article 3 of the Convention as meaning that individuals cannot be deported to their country of origin if there is a risk that they might be tortured there.150 Under the ‘Part IV powers’, however, when the government detained a foreign national with a view to deportation but was prevented by the courts from expelling that individual, the person concerned could be detained indefinitely if he was ‘reasonably suspected’ by the Home Secretary of being an international terrorist. The individual could leave the UK if he could find a state that would accept him, but only two individuals chose this route, leaving Britain for Algeria.151 Since such indefinite detention without trial contravened another article of the ECHR – Article 5, concerning deprivation of liberty – the government derogated from this article on the only grounds open to it under the Convention: a claim that the state faced a ‘public emergency threatening the life of the nation’.152 The new ‘Part IV’ procedures amounted to a form of administrative detention, based on the government’s judgment and certification of 148 149 150 151 152

Bamford, ‘The United Kingdom’s “war against terrorism”’, 748. Home Office, Counter-Terrorism Powers, p. 5. Ibid.; Paul Reynolds, ‘The last days of “Londonistan”’, BBC News Online, 27 July 2005: http://news.bbc.co.uk/1/hi/uk_politics/4720603.stm. Anti-Terrorism Crime and Security Act 2001, Part IV, s. 21; Home Office, CounterTerrorism Powers, p. 6. Home Office, Counter-Terrorism Powers, p. 6.

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suspects – but one that was subject to judicial review by a special court in the area of deportation. Detainees had a right of appeal to the Special Immigration Appeals Commission (SIAC), a superior court of record chaired by a High Court judge, which was set up in 1997.153 In SIAC, individuals’ cases were reviewed through a special or modified judicial process that involved both open and closed sessions. The closed sessions enabled SIAC judges to review the secret intelligence material that the Home Secretary had seen when certifying individuals, such as intercepted communications, covert surveillance, reporting from agents and information from foreign intelligence services. Judges were also able to interview MI5 intelligence officers about the suspected individuals.154 SIAC upheld twelve of the fourteen decisions of the Home Secretary brought before it, but the standard of proof required (reasonable suspicion) was lower than that which applied in English criminal courts (beyond reasonable doubt).155 In these cases, therefore, the government had found a way to overcome what it perceived as the difficulty of securing terrorist-related convictions in the ordinary English courts. There were no juries, judges made all the decisions, the ordinary court’s strict rules of evidence did not apply and there was less room for the defence tactics outlined above since full disclosure of the evidence was not necessary. This special judicial process thus took on key features of the French non-jury terrorism courts and it went even further in terms of the flexibility that it afforded to the authorities in one area – the provision for closed sessions, which denied detainees the chance to see all of the case against them. While detainees were represented by defence lawyers of their own choice in open session, they were represented by government-appointed ‘special advocates’ during the closed sessions of the process. The government stressed that these advocates were lawyers of high standing and included in their number some prominent human rights lawyers.156 Dealing with foreign suspected terrorists through SIAC made it easier to detain these individuals than would have been the case through ordinary prosecutions and trials. Nevertheless, the government used the new powers relatively sparingly, as only seventeen foreign nationals were detained under Part IV from its enactment in late 2001 until late 2004. Eight people were detained under the measures in December 2001, but this rate of detention did not continue, as only

153 155 156

Ibid. 154 Ibid., p. 7. Ibid., p. 10. ‘Bail ruling sparks terror review’, BBC News Online, 23 April 2004: http:// news.bbc.co.uk/1/hi/uk_politics/3651743.stm. Home Office, Counter-Terrorism Powers, p. 7.

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nine more individuals fell foul of the ‘Part IV’ powers over the next three years.157 Part of the reason for this circumspection was the controversy that the new powers provoked in Britain and a number of institutional checks that hung over them. After a parliamentary struggle in which the government made some concessions to the opposition and to the House of Lords, it was agreed that the ‘Part IV’ powers would require annual renewal by Parliament and would expire in November 2006.158 The powers were also subject to a general challenge in the courts, brought by civil liberty advocates on behalf of nine individuals detained under Part IV. In July 2002, SIAC ruled that the Part IV measures were a breach of anti-discrimination protections contained in the European Convention on Human Rights (ECHR). The Home Office succeeded in reversing this decision in the Court of Appeal, but Britain’s then highest judicial authority – the Law Lords – ruled in December 2004 that Part IV did in fact discriminate against the detainees in a manner incompatible with the ECHR.159 As noted in Chapter 2, a ‘declaration of incompatibility’ by the court does not in itself make the legislation invalid, but it establishes that Parliament has breached the ECHR and puts pressure on the government to introduce amending legislation. The very clear majority (8–1 on the issue of discrimination) also contributed to the government’s immediate signal that it accepted the ruling and would cease its indefinite detention of individuals under the ‘Part IV’ powers.160 There was some dismay within the government, as one senior official recalled. He said that this was a case of ‘the Law Lords shaping the law as they do in this country under our common law system. That was them interpreting and shaping the law . . . [but then] your policy collapses. How do you deal with that?’ He recalled a sense in government that ‘We’re in a box and there is no obvious way out.’161

157 158 159

160 161

Ibid., p. 6; ‘Q&A: “Terror” Detainees’, BBC News Online, 16 December 2004: http:// news.bbc.co.uk/1/hi/uk/3677728.stm. Home Office, Counter-Terrorism Powers, pp. ii, 6. The Law Lords ruled that Part IV breached the ECHR because it suspended foreign nationals’ right to liberty – but not that of British citizens – ‘in a way that discriminates on the ground of nationality’. See David Feldman, ‘Terrorism, Human Rights and their Constitutional Implications’, European Constitutional Law Review 1:3 (October 2005), 531–52; ‘Terror detainees win Lords appeal’, BBC News Online, 16 December 2004: http://news.bbc.co.uk/1/hi/uk/4100481.stm. Feldman, ‘Terrorism, human rights’, 548. Interview with a former senior UK government official [UK-A], London, 4 November 2005.

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Control orders and ‘TPIMs’ The Law Lords’ ruling sent the Home Office rushing to bring new legislation before Parliament, which allowed it to impose other controls on the detainees that they now had to release from prison. Indefinite detention without trial was now off the table, but the ‘control orders’ imposed by the government in its place provided nonetheless for extensive restrictions on individuals’ liberty. As with the ‘Part IV’ detention regime, control orders were applied in cases where intelligence indicated that an individual was involved in terrorism, but there was insufficient court-admissible evidence to prosecute him. In order to make a control order, the Home Secretary was required to have ‘reasonable grounds for suspecting’ that the individual was involved in terrorism.162 This was, therefore, a form of administrative control based on the government’s judgment of suspects, subject to judicial review. While the ‘Part IV’ powers under the 2001 Act could only be applied to foreign nationals, control orders could be applied to all categories of people, including British citizens. The restrictions on controlled individuals varied. Many were subject to a curfew, which could confine them to their house for anything up to sixteen hours a day, neither could they travel far once the curfew was over. Some were forced to relocate to a town far from their home. Restrictions – up to and including a total ban – could be placed on the use of telephones and the Internet, and on meeting certain individuals. Electronic tags were also put on some of the suspects to ensure traceability and adherence to the rules.163 Indeed, some of those under the more strict forms of control orders suffered psychological problems including depression.164 Others, however, who were under less strict control orders made a mockery of the system by absconding. Twenty-seven control orders were made between March 2005 and June 2007, and seven of the controlled individuals absconded, leading to the criticism that the government was failing to protect the safety of the British public. The authorities increased their vigilance in respect of controlees after this embarrassing series of events, and no further individuals absconded from control orders after mid2007.165 In total, forty-eight individuals were subject to a control order

162 163

164 165

Lord Carlile, Fifth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (London: TSO, 2010), p. 39. Prevention of Terrorism Act 2005, s. 1; Lord Carlile, Second Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (London: Home Office, 2007), pp. 3–5; Katrin Bennhold, ‘In Europe’s terror fight, the rights issue’, International Herald Tribune, 14 April 2006. Nigel Morris, ‘Enemies of the State?’, Independent, 15 December 2005. Lord Carlile, Sixth Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (London: TSO, 2011), pp. 8, 18.

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between 2005 and early 2011.166 Of these, ten had been previously detained under the ‘Part IV’ powers.167 The Labour government faced domestic opposition and checks on the use of control orders after their introduction in March 2005. Although it was eventually passed, the Prevention of Terrorism Act 2005, which provided for control orders, faced fierce resistance through the process of parliamentary debate and amendment involving opposition parties in the House of Commons and members of the House of Lords.168 Following pressure from the UK’s independent reviewer of terrorism legislation, Lord Carlile, in May 2006, it was decided that reassessments of individuals’ cases would be carried out four times a year, instead of only once a year as was previously the case. These reviews were carried out by a committee composed of government, police and intelligence officials.169 Legal experts initially disagreed on whether or not the control orders regime, as designed by the government, could be subject to effective judicial supervision. Ruling on a challenge to an individual control order brought before the High Court in 2006, Judge Jeremy Sullivan said that ‘controlees’ rights . . . are being determined not by an independent court . . . but by executive decisionmaking untrammelled by any prospect of effective judicial supervision’.170 However, other senior judges, as well as Lord Carlile, disagreed with this view and over the following years the control orders regime was subject to increasingly significant constraints by the courts.171 As detentions under the ‘Part IV’ powers were reviewed by SIAC, control orders were also reviewed by the courts, partly in closed sessions where the controlled individual was represented by a special advocate. In several cases, court rulings required the government to reduce the severity of control orders, for example, by reducing the number of hours that a controlee was confined to his home. The Home Secretary in 2006–7, John Reid, claimed that these rulings and the resultant relaxations of control orders increased the likelihood of individuals absconding and re-engaging in terrorism.172

166 167 168 169 170 171 172

Ibid., p. 7. ‘Eight terror detainees released’, BBC News Online, 11 March 2005: http://news.bbc.co. uk/1/hi/uk/4338849.stm. Barnaby Mason, ‘Terrorist legislation shambles’, BBC News Online, 14 March 2005: http://news.bbc.co.uk/1/hi/uk/4347921.stm. ‘More scrutiny of control orders’, BBC News Online, 2 May 2006: http://news.bbc.co.uk/ 1/hi/uk_politics/4965672.stm. Vikram Dodd and Carlene Bailey, ‘Terror law an affront to justice – judge’, Guardian, 13 April 2006. Interview with Lord Carlile [UK-D], London, 1 December 2006; Carlile, Second Report, pp. 18–22. ‘Rulings weaken control orders’, BBC News Online, 21 May 2007: http://news.bbc.co.uk/ 1/hi/uk_politics/6677403.stm.

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Senior judges were not subdued by such claims, however. The High Court went on to quash or revoke six control orders, which it judged were made on an erroneous basis or where there was insufficient information to indicate involvement in terrorism. These rulings forced the government to lift the restrictions on the liberty of the individuals concerned.173 In a significant judgment in June 2009, the Law Lords also ruled that the authorities had to disclose ‘sufficient information’ to controlees for them to know the nature of the case against them and thereby be able to give effective instructions to their special advocates. This presented the government with a dilemma in cases where the information that the court deemed necessary to be disclosed to the controlee included secret intelligence. The government decided to revoke control orders in three cases rather than presenting information in open court that it believed could have compromised its intelligence sources. Thus the restrictions on three further individuals were lifted.174 The Law Lords’ ruling made clear that the control orders regime would not be allowed to escape certain fundamental principles of English law, in this case, that a suspect is informed of the case against him.175 When the judiciary in the UK declared the ‘Part IV’ procedures for indefinite detention incompatible with the ECHR in 2004, the government found a way around this institutional check by introducing control orders. Yet, while some of these orders were severe, others were lenient and the regime as a whole did not offer the authorities as much flexibility and power as the previous provisions for indefinite detention. The judiciary did not declare control orders incompatible with the ECHR.176 However, it imposed significant constraints on the regime, as we have seen, in rulings that also put pressure on the government in respect of the broader implications of the policy. In his 2006 ruling, for example, Judge Sullivan condemned control orders as ‘an affront to justice’ and ‘manifestly ineffective and unfair’, sentiments that were widely reported and commented on in the media.177 Lord Carlile also initially criticised what he called ‘rushed legislation’ for an ‘extremely restrictive’ regime, though he later came to view the government’s use of the regime as proportionate and justifiable.178 The Home Office responded defiantly to Judge 173 175 176 177 178

Carlile, Sixth Report, p. 8. 174 Carlile, Fifth Report, p. 9. Dominic Casciani, ‘Terror suspects win legal battle’, BBC News Online, 10 June 2009: http://news.bbc.co.uk/2/hi/8092763.stm. See ‘Lords want control order rethink’, BBC News Online, 31 October 2007: http://news. bbc.co.uk/2/hi/uk_news/7070396.stm. See, for example, Dodd and Bailey, ‘Terror law an affront to justice – judge’, Guardian. Alan Travis and Richard Norton-Taylor, ‘Anti-terror watchdog has a reputation for fairness’, Guardian, 15 February 2006; ‘Control Orders are “justifiable”’, BBC News Online, 18 February 2008: http://news.bbc.co.uk/2/hi/uk_news/politics/7250986.stm.

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Sullivan, saying that his ruling would not ‘prevent the secretary of state from making control orders [in future cases] in the interests of national security’.179 Yet, as with the ‘Part IV’ powers, repeated judicial interventions and the public controversy and contestation around control orders influenced the government to make relatively sparing use of this flexible procedure. Making forty-eight such orders in total between 2005 and 2010, the number of individuals subject to a control order by the government at any one time steadily decreased from fifteen in 2008, to twelve in 2009, to eight in 2010.180 It was in this context that the Conservative–Liberal Democrat coalition government launched a review of counterterrorist policy and control orders shortly after assuming power in mid-2010. The new government stated that it wanted to roll back some of the draconian counterterrorism measures introduced by successive Labour administrations in a manner consistent with safeguarding national security.181 On completion of the review, the Home Secretary, Theresa May, announced that the control orders regime would be scrapped and replaced by a less draconian set of restrictions called Terrorism Prevention and Investigation Measures (TPIMs). The new regime came into force in December 2011. To impose the measures on an individual, the Home Secretary must ‘reasonably believe’ that he or she is involved in terrorism (this raised the threshold, since control orders were based on the lesser standard of ‘reasonable suspicion’).182 Individuals subject to TPIMs must live at their home address but, significantly, the power to forcibly relocate suspects or impose lengthy curfews on them was removed. Whereas control orders could confine people to their homes for up to sixteen hours a day and prevent them from living a normal daily life, TPIM curfews are shorter and only apply ‘overnight’. Suspects are allowed to travel further within the UK and to stay overnight at other addresses, though they can be subject to exclusion from ‘a specified area or place’ and are not allowed to travel overseas. Total telephone and Internet bans are no longer possible, though the government reserves the right to place restrictions on such communications and on whom the suspect is able to meet.183 Whereas there was no restriction in law on how long a control order could last, 179 180 181 182 183

Dodd and Bailey, ‘Terror law an affront to justice – judge’. Carlile, Sixth Report, p. 7. HM Government, Review of Counter-Terrorism and Security Powers – Review Findings and Recommendations, Cm 8004 (London: TSO, 2011), p. 4. Ibid., pp. 40–1, 42; Terrorism Prevention and Investigation Measures Act 2011. TPIM Act 2011, Sch. 1; HM Government, Review of Counter-Terrorism, p. 41; Dominic Casciani, ‘UK counter-terror review explained’, BBC News Online, 26 January 2011: www.bbc.co.uk/news/uk-12289294.

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TPIMs are limited to a maximum of two years (though they can be extended if new evidence emerges of involvement in terrorism). The government also increased the resources and the emphasis of the regime on the ongoing surveillance and investigation of the individuals concerned with a view to eventual prosecution.184 Against a background in which control orders had already been constrained by the courts and by public controversy, the coalition government had chosen to impose a significant further set of constraints on its own power and flexibility in the use of such measures under the TPIM regime. Deportations Control orders, as we have seen, were introduced in March 2005 and initially imposed on ten foreign nationals who had previously been detained under the now abolished ‘Part IV’ procedures for terrorist suspects who could not be deported. However, nine of the men were rearrested with a view to deportation in August 2005 as part of a concerted effort by the government to increase its ability to deport foreign nationals suspected of involvement in terrorism.185 The Blair administration was attempting to exploit what it thought was a change in public attitudes in the UK after the July 2005 London bombings, to challenge the restrictions traditionally imposed on its deportation efforts by the courts. As the Prime Minister said: ‘You have a different situation now and what is interesting to me is, when I talk to the French Prime Minister or the Spanish Prime Minister, it was actions of terrorism in their countries – the Paris metro bombings, the Madrid terrorist attacks – which then created the climate, if you like, in which people were prepared to take these measures.’186 The Home Secretary announced new grounds for the deportation and exclusion of individuals from the country. These included seeking to provoke others to terrorist acts, and writing or engaging in public speaking that fomented, justified or glorified terrorist violence.187 The problem for the government, however, was that the English courts had for many years overruled its efforts to deport Arab and North African political dissidents or suspected terrorists, citing either the protections of the 1951 UN Convention on Refugees or the European Convention on Human Rights.188 The courts interpreted Article 3 of the latter as 184 185 186 187 188

TPIM Act 2011; HM Government, Review of Counter-Terrorism, pp. 40, 42. ‘Suspects “helped bombing climate”’, BBC News Online, 26 September 2005: http:// news.bbc.co.uk/1/hi/uk/4283258.stm. 10 Downing Street, ‘PM’s Press Conference – 5 August 2005’: http://webarchive.natio nalarchives.gov.uk/20060715135117/number10.gov.uk/page8041. HM Government, Countering International Terrorism, p. 12. Reynolds, ‘The last days of “Londonistan”’.

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meaning that individuals could not be deported to their country of origin if there was a risk that they might be tortured there.189 After the London bombings, the government stepped up its efforts to negotiate Deportation with Assurances (DWA) ‘arrangements’ with certain Arab and North African governments, which they hoped would reassure the courts on how deportees would be treated. Over the next year, the government concluded generic DWAs with Jordan, Libya and Lebanon in which they received assurances from the governments concerned that deportees would not be mistreated when they were returned to those countries. The government initially received assurances from the Algerian government on a case-by-case basis, before later concluding a generic DWA with that country also.190 Reflecting his bullish mood after the London bombings, Tony Blair told the judiciary in September 2005 that their interpretation of the law was misguided in certain cases, and even threatened to change the law if they did not allow his government freer rein in deportation cases linked to national security.191 However, no such legislation followed and the judiciary continued to subject deportations to intense scrutiny. The courts did allow deportations in a number of cases, notably to Algeria. Interestingly, some English judges had an informal meeting with members of the Algerian judiciary. One of the people who attended the meeting told Lord Carlile that the Algerian judges ‘impressed the [English] judges as saying that there is much more judicial independence in Algeria than there used to be’.192 In June 2006, an English court accepted for the first time that individuals suspected of links to terrorism could be deported to Algeria. Since then, nine people in total have been deported from Britain to Algeria as the Special Immigration Appeals Commission (SIAC) agreed with the government that the assurances provided by the Algerian regime could be relied upon.193 The government’s DWA with Jordan also made an impact on the English courts, notably in the case of Abu Qatada, a senior radical cleric suspected of having

189 190

191 192 193

Home Office, Counter-Terrorism Powers, p. 5. A fifth DWA was concluded later with Ethiopia. See HM Government, Review of Counter-Terrorism, p. 33; Amnesty International, United Kingdom: Deportation to Algeria at all costs, 26 February 2007: www.amnesty.org/en/library/info/EUR45/001/2007/en; ‘Lebanon deal on terror suspects’, BBC News Online, 23 December 2005: http://news. bbc.co.uk/2/hi/uk_news/politics/4556096.stm. Mathew Tempest, ‘Terror Deportations “may call for change in law”’, Guardian, 5 September 2005. Interview with Lord Carlile [UK-D], London, 1 December 2006. HM Government, Review of Counter-Terrorism, p. 33; ‘Algerian terror suspect deported’, BBC News Online, 21 January 2007: http://news.bbc.co.uk/2/hi/uk_news/6281593.stm; ‘Terror suspect cannot be deported’, BBC News Online, 14 May 2007: http://news.bbc. co.uk/2/hi/uk_news/6654437.stm.

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been at the centre of Al-Qaeda recruiting and terrorist activity in the UK. Qatada had a long and chequered history of dealings with the British state (see Chapter 5) and it proved difficult for the government to deal with his case after he was arrested in 2002. This was especially true in May 2008 when the High Court ruled that Qatada could not be deported to Jordan and should be released from prison.194 Though he was put on extremely restrictive bail conditions and was rearrested six months later, the government still had to explain during 2008 why this man, who both the intelligence agencies and the courts judged to be a threat to national security, was not in prison, raising the risk that he would abscond. The appeals process went all the way to the Law Lords, which ruled in February 2009 that Qatada could be deported to Jordan.195 However, Qatada successfully appealed this judgment at the European Court of Human Rights, meaning that his case continued to occupy the government well into 2012.196 If the English courts were more willing after 2005 to accept the case for deportation in respect of Algeria and Jordan, they were not so forthcoming in other cases. Despite the fact that the British government had agreed a DWA with the Libyan regime on the fair treatment of returnees, SIAC ruled in May 2007 that suspected terrorists could not be returned to that country because there was a real risk that they could be mistreated there. Much to the chagrin of the government, the five Libyan men affected by the ruling were released on bail instead of being deported.197 When the Court of Appeal confirmed this ruling against the government the following year, the DWA with Libya was effectively put on hold. These rulings indicated that, rather than necessarily being assured by the government’s DWA arrangements with foreign governments, English judges were going to satisfy themselves on a case-by-case basis as to the risk of torture or illtreatment in a given country. On the whole, the government did not get very far in its diplomatic and legal efforts. By 2011, it had functioning DWA arrangements with only three countries: Algeria, Jordan and Ethiopia.198 For the many other countries with which no DWA existed, the courts maintained their long-standing position and upheld terrorist suspects’ appeals against deportation. Thus, 194 195 196

197 198

Alan Travis, ‘High Court orders release of radical preacher Qatada’, Guardian, 9 May 2008. Dominic Casciani, ‘Law Lords back Qatada deportation’, BBC News Online, 18 February 2009: http://news.bbc.co.uk/2/hi/uk_news/7896457.stm. ‘Abu Qatada wins Jordan deportation appeal’, BBC News Online, 17 January 2012, available at: www.bbc.co.uk/news/uk-16590662. As in 2008, Qatada was once again released on restrictive bail conditions in 2012. ‘Terror suspects set for release’, BBC News Online, 3 May 2007: http://news.bbc.co.uk/2/ hi/uk_news/6619449.stm. Carlile, Sixth Report, pp. 30–1.

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when the government tried to deport two men back to Pakistan in May 2010, the judges ruled against this because of the risk that they would be tortured or killed there. While there was insufficient court-admissible evidence to prosecute the men in ordinary English courts, SIAC judged on the basis of intelligence material made available to it in closed sessions that both had terrorist intent and that one was an ‘Al-Qaeda operative’. Nevertheless, the two men remained in the UK, likely subject to control orders, though this could not be confirmed for legal reasons.199 Overall, in the five and a half years after the government began its DWA efforts in August 2005, only nine individuals were deported (all to Algeria), while other deportation attempts such as the Libyan and Pakistani cases had failed. By 2011, fourteen further cases were still going through the courts at various stages of the appeals process.200 According to the then independent reviewer of terrorism legislation, Lord Carlile, terrorist suspects only had to meet a ‘low legal threshold’ to win their appeals in the courts; in other words, it was all too easy for them to avoid deportation. Citing the Libyan case in particular, along with that of Abu Qatada, he added: ‘The effect is to make the UK a safe haven for some individuals whose determination is to damage the UK and its citizens’.201 The courts had moved somewhat on the question of deportations (mainly vis-a-vis Algeria), but here – as on other terrorism-related issues – the government still found itself significantly constrained by the independent position taken by the judiciary. As we shall see in Chapter 5, the French government was not so constrained by its courts. It was able to deport some 129 suspected Islamist extremists in the decade after 9/11. One of the main reasons why the British government was so determined to deport certain individuals was because it did not have sufficient evidence to prosecute them with significant terrorist offences through the courts. By the same token, when the government legislated for indefinite detention, reviewed by SIAC, under Part IV of the 2001 Act, it employed a special judicial procedure that allowed it to circumvent the ordinary English courts. The successors to this regime – control orders and TPIMs – also took suspects outside the trial procedures of the ordinary courts. Although the number of cases involved in these processes was relatively small, the government made huge efforts to defend and sustain its introduction of special measures and circumvention of ordinary criminal procedure. 199

200 201

‘“Al-Qaeda ringleader” wins appeal against deportation’, BBC News Online, 18 May 2010: http://news.bbc.co.uk/2/hi/uk_news/8688501.stm; Ian Cobain and Richard Norton-Taylor, ‘Two Pakistani students “pose serious threat” but can stay in UK’, Guardian, 18 May 2010. HM Government, Review of Counter-Terrorism, p. 33. Carlile, Sixth Report, pp. 30–1.

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Through a long process of judicial appeal and counter-appeal, and in the face of criticism from many voices in British politics and society, the government was determined to establish the principle that the state could not always deal with terrorism within the confines of the ordinary English courts. Anthony Giddens, a Labour peer and advisor of Tony Blair, exemplified this view in an article published in 2005. Referring to the elevated risks posed by what he called ‘new-style terrorism’, he wrote: ‘I do not see how anyone can cogently argue that those risks can be handled by orthodox judicial process.’202 The government regarded its new administrative powers as a crucial part of its counterterrorism policy. A Home Office document, published in February 2004, emphasised this in relation to the ‘Part IV’ powers of indefinite detention without trial: ‘That is why we . . . have vigorously – and successfully – upheld the [powers] in the face of any legal challenge.’203 As we have seen, however, the government was not successful in their defence of the measures for much longer (the Law Lords ruled against them just ten months later). In actions taken both voluntarily and against its will, the government attempted three different approaches to dealing with the same group of suspects between 2001 and 2005 alone: administrative detention under the ‘Part IV’ powers, control orders and deportation based on assurances from foreign states. Judicial intervention and its own opportunism after the London bombings had resulted in a rapidly changing and sometimes inconsistent policy on these hard cases, which had tested the outer limits of the UK’s anti-terrorist legal regime. Though policy settled down to some extent after 2005, successive governments continued to operate a mixed system, which relied mainly on prosecutions through the ordinary courts but still retained the option of administrative means of controlling suspects in a small number of cases. Permanent special procedures rejected; ordinary courts develop The UK’s counterterrorist policy inconsistencies did not stem from a lack of reflection on the part of the government. Long before the Law Lords intervened, the Home Office knew that the ‘Part IV’ powers were due to expire in November 2006, and even if it aimed to extend them, it could not have been confident that Parliament would vote in support of reinstating these controversial provisions.204 The government thus explored 202 203 204

Anthony Giddens, ‘Terrorism and civil rights’, International Herald Tribune, 4 March 2005. Home Office, Counter-Terrorism Powers, p. 2. The then Home Secretary also claims, albeit in retrospect, that he always knew that the powers were ‘temporary’: interview with David Blunkett, UK Home Secretary 2000–2004 [UK-G], London, 23 January 2007.

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other options for more sustainable reforms, which would have involved creating permanent special procedures within the ordinary courts system. The Home Office commissioned a cross-party Privy Council committee of senior parliamentarians to review the 2001 terrorism legislation and responded to its findings in a consultation paper published in early 2004.205 The government was also aware of other countries’ legal responses to terrorism and it tried to make such comparisons part of the public debate in the UK. The Home Office consultation paper included a survey of French, German, US and Canadian counterterrorism laws. It looked at the French system with a mixture of envy and caution. ‘Terrorist suspects [in France] are almost always successfully prosecuted, but can spend a considerable length of time in custody prior to prosecution’, it stated.206 In the context of a heated debate on pre-charge detention in October 2005 (see below), the Foreign Office also published a survey of other countries’ counterterrorist laws and practices.207 The government evidently believed that a comparison with other European legislative frameworks revealed the UK to be less draconian than most, and justified its attempts to extend British terrorism legislation. References to other countries’ laws and practices became a part of British reform proposals and debates on counterterrorism. For example, at least one government delegation, a parliamentary committee and the UK’s independent reviewer of terrorism legislation, Lord Carlile, all went to Paris to speak to French counterterrorist policymakers and magistrates.208 In the context of such activities and the government’s own reviews of policy, some ideas for the reform of terrorism trials were proposed or raised in public by ministers. One proposal – first raised in 2003 by the Privy Council committee and again in 2005 by the government – would have involved a special securitycleared judge carrying out a pre-trial review of sensitive intelligence material, which could have increased the evidence base in terrorism trials. As

205

206 207 208

Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review: Report, HC 100 (London: TSO, 2003); Home Office, Counter-Terrorism Powers, pp. 18–47. Home Office, Counter-Terrorism Powers, p. 13. Foreign and Commonwealth Office, Counter-Terrorism Legislation and Practice: A Survey of Selected Countries (London: FCO, 2005). The conclusions of the government delegation were published in: Home Office, ‘Terrorist investigations and the French examining magistrates system’, July 2007: www.homeoffice.gov.uk (last accessed on 8 September 2007, but since removed; electronic copy in author’s possession). See also: Joint Committee on Human Rights, Counterterrorism Policy and Human Rights (this committee went on research missions to France, Spain and Canada); interview with Lord Carlile [UK-D], London, 1 December 2006.

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we saw in Chapter 3, however, this was not pursued partly because of an inter-institutional convention, rooted in English common law tradition, which prioritised the independence of judges and saw their role as exercising a narrow, mostly adjudicative function. Indeed the fact that this proposal was inspired by the French investigating magistrates system – with its quite different conception of the judge’s role – did not endear it to the English judiciary and some parts of the government. A second idea, raised in 2004 by the then Home Secretary David Blunkett, concerned the introduction of special non-jury courts for terrorism cases. However, this was opposed by prominent legal figures, including the head of the Crown Prosecution Service (CPS), Ken MacDonald, who warned that Britain had to learn lessons from the miscarriages of justice that had occurred during its campaign against the IRA, such as the false convictions of the ‘Birmingham Six’ and ‘Guildford Four’. The highest standards of justice had to be maintained and would not be aided by the abolition of jury trial, he argued.209 With a widely shared perception among political and legal elites that internment and non-jury trials were counterproductive and a breach of civil liberties in Northern Ireland, many in the UK were eager to prevent similar practices being adopted in the context of Islamist terrorism.210 As David Blunkett noted ruefully, the idea of non-jury trials carries a stigma in Britain, related to how they functioned in Northern Ireland during the Diplock courts era.211 Thus the Home Office’s ideas for special non-jury terrorism courts were not pursued by the government. While proposals to create special courts or procedures did not get far, some less radical developments occurred in the ordinary courts and had an important effect. The 2006 Terrorism Act provided for a compulsory preparatory hearing in advance of trial, at which the prosecution and defence argue points of law, allowing the judge to address them at that point rather than waiting until the trial starts. Learning from experience, judges also began to question requests for further enquiries and material more rigorously.212 This meant that defence lawyers now had less scope to raise tactical legal arguments or probe evidence to find sensitive intelligence material – methods that had been used to disrupt the 2005 Springbourne trial, for example. Yet these developments did not 209 210 211 212

‘Caution urged over terror courts’, BBC News Online, 25 January 2005: http://news.bbc. co.uk/1/hi/uk_politics/4206999.stm. David Bonner, ‘The United Kingdom’s response to terrorism’, in Fernando Reinares (ed.), European Democracies Against Terrorism (Aldershot: Ashgate, 2000), pp. 183–4. Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007. Hemming, ‘The practical application’, 967–9.

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require a dilution of due process, nor did they affect the right of lawyers to apply to the judge for further disclosure of material if they so wished.213 Against this background and in the context of improved police–CPS co-operation (see previous chapter), prosecutors secured many substantial terrorist convictions from 2007 onwards, which reduced the government’s misgivings about terrorism trials in the ordinary English courts. Yet with an overall conviction rate of 73 per cent between 2001 and 2010, the authorities still suffered some important reversals, and they retained the ‘safety valve’ of control orders and later TPIMs for cases where terrorist suspects of particular concern could not be deported or prosecuted through the courts.214 The head of MI5, Jonathan Evans, pointed to the ongoing limitations of ordinary English justice from his point of view in September 2010, saying: ‘Whilst we are committed to prosecutions wherever possible, it is a sad fact that for all sorts of good reasons, terrorist threats can still exist which the English criminal justice system cannot reach. The government cannot absolve itself of the responsibility to protect its citizens just because the criminal law cannot, in the particular circumstances, serve the purpose.’215 The head of the CPS CounterTerrorism Division, Susan Hemming, took a more positive view, writing that same year that the prosecution of terrorist suspects through the ordinary courts had overcome several obstacles and was proving to be a ‘reasonably successful’ approach to this ‘challenging’ task. Yet her message was not inconsistent with that of Evans. Acknowledging the ongoing difficulties faced in terrorism cases, she concluded: ‘We will continue to face complex legal and evidential challenges; it is important to persevere.’216 Pre-charge detention: from ninety to fourteen days Apart from considering changes to terrorism trials, the government also explored how it could increase the flexibility of the authorities in the pre-trial phase, specifically in the area of pre-charge detention. After the July 2005 London bombings, the Blair administration persisted with the view that it would now be less constrained in taking tough action against terrorism. Recalling the ‘fierce opposition’ to some of their terrorism legislation 213 214

215

216

Ibid. These words of Lord Carlile reflected the government’s view. See ‘Control Orders are “justifiable”’, BBC News Online, 18 February 2008: http://news.bbc.co.uk/2/hi/uk_news/ politics/7250986.stm. On the conviction rate, see Chapter 3. Jonathan Evans, ‘The threat to national security’, speech to the Worshipful Company of Security Professionals, 16 September 2010: www.mi5.gov.uk/output/the-threat-tonational-security.html. Hemming, ‘The practical application’, 969.

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proposals over the previous four years, Prime Minister Tony Blair said, ‘For obvious reasons, the mood is now different.’217 The government moved quickly to take advantage of the perceived new mood, announcing a new package of measures less than one month after the attacks on London. In the resulting parliamentary bill, the most controversial measure was a proposal to increase the maximum length of time that arrested terrorist suspects could be detained without charge from fourteen days to ninety days. The police strongly supported this proposition, which they justified with reference to the increasingly complex nature of modern terrorism investigations. Given the transnational nature of the threat, the police now had to make extensive and time-consuming international enquiries. In many cases, they said, it was necessary to decrypt and examine vast amounts of data stored on encrypted computers and hard drives. The widespread use of false identities and the time needed to retrieve mobile phone records further complicated investigations. Police argued that, in these circumstances, they needed more time than fourteen days to gather sufficient evidence in order to charge terrorist suspects.218 The high degree of norm competition on issues of security and liberty in Britain (discussed in Chapter 2) was revealed in the heated debate on the ‘ninety days’ proposal. This pitted the government and the police against civil liberty NGOs, sections of the media and non-governmental political elites. Many were alarmed at the idea that suspects could remain in custody for up to three months without this denial of their liberty being justified by a criminal charge.219 Despite a considerable personal effort by the Prime Minister to win MPs over, a coalition of opposition parties and rebel Labour members voted down the ninety-day detention without charge proposal in the House of Commons, on 9 November 2005.220 MPs voted instead for a shorter extension to the maximum pre-charge detention period, from fourteen days to twenty-eight days. The Terrorism Act 2006 was passed in March of the following year, including other measures such as the creation of a new terrorist offence, ‘the preparation of terrorist acts’, as outlined above.221 The central point of the 217 218

219 220

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10 Downing Street, ‘PM’s Press Conference – 5 August 2005’. See Letter from Andy Hayman, Assistant Commissioner of the Metropolitan Police to Home Secretary, Charles Clarke, 6 October 2005: www.homeoffice.gov.uk (last accessed on 4 November 2005, but since removed; print copy in author’s possession). Jimmy Burns, ‘Warning to ministers on extended detention’, Financial Times, 13 October 2005. James Blitz and Cathy Newman, ‘Blair full of gusto in bid to keep 90-day detention’, Financial Times, 8 November 2005; James Blitz, ‘Blair suffers blow to power’, Financial Times, 10 November 2005. The offence of ‘encouragement of terrorism’ was also created (see Chapter 5 for further discussion). Terrorism Act 2006, ss. 1, 5, 23, 24 and 25.

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government’s Bill had been voted down, however. This was the period of Tony Blair’s general decline in political authority from his earlier days when he had commanded large majorities in Parliament. Nevertheless, it was revealing that MPs felt that they could vote against the recommendation of the Prime Minister on a headline counterterrorist issue. There was a high degree of norm competition on security issues in the UK, and no taboo on restricting the state’s ability to fight terrorism, even in the aftermath of a major attack. Shortly after becoming Prime Minister in mid-2007, Gordon Brown decided to return to the issue, floating the idea that the maximum precharge detention period could be extended from twenty-eight to fifty-six days. The Home Office and police still claimed that a considerably longer pre-charge period was needed to deal with increasingly complex terrorism cases.222 However, following a sceptical reaction from civil liberties advocates, sections of the media and political parties, including from many of his own Labour MPs, within about six months Mr Brown and his government began to speak instead of increasing the period to forty-two days.223 Once again, as in 2005, the Prime Minister and his colleagues made a huge effort to advance their case in the media, as well as holding meetings with, and making concessions to, sceptical MPs. By the time it was voted on in June 2008, their proposals included significant judicial oversight and the provisos that the forty-two day period could only be used in ‘grave and exceptional’ circumstances and would require a parliamentary vote to trigger it (such a vote would allow the use of the extended time period for one month only).224 Despite such concessions, the issue stirred just as much debate and controversy as it had three years previously. Thirty-six Labour Party MPs voted against Gordon Brown’s proposal in the House of Commons, even though the vote was seen as a test of his leadership of the party and the country. The government won by a slim majority of nine votes only because the Democratic Unionist Party from Northern Ireland voted for the measure when concessions were made to them on local issues.225 The government thus lacked any moral authority to push the forty-two days plan through the upper house, the Lords.226 By a huge 222 223 224 225 226

Home Office, ‘Options for pre-charge detention in terrorist cases’, 25 July 2007: www. statewatch.org/news/2007/jul/uk-pre-charge-detention.pdf. ‘Smith plans 42 day terror limit’, BBC News Online, 6 December 2007: http://news.bbc. co.uk/2/hi/7130072.stm. ‘Smith hopeful over 42 days vote’, BBC News Online, 3 June 2008: http://news.bbc.co.uk/ 2/hi/uk_news/politics/7432685.stm. Martha Crenshaw, ‘Introduction’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), p. 20. In other circumstances, the government may have used the Parliament Act to overrule the Lords.

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majority of 309 votes to 118, the House of Lords voted against forty-two days later that year and the government dropped the proposal.227 The rest of the government’s Counter Terrorism Act 2008 was passed, including a provision allowing for the post-charge questioning of suspects, but once again, the central point of the Bill had been thrown out.228 Interventions by key individuals played a crucial role in swinging political and media opinion against the government’s case for the forty-two days plan. Along with the police, the agency with the main responsibility for assembling a case of evidence within the pre-charge detention period is the Crown Prosecution Service. Less than two months before the Commons’ vote on the issue, the head of the CPS, Ken MacDonald, said: ‘As prosecutors, we don’t perceive any need for the period of twenty-eight days to be increased. Our experience has been that we have managed comfortably within 28 days.’ He also countered the police’s case for forty-two days by saying that prosecutors were ‘better placed’ to make a judgment on the issue.229 MacDonald’s professional opinion greatly undermined the government’s case that new technology and other complexities necessitated a longer maximum period of pre-charge detention. Then, some months before the House of Lords voted on the issue, Baroness Manningham-Buller, a new member of that house and the recently retired head of MI5, made her intervention. She told the House of Lords that in deciding her opinion on the issue, ‘I have weighed up the balance between the right to life, the most important civil liberty, the fact that there is no such thing as complete security and the importance of our hard-won civil liberties. And therefore, as a matter of principle, I cannot support the 42-day pre-charge detention in the bill.’230 This intervention signalled the death knell for the government’s plan. As head of the country’s main intelligence agency for five of the previous six years, Manningham-Buller had been the personification of the state’s security services. If she did not believe that a more draconian law was necessary, why should anyone else believe it? The fact that even current and recently retired leaders of the prosecution and security agencies of the state could oppose the government on a key counterterrorism issue indicated the wide-ranging influence of civil liberty norms in elite British society. 227 228 229 230

‘Ministers shelve 42 day detention’, BBC News Online, 13 October 2008: http://news. bbc.co.uk/2/hi/uk_news/politics/7668477.stm. Counter-Terrorism Act 2008, Part 2. Alan Travis, ‘DPP Chief: extending detention period to 42 days is unnecessary’, Guardian, 23 April 2008. Andrew Sparrow, ‘Former MI5 chief speaks out against 42 days detention’, Guardian, 8 July 2008.

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The ninety and forty-two days’ detention without charge proposals were crucial points both for individual liberty and for terrorist investigations. These plans and the previous ‘Part IV’ measures for indefinite detention were the government’s two most radical departures from Britain’s existing body of laws. As with the judicial ruling against indefinite detention, when the government tried to make these radical legislative moves, their efforts provoked such controversy that the measures could not be sustained. Indeed, even the extension of the maximum period of pre-charge detention from fourteen to twenty-eight days was not sustained for much longer. Following its introduction in 2006, only eleven individuals were held for over fourteen days’ pre-charge detention over the next year – and none at all after July 2007.231 While the authorities had used the power sparingly, because of the controversy that it provoked, the statistics on its use raised questions about whether it was really necessary. The twenty-eight day power had to be renewed by Parliament to remain in force, but the ConservativeLiberal Democrat coalition government, elected in mid-2010, decided not to renew the power in January 2011, meaning that the maximum pre-charge detention period fell back to fourteen days.232 Instead, the government produced draft emergency legislation that provided for twenty-eight days’ detention, but would only be introduced to Parliament in an urgent situation, for example, to respond to multiple terrorist attacks.233 From a situation where pre-charge detention time could have risen as high as ninety days if the then government had got its way, Britain was now back to where it was in 2003 – a maximum period of fourteen days. Despite huge governmental time and energy being spent over several years to try to increase the authorities’ flexibility in this area, those efforts had all failed under the glare of intense public debate and contestation. The coalition government exemplified in a new way the high level of norm competition in the UK on security and liberty issues. Whereas between 2001 and 2010, this contestation had largely pitted the government against outside forces such as judges or civil liberty NGOs, the conflict expanded into a heated internal debate within the new government during the second half of 2010. The main party in the coalition, the centre-right Conservative Party, emphasises its commitment to national security (though some sections of the party have a record of defending individual liberty). The minor partner, the Liberal Democrats, is more avowedly liberal. During the government’s review of counterterrorist policy, carried out by the Home Office, most Conservative ministers, senior Home Office officials and the head of MI5, Jonathan Evans, argued 231 233

HM Government, Review of Counter-Terrorism, pp. 7–8. Ibid., p. 14.

232

Ibid., p. 7.

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for the retention of control orders, whereas Liberal Democrat ministers, some Conservatives and one other important ally argued against. That ally was Lord Ken MacDonald, who had previously argued against lengthy pre-charge detention, as we have seen, and was by 2010 a former prosecutor of considerable public standing and a harsh critic of control orders. The Liberals had succeeded in having him appointed at the beginning of the process with a broad mandate to provide ‘independent oversight’ of the review and to ensure ‘that all relevant options have been considered and the recommendations are balanced’.234 The different players involved in the review waged an intense internal battle behind the scenes in government, trying to ensure that their view prevailed, prompting a vexed Prime Minister David Cameron to reportedly tell one private meeting: ‘We are heading for a fucking car crash.’235 The review continued for months longer than originally planned because of the difficulty of finding a compromise, though one was eventually brokered in January 2011. As outlined above, the government decided to replace control orders with the less draconian TPIM regime and reduce the maximum pre-charge detention period to fourteen days. Importantly for the coalition, Lord MacDonald concluded that these and other measures ‘point[ed] to an unmistakable rebalancing of public policy in favour of liberty’.236 Such policy changes showed the coalition government to be more liberal than its Labour predecessors, but they also reflected the changed mood in British terrorism legislation debates since 2009. The then Labour government, chastened by two major defeats on pre-charge detention in the previous four years, began to accept at that point that some of its counterterrorist policies had been ‘too draconian’ and signalled that it would no longer seek to push the boundaries of societal acceptability on the issue, an approach that it continued to follow in opposition.237 While Lord MacDonald welcomed the conclusions of the coalition government’s review, he also criticised its failure to provide more detailed promises concerning the reduction of some draconian aspects of control orders, and put pressure on the government to provide 234 235

236 237

Lord MacDonald of River Glaven, Review of Counter-Terrorism and Security Powers – A Report, Cm. 8003 (London: TSO, 2011), p. 1. This was according to a well-connected journalist: Andrew Rawnsley, ‘The fierce battle behind the scenes for the coalition’s soul’, Observer, 31 October 2010. See also: Alan Travis, ‘May reprimands own terror review supervisor as No. 10 fears “car crash”’, Guardian, 1 November 2010. Lord MacDonald, Review of Counter-Terrorism, p. 16. Alan Travis, ‘Alan Johnson: Labour has made mistakes on immigration’, Guardian, 2 November 2009. For a similar admission in 2011 from Labour’s shadow Home Secretary, see: ‘Cooper attacks “shambolic” counterterrorist review’, BBC News Online, 24 January 2011.

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‘further explanation’ on these points.238 The fact that the independent reviewer’s criticisms were being published by the government beside their own document was an indication of how contestation on security and liberty issues had become embedded even into the formation of counterterrorist policy within government. The evolution of British and French counterterrorist justice How can we best understand the mix of convergence and ongoing divergence displayed in British and French counterterrorist justice? This section first offers a brief comparison of the cases with respect to antiterrorism powers and their application. I then argue that close attention to threat perceptions, institutions and norms helps us to understand the evolution of terrorism legislation in the two states. Counterterrorist powers and their application Throughout the period under study here, the French authorities have had an integrated system of justice for terrorism cases. By this, I mean that France has had recourse to special non-jury courts, a broad terrorist offence (the ‘association’ law) and other procedures that derogate from standard practice, but it has integrated them into the ordinary French judicial system. The UK, on the other hand, has had a mixed system of judgment procedures for terrorism cases. It prosecuted most terrorist suspects through the ordinary English courts, where the normal standards of jury-trial and evidence testing remained unmodified. In 2001, however, it created a supplementary system of administrative detention, based on government judgment of suspects and judicial review of cases in a special court, which departed from the standards of ordinary English criminal justice. This was replaced in 2005 by administrative control orders, also based on government judgment of suspects with judicial review through the courts. This latter approach has been sustained, albeit in modified form, to the present day. In comparing the two cases, it is useful to distinguish between the powers (laws and procedures) of the state and the application of those powers in practice. Considering France and Great Britain in 1995, the two countries began from different starting points in both of these respects.239 As we saw 238 239

Lord MacDonald, Review of Counter-Terrorism, pp. 14–16. Different arrangements still applied in Northern Ireland. However, it is Great Britain that we must consider when analysing the UK’s legislative response to Islamist terrorism.

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in the first section of this chapter, the French criminal justice system has provided more flexible laws and procedures for dealing with terrorist suspects than the British. In the context of its Algerian-related terrorist threat during the 1990s, France also applied these powers in a more draconian way than was the case in Great Britain (see below). In 2001, however, by introducing administrative detention overseen by special courts, the British government’s powers rapidly converged with those enjoyed by the French in their special terrorism courts. Indeed the British procedures were more flexible than France’s at that point, given their provisions for closed sessions and detention based on a lower standard of proof than ordinary trials. This, however, did not prove to be the settled will of the British state and society. Pushed to drop this system by the Law Lords in 2004, the government introduced control orders in its place – a system that did not give the authorities the same power or flexibility in dealing with terrorist suspects. Once again, Britain had a less flexible set of rules and procedures for dealing with terrorist suspects than France. Considering the application of anti-terrorism powers, the British authorities dealt with the vast majority of terrorist suspects through the ordinary English criminal justice system despite their misgivings about it. Between September 2001 and September 2010, 420 people were charged with terrorist-related offences in Great Britain.240 By contrast, forms of administrative detention and control were used sparingly. From 2001 to 2010, seventeen people were imprisoned under the ‘Part IV’ powers, and fortyeight were placed under control orders – a total of sixty-five.241 When one compares Britain’s approach with France’s application of anti-terrorism powers, important differences emerge. The French authorities have the most flexibility under their system when they use the ‘association of wrongdoers’ law to detain, charge and convict suspects in a non-jury trial. From 1995 to 2005 inclusive, 403 terrorist suspects were convicted and imprisoned on this charge (an average of thirty-seven a year).242 The point is not that all of these convictions are unsound, but that these 240

241

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Home Office, Statistical Bulletin 04/11, 24 February 2011, p. 5: www.homeoffice.gov. uk/publications/science-research-statistics/research-statistics/counterterrorismcoun terterrorism-statistics/hosb0411/ See above in this chapter. Though used sixty-five times, this affected fifty-five people because some individuals were subject to both detention and control orders at different times. Casier Judiciaire Nationale, Condamnations prononcées. This – the latest period for which I have full statistics – covers the two most active periods in French prosecutions and trials of Islamist terrorism cases: the years after the 1995 attacks and the years after 9/11. It is thus appropriate for the purposes of comparison with Britain’s most active period on Islamist cases – the decade after 9/11.

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convictions are obtained in special courts, based on a charge that is capable of broad interpretation, and following a pre-trial inquiry process that affords a lot of power to investigating magistrates. These procedural conditions are highly flexible and favourable to the authorities. When one considers the closest equivalent procedural conditions in the UK – the ‘Part IV’ powers of administrative detention overseen by a special court – one finds that only seventeen people were imprisoned under these conditions in the three years that they existed, an average of six a year. Thus, an average of thirty-seven people were imprisoned annually under France’s most flexible regime, as against six a year in the closest British equivalent.243 Why has France been more draconian in the application of its flexible laws than the UK? It is to this and a number of other related questions that we now turn. Explaining divergent and self-reinforcing legal responses to terrorism When the British government made determined efforts to increase the flexibility of its laws and procedures after 9/11, it converged for some years at least with the flexible powers characteristics of the French judicial response to terrorism. This element of convergence between the two states was informed by their similar threat perceptions and resulting embrace of a preventive logic of counterterrorism. Although this logic had long been influential in both states’ anti-terrorist legal regimes, the rise of contemporary Islamist terrorism – as perceived by France in the mid-1990s and by Britain from 2001 – gave extra support to this logic and led to the creation of further ‘preventive’ offences. Thus, France began to increase its use of the criminal ‘association’ law de facto in terrorism cases, before formally creating the ‘terrorist’ association of wrongdoers law in 1996. Informed by the same logic after 2001, Britain created new preventive terrorist offences, and its introduction of administrative detention and later control orders was also influenced by the perceived imperative of preventing mass casualty terrorist attacks. As balance of threat and strategic choice theory would predict, France and Britain adapted their respective legal regimes in response to changes in the perceived threat environment. Both states – with Britain starting later than France – gave themselves a more flexible set of laws and procedures for the detention or, at the very least, the control of terrorist suspects. However, an analytical focus on threat perception alone cannot account for the significant differences between the British and French legal 243

If one adds the control order figure to the ‘Part IV’ detentions figure, a similar trend emerges: an average of seven a year.

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responses to terrorism, both regarding the nature of their respective laws and procedures and the manner of their introduction. Why does Britain rely on a mixed system of counterterrorist justice shaped by repeated and sometimes inconsistent legislative reforms, while the French have developed in a consistent manner an integrated system of justice for terrorism cases? A focus on historically grounded inter-institutional conventions can explain much about these striking differences between the two states. In a context where the judicial function is understood differently in Britain and France, divergent standard operating procedures and norms hold sway in the two states concerning the appropriate relationship between the judiciary and the government and its agencies. Under the French inquisitorial legal system, an important section of the judiciary – investigating magistrates – work directly with the government’s security agencies. ‘Flexibility and personal latitude’ characterise these magistrates’ inquiries and the attitudes of the trial judges who review their inquiries.244 Having previously relied on a quasi-military system of justice that lacked legitimacy, the French government introduced this specialised judicial response to terrorism in 1986. They were not disappointed by how it performed. In the 1990s, the investigating magistrates oversaw extensive police operations and brought hundreds of suspected Islamist terrorists to trial. Bolstered by the broad ‘association of wrongdoers’ offence, the pre-trial inquiries and the trials themselves proved flexible enough to convict large numbers of suspects and secure the confidence of the government. Since the mid-1990s at least, the perception of the government and security services has been that France’s special judicial procedures and courts for terrorism cases enhance national security and make it a priority concern. They see their counterterrorist judicial system and the judges who work within it as having an affinity with security issues. While the government formalised the use of the ‘association’ law in 1996, it has only introduced minor modifications to the system since then. Thus a flexible judicial process that derogates from, but is still integrated into, the ordinary French judicial system developed and maintained the confidence of the government after 2001. In Britain, on the other hand, the long-standing inter-institutional convention has been for the judiciary to keep a distance from the government and its police and intelligence services. England’s adversarial legal system understands the judge’s role as exclusively an adjudicative function. It also has a stronger tradition of jury trial than the French system does and different rules of evidence. These rules and conventions have proved

244

The words of Antoine Garapon, quoted above.

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resistant to change. While an important part of the French judiciary has effectively put itself on the side of the government and the security agencies for the fight against terrorism, the inter-institutional conventions of the British state rule this option out. Also, before 2001, with the English courts stopping many deportations, for example, the government perceived these courts as inflexible and insufficiently attuned to the requirements of national security. It also knew that any reform of these courts would be either slow and controversial, or unachievable (as the Home Office found out in 2004–5, it proved to be the latter). In this context, the government’s initial reaction to 9/11 was not to propose a modification to the ordinary English courts. Its first legislative response was, rather, to pursue an elaborate circumvention of that system through the ‘Part IV’ powers of administrative detention and recourse to a special immigration court. In this respect, the government did not give the English judiciary a chance. However, as the judiciary took a dim view of ‘Part IV’ in any case and continued to defy the government on deportations of terrorist suspects, and later on control orders, relations between the two sides deteriorated. The prior inter-institutional convention of judicial independence from the government’s management of security was not challenged by the rise of a new terrorist threat, but was actually reinforced. The result has been that a relatively inflexible (from the authorities’ point of view) system of ordinary English jury trials has been used to deal with the vast majority of Islamist terrorist suspects in the UK since 2001. This criminal justice response to terrorism sat uneasily alongside the ‘Part IV’ measures and control orders when they were in operation and it sits today with similar unease alongside the TPIM regime. Unlike the French, British governments and security professionals have often believed that the rules and procedures of their ordinary courts do not enhance national security nor make it a priority concern. In the context of various conflicts between the two sides over the last decade, many senior government figures did not regard the English judicial system or the judges within it as having an affinity with security issues. Governments have openly criticised the judiciary and senior judges have responded in kind.245 Lord Steyn, a member of the Law Lords until 2005, exemplified the state of relations between the government and the judiciary vis-à-vis security issues in this memorable statement: ‘We swear an oath to the Queen as head of state, our duty lies to the public, not the Government. I think in all these complaints about how the judges are not being helpful 245

See, for example, the comments of Judge Sullivan and Charles Clarke quoted above, as well as Tony Blair’s warnings to the judiciary in respect of deportations linked to national security.

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enough, they must remember we are emphatically not on the same side.’246 The inter-institutional conventions of the French state enabled a section of the judiciary to take on a flexible role in co-operation with the government and its agencies in the fight against terrorism. Thus, France’s special provisions for counterterrorist justice were integrated into its ordinary criminal justice system. A different set of conventions in Britain – with more stress on judicial independence from the authorities’ management of security issues – and the presence of relatively inflexible ordinary courts led the government to partially circumvent the judiciary and use a mixed set of procedures for the judgment of terrorist suspects. Only after its initial ‘emergency’ response to 9/11 passed into law did the British government actively consider legislating for the introduction of special procedures to the ordinary English courts, which might have proved a more sustainable means of dealing with terrorism cases in the longer term. The Home Office and its ministers showed considerable interest in creating ‘security-cleared judges’, or even special non-jury terrorism courts, but it could not get agreement within the Cabinet to these proposals, never mind convince sceptical actors outside of government. That was because these ideas – which the Home Office drew partly from its study of the French inquisitorial system – contravened longstanding rules and conventions of ordinary English justice such as jurytrial and an understanding of the judicial function as a purely adjudicative one (not about facilitating the work of security agencies responsible to the government). These institutional conventions were reinforced paradoxically by the UK’s departure from these standards during the era of Irish terrorism. Non-jury Diplock courts in Northern Ireland and miscarriages of justice against Irish people in the English courts were invoked in 2004–5 as arguments against the government’s proposals to introduce special terrorism courts in Great Britain. Such arguments held considerable weight not only in judicial circles but also within government and in public discourse. In this context – and despite its frustration with the ordinary English courts – the government did not introduce measures to modify those courts for terrorism cases. Given its misgivings about ordinary English justice in the terrorism context, why didn’t the British government extend its circumvention of the judiciary by using its ‘Part IV’ powers more widely? The answer, put simply, is that society would not have permitted this to happen. To understand this, we need to combine our analysis of institutional conventions with an examination of the high level of norm competition on issues of 246

Robert Verkaik, ‘Judges are not the servants of the government . . . our duty is to the public’, Independent, 10 October 2005 (my emphasis).

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security and liberty in elite British society. On the one hand, repeated rounds of legislative reform in the years after 9/11 showed the adherence of senior government figures to the ‘security first’ principle. Prime Minister Tony Blair, for example, was insistent that Al-Qaeda-linked terrorism was focused on causing mass casualties, was ‘operating the world over [and] is not like anything we have faced before’. He believed that in the face of such a severe threat, the UK had to place a greater emphasis on security. ‘Tougher laws in themselves help’, argued Mr Blair, but ‘just as crucial is the signal they send out: that Britain is an inhospitable place to practise this extremism’.247 Yet even as the ‘security first’ norm was being invoked by powerful actors, other prominent figures were reaffirming the importance of traditional British liberties and other contradictory principles. For example, days before a parliamentary vote on the Labour government’s proposal for forty-two days’ pre-charge detention, the former Conservative Prime Minister John Major wrote in The Times that it was ‘part of an assault on our ancient rights’ and was not ‘in the spirit of the nation that gave the world Magna Carta [and] . . . habeas corpus’. He concluded: ‘This is not a United Kingdom that I recognise and Parliament should not accept it.’ The article cited Major’s own experience of combating Irish terrorism (and almost being killed by an IRA mortar in 1991), lending extra credence to his invocation of ideas of British resilience. Though further terrorist atrocities were possible, he wrote, ‘a free and open society is worth a certain amount of risk. A siege society is alien to our core instincts . . . It is a road down which we should not go.’248 A few years later, Lord MacDonald also appealed to norms of resilience when pushing the coalition government – with some success – to dispense with certain draconian counterterrorism powers. ‘The British are strong and free people, and their laws should reflect this’, he wrote.249 Other conceptions of British society and history were raised in debates on counterterrorism, such as the traditional view of the UK as a place of political asylum (see Chapter 5). Of similar significance were contemporary interpretations of Britain’s experience in Northern Ireland, which tended to caution against overly authoritarian reactions to terrorism.250 It was in the context of this kind of norm contestation that the government tried to introduce legislative reforms in the years after 9/11. Its initial

247 248 249 250

Tony Blair, ‘Shackled in the war on terror’, Sunday Times, 27 May 2007. John Major, ‘42-day detention: the threat to our liberty’, Times, 6 June 2008. Lord MacDonald, Review of Counter-Terrorism, p. 2. This influences decision-making in respect of judicial and legislative reform (as we have seen above) and counterterrorist operations (see Chapter 5).

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effort – the ‘Part IV’ powers – were quickly recognised and debated in the media as providing for indefinite detention without trial. No matter how much the government tried to stress the difficulties of obtaining courtadmissible evidence in some terrorist cases and the ‘rigorous’ procedures of the SIAC court,251 the label stuck: indefinite detention without trial.252 This recalled past policies that were now widely viewed as counterproductive. As the then Liberal Democrat leader Charles Kennedy put it, the last time that a British government ‘attempt[ed] to introduce detention without trial [was] in Northern Ireland in 1971. It proved a ghastly failure.’253 The controversy surrounding the ‘Part IV’ powers, the government’s repeated justifications and moderate application of these powers were all signs that a norm – no imprisonment without trial – had been violated. It was in this context that the Law Lords issued a ruling against the ‘Part IV’ powers in 2004. According to the formal rules (laid down in the Human Rights Act), the government could still have continued with the powers in some form. That it chose not to do so was a further indication of the importance of the norm at stake. A similar trend can be observed in Parliament’s rejection of the government’s proposal after the 2005 London bombings to extend the maximum period of pre-charge detention to ninety days. Such was the level of norm competition in British society, there was no taboo against voting down the government on the central plank of its legislative response to a terrorist attack. In the ‘Part IV’ powers and the later proposals on ninety and then fortytwo days’ detention, the government had adhered to a ‘security first’ norm, which competed with the civil liberty norms expressed by elements of the judiciary, NGOs and sections of the media and political elite. The result of this norm competition was a zone of permissibility which the government could violate for a period, but which it could not breach on an indefinite basis. Along with the inter-institutional conventions outlined above, the UK’s high level of norm competition helped to moderate government policy, though it also contributed to the inconsistency displayed in its terrorism legislation in the years after 2001. If the independence of the judiciary partially provoked the British government to establish exceptional administrative powers, it was this same factor, along with norm competition, that moderated the government’s application of those powers. Contending with estranged and

251 252 253

Home Office, Counter-Terrorism Powers, pp. 6–7. See for example: ‘Terror detainees win Lords appeal’, BBC News Online, 16 December 2004: http://news.bbc.co.uk/2/hi/uk_news/4100481.stm. Charles Kennedy, ‘A battle between liberty and authoritarianism’, Guardian, 7 November 2005.

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independent-minded judges during the judicial review of the ‘Part IV’ powers, and in the context of the controversy provoked in society by those powers, the government used them in just seventeen cases. It was in a similar context that it used control orders in forty-eight cases only. Though they had misgivings about the ordinary English courts, the authorities used these courts for the vast majority of terrorist-related cases, bringing charges against 420 individuals. This – especially during the period when the government had the ‘Part IV’ powers – makes little sense from a purely efficiency-oriented perspective on the detention of terrorist suspects. It can only be explained by the influence of norm competition, public controversy and an independent judiciary. In this context, the government also took the view that sticking with the ordinary English courts as much as possible helped to maintain public confidence in the fairness of its judicial response to terrorism. Such confidence is regarded as an element that can contribute to the British effort to undermine Islamist terrorism over the longer term. In France, on the other hand, there has been a large degree of normative consensus on security issues throughout the period under study here. We saw in Chapter 2 that both representatives of the state and opposition figures such as lawyers and human rights advocates agree that such a consensus exists in French society, although they take different views on whether this is a good or a bad thing. The then Interior Minister, Nicolas Sarkozy, told the National Assembly in 2005 that this feature of French society was a strength, saying: ‘It is a constant of national political life and a point which garners consensus: no weakness is shown against terrorism and terrorists.’ Notwithstanding the rhetorical element of this, it was a revealing statement. No representative of the British government could have spoken of a national consensus in 2004, 2005 or 2008, as the judiciary and Parliament were throwing out key parts of its counterterrorist policy. Mr Sarkozy won applause from his own party and from ‘several benches’ of the opposition socialists when he said that, whether ruled by left or right, ‘France has never and will never give in to the intimidation of the fanatics, assassins and barbarians who are the terrorists’.254 Facing these and other threats, Mr Sarkozy was also clear that security was ‘a fundamental right and the most important freedom’.255 Michel Tubiana, President of the French Ligue des Droits de l’Homme from 2000 to 2005, also pointed, albeit regretfully, to the existence of a French consensus on security issues. He said that French human rights 254 255

Nicolas Sarkozy, speech to the National Assembly, Ordinary Session, 23 November 2005: www.assemblee-nationale.fr/12/cra/2005-2006/076.asp#P207_57062. Quoted in: Hodgson, French Criminal Justice, p. 45.

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NGOs had not been able to mobilise significant opposition, either inside or outside Parliament, against the government’s terrorism legislation. As he put it, ‘we shout, but it is difficult to be heard’.256 Unlike their British counterparts, French human rights NGOs and lawyers have not experienced any significant victories in their campaigns against terrorism legislation, either in Parliament or through the courts. The normative consensus on security issues in French society means that most elite actors with influence unite behind the government’s security-oriented response to terrorism. This consensus was exemplified in the Conseil Constitutionnel’s ruling in 1986 that special terrorism courts, which derogated from the normal procedures of French justice, were compatible with the constitution. These special procedures were bolstered in 1996 by legislation that formally introduced the broad ‘association’ offence into the counterterrorist sphere. This was passed by Parliament in the wake of the 1995 terrorist attacks on France and did not provoke substantial public criticism until 1999, when the law was used to bring 138 people before a mass trial in the Chalabi case, one-third of whom were acquitted. However, this controversy soon passed and no changes to the law followed.257 Unlike the British in 2004, there was no prospect of the state dropping any of the flexible powers which it had taken on for itself in the counterterrorist context. The normative consensus in French society on security issues allows the authorities to ride out controversies like the mass trial of 1999. It also enables them to continue to apply their most flexible counterterrorism procedures and laws, such as the ‘association’ offence, to a large number of terrorist suspects in France. A positive normative value is attached to the fact that investigating magistrates oversee police investigations. Notwithstanding their involvement in extensive counterterrorist operations and some questionable trials, their status as judges appears to endow them with a legitimacy that is not easily challenged. This is reflected more broadly in the French satisfaction that they left the quasi-military option behind in 1981 and have used a special judicial process for terrorism investigations and trials since 1986. The derogations from normal procedure involved in this judicial process are perceived as legitimate partly because (unlike some British administrative powers) they are integrated into France’s

256

257

Interview with Michel Tubiana, experienced defence lawyer on terrorism cases and President of the French Ligue des Droits de l’Homme (2000–5) [FR-P], Paris, 23 February 2007. Some changes were made to counterterrorist operations, however. The nature and consequences of the Chalabi case are outlined in the next chapter.

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ordinary criminal justice system. However, this was only possible in the first place because of the permissive inter-institutional conventions and normative consensus that already existed in France and enabled that flexible judicial approach to be introduced in 1986. There is a self-reinforcing process at play here, whereby an initial interinstitutional and normative consensus permitted special anti-terrorist measures to be introduced and integrated into France’s criminal justice system; a choice which enhanced their legitimacy, reinforced the normative consensus in society and obviated the need for further reform. The opposite dynamic can be observed in Britain whereby initial norm competition and inter-institutional division provoked the government to circumvent its ordinary criminal justice system, thus fuelling the division, intensifying the norm contestation and leading the government to make repeated and sometimes inconsistent rounds of legislative reform. These findings have implications for the broader debate on theoretical explanations of legal responses to terrorism. In an important study, Giovanni Capoccia uses the example of Germany to show how domestic institutions can shape and constrain governments’ counterterrorist policies. Though he recognises that historically grounded norms concerning security and liberty have some influence, he finds that they are often contested and thus do not have a straightforward impact on policy. It is institutions, he believes, which play a more significant role in deciding the policy outcomes of public debates and in constraining governments. For example, Germany’s Federal Constitutional Court has vetoed several important security policies, defying both the government and public opinion in a context where, as in Britain and France, there is majority support for stricter counterterrorism laws.258 However, Capoccia’s findings raise the question of why some national judiciaries constrain their governments more than others. Is it because of different laws and inter-institutional rules, which shape the ability or willingness of courts to challenge government policy? Not necessarily. Both Britain and France are subject to the European Convention on Human Rights. The French Conseil Constitutionel has greater veto powers than its British counterpart and is willing to use them across most policy areas. But it was not the French court that ruled against its government’s legal response to terrorism – it was the British (the next chapter will discuss this further with regard to contrasting rulings by the French and British judiciaries on deportation cases). How can we explain such 258

Giovanni Capoccia ‘Germany’s response to 9/11: the importance of checks and balances’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), pp. 285–334.

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differences? In particular, under what conditions are courts able to defy majority public opinion on security issues? An important part of the answer to this question is that court rulings reflect the normative context provided by elite public discourse in a particular country. The high degree of contestation in British and German discourses on security and liberty provides normative space for courts to rule against governments’ security measures. The normative consensus in France, which favours the prioritisation of security, does not provide such a space. Thus, we have reason to be sceptical of arguments that emphasise the impact of institutional checks and balances over that of norms and ideas. A comparison of Britain, France and Germany indicates that while judicial and other institutions have a direct effect on liberal democracies’ responses to terrorism, the differences in the extent and nature of their interventions cannot be explained without an emphasis on the broader normative environments in which they are situated. From this perspective, distinctive configurations of norms in different national settings provide both context and content for institutional decisions on anti-terrorist legislation.

5

Operations: tackling Islamist terrorism and its supporters

It is widely recognised that a durable terrorist campaign requires not just operational cells, but also planners, logistical assistance and broader circles of recruitment, support and propaganda. Contributors to the cause thus range from the people who plan or actually carry out terrorist attacks, to public figures or other supporters who radicalise individuals or simply call for violence in their speeches. While there is a great difference between the first and the last of these activities, all of these actions have been identified by western governments as areas of concern. This chapter analyses France and the UK’s operational responses to these various components of Islamist terrorism. Counterterrorist operations can be understood as the surveillance, investigation, disruption and arrest of terrorists and their supporters. The main focus of the chapter will be on the operations of internal security agencies – a term used here to refer to police and intelligence services collectively. The section on the UK is divided into three parts, beginning with a discussion of its tolerant attitude towards Islamist extremism during the 1990s. It then turns to consider the British security agencies’ post-9/11 actions against suspected operational terrorists and, finally, the evolution of their approach to dealing with supporters of Islamist terrorism. As France has displayed a more consistent attitude to Islamist terrorism throughout the period under study here, the section on this case is simply divided into two, comprising French actions against suspected operational terrorists and supporters of Islamist terrorism. One should acknowledge the sometimes blurred lines between these two categories. For example, some of those whom I refer to as ‘supporters’ of Islamist terrorism may be suspected of playing a direct operational or logistical role – even though the authorities do not have sufficient evidence to prosecute them on these grounds. Nevertheless, it makes sense to consider these two categories separately, since they raise different challenges for police and intelligence agencies. Certain aspects of British and French counterterrorist operations will be of particular interest to this chapter. In considering actions against suspected operational terrorists, I will compare the volume of arrests 244

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made and assess whether operations are discriminate or indiscriminate. This will be measured with reference to the numbers of people arrested in individual operations and the testimony of police officers. Particularly important here will be officers’ statements about the purpose of their counterterrorist operations and about what level of information or basis they had for particular raids, or for operations in general, during a certain period. I will also assess whether security agency tactics are restrained or forceful. Of most importance here is the degree of force used in counterterrorist operations and the rules and practices governing whether and how the state’s security agencies may shoot suspected terrorists. It is also important to clarify what I mean by certain terms, which will be used when discussing operations against suspected supporters of Islamist terrorism. A tolerant approach would be a scenario where the authorities are aware of, but make little or no effort to intervene against, suspected supporters of terrorism. Alternatively, one may speak of restraint being shown if the authorities make some efforts to prosecute or deport such supporters, but still leave many of them unhindered. Finally, an invasive approach would be one where the authorities plan and implement a concerted effort to prosecute or deport supporters of Islamist terrorism. This chapter shows that a focus on threat perception and strategic choice theory explains key aspects of British and French counterterrorist operations, such as the extensive and forceful responses that both states adopted when they perceived a high level of threat within their own territories. Nevertheless, such rational choice perspectives cannot explain other significant features of the cases, such as France’s recourse to indiscriminate operations and Britain’s refusal of this option, or the differences between the two states’ respective approaches to dealing with supporters of Islamist terrorism. These elements are best explained rather with reference to the different domestic normative contexts in which security agencies in the two states have been operating. Overall, British and French counterterrorist operations have converged in some areas, while continuing to diverge in others. Tracing these trends, I argue that the evolution of France and the UK’s operational responses to Islamist terrorism has been shaped by an interaction between strategic and normative factors. British counterterrorist operations: strategy and community 1995–2001: ‘Londonistan’ The primary focus of the British counterterrorist agencies during the 1990s was on Irish republican groups, which were conducting bombing

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campaigns both in Northern Ireland and on the UK mainland. Even as late as 2001–2, the UK’s domestic intelligence service, MI5, devoted 33 per cent of its overall budget to work on ‘Irish’ terrorism and 23 per cent to countering ‘international’ terrorism.1 The police did arrest a number of British-based Islamists, notably Khalid al-Fawwaz and two others who allegedly had prior knowledge of the 1998 East African US embassy bombings and disseminated Al-Qaeda’s claim of responsibility for the attacks from their London base. Documentation was also found containing Osama Bin Laden’s signature, approving al-Fawwaz as his representative in London.2 In another Islamist-related operation in 1999, British police and MI5 disrupted a cell of activists from the Algerian GSPC group.3 In November 2000, they also uncovered a large cache of explosives in two houses in Birmingham. A man inspired by militant Islamist ideology was later convicted of explosives charges in relation to this find, and sentenced to twenty years in prison.4 Despite these operations, however, there were significant numbers of Islamist extremists based in the UK – many of whom were known to the authorities – who were allowed to promote, fund and perhaps even plan terrorist campaigns in other countries. When fifty-eight tourists were killed in Luxor in 1997 by followers of the Egyptian Jamaa Islamiya – a group then closely linked to Al-Qaeda – the Egyptian government published a list of fourteen men that it said were involved in terrorism. Seven of the men were living in London.5 Indeed the then British Foreign Secretary, Jack Straw, admitted in 2001 that the Egyptian authorities had a right to be concerned ‘about the fact that there have been convicted terrorists from Egypt who have gone to live in the UK’.6 Many militants linked to the Algerian GIA also sought refuge in Britain, after a crackdown by the French authorities on Islamist networks in France in the mid-1990s.7 For example, Abu Walid, who was wanted by the French police in connection with a series of bombings in France in 1995, found his way to North London where he entered into contact with the extremist 1 2 3 4 5 6 7

Intelligence and Security Committee, Annual Report 2001–2002, Cm. 5542 (London: TSO, 2002), p. 9. Rohan Gunaratna, Inside Al-Qaeda: Global Network of Terror (London: Hurst & Company, 2002), pp. 116–17. Ibid., p. 139. ‘Bomb-maker jailed for 20 years’, BBC News Online, 27 February 2002: http://news.bbc. co.uk/2/hi/uk_news/england/1845218.stm. Gunaratna, Inside Al-Qaeda, p. 137. Philip Johnson, ‘Anti-terror powers are left on the shelf’, Daily Telegraph, 20 September 2001. Bradley W. C. Bamford, ‘The United Kingdom’s “War Against Terrorism”’, Terrorism and Political Violence 16:4 (Winter 2004), 740.

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milieu around the Finsbury Park mosque.8 For almost two years, Britain was also home to Abu Doha, an Algerian who allegedly ran an Al-Qaeda training camp for Magrebi fighters in the Khalden site in Afghanistan. He moved to London in 1999 where he raised funds and recruited young people for the camp. Doha was also allegedly involved in the planning of terrorist attacks in France and the United States, according to authorities in those two countries.9 He was arrested in early 2001 when he tried to board a plane to Saudi Arabia with fake passports in his hand luggage. According to Reda Hessaine, an Algerian who infiltrated some GIA circles in London while working for French and British intelligence, the British services knew that Algerian extremists were recruiting people to be sent to Al-Qaeda camps in the late 1990s.10 The British government later estimated that at least a thousand individuals from the UK had attended terrorist training camps in Afghanistan between 1998 and 2003.11 Indeed, leading figures of both the Algerian and the Egyptian groups present in London had direct links with Osama Bin Laden at that time.12 There were also prominent radical preachers based in the UK during the 1990s, such as Abu Qatada and Abu Hamza, who encouraged young people to take up violent jihad and were allegedly involved in recruiting them for the Afghan training camps. Both of these clerics were also wanted on terrorism charges in Jordan and Yemen respectively, but they were monitored by the security services rather than arrested.13 Qatada was later judged by a British court to be a ‘truly dangerous individual’ who was ‘at the centre’ of Islamist terrorism in the UK.14 The result of these and other cases was that a number of countries, including France, Algeria, Saudi Arabia, Egypt, India and Turkey, lodged formal or informal protests about what they viewed as terrorist groups and their sympathisers finding safe haven in the UK.15

8

9 10 11 12 13

14 15

Sean O’Neill and Daniel McGrory, The Suicide Factory: Abu Hamza and the Finsbury Park Mosque (London: Harper Collins, 2006), p. 126. The surveillance of Walid by French intelligence is discussed below. Ibid., pp. 116–18. Doha was allegedly involved in plots to mount terrorist attacks against Los Angeles airport in 1999 and Strasbourg in 2000. Reda Hassaine, ‘Undercover Agent’, Sunday Times, 17 July 2005; Melanie Philips, Londonistan (London: Gibson Square, 2006), pp. 90–1. O’Neill and McGrory, The Suicide Factory, p. 118. Gunaratna, Inside Al-Qaeda, pp. 136–9; Kristin Archick and Paul Gallis, Europe and Counterterrorism (New York: Nova Science, 2003), p. 62. Bamford, ‘The United Kingdom’s “War Against Terrorism”’, 743; interview with a former senior counterterrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005. ‘Qatada’s key UK Al-Qaeda role’, BBC News Online, 23 March 2004: http://news.bbc.co. uk/1/hi/uk_politics/3562695.stm. Philip Johnson, ‘Terror groups hiding in the heart of Britain’, Daily Telegraph, 28 September 2001.

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The French authorities in particular believed that the Algerian terrorists in London were using the UK as an operational base for attacks on France.16 In these and other countries, Britain gained a reputation as a haven for Islamist terrorists, and its capital was dubbed ‘Londonistan’.17 Why did the authorities allow a sizeable number of Islamist extremists and suspected terrorists to base themselves in the UK? Leading counterterrorist police officers tend to focus on their own and the government’s perception of the threat during the 1990s. David Veness, a former Assistant-Commissioner of the London Metropolitan Police has said that Islamist extremists were tolerated because the government believed that while they might be planning or financing terrorist attacks in other countries, they did not plan to attack targets in the United Kingdom. As they were not believed to be a threat to Britain per se, the police and the intelligence agencies monitored their activities, but did not arrest them.18 A senior British counterterrorist police officer agreed with this view, emphasising that in the 1990s, the security agencies were preoccupied with Irish terrorism and that the international context was such that one state’s ‘terrorist’ could find refuge in another state more readily than was possible after 9/11.19 For example, IRA members were allowed to remain in the United States, he said, in spite of extradition requests from Britain, one of America’s closest allies. In the context of the 1990s, he concluded, it was not unusual for the UK authorities to look at Islamist extremists in their midst and say: ‘It’s not my problem.’ However, he added, this turned out to be an inaccurate assessment of many of these individuals: ‘Did we not take the threat seriously? I think the issue was that we actually didn’t realise that there was a threat . . . I don’t think that anyone realised that, in fact, a lot of them were just using the UK as a safe haven, and potentially in years to come, would then turn against the UK.’20 The ‘it’s not my problem’ mentality was also reflected in the fact that it was not an offence to conspire within the UK to commit an act of terrorism abroad until 1997.21 In this context, it has also been claimed that the British security agencies allowed Islamist extremists to agitate for change in other countries on the 16 17

18 19 20

See below, this chapter; and O’Neill and McGrory, The Suicide Factory, pp. 113–14, 123–8. First coined by the French counterterrorist services, this word was a play on the name of Afghanistan, then a major haven for and sponsor of Al-Qaeda. See Stephen Ulph, ‘Londonistan’, Terrorism Monitor 1:12 (February 2004), 1–4; Philips, Londonistan, p. 12. Cited in: Karin von Hippel, ‘Introduction, Europe Confronts Terrorism’ in Karin von Hippel (ed.), Europe Confronts Terrorism (London: Palgrave Macmillan, 2005), p. 9. Interview with a former senior counterterrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005. Ibid. 21 Ibid.; Johnson, ‘Anti-terror powers are left on the shelf’.

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basis of an implicit understanding that if they were given safe haven in Britain, they would not attack targets within the country that had given them refuge. Not merely the view of counterterrorist officials in France and certain Arab countries,22 the allegation of an implicit agreement – or ‘covenant’ – with Islamist extremism has also been endorsed by some British intelligence officials. One former officer of the Metropolitan Police’s intelligence unit, Special Branch, was reported as saying that during the 1990s, ‘there was a deal with these guys. We told them if you don’t cause us any problems, then we won’t bother you.’23 Similar statements have been made by Crispin Black, a former military intelligence officer and an intelligence briefer to the British government’s central Cabinet Office from 1999 to 2002. He wrote in 2005 that ‘the idea of the Covenant of Security pervades every aspect of our intelligence apparatus . . . nearly everything we do or plan for our security takes place within this doctrine’.24 The prominent radical preacher Omar Bakri also spoke of a ‘covenant of security’ that ruled out attacks within the UK. Some commentators drew a link between Bakri’s statement in January 2005 that he believed this pact was now over – and the London bombings six months later.25 In contrast to Crispin Black, however, other UK security officials deny the ‘covenant of security’ allegation. One counterterrorist police officer said that just because some Islamist radicals are convinced that such a covenant existed doesn’t mean that the government or security agencies signed up to it: ‘I don’t buy this covenant of security [idea] . . . I don’t agree that there has been any conscious decision for that to happen.’26 Although the ‘covenant of security’ is unlikely to have reached the status of a conscious policy, certain actions of the British intelligence services did give the impression that some form of understanding existed between them and UK-based Islamist radicals. During the late 1990s, British officials had a number of meetings with the extremist clerics, Abu Qatada and Abu Hamza.27 A British intelligence official met Abu Qatada three times in 1996–7, during which they discussed the latter’s assurance that a decision had been made within London’s Algerian 22 23 24 25 26 27

Don Van Natta Jr., ‘Investigators turn hunt towards bombers’ supporters’, International Herald Tribune, 19 July 2005; ‘Danger! Complacency’, Sunday Times, 10 July 2005. Quoted in: Jason Burke, ‘All eyes on Britain as terror war accelerates’, Observer, 26 January 2003. Crispin Black, 7/7, The London Bombs – What went wrong? (London: Gibson Square, 2005), p. 31. Van Natta Jr., ‘Investigators turn hunt towards bombers’ supporters’. Interview with a Metropolitan Police counterterrorist officer [UK-I], London, 21 November, 2005. O’Neill and McGrory, The Suicide Factory, pp. 56–60, 79–85, 95–102.

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community not to attack in the UK – a community over which he claimed to wield ‘powerful, spiritual influence’.28 In February 2001, Qatada was found in possession of £170,000 in cash, including £805 in an envelope labelled ‘For the Mujahedin in Chechnya’.29 Despite this and other indications of his militant connections, he was not prosecuted or considered for deportation at that time. MI5 officials met with Abu Hamza on at least seven occasions between 1997 and 2000, while Special Branch officers also had several meetings with the preacher, usually in the Hamza family home.30 On one occasion, MI5 officials warned him that he was ‘walking a dangerous tightrope’ with some of his public calls for violence and his organisation of weapons ‘training camps’ in the English countryside.31 Most of the meetings were cordial and co-operative, however, and some were even requested by Hamza himself. According to official notes of the meetings, the preacher gave security officials a certain amount of information about Islamist radicals in London. The intelligence and police officers for their part told Hamza that they didn’t want any trouble, they tried to persuade him to tone down some of his more inflammatory comments and they asked him to use his influence to condemn particular Islamist terrorist incidents abroad.32 Hamza complied with some of these requests but he rejected others and he was not afraid of telling the officials that he was committed to jihad. As one officer noted of a meeting on 1 October 1997, ‘For him, the jihad goes on.’ Crucially, however, Hamza told the officials that his British-based Islamist colleagues posed no threat to their host country. The officer noted: ‘The UK is seen as a place to fundraise and to propagate Islam.’33 Asked about the intelligence and police agencies’ dealings with Qatada and Hamza in the late 1990s, the former British Home Secretary, David Blunkett said: ‘It is a truism that those who are involved in intelligence-gathering and national security do find themselves in the most appalling company.’34 They must do this to gain information, he said, although he thought that the agencies may have

28

29 30

31 34

This is not just Qatada’s testimony, but that of the British intelligence officer. See: ‘Qatada’s key UK Al-Qaeda role’, BBC News Online, 23 March 2004: http://news.bbc. co.uk/1/hi/uk_politics/3562695.stm. ‘Profile: Abu Qatada’, BBC News Online, 26 February 2007: http://news.bbc.co.uk/2/hi/ uk_news/4141594.stm. This is according to MI5 and Special Branch’s files on these meetings. As a book by two journalists from The Times has outlined, many details from these files were revealed in a later court case. See O’Neill and McGrory, The Suicide Factory, pp. 144, 317. Ibid., pp. 83–4, 146. 32 Ibid., pp. 144–6. 33 Ibid., pp. 144–5. Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007.

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become ‘complacent’ about the threat posed by Islamist militants, as a result of their engagement with such figures. In sum, the British authorities showed a considerable degree of tolerance towards militant Islamist activity in the UK during the mid- to late1990s. The crucial factor informing this approach was their assessment that these militants did not pose a threat to their host country. In the context of this threat perception, MI5 and the British counterterrorist police decided to engage with some of the most influential figures in this milieu, and were content to receive assurances from these people that the UK was not the target of their jihad. At the very least, this may have encouraged Islamist militants to think that an implicit pact existed between them and the authorities, and was the reason why they were not being arrested or disrupted. The clear toleration of militant activity and the engagement with some of its proponents can be explained in terms of strategic choice theory. Given their perception of the threat environment (no threat from UK-based Islamists35 and a considerable threat from the IRA), the British authorities tolerated Islamist radicalism because, according to their best judgment, this was the course of action most likely to further their objective – the continued absence of a domestic Islamist terrorist threat to the UK. Certain norms prevalent in British society concerning political asylum and the need for sensitive treatment of minority communities also influenced Britain’s toleration of Islamist radicals. As will be outlined below, these factors took on greater importance in the years after 9/11. Yet even if these features of British society had not existed, its security agencies would likely still have tolerated UK-based Islamist extremists during the 1990s. Their overriding concern with Irish terrorism and their ‘low’ perception of the threat from Islamist militants were sufficient conditions for this response.

Post-9/11 (I): targeting operational terrorists A major expansion of intelligence and arrest operations Although Islamist terrorism shot to the top of the British political agenda after 9/11, its rise in the police’s operational priorities was a more evolutionary process. As Peter Clarke, the head of the Metropolitan Police’s terrorism investigations branch between 2002 and 2008, recalled: ‘During the 1990s many people believed that the extremists and dissidents from 35

This was not an unreasonable assumption. The only potential threat found to the UK from British-based Islamists before 9/11 was the discovery of the cache of explosives in Birmingham in 2000, mentioned above.

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overseas regimes who were active in the UK were, if anything, pursuing agendas against foreign governments, and posed little or no threat to the UK.’36 The British police’s perception of Islamist terrorism ‘did not [change] in a flash of inspiration on 12 September’, he said. Rather, the police spent late 2001 and most of 2002 ‘struggling to understand the precise nature of the threat in the UK. Was it real? Was there any intention to attack us here?’ There was no immediate or clear answer to this question. According to Clarke, the counterterrorist police focused on groups of North Africans for most of 2002 ‘to find out whether they were engaged solely in support, fund-raising and the like’ as was the case before 9/11, ‘or whether they posed a real threat to the UK itself’.37 This eventually led to ‘Operation Springbourne’ in which the police arrested several North African men in January 2003 in connection with the discovery of recipes and the ingredients for making a number of poisons, including ricin.38 Notwithstanding the eventual failure to convict most of these men, this was, according to Peter Clarke, ‘the first real indication since 9/11 of operational terrorist activity here in the UK’.39 Nevertheless, no major plots against targets within Britain were uncovered during the rest of that year. This ‘all changed in early 2004’, as Clarke put it, when the agencies detected the first in a series of Al-Qaeda-inspired terrorist plots, often involving British Pakistanis who had received training and instructions from Islamist militants in Pakistan.40 Indeed, as MI5 and the police began major organisational expansion (see Chapter 3), the evolving nature of terrorist attack planning in the UK required them to use their extra resources in increasingly large and complex investigations. In March 2004, an investigation codenamed ‘Operation Crevice’ culminated in a force of 700 police officers carrying out raids on twenty-four premises across southern England. Eight British Pakistanis and one Algerian-born Briton were arrested and a quantity of ammonium nitrate fertiliser, which can be used in making bombs, was seized. Five of the men were later convicted of conspiracy to cause explosions.41 ‘Operation Rhyme’ culminated the following August 36

37 38 39 40 41

DAC Peter Clarke, ‘Learning from experience – counter terrorism in the UK since 9/11’, speech to the Policy Exchange, 24 April 2007: http://www.policyexchange.org.uk/publi cations/publication.cgi?id=15. Ibid. Chris Summers, ‘Questions over ricin conspiracy’, BBC News Online: http://news.bbc.co. uk/2/hi/uk_news/4433499.stm. Ibid. See also Jacobson, The West at War, pp. 78, 84; and Richard Norton Taylor and Nick Hopkins, ‘How Algerian extremists emerged as danger No. 1’, Guardian, 16 January 2003. Clarke, ‘Learning from experience’. Elaine Sciolino and Don Van Natta Jr, ‘’04 raid signalled threat of home-grown terror’, International Herald Tribune, 15 July 2005; ‘Waiting for Al-Qaeda’s next bomb,’ Economist, 3 May 2007.

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with the arrest of thirteen British citizens. The ringleader of the group, Dhiren Barot, had presented meticulous plans to an Al-Qaeda figure for simultaneous attacks on the UK, involving the use of gas cylinders, a dirty bomb and attacks on trains. Although police found no evidence that the group had acquired material for the planned attacks, his blueprints were detailed and sophisticated enough to ensure that he and seven co-conspirators were convicted of substantial terrorism offences.42 On 7 July 2005, three British Pakistanis and one Jamaican killed fifty-two people in simultaneous suicide bombings in the London Underground and on a bus. This was followed exactly two weeks later by an apparent ‘copycat’ operation by four East Africans, whose bombs failed to explode.43 The investigations into the events of 7 and 21 July gave the police leads into a string of other inquiries. Ian Blair, the then head of the Metropolitan Police, estimated in December 2005 that his force’s counterterrorist operations had increased by 75 per cent since the July bombings: ‘We are now further flat out than we could have ever imagined ourselves to be’, he said.44 ‘Operation Overt’, which targeted the 2006 plot to bomb transatlantic airliners using liquid explosives (see Chapter 1), was the largest surveillance operation in the history of MI5 and the Metropolitan Police. The London flat at the centre of the plot was fitted with listening devices and a miniature camera, allowing the agencies to watch the conspirators construct bombs and make their suicide videos over six weeks.45 In early August, twenty-five men were arrested in connection with the plot in a massive police operation, which involved searches of sixty-nine sites and the seizure of 400 computers and 200 mobile phones.46 Eight of the men were later found guilty of conspiracy to murder, while three were convicted of other terrorism offences. MI5 and the police had thwarted the most dangerous terrorist conspiracy in British history.47 42 43 44

45 46

47

‘Al-Qaeda plotter jailed for life’, BBC News Online, 7 November 2006: http://news.bbc. co.uk/2/hi/uk_news/6123236.stm. Home Office, Report of the Official Account of the Bombings in London on 7th July 2005, HC 1087 (London: TSO, 2006). ‘Anti-Terror Operations “rise 75%”’, BBC News Online, 12 December 2005: http://news. bbc.co.uk/1/hi/england/london/4522952.stm. Even allowing that such statements could be made partly as a bid for resources, intelligence sources also reported a substantial rise in their inquiries around that time. See Antony Barnett, Jamie Doward and Mark Townsend, ‘Terror suspect numbers soar’, Observer, 14 May 2006. Christopher Andrew, The Defence of the Realm: The Authorized History of MI5 (London: Penguin, 2010), pp. 829–31. Frank Gregory, ‘Intelligence-led counter-terrorism operations in the UK summer 2006: issues and consequences’, Analyses of the Real Instituto Elcano 106 (9 October 2006): http://www.realinstitutoelcano.org; ‘Salute the spooks’, Economist, 19 August 2006. Andrew, Defence of the Realm, pp. 828, 833.

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In June 2007, however, they were unaware of a less sophisticated and ultimately unsuccessful attempt to explode two car bombs in central London. The two perpetrators also failed in their attempt to bomb Glasgow airport the following day.48 In addition to MI5 and Metropolitan Police activity, the creation of four police Counter Terrorism Units (CTUs) in the regions in 2007–8 gave a further indication of the expansion of British terrorism investigations.49 These units were involved in several important operations, including the disruption of a group of Pakistani students allegedly linked to Al-Qaeda in Liverpool and Manchester in April 2009, and a terrorist network in three British cities that had been planning an attack on London in December 2010.50 Overall, the UK’s investigations and arrests of Islamist terrorists were transformed from their narrow base during the 1990s to a pattern of extensive operations by 2003–4, which continues to this day. Both intelligence and police work in this area expanded rapidly in the years after 9/11. Following the attacks on America, MI5 ‘re-examined the threat and stepped up its investigative and intelligence collection effort against Islamic extremists in the UK’.51 One publicly available indication of this shift in the agency’s priorities is its budget. The proportion of MI5’s budget spent on countering ‘international terrorism’ jumped by around 10 per cent annually for some years after 2001, rising from 23 per cent to 52 per cent of the total budget by 2004–5. It continued to rise such that by 2009–10, the service was spending 75 per cent of its budget on ‘international’ (mainly Islamist) terrorism. While expenditure on international terrorism had thus risen by over 50 per cent between 2001 and 2010, the proportion spent on Irish terrorism had dropped by 15 per cent (from 33 to 18 per cent). The total proportion spent on counterterrorism (international and Irish) had risen from 56 per cent in 2001 to over 90 per cent by 2010, with counter-espionage losing out most in terms of resources as a result of this transformation.52

48 50

51 52

Ibid., p. 836. See also Chapter 1. 49 See Chapter 3 for further details. Andrew, Defence of the Realm, 836–8; See also Chapter 1. The former case proved controversial when it became clear that police had insufficient evidence to charge the men, although a British court later found (in deportation proceedings) that two of them had terrorist intent, including one which it judged to be an ‘Al-Qaeda operative’. See Chapter 4. Intelligence and Security Committee, Annual Report 2001–2002, p. 23. Ibid., p. 9; Intelligence and Security Committee, Annual Report 2003–2004, Cm. 6240 (London: TSO, 2004), p. 14; Intelligence and Security Committee, Annual Report 2004–2005, Cm. 6510 (London: TSO, 2005), p. 14; Intelligence and Security Committee, Annual Report 2005–2006, Cm. 6864 (London: TSO, 2006), p. 13; Intelligence and Security Committee, Annual Report 2009–2010, Cm. 7844 (London: TSO, 2010), p. 11.

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From a situation in 2001 where MI5 ‘knew of’ just 250 ‘investigative targets’ related to Islamist militancy in the UK, by September 2005 there were ‘several hundred people’ under surveillance in connection with Al-Qaeda-inspired terrorism, according to the government.53 By November 2006, MI5 let it be known that it was monitoring (at different levels of intensity) around 1,600 individuals suspected of being ‘actively engaged in plotting, or facilitating, terrorist acts’.54 This approximate figure rose to 2,000 people by November 2007. Though the service declined to update this figure thereafter, it maintained its extensive operations and was by 2009–10 engaged in approximately 200 investigations into Islamist terrorism ‘cases’.55 MI5 had doubled its personnel and moved from a position of relatively little action on Islamist terrorism to a wide-ranging programme of intelligence and surveillance operations. The scale of the police’s counterterrorist operations after 9/11 can also be gleaned from statistical evidence. Between September 2001 and September 2010, 1,897 people were arrested in Great Britain on suspicion of terrorism-related offences.56 Approximately three-quarters of terrorism-related arrests are made in connection with Islamist extremism.57 Of all those arrested on suspicion of terrorism between 2001 and 2010, 35 per cent were charged with an offence, 10 per cent were subject to ‘alternative action’ (such as deportation proceedings) and 55 per cent were released.58 Since 9/11, therefore, the British police have made extensive arrests of suspected Islamist terrorists, including a large number of people that they had to release because they had insufficient evidence against them. We saw in previous chapters how the intentions of Islamist 53

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Intelligence and Security Committee, Report into the London Terrorist Attacks on 7 July 2005, Cm. 6785 (London: TSO, May 2006), p. 8; Evidence of Charles Clarke MP to the House of Commons Home Affairs Committee, 13 September 2005, Q5: www.publica tions.parliament.uk/pa/cm200506/cmselect/cmhaff/uc462-i/uc46202.htm. ‘MI5 tracking “30 UK Terror Plots”’, BBC News Online, 10 November 2006: http://news. bbc.co.uk/1/hi/uk/6134516.stm. Intelligence and Security Committee, Annual Report 2009–2010, p. 11; Andrew, Defence of the Realm, pp. 827, 836. Home Office, Statistical Bulletin 04/11, 24 February 2011, p. 5: www.homeoffice.gov.uk/ publications/science-research-statistics/research-statistics/counterterrorismcounterterror ism-statistics/hosb0411/. This is based on figures for the 2001–5 period: ‘Memorandum submitted by the Association of Chief Police Officers (ACPO)’ in House of Commons Home Affairs Committee, Terrorism and Community Relations: Written Evidence, HC 165-II (London: TSO, 2005), Ev 2. However, it is consistent with statistics from 2010 on the religion of people in prison for terrorist related offences. Eighty-four out of 121 prisoners classified themselves as Muslim. See Home Office, Statistical Bulletin 18/10, 28 October 2010, p. 33: www.homeoffice.gov.uk/publications/science-research-statistics/research-statis tics/counterterrorismcounterterrorism-statistics/hosb1810/. Home Office, Statistical Bulletin 18/10, p. 6.

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terrorists to maximise casualties (as perceived by British and French security officials) has led agencies in both states to adopt a preventive logic of counterterrorism. For counterterrorist operations, this logic has implied that arrests are often made earlier in the inquiry process than they were before the rise of Islamist terrorism. Peter Clarke cited this factor when explaining the large number of people who are arrested but not charged: ‘If we [the police] cannot be sure how far advanced an attack plan is, or if . . . we cannot bottom out the intelligence, we have to intervene. Sometimes, this inevitably means that there will not be enough evidence to prosecute.’59 In such unclear situations, as another former police officer put it, arrests may be made at an ‘early stage’ to ‘disrupt and deter terrorist activity’.60 Although only 45 per cent of the people arrested on suspicion of terrorism-related offences go on to be charged or subject to ‘alternative action’, this does not necessarily show that the police have been indiscriminate in their arrest operations. This rate is also the norm for those arrested in connection with serious crime in the UK.61 Indeed, individual counterterrorist operations in Britain since 9/11 have tended to be narrowly targeted; in only two operations have more than fourteen people been detained. Forty-three individuals were arrested at various times over a two-week period in connection with the failed attack on London of 21 July 2005.62 In August 2006, twenty-five people were arrested in connection with the plot to bomb transatlantic airliners. In all other operations, however, the most arrested has been fourteen people.63 One Metropolitan Police officer said that this was because ‘each operation is carefully targeted’ and based on intelligence.64 As will be discussed below, this approach appears discriminating when compared to France, where

59 60 61

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Clarke, ‘Learning from experience’. Interview with a former senior counterterrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005. This is according to the Crown Prosecution Service and the police. See Frank Gregory, ‘The UK’s domestic response to global terrorism: strategy, structure and implementation with special reference to the role of the police’, Real Instituto Elcano Working Paper 27 (18 June 2007), 16: www.realinstitutoelcano.org; and ‘Memorandum submitted by ACPO’ in House of Commons Home Affairs Committee, Terrorism and Community Relations: Written Evidence, Ev 2. ‘21 July attacks: arrests and charges’, BBC News Online, 27 January 2006, available at: http://news.bbc.co.uk/2/hi/uk_news/4732361.stm. The most significant operations are outlined above. See also: Institute of Race Relations, Arrests under anti-terrorist legislation since 11 September 2001, 2 September 2004: www.irr.org. uk/pdf/terror_arrests_study.pdf; and Robin Simcox, Hannah Stuart and Houriya Ahmed, Islamist Terrorism: The British Connections (London: Centre for Social Cohesion, 2010). Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

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there have been a number of broad anti-terrorist ‘sweeps’, involving the arrest of as many as 164 people in one operation within a twenty-four or forty-eight hour period. No such broad anti-terrorist sweeps have been carried out in Britain since 9/11. Although the British police made extensive arrests in the years after 2001, their operations remained discriminate. Following the September 11, 2001 attacks, the British police also reviewed their operational tactics for situations in which suspected terrorists might be in possession of explosives, unconventional weapons or pose a threat of suicide attack. In counterterrorist raids where these threats were potentially present, armed police wore protective clothing and used ‘extremely robust’ and ‘aggressive’ tactics to break into premises and arrest terrorist suspects.65 During one such raid in June 2006 in the Forest Gate area of London, officers wore bio-chemical protective clothing, and carried gas masks because of intelligence which suggested that there was a ‘viable’ chemical device in a house. An air exclusion zone was also imposed around the scene, prohibiting aircraft from flying below 2,500 feet above the site.66 An officer shot one of the suspects in the shoulder during the raid, which caused public controversy especially when it emerged that the police had found no dangerous material or other incriminating evidence in the house and that the men were not going to be charged. However, three independent investigations into the operation concluded that the officer concerned had not displayed recklessness, that the shooting was an ‘accident’ and that the police used force proportionate to the threat which they believed they were facing.67 The then Assistant Commissioner of the Metropolitan Police, Andy Hayman, apologised to the people caught up in the operation for ‘the hurt that we may have caused’. However, he also said that police needed to employ such ‘robust’ tactics against potentially dangerous suspected terrorists, citing the killing of police officer Stephen Oake in a counterterrorist operation in 2003, and the Madrid train bombers who blew themselves up in an apartment in 2004

65

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As described by the Independent Police Complaints Commission. See Deborah Glass, IPCC Independent Investigations into Complaints made following the Forest Gate CounterTerrorist Operation, 13 February 2007, pp. 3–4, 6: www.ipcc.gov.uk/en/Pages/inv_report s_london_se_region.aspx. See also ‘Anti-terror raid on London homes’, BBC News Online, 27 July 2005: http://news.bbc.co.uk/2/hi/uk_news/england/london/4721883.stm. ‘Raid police hunt chemical device’, BBC News Online, 3 June 2006, available at: http:// news.bbc.co.uk/2/hi/uk_news/5042724.stm. Deborah Glass, IPCC Independent Investigations into Complaints (13 February 2007); Deborah Glass, IPCC Independent Investigation into the Shooting of Muhammad Abdulkahar, 3 August 2006: www.ipcc.gov.uk/en/Pages/inv_reports_london_se_region.aspx.

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as the police tried to capture them, killing a Spanish officer and injuring eleven others.68 Apart from reconsidering their approach to raids on specific premises, the British police also reviewed their tactics for dealing with individuals who are suspected of being in the course of a suicide attack mission. Based on the Criminal Justice Act 1967 and the common law right of selfdefence, the police’s official manual on firearms of February 2005 stated: ‘a police officer should not decide to open fire unless satisfied that nothing short of opening fire could protect the officer or another person from imminent danger to life or serious injury’.69 Already in 2002, however, the then Commissioner of the Metropolitan Police, Sir John Stevens, had changed what he called ‘many many years of police tradition’, in order to bring in a ‘shoot-to-kill-to-protect policy’ to deal with suspected suicide bombers.70 The Association of Chief Police Officers (ACPO), the national co-ordinating body for all British police forces, also set up a working group to conduct research into suicide attacks and state responses around the world. This involved field visits to states with extensive experience of dealing with such attacks, including Israel, Sri Lanka and Russia.71 Against this background, new guidelines were issued to firearms officers in early 2003. These were reported as stating that officers could stop a suspected suicide bomber with a shot to the head, although such a decision had to be based on intelligence about the suspect and could only be authorised by a senior officer (with whom they would communicate by radio).72 The operational name given to the new tactics for dealing with suspected suicide bombers was ‘Operation Kratos’. These police procedures appear to have been tested a number of times. In the two exceptionally pressurised weeks after the London bombings of 7 July 2005, Metropolitan Police officers dealt with 250 ‘incidents’ of possible suicide bombers, and came very close to opening fire on seven occasions.73 With a terrorist attack on 7 July and a further attempted

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‘In full: police raid statement’, BBC News Online, 13 June 2006, available at: http://news. bbc.co.uk/2/hi/uk_news/5077340.stm. Quoted in: Jimmy Burns, ‘Met adopted secret shoot-to-kill policy in the face of a new and deadly threat’, Financial Times, 25 July 2005. Quoted in ‘The police response was correct’, Guardian, 26 July 2005. Gregory, ‘The UK’s domestic response to global terrorism’, 12. Burns, ‘Met adopted secret shoot-to-kill policy’; Association of Chief Police Officers, Briefing Note concerning ACPO Firearms Policy and Deadly and Determined Attacks, 23 July 2005: www.acpo.police.uk (last accessed on 3 September 2005, but since removed; print copy in author’s possession). Remarks of the then Metropolitan Police Commissioner, Sir Ian Blair, quoted in: Nigel Morris and Barrie Clement, ‘Police have had 250 suicide-bomb scares since 7 July’, Independent, 27 July 2005.

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bombing on the 21st – two major terrorist incidents in two weeks – Britain appeared to be heading towards a new strategic situation. Public fear increased considerably as it seemed a pattern of regular attacks was emerging. As Lawrence Freedman has written, while isolated or infrequent terrorist acts may not have a major effect on public confidence, if attacks can be perpetrated regularly and seemingly at will, this can cause significant changes to public behaviour and have a strategic effect.74 There was a major increase in the number of police on the streets, with as many as 6,000 deployed in London on a number of days, with the stated aim of reassuring the public and deterring terrorists. As much as half of this number were armed on certain days, and random checks on the public were increased.75 All leave was cancelled as police resources were stretched and the force came under considerable pressure to prevent any further attacks from succeeding. It was against this background that the police’s procedures for dealing with suspected suicide bombers failed a crucial test. Following the attempted bombings of 21 July, a major search operation was launched for the four perpetrators who, police feared, might try to strike again. The police were supported in this search by surveillance teams from MI5 and from the special forces unit, the Special Reconnaissance Regiment.76 However, an error-strewn surveillance and pursuit operation on 22 July led to an armed police officer shooting dead an innocent Brazilian man, Jean Charles de Menezes, who had been wrongly taken to be one of the failed suicide bombers of the previous day.77 As subsequent inquiries revealed, surveillance officers had failed to positively identify the suspect and the orders given to armed officers were unclear and interpreted differently by different officers.78 More generally, it was now clear that armed British police were prepared to shoot suspected suicide bombers and were being supported by unarmed military officers who brought their special forces expertise to bear on the surveillance of suspected terrorists. The 22 July operation was another indication of how the British security agencies had revised their tactics and made a forceful operational response 74 75 76 77

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Lawrence Freedman, ‘The coming war on terrorism’, in Lawrence Freedman (ed.), Superterrorism: Policy Responses (Oxford: Blackwell, 2002), p. 47. Sandra Laville and Sophie Kirkham, ‘Day of high alert for wary commuters as 6,000 police seek to deter and reassure’, The Guardian, 29 July 2005. Jonathon Ungoed-Thomas, ‘Executed: anatomy of a police killing’, Sunday Times, 21 August 2005. For a detailed account, see ‘What happened: death of Jean Charles de Menezes’, BBC News Online, 1 November 2007: http://news.bbc.co.uk/2/hi/in_depth/629/629/7073125. stm. Dominic Casciani, ‘Shoot-to-kill policy under debate’, BBC News Online, 8 November 2007: http://news.bbc.co.uk/2/hi/uk_news/7085244.stm.

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to the perceived rise in the terrorist threat. In terms of the broader context, the initial fears that Britain was entering a new strategic situation were not borne out, as the pattern of regular terrorist attacks on London did not persist beyond July 2005. Threat perceptions and norm competition Let us now review the central features of the UK’s post-9/11 actions against suspected operational terrorists and examine the main factors driving its approach. First, we have seen how the British internal security agencies greatly increased their intelligence-gathering against Islamist terrorists after 2001 and made far more extensive arrests. These developments were driven by the change in the government and security agencies’ perceptions of Islamist terrorism. As would be expected by balance of threat and strategic choice theory, the British changed their approach in response to developments in the perceived threat environment. Whereas Islamist terrorism was not viewed as a major threat to the UK homeland before 2001, the scale of the 9/11 attacks and the discovery of terrorist plots in the UK informed a change in British perceptions across three dimensions. The intentions of Islamist terrorists were now seen as hostile to Britain itself – not just other countries – and aimed at causing mass casualties. As discussed in Chapter 1, the terrorists were also thought to have a current capability to deploy conventional explosives and a likely capability to deploy unconventional weapons in the near future. Finally, in terms of proximity, the threat was now regarded as being posed by both external actors (foreign-based terrorists) and internal actors (foreign residents in the UK and, from early 2004 in particular, British citizens).79 The rise in the perceived threat to the UK explains why the British security agencies no longer restricted themselves to making small numbers of arrests in the Islamist milieu and decided to make extensive arrests in the years after 2001. Indeed the perception that Islamist terrorists intended to cause mass casualties led to a preventive logic of operations, which implied early arrests even in cases where the police were unsure of the evidence picture. A second salient feature of the British approach is that its arrest operations have been targeted and discriminate, by and large. In explaining this pattern, it is important to note the degree to which British counterterrorist police officers feel themselves under public scrutiny. Peter Clarke, the head of counterterrorism at the Metropolitan Police between 2002 and 2008, spoke of the ‘criticism we had received [in the 2003 ‘ricin case’] for allegedly exaggerating the threat’ and said that this had damaged 79

See Chapter 1 on these three points.

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the police’s ‘relationships with Muslim communities’. Against this background, he was determined in the case of ‘Operation Crevice’ in early 2004 ‘to gather as much information as possible before making arrests’.80 In the event, police and MI5 collected a detailed raft of evidence for at least two months before the suspects were arrested, which demonstrated the extent of the plot and ensured that five men were later convicted of conspiracy to cause explosions.81 Recalling the arrests of Dhiren Barot and his accomplices later that year, Mr Clarke added: ‘I know that some in the media were sharpening their pencils and that if we had been unable to bring charges in that case, there would have been a wave of criticism about the arrests.’82 Another senior officer spoke of how the media and politicians were increasingly monitoring the actions of the police. ‘We have become very . . . risk aware’, he said, ‘Reputation has become very important.’83 One police officer with secondment experience in France spoke of an occasion when the French police arrested over 160 people in an antiterrorist operation, most of whom were later released without charge. He was surprised to see that ‘it never really hit the [French] press as a negative thing’. He regarded the British media as more ‘muscular’ and more ‘strident’ than their French counterparts.84 British police officers expect their counterterrorist operations to be the subject of a high degree of scrutiny and contestation in the public sphere. As the testimony of Peter Clarke indicates, this has influenced their approach to certain operations and militated against the launching of indiscriminate arrest operations. Public scrutiny of counterterrorist operations forms part of the broader context of norm competition in the UK. The ‘security first’ principle (one could also call it ‘security-maximisation’) has become more salient since 2001 because of the perceived high level of threat. It has nevertheless been challenged by opposing norms, which are linked to conceptions of British history and of current practice in other countries. One such norm – the concept of proportionality – gains some of its resonance from the conflict in Northern Ireland. Indiscriminate operations by British forces there during the 1970s are widely perceived in Britain today as having been counterproductive,85 and this has some effect on current conceptions of what is or is not appropriate in counterterrorism. In briefings given after 80 81 82 83 84 85

Clarke, ‘Learning from experience’. See ‘Timeline: Operation Crevice’, BBC News Online, 30 April 2007: http://news.bbc.co. uk/1/hi/uk_politics/6207348.stm. Clarke, ‘Learning from experience’. Interview with a senior Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-K], London, 5 July 2007. Interview with a Metropolitan Police counterterrorist officer [UK-E], 17 July 2006. See Chapters 1 and 2.

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the 9/11 attacks on America, government officials stressed that the UK’s response to international terrorism would take into account the lessons that they had learned in Northern Ireland, including the importance of a proportionate use of force.86 A former senior government official recalled the mass arrests of suspected Irish terrorists under the internment regime, and said that it ‘proved beyond all doubt that it is not a sensible move for any counterterrorism strategy’. Learning from this and other ‘mistakes’ was important at what he called ‘the strategic level’ – the long-term effort to reduce support for terrorism.87 Whereas the then Prime Minister Tony Blair often spoke of being ‘at war with terrorism’ after 9/11, many British security officials preferred to avoid the term.88 Indeed, following advice from the Foreign Office in June 2006, government representatives were instructed to avoid using the phrase ‘war on terror’ in their speeches.89 One senior police officer said that this ‘change in tone’ was a better approach to countering terrorism.90 In similar vein, the former senior government official spoke disapprovingly in late 2005 of the Bush administration’s approach to counterterrorism, which he characterised as ‘overseas pre-emption . . . a war-like attack on Al-Qaeda terrorists’. That is not how you win a counterterrorist campaign, the official insisted. He was not referring here to the invasion of Iraq, which he said was ‘something else’, but to America’s ‘strategic’ response to terrorism, at which level the US and the UK were ‘not talking the same language’.91 While the United States may have moved closer to the British approach following the election of President Obama in 2008, UK officials’ reaction to US policy during the avowedly ‘war on terror’ years were an important part of the context in which they defined their own, rather different, conception of counterterrorism. British police officers also referred – unprompted – to other countries when explaining their approach to counterterrorist operations. For example, one senior officer said that there had to be informational grounds for

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88 89 90 91

Rosemary Hollis, ‘Britain’s balancing act: the Special Relationship and the Middle East’, paper given at the Royal Irish Academy conference, ‘New World Order?’, Dublin, 14 November 2003. Interview with a former senior UK government official [UK-A], London, 4 November 2005; second interview with a former senior UK government official [UK-A], London, 25 January 2007. ‘Blair: We are all at risk’, CNN, 17 September 2001: http://archives.cnn.com/2001/ WORLD/europe/09/16/blair.cnn/index.html. Jason Burke, ‘Britain stops talk of “war on terror”’, Observer, 10 December 2006. Interview with a senior Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-K], London, 5 July 2007. Interview with a former senior UK government official [UK-A], London, 4 November 2005.

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arresting individuals: ‘You don’t sweep up – and you do see this in France and Italy – just because someone is in an address book’ (of a suspected terrorist).92 The idea of proportionality is important to these officials’ professional identity. Having learned from the UK’s long experience in Northern Ireland, they believe that what they do as British counterterrorist officers is distinct from what the Americans, the French or others do. In keeping with the value that government and police officials placed on proportionality, British counterterrorist arrest operations in the decade after 9/11 remained discriminate, even as they became more extensive. The third and final aspect of UK operations considered here was the police’s upgrading of their tactics for direct confrontations with individuals suspected of being prepared to mount a terrorist attack. This was driven largely by the police’s perception that Islamist terrorists had hostile and unrestrained tactical intentions, and a capability of deploying both conventional explosives and unconventional materials. The police’s forceful tactics for dealing with suspected suicide bombers were also shaped by the perception of this new threat. As outlined above, English law and the rules of the official police manual state that an officer can open fire if that is the only way to stop what he believes to be an imminent threat to life. A great deal depends, therefore, on the officer’s judgment of the situation facing him. The development of a specific policy and a set of tactics under Operation Kratos was an attempt to bring sophisticated tools to bear on this difficult operational challenge. However, the Independent Police Complaints Commission (IPCC), which investigated the killing of Jean Charles de Menezes, concluded that the creation of this specific policy may also have ‘created a mindset’ which predisposed firearms officers to thinking that they ‘are always going to be dealing with suicide bombers’.93 The police responded that there had been many other similar situations in which officers did not open fire. The police also observed the 2008 Mumbai terrorist attacks closely, in which the operatives carried out shooting and bombing raids for many hours until they were killed or captured. In light of these new terrorist methods, the British police were given extra resources for armed patrols of public transport, and they and the Special Forces developed tactics for dealing with any Mumbai-style attack in the UK.94 Supported by the government, the police’s policies on suspected suicide bombers and other determined terrorists remain in 92 93 94

Interview with a senior Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-K], London, 5 July 2007. See the comments of Deborah Glass, as quoted in: Casciani, ‘Shoot-to-kill policy under debate’. Alan Travis, ‘Armed officers to patrol stations at times of heightened terror threat’, Guardian, 24 May 2011.

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place today as a forceful set of operational tactics, driven by the perceived evolution of the threat.95 Nevertheless, the policy on suspected suicide bombers was subject to a great deal of public scrutiny, and the disastrous operation of 22 July 2005 haunted the Metropolitan Police for years afterwards. Although no individual officer was charged for his or her role in the killing of de Menezes, their actions were examined in detail by two IPCC inquiries and a trial in which the Metropolitan Police was found guilty of contravening health and safety legislation and endangering the public.96 A separate inquest into the killing, conducted in 2008, criticised the police and revealed further details of its error-strewn operation.97 In the context of these inquiries, the media also scrutinised the police’s actions, and opposition political parties repeatedly put the chief of the Metropolitan Police, Sir Ian Blair, under pressure to resign, which he eventually did in October 2008.98 Indeed Ken Livingstone, the Mayor of London between 2000 and 2008, warned that this public scrutiny and the trial of the Metropolitan Police in particular might lead police officers to be too cautious against suspected suicide bombers because they could fear that they would be ‘hauled off to court’.99 In the context of this scrutiny, police reviewed the training, command structures, communication and intelligence management on their operational programme against suspected suicide bombers and said that they would consult with ‘communities’ on the issue.100 Nevertheless, a report in 2009 by the UK’s internal police inspectorate found ongoing inadequacies in this programme. Its findings

95 96 97

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The police dropped the name, ‘Operation Kratos’, however. See Rachel Williams, ‘De Menezes: how the Met tried to win the PR war’, Guardian, 12 December 2008. ‘Police guilty over de Menezes case’, BBC News Online, 1 November 2007: http://news. bbc.co.uk/2/hi/uk_news/7069796.stm. Sandra Laville, ‘Jean Charles de Menezes inquest records open verdict’, Guardian, 12 December 2008. The de Menezes family welcomed the inquest’s findings but criticised the coroner for not allowing a verdict of unlawful killing to be returned. One of the opposition politicians, Boris Johnson of the Conservative Party, was elected Mayor of London in 2008, putting him in a stronger position to push Ian Blair out. See ‘Assembly call to sack Met Chief’, BBC News Online, 7 November 2007: http://news.bbc. co.uk/2/hi/uk_news/7082256.stm; and James Sturcke, ‘Sir Ian Blair resigns as Met police commissioner’, Guardian, 2 October 2008. ‘Will the verdict make police over-cautious?’, BBC News Online, 2 November 2007: http://news.bbc.co.uk/2/hi/uk_news/7074425.stm. On the scrutiny of the British police, see Jon Moran, ‘Generating more heat than light? Debates on civil liberties in the UK’, Policing 1:1 (2007), 87–8. Association of Chief Police Officers (ACPO) Use of Firearms Committee, The Police Service Response to the Threat Posed by Suicide Terrorism, March 2006, pp. 7, 15: www. acpo.police.uk (last accessed on 2 June 2006, but since removed; print copy in author’s possession). See also Williams, ‘De Menezes: how the Met tried to win the PR war’.

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were made public, leading the Metropolitan Police to lay out a plan for the strengthening of command structures, communications and other elements of the programme within a year.101 The police thus maintained a forceful set of tactics for use against suspected suicide bombers, but the scrutiny – both external and internal – that they were subject to impacted on the development of their operational programme, pushing them to take the safety of individuals more fully into account. There was also an uneasiness regarding certain similarities that the whole episode had with the SAS’s alleged ‘shoot-to-kill’ policy of the 1980s, which had provoked controversy at home and led to Britain being upbraided by the European Court of Human Rights in 2001.102 Such was the sensitivity in government and police circles concerning the words ‘shoot-to-kill’, that officials made apparently illogical statements about the policy on suspected suicide bombers. After the killing of Jean Charles de Menezes, the Home Office and the police insisted that it was not a ‘shoot-to-kill’ policy, even though the issue was how to respond to the potentially deadly threat of suicide bombing and despite the fact that the policy did provide for a shot to the head in certain circumstances. The then Home Secretary, Charles Clarke, said: ‘The shoot to kill policy simply does not exist – there is no such thing . . . to describe these things as shoot to kill policies is in my opinion completely wrong.’103 The government’s strong defence of the police’s actions, when set against the high level of scrutiny of the police by various elements of the British state and society, provided a further indication of norm competition in the UK between the concepts of security and individual rights.

Post-9/11 (II): gradually tackling supporters of Islamist terrorism From a restrained to a more invasive approach Within three months of the September 11 attacks on America, the British government had pushed the ‘Part IV’ powers through Parliament, providing for the detention without trial of foreign nationals whom intelligence indicated were a threat to national security but on whom the police had insufficient court-admissible evidence to bring a successful prosecution.104 Given London’s reputation as a refuge for Islamist radicals during the 1990s, 101 102 103 104

Her Majesty’s Inspectorate of Constabulary (HMIC), Stockwell – MPS Progress, June 2009: www.mpa.gov.uk/scrutinies/stockwell. See Chapter 2. ‘Capital punishment claim absurd’, BBC News Online, 20 September 2005: http://news. bbc.co.uk/1/hi/uk_politics/4262988.stm. See Chapter 4 for a fuller outline of the powers entailed in ‘Part IV’ of the Anti-Terrorism Crime and Security Act 2001.

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the government was concerned in the aftermath of 9/11 that it might appear to be a soft touch on terrorism, not only in the eyes of foreign governments but also in the eyes of Islamist militants themselves. The Home Office regarded the ‘Part IV’ powers as a crucial signal to such militants. As it stated in February 2004, ‘There is intelligence to suggest that the [‘Part IV’] detentions, combined with a range of other measures, have changed the environment for UK-based international terrorists and that their perception of the UK has also changed as they now view it as a far more hostile place in which to operate’.105 Any idea of a covenant of security with British-based Islamist terrorists diminished in this context over the next number of years. The ‘Part IV’ powers had direct operational implications as they enabled the police to arrest and detain seventeen suspected terrorists from December 2001, whom they might not have been able to detain previously owing to their insufficient incriminatory evidence against them. According to the government’s intelligence, these individuals had actively supported terrorist groups abroad during the 1990s, including Al-Qaeda and Islamist militant groups in Algeria, Libya, Tunisia and Egypt.106 In these cases at least, this would no longer be permitted to go on. The government envisaged that Abu Qatada, one of the most prominent extremist leaders known to the security services during the 1990s, would fall under the ‘Part IV’ powers. One month after 9/11, his assets were frozen and his unemployment benefit payments were suspended.107 He was still not arrested, however, and just before the ‘Part IV’ powers came into force, Qatada disappeared for ten months, much to the embarrassment of the British intelligence services, according to the then Home Secretary, David Blunkett.108 He was eventually located in south London in October 2002 and was imprisoned under the government’s new powers of indefinite detention of foreign nationals.109 Although the ‘Part IV’ powers signalled the government’s intent to deal with some of the foreign militants suspected by their intelligence services, as we saw in Chapter 4, the high level of norm contestation and public scrutiny associated with this measure meant that the government used it 105 106 107 108 109

Home Office, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society, Cm. 6147 (London: TSO, 2004), p. 2 (my emphasis). ‘Who are the terror detainees?’, BBC News Online, 11 March 2005: http://news.bbc.co. uk/2/hi/uk_news/4101751.stm. ‘Muslim cleric denies terror link’, BBC News Online, 19 October 2001: http://news.bbc. co.uk/1/hi/uk/1607863.stm. Interview with David Blunkett, UK Home Secretary 2000–2004 [UK-G], London, 23 January 2007. ‘Cleric held as terror suspect’, BBC News Online, 25 October 2002: http://news.bbc.co. uk/1/hi/uk/2359595.stm.

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against just seventeen individuals. Indeed, notwithstanding the police’s arrests of many suspected terrorists and their supporters, some of the elements of ‘Londonistan’ persisted after 9/11. A number of supporters of Islamist extremism continued to organise their activities from London. An Algerian investigative reporter, Mohamed Sifaoui, says that he encountered ‘dozens of Islamists from all over the world’ at London’s Baker Street mosque in December 2002, including some whom he recognised from his previous research on Algerian militancy.110 These included Abdellah Anès, an Algerian veteran of the jihad against the Soviet Union in Afghanistan, who had worked closely with the most prominent organiser of that campaign – Abdullah Azzam.111 Anès returned home to become a leading figure in the Algerian Islamist movement, and was expelled first from Algeria and then from France during the 1990s. In London by 2002, he encouraged the undercover reporter to support the Islamist cause, before adding: ‘Don’t forget, all the brains are here in London.’112 A more prominent example was the radical preacher Omar Bakri who, as late as December 2000, had spoken publicly of how he was recruiting volunteers for physical training camps in the British countryside before sending them on for ‘military training’ abroad. They could then go on to ‘help [their] Muslim brothers in Chechnya or Palestine or Kashmir or South Lebanon’ or elsewhere, he explained.113 He continued to give radical speeches to young people after 9/11, in which he praised suicide bombing and said that they must ‘kill and be killed’ for Islam. In 2004, he defended the Madrid bombings and said that attacks on 10 Downing Street – home of the British Prime Minister – should also be considered.114 Some young men allegedly involved in a small group run by Bakri – Al-Muhajiroun – later carried out terrorist attacks in Pakistan and Israel.115 Although Bakri’s efforts to radicalise young people gained him public notoriety, he was nevertheless left to continue his activities for several years after 9/11. The other major public radical associated with Islamist extremism at this time was Abu Hamza, who had progressively taken over the Finsbury 110 111 112 113

114 115

Mohamed Sifaoui, Inside Al-Qaeda: How I infiltrated the world’s deadliest terror organization (New York: Thunder’s Mouth Press, 2004), p. 129. Gunaratna, Inside Al-Qaeda, pp. 24, 28. Sifaoui, Inside Al-Qaeda, pp. 123–4, 129. Yotam Feldner, ‘Radical Islamist Profiles: Sheikh Omar Bakri Muhammad – London’, MEMRI Inquiry and Analysis Series 73 (25 October 2001): www.memri.org/bin/articles. cgi?Area=jihad&ID=IA7301. BBC, ‘Britain’s suicide bombers’, 5 April 2004: http://www.bbc.co.uk/pressoffice/press releases/stories/2004/04_april/05/suicide_bombers.shtml. Nick Fielding, ‘Terror links of the Tottenham Ayatollah’, Sunday Times, 24 July 2005.

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Park mosque in North London after 1997. Among those who had lived at the mosque during those years or regularly attended there to hear Abu Hamza preach about jihad were Zacarias Moussaoui, Richard Reid, Djamel Beghal and Nizar Trabelsi, who were later convicted of serious terrorism offences in the US, France and Belgium respectively.116 Indeed Peter Clarke, who was then a senior counterterrorist police officer, later acknowledged that the mosque had become by that time ‘almost like a honey pot for extremists. It had a reputation not only across this country but across Europe and beyond as a place where extremists could come, they could communicate with each other, meet, and really find a place of safe haven.’117 Nevertheless, the authorities made no move against the extremist ‘safe haven’ at Finsbury Park for over fifteen months after 9/11. Finally, in January 2003, the Metropolitan Police decided that they had to raid the mosque. The catalyst was evidence found that month linking Kamel Bourgass – a terrorist suspect who had killed a police officer – to Finsbury Park. A number of Bourgass’s assumed associates also had links with the mosque.118 Early on 20 January, the police used battering rams to enter the mosque as two helicopters hovered above, training spotlights on the building. In an operation involving two hundred police officers, seven men who were living at the mosque were arrested and a three-day search was carried out. The police found gas masks, blank firing guns, army surplus wear and three nuclear, chemical and biological warfare protection suits. Over thirty false passports and dozens of other forged and stolen documents were found.119 However, the police could not yet reveal these details to the public. This was a controversial raid on a place of worship, with the BBC summing up a common view at the time, when it reported: ‘A lot of Muslims will . . . see this as a raid against Islam.’120 The police released a public statement, saying that they were ‘aware of the sensitivity of such an operation’. In an attempt to assuage religious sensitivities, all officers entering the mosque wore plastic overshoes, and copies of the Koran were handled only by Muslim officers.121 The police also stated that ‘the operation was not against the mosque itself or against the people

116 117 118 120 121

O’Neill and McGrory, The Suicide Factory, pp. x–xi, 221–9. Quoted in: Kerri Ritchie, ‘Hamza jailed after decade-long tirade’, Lateline, 8 February 2006: www.abc.net.au/lateline/content/2006/s1565570.htm. O’Neill and McGrory, The Suicide Factory, pp. 254–5. 119 Ibid., pp. 260–1. ‘Q&A: Finsbury Park mosque raid’, BBC News Online, 20 January 2003 http://news.bbc. co.uk/2/hi/uk_news/england/2675983.stm. Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007. See also O’Neill and McGrory, The Suicide Factory, p. 256.

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who go there to pray . . . In particular, we have not entered those parts of the mosque which are used for prayer.’122 The Metropolitan Police had made the raid with the support of the mosque’s trustees, who felt usurped by Abu Hamza and the militants. Yet despite the suspicious material found in the mosque, the authorities still did not move against the radical cleric. Instead, police proceeded carefully as Abu Hamza defied them and the mosque’s trustees by regularly preaching outside the building to audiences of young men who covered their faces in militant style.123 It was not until the United States requested his extradition to face terrorist charges in May 2004 that the Metropolitan Police finally detained Abu Hamza. The American authorities charged him with involvement in a kidnapping in Yemen in 1998 in which four hostages – three Britons and an Australian – were killed. He was also accused of conspiring with others to establish a terrorist training camp in Oregon, USA in 1999–2000 and of having sent recruits to Afghanistan for terrorist training.124 A somewhat embarrassed British government had to explain to their public why it was the United States that was acting against Hamza, and not them. The reason given was that the British authorities did not have the evidence that the Americans had.125 Yet behind the scenes, the Attorney General Lord Goldsmith was arguing that it would look bad for the authorities to hand over this UK-based extremist to the United States without making any effort to try him in Britain.126 This argument won the day. In a London prison, Hamza was formally arrested again under UK terrorism legislation and charged in October 2004 with fifteen offences, including that he had incited racial hatred and solicited people at public meetings to murder Jews and other non-Muslims. He was convicted of eleven of these charges in February 2006, including one charge of possessing information of use to terrorists, and given a sevenyear prison sentence.127 Prior to Hamza’s arrest in 2004, Sheikh Abdullah al-Faisal had been the only extremist cleric arrested and convicted of incitement to hatred or 122 123 124

125 126 127

‘Mosque raid – police statement in full’, BBC News Online, 20 January 2003: http://news. bbc.co.uk/1/hi/uk/2675669.stm. ‘Banned cleric leads prayers’, BBC News Online, 8 February 2003: http://news.bbc.co. uk/1/hi/england/2736125.stm. US Department of Justice, ‘Abu Hamza arrested in London on Terrorism charges filed in the United States’, No. 371, 27 May 2004: http://www.usdoj.gov/opa/pr/2004/May/ 04_crm_371.htm. ‘Blunkett defends UK Hamza probe’, BBC News Online, 28 May 2004: http://news.bbc. co.uk/2/hi/uk_news/3756295.stm. O’Neill and McGrory, The Suicide Factory, pp. 294–5. ‘Abu Hamza jailed for seven years’, BBC News Online, 7 February 2006: http://news.bbc. co.uk/1/hi/uk/4690224.stm.

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other speech crimes relating to the radicalisation of young people towards terrorism.128 Yet with these two and Abu Qatada in detention, by 2004–5 the signs were that the UK was beginning to change its approach towards those who supported or radicalised young people for Islamist terrorism. Important elements within the government showed increasing dissatisfaction with Britain’s hitherto restrained approach to certain Islamist extremists, especially following the July 2005 attacks on London. One official remarked that it was ‘ridiculous’ that Abu Hamza was allowed to go around making violent speeches for a number of years. He said that there was a feeling in government that Britain had been too soft on Islamist extremism and that ‘we need to toughen up’.129 On 5 August 2005, Prime Minister Tony Blair acknowledged that there were still extremist preachers in Britain, who were ‘inciting our young people’ to commit terrorist acts: ‘I’m sorry, there’s no point in us kidding ourselves about the nature of this problem. It’s there, it’s in our communities and we’ve got to root it out.’ Unveiling new grounds for the deportation of individuals who justified violence, he said that these and other measures were designed ‘to send a clear signal’ that Britain was going to harden its approach to extremists: ‘Let no one be in any doubt, the rules of the game are changing.’130 One of the targets of the new signal, Omar Bakri, left London for Lebanon the following day and was later excluded from the UK on the grounds that his presence was ‘not conducive to the public good’.131 By October 2005, the government had proposed a legislative package including the creation of a new offence of ‘encouragement of terrorism’. Passed into law in March 2006 following a long and fractious parliamentary debate, this offence criminalised public statements that encouraged or glorified terrorism, even if such statements did not directly incite or solicit others to violence.132 Although no individual was convicted of this new offence over the following years, this attempt to lower the bar on the criminalisation of public statements that glorified terrorism was a sign of changing times. The authorities gradually began to take a more invasive

128

129 130 131 132

‘Cleric guilty of spreading hate’, BBC News Online, 23 February 2003: http://news.bbc.co. uk/2/hi/uk_news/england/2782987.stm; interview with a former senior counterterrorist officer of the Metropolitan Police [UK-C], London, 14 December 2005. Interview with a UK government official, London, 23 November 2005 [UK-L]. 10 Downing Street, ‘PM’s Press Conference – 5 August 2005’: http://webarchive.natio nalarchives.gov.uk/20060715135117/number10.gov.uk/page8041. Alan Travis, Duncan Campbell, and Audrey Gillan, ‘Clarke uses “personal power” to ban Bakri from UK’, The Guardian, 13 August 2005. Terrorism Act 2006, s. 1.

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approach against supporters of Islamist terrorism, particularly by applying the existing laws on incitement and hate speech more vigorously. A revealing moment came in February 2006 when a group of around 300 people marched across London to the Danish embassy to protest against the publication in a Danish newspaper of cartoons which insulted and made fun of the Prophet Muhammad. As police looked on, the crowd shouted ‘Bomb, bomb, Denmark’, and ‘Bomb, bomb, the UK’. Some carried placards demanding ‘Massacre those who insult Islam’ and invoking the London bombings of the previous July: ‘Britain you will pay: 7/7 on its way’; ‘Europe you will pay, fantastic four are on their way’. One protestor was even dressed in the garb of a suicide bomber.133 Police allowed the demonstration to continue unhindered and made no arrests on the day. Public outcry followed, however, with the authorities receiving over 500 complaints from members of the public, as everyone from Prime Minister Tony Blair to the left-leaning Guardian newspaper made clear their view that the police should prosecute some of the demonstrators.134 With a number of Islamic leaders equally condemning the demonstration, it also became clear that the police would not face any backlash from Muslim communities if they acted. Almost six weeks later, on 15 March 2006, five of the alleged ringleaders of the demonstration were arrested, four of whom were later convicted of soliciting murder and stirring up racial hatred.135 Also in 2006, Mohammed Hamid, Atilla Ahmed and several others were arrested for their role in radicalising and recruiting people for terrorism. The men had organised camps in the British countryside featuring militarystyle training exercises and speeches calling on participants to wage jihad. Ahmed, a disciple of Abu Hamza, played a prominent role here, while Hamid was regarded as one of the leading recruiters for extremist networks in the UK. Among those who passed through their camps or attended private meetings organised by them in London were the terrorists who attempted to bomb the capital on 21 July 2005. When the cases came to trial in 2008, eight men in total were convicted of offences including providing or attending terrorist training and soliciting to murder.136 For 133

134 135

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Philips, Londonistan, pp. 16–18; Steve Bird and Daniel McGrory, ‘Call for holy war at London demo’, Times, 4 February 2006; ‘Threats that must be countered’, Guardian, 6 February 2006. ‘Threats that must be countered’, Guardian; ‘Protestor is returned to prison’, BBC News Online, 7 February 2006: http://news.bbc.co.uk/2/hi/uk_news/4687996.stm. ‘Five held over cartoon protests’, BBC News Online, 15 March 2006: http://news.bbc.co. uk/2/hi/uk_news/4808192.stm; ‘Crackdown: punishing muslim protestors’, Economist, 19 July 2007. ‘Top extremist recruiter is jailed’, BBC News Online, 26 February 2008: http://news.bbc. co.uk/2/hi/uk_news/7256859.stm; ‘UK “terrorism camps” revealed’, BBC News Online, 26 February 2008: http://news.bbc.co.uk/2/hi/uk_news/7190323.stm.

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years, men like Abu Hamza and Omar Bakri engaged in such activities without interference from the British security agencies. Their successors, however, were not offered the same tolerance. There were other signs of change in Britain’s approach to supporters of terrorism. As the then Home Secretary John Reid made a speech to a Muslim audience in east London on 20 September 2006, he was shouted down from the back of the room by Abu Izzadeen, a prominent extremist, before the latter was led away from the meeting.137 Although, at first, the episode seemed to be a sign of the British authorities’ ongoing restraint in the face of certain Islamist radicals, by the following April Mr Izzadeen was in police custody, being prosecuted for inciting and fund-raising for terrorism. Seven other men were charged with a fund-raising offence in the same case, four of whom were also charged with making statements which incited terrorism.138 April 2007 also saw the announcement of a ‘national strategy to enhance [the] prosecution of extremist radicalisers’. The government’s Attorney General, Lord Goldsmith, admitted that ‘for some time I have been concerned that we have not taken sufficiently effective action against . . . extremists . . . who incite others to terrorism’. He announced that new structures were to be set up to give priority to such prosecutions and to better co-ordinate the work of police and the Crown Prosecution Service in this area.139 With their legislative reforms, prosecutions and this new strategy, the British authorities were by 2006–7 engaged in a substantial effort to tackle supporters of Islamist terrorism. The question, however (which will be addressed below), was: why did it take them so long? The UK’s move to a more invasive approach against Islamist radicals did have its limits. In the aftermath of the July 2005 bombings, Prime Minister Blair announced that he would ban Hizb ut-Tahrir, a radical Islamist movement which calls on Muslims to reject participation in western democratic elections and is suspected by some of being a recruiting ground for terrorists. Notwithstanding its radical Islamist politics, however, Hizb ut-Tahrir says that it has a long tradition of commitment to non-violent means of achieving its goal of establishing a Caliphate

137 138 139

‘Reid heckled during Muslim speech’, BBC News Online, 20 September 2006: http:// news.bbc.co.uk/2/hi/uk_news/5362052.stm. ‘Eight men to face terror charges’, BBC News Online, 23 November 2007: http://news. bbc.co.uk/2/hi/uk_news/7109983.stm. Attorney General’s Office News Release, ‘Attorney General announces national strategy to enhance prosecution of extremist radicalisers’, 5 April 2007: www.attorneygeneral. gov.uk (last accessed 18 July 2007, but since removed; print copy in author’s possession).

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(a single Islamic state) across the Muslim world.140 Mr Blair’s government changed course in 2006 and decided not to declare Hizb ut-Tahrir an illegal organisation, despite the prodding of the Conservative Party opposition who called for a move against the group, pointing out that it was banned in Germany and Sweden.141 When the Conservatives took power in mid-2010, they stated that they still wanted to proscribe Hizb ut-Tahrir. However, no ban was announced over the next year, as an inquiry by the security services did not find any reason to take action against the group and government legal experts advised that a ban would be unlawful.142 This indicated that despite the authorities’ more invasive approach against extremism since 2006–7, the main focus was still on individuals who incited others to commit acts of violence or terrorism – not those who simply advocated radical Islamist political goals. In 2011, a broader review of policy in this area concluded that organisations that incited violence or hatred should not be declared illegal in the same way that terrorist groups are. Because of concerns about ‘basic principles of freedom of expression’, the authorities continued with their more targeted approach of prosecuting individuals (such as Abu Hamza or Mohammed Hamid) who incited violence or hatred, rather than taking the crude measure of proscribing entire groups.143 One further indication of the limits on the UK’s tackling of Islamist extremists was its restrained approach to the deportation of suspected terrorists and their supporters. During the 1990s, Britain’s failure to deport certain Islamist dissidents to foreign countries that sought them was a key element in how it initially acquired its reputation as the land of ‘Londonistan’. As was outlined in the previous chapter, the English courts overruled the government’s efforts to deport suspects, usually because they felt there was a risk that the individuals might be tortured or mistreated in the destination country. Saudi dissident, Muhammad al-Massari, successfully appealed his deportation order through the courts

140 141 142

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‘Q&A: Hizb ut-Tahrir’, BBC News Online, 10 August 2007: http://news.bbc.co.uk/2/hi/ uk_news/4127688.stm. ‘Terrorism statements in full’, BBC News Online, 25 July 2007: http://news.bbc.co.uk/2/ hi/uk_news/politics/6915990.stm. Author correspondence with a UK Government Official, 5 December 2010; Mark Townhend, ‘PM wins row with Nick Clegg over crackdown on Muslim extremists’, Guardian, 4 June 2011. However, Al-Muhajiroun and its successor groups were banned because their promotion of violence was judged to reach the higher level of being ‘concerned in terrorism’. See HM Government, Review of Counter-Terrorism and Security Powers – Review Findings and Recommendations, Cm 8004 (London: TSO, 2011), pp. 30–2; and Home Office, ‘Proscribed Terrorist Groups’, 11 November 2011: www.homeoffice.gov.uk/publications/ counterterrorismcounterterrorism/proscribed-terror-groups.

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in the mid-1990s. He remained in Britain, later setting up a website that showed videos of suicide bombs in Iraq, which he showed with considerable satisfaction to a BBC documentary-maker in 2005.144 In the most celebrated case, Rachid Ramda – a suspect in the 1995 Paris metro bombings – stayed in British custody, appealing at every stage of his extradition process for over ten years until finally he was deported to France in late 2005.145 As the previous chapter outlined, there was no change on the deportation issue until after the 2005 London bombings, when the British government stepped up its negotiations with other countries on the issue. During 2006 and 2007, the courts accepted assurances from Algeria and Jordan for the first time, which enabled the government to deport nine individuals suspected of being involved in Islamist terrorism. On the other hand, the courts prevented the government from deporting suspected terrorists to Libya and Pakistan.146 The UK (unlike France) did not deport any individuals to Tunisia or Eygpt either, and there continued to be little prospect that the courts would allow extraditions to Saudi Arabia, meaning that a number of British-based Islamists from those countries could not be deported.147 Yasser Al-Siri, who has been sought on terrorism charges by Egypt and the United States, said: ‘I am not worried about expulsion . . . My legal team thinks it is impossible. I don’t think any British judge can accept any agreement between the UK and any Middle Eastern country like Egypt . . . I still trust the UK with human rights and, while Tony Blair may want to change the laws, there is still the Magna Carta.’148 The British government pushed hard in the years after 2005 to deport more Islamist militants. It made some progress, but still found itself seriously constrained by the judiciary. This check on the government’s ability to deport had an effect on British operations against foreign nationals who were suspected of supporting Islamist terrorism. It meant that the authorities did not arrest and seek to deport as many such foreign nationals as they might otherwise have done. In the six months after the London bombings, for example, it was reported that police and immigration officials had compiled a list of up to

144 145 146 147 148

Paul Reynolds, ‘The last days of “Londonistan”’, BBC News Online, 27 July 2005: http:// news.bbc.co.uk/1/hi/uk_politics/4720603.stm. ‘The non-trial’, Economist, 20 October 2005. See the account of this in Chapter 4. See David Leppard and Jon Ungoed-Thomas, ‘MI5 lists 50 “preachers of hate” for deportation plan’, Sunday Times, 28 August 2005. Quoted in: Mushtak Parker, ‘British intelligence bares link between detainees, Al-Qaeda’, Arab News, 26 August 2005: http://archive.arabnews.com/?page=4& section=0&article=69052&d=26&m=8&y=2005.

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120 individuals of concern, including twenty clerics and six ‘militants’, whom the government was considering deporting.149 By July 2006, thirtyeight people had been arrested with a view to deportation on grounds of national security – nine of whom had previously been under control orders.150 However, several other planned arrests were cancelled, it was reported, because of concerns within the government about the legality of acting against the individuals concerned.151 Former Home Secretary David Blunkett said that while the government had never made a ‘political decision’ to desist from deportation arrests linked to national security, he thought that the constraints imposed by the judiciary ‘may have had a bearing on people’s thinking’. Within the government, he said, ‘there may have been a subliminal reluctance to take action because of the immediate human rights issues and the fact that it would pose a major problem to try to remove someone from the country – with all the legal battles that would take place’.152 Indeed, by 2011, the government had succeeded in deporting only nine individuals linked to Islamist terrorism.153 Britain and the Islamists: explaining a gradual and partial change For several years after 9/11, a number of supporters of Islamist terrorism known to the intelligence and police agencies were allowed to continue their activities in the UK. While some were detained early on, the main extremist ‘safe haven’ in London – Finsbury Park mosque – was tolerated until 2003, and several prominent extremists continued their preaching until 2004 or in some cases 2007. Why such restraint? Why did the police not take a more invasive approach against such figures earlier on? The idea of a ‘covenant of security’ with radical Islamists does not appear to be a convincing explanation of this. Unlike in the pre-9/11 period, we have no evidence of cordial meetings between the security services and influential Islamists after 2001. The police chased down a leading one of their number instead – Abu Qatada. The evidence indicates, rather, that a combination of two factors was crucial to the UK’s relatively restrained approach: the authorities’ perception of prominent Islamist extremists, and the high degree of norm competition in British 149

150 151 152 153

Richard Ford and Daniel McGrory, ‘Blair’s 12 point plan for tackling terror fails to get full marks’, The Times, 28 December 2005; see also Leppard and Ungoed-Thomas, ‘MI5 lists 50 “preachers of hate”’. HM Government, Countering International Terrorism: The United Kingdom’s Strategy (London: TSO, 2006), p. 18. Ford and McGrory, ‘Blair’s 12 point plan for tackling terror fails to get full marks’. Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007. See Chapter 4.

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society. Let us consider the normative dimension first, since it provided the broader context within which the authorities perceived and made decisions on supporters of Islamist terrorism. Norm competition in this context arose out of a clash between an increased concern for security and the ongoing power of opposing norms linked to British self-conceptions and interpretations of history. Even as the principle of security-maximisation rose in salience after 9/11, it was opposed by other norms, including those of political asylum, freedom of expression and respect for communities. London has a long tradition as a place of asylum for political dissidents, ranging from early European communists, to Iraqi, Tunisian and other Arab opposition figures.154 As one former senior governmental official said, when this stretched to include radical Islamists during the 1990s, it partly arose out of these ‘fundamental traditions in the UK – going back to Marx and Engels – of giving people political exile and not imposing strict conditions, allowing them to speak and write and agitate subject to the criminal law’.155 Although the government paid little attention to norms of political asylum in respect of Islamist radicals after 9/11, this principle was upheld by the judiciary. The English courts have significantly constrained the government’s efforts to deport Islamist radicals to countries where they may be persecuted. As will be outlined below, the French judiciary – subject to the same European law as the English courts – has a different record on this issue. The principle of freedom of expression also had an influence. It is interesting to note how British officials interviewed in late 2005 framed extremist preachers as a freedom of expression issue. It was not that they personally thought that such extremists should be allowed to incite violence, but rather that they believed that it would be impossible to prosecute them because English law as they understood it traditionally protected freedom of expression. As one counterterrorist police officer put it: ‘From a police perspective and my personal perspective as well, it’s not our role to monitor websites in particular for pronouncements by these kinds of people.’ Pointing out that very few radical preachers had been convicted of incitement to hatred or violence up to that point, he said: ‘It’s very difficult to go as far as arresting, charging and convicting somebody just on the basis of what they have said.’156 One former senior 154 155 156

Roula Khalaf, Jimmy Burns and Jonathan Guthrie, ‘Security concerns balanced against the rights of dissidents’, Financial Times, 11 July 2005. Interview with a former senior UK government official [UK-A], London, 4 November 2005. Interview with a Metropolitan Police counterterrorist officer [UK-I], London, 21 November, 2005.

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police officer doubted that the government’s proposal to criminalise the encouragement or glorification of terrorism would be workable: ‘What does that mean? In English law, that’s going to be really difficult to prove?’157 A recently retired senior government official agreed that ‘“glorification” is a slippery concept and probably will not work’. He thought that ‘the French take a tougher line on this. The French courts allow it.’158 The government pushed the ‘glorification’ law through Parliament a few months later in early 2006, but these officials’ doubts proved prescient, as no individuals were successfully prosecuted for the offence in the following years.159 A more vigorous application of existing legislation proved to be more important for the successful prosecution of extremists who were inciting others to terrorism. Nevertheless, the English legal system appeared to be inhospitable to any undermining of freedom of expression through the use of the vague offence of glorification of terrorism. The principle of free expression also continued to be influential in other areas, for example in the opposition that political leaders faced when they tried to ban Hizb ut-Tahrir. The norm of respect for ethnic and religious minority communities was perhaps the most important influence on the UK’s restrained approach to tackling some forms of Islamist radicalism. The general background to this was the multiculturalist policy followed for decades since the 1960s, whereby successive British governments recognised and subsidised immigrant groups that organised their social centres, training and other activities around an ethnic or religious community identity.160 A watershed moment in the policing of these communities came in the 1990s when the Metropolitan Police was subject to a great deal of public scrutiny following its lacklustre investigation into the murder of a young black man, Stephen Lawrence, in London. A public inquiry, conducted by retired High Court judge Sir William Macpherson, condemned the police’s lack of urgency in the case and highlighted the patronising and insensitive way in which officers had dealt with the victim’s parents. The inquiry concluded that the police had shown not only ‘incompetence’ but also ‘institutional racism’. Published in 1999, the conclusions of the Macpherson Inquiry led to a public outcry, which the government and police 157 158 159 160

Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Interview with a former senior UK government official [UK-A], London, 4 November 2005. See Simcox et al., Islamist Terrorism, pp. 246–7. Adrian Favell, Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain (Basingstoke: Palgrave, 2001); ‘The war of the headscarves’, Economist, 5 February 2004.

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endeavoured to respond to.161 All police forces introduced community and race relations training for staff and established liaison officers who held surgeries and did other outreach work in minority communities. The London Metropolitan Police set up a ‘Diversity Directorate’ to co-ordinate its efforts in this field and established a number of ‘Independent Advisory Groups’, which included harsh external critics of the police, in an effort to gain a better understanding of communities’ perceptions and concerns.162 Research carried out by criminologists from the London School of Economics, published in 2005, indicated that the police had made ‘substantial and positive changes’ in its response to hate crime against minorities and in its communication and consultation with local communities.163 The Metropolitan Police made considerable efforts to engage with Muslim communities in the years after 9/11, including regularly participating in a forum for dialogue with their representatives – the Muslim Safety Forum – and endeavouring to monitor and tackle hate-crimes against Muslims.164 A London police officer involved in this community engagement said: ‘One of the drivers of this sort of activity is the breakdown of trust between the police and some sections of the communities that was highlighted by things like the Stephen Lawrence inquiry.’165 Other officers cite the riots that took place in the Afro-Caribbean and Asian areas of some British cities during the late 1970s and 1980s, some of which were provoked by heavy-handed policing. One former senior officer of the Metropolitan Police said that these riots had been ‘a wake-up call’ to the police, who had ‘lost the confidence’ of the communities concerned. Claiming that British Muslims were at least ‘acquiescing’, if not quite supporting, the state’s efforts to combat terrorism, he emphasised the 161 162

163 164

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‘Met’s “incompetence” in Lawrence investigation’, BBC News Online, 24 March 1999: http://news.bbc.co.uk/2/hi/uk_news/285569.stm. Janet Foster, Tim Newburn and Anna Souhami, ‘Assessing the impact of the Stephen Lawrence Inquiry’, Home Office Research Study 294 (October 2005), pp. 51–9, 78; interview with a Metropolitan Police officer working on community engagement [UK-M], London, 30 November 2006. Foster, Newburn and Souhami, ‘Assessing the impact of the Stephen Lawrence Inquiry’, viii. Interview with a member of the Muslim Safety Forum [UK-N], London, 14 December 2006. Senior police officers and Muslim community representatives meet monthly at this forum to discuss counterterrorist and other issues impacting on the safety of Muslims. See also: www.muslimsafetyforum.org; and ‘Memorandum submitted by ACPO’ in House of Commons Home Affairs Committee, Terrorism and Community Relations: Written Evidence, Ev 2–Ev 3. Interview with a Metropolitan Police officer working on community engagement [UKM], London, 30 November 2006. Another officer made similar comments on the impact of this inquiry: interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

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importance of maintaining this position.166 Thus, following its previous experiences and lesson-learning in respect of minority communities, there was a widespread belief in the Metropolitan Police after 9/11 that insensitive counterterrorist operations could lead to mass disaffection in Muslim communities and open up its relationship with minority communities to further public scrutiny and criticism. Against this background, the police were wary of tackling Abu Hamza and the Finsbury Park mosque, which was after all a place of worship for a religious minority. Some mainstream Islamic leaders made clear their view that moving against such clerics would alienate the broader Muslim community. In May 2004, Inayat Bunglawala of the Muslim Council of Britain expressed doubts as to whether Abu Hamza had actually broken any laws and said: ‘Attempts to deport imams can only contribute to the feeling of persecution many in the Muslim community have since 11 September 2001.’167 Former Home Secretary, David Blunkett, said that he and Prime Minister Tony Blair urged the police to move against Abu Hamza but that they were slow to do so because of their ‘reluctance to get involved in the issues around social cohesion and the Islamic communities in the mosques’.168 This position was also reflected in important sections of the British political elite, which emphasised the need for sensitivity to community sentiment. From the perspective of David Blunkett, ‘you heard it over and over again in Parliament and outside: people saying that if you alienate the faith community then what you did would be counter-productive. They said it over and over again and it created an atmosphere.’ In this context, he said, not only the police but also some of his colleagues in government ‘were jumpy about the consequences’ of arresting Abu Hamza or raiding his mosque.169 Following the discovery of a link between Kamel Bourgass and the mosque in January 2003, however, the police overcame their reluctance to intervene. The resultant operation, as described above, balanced their assessment that there could be large numbers of potentially dangerous militants inside the mosque with their belief that they had to show sensitivity to the mosque and the community around it.170

166 167 168 169 170

Interview with a former senior counterterrorist officer of the Metropolitan Police [UKC], London, 14 December 2005. Quoted in: ‘Europe moves against radical imams’, BBC News Online, 6 May 2004: http:// news.bbc.co.uk/2/hi/europe/3686617.stm. Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007. Quoted in O’Neill and McGrory, The Suicide Factory, p. 292. Interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 26 January 2007.

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As one police officer recalled, they wanted ‘to do nothing to impair the operational imperative, but at the same time, to do as much as possible to minimise adverse community impact. Those are the two issues.’171 Despite the raid on Finsbury Park mosque, Abu Hamza preached on the street in front of the mosque during 2003 and early 2004 as the police looked on. If the authorities were wary of alienating Muslims by arresting one who seemed to hold some influence over a section of the community, their perception of Hamza at the time was not one that compelled them to act in any case. As David Blunkett put it, there was ‘an assumption . . . that he was a bigmouth and was worth tracking, but wasn’t at the centre of events’.172 It may also have been thought that by tracking Hamza, the police could gain more intelligence about the militants who were coming to hear him speak.173 In any case, both threat assessment and community concerns seemed to be pointing in the same direction: monitor, but don’t arrest Abu Hamza. A similar view was taken on other radical preachers. Over the next two years, however, there was a revision of thinking on both of these counts. According to a former senior government official, clerics such as Abu Hamza and Omar Bakri were merely seen as a ‘nuisance’ by the British government for many years. It was not until 2002–3 that UK officials began to revise this view, he said, when, for example, they noticed how some clerics were visiting terrorist suspects in prison.174 The authorities also began to perceive how the extremist preachers were radicalising scores of young people. Sir Paul Lever, a former head of the Joint Intelligence Committee said in 2005 that there had been a ‘failure [in Britain] to understand the significance of allowing these clerics to recruit openly’.175 Speaking in 2006, the senior counterterrorist police official, Peter Clarke, also acknowledged that ‘nobody really appreciated what an insidious impact this preaching could have’.176 By this time, the London bombings had taken place and MI5 were estimating that approximately

171 173

174 175 176

Ibid. 172 Quoted in: O’Neill and McGrory, The Suicide Factory, p. 291. See ibid., p. xxii and Vikram Dodd, ‘UK failed to act on damning dossier of evidence, says French anti-terror chief’, Guardian, 8 February 2006. This was mentioned as a possibility, in second interview with a Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-B], London, 5 July 2007. Interview with a former senior UK government official [UK-A], London, 4 November 2005. ‘7 July bomber “filmed last year”’, BBC News Online, 25 October 2005: http://news.bbc. co.uk/1/hi/uk/4375598.stm. Peter Clarke, quoted in: ‘Hamza mosque was terror recruiting ground’, BBC News Online, 7 February 2006: http://news.bbc.co.uk/nolavconsole/ukfs_news/hi/newsid_ 4680000/newsid_4689600/nb_wm_4689680.stm.

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1,600 (later revised to 2,000) people in the UK were actively involved in supporting Islamist terrorism. The scale of the problem was now seen as massive, and radical clerics were perceived as contributing to the spread of this radicalisation and recruitment. At the same time, circumstances conspired to show that the majority of people in Muslim communities were far less concerned about the fate of radical clerics or other extremists than many in government and the police had feared. When an American extradition warrant obliged the British authorities to arrest Abu Hamza in May 2004, there was little criticism from the Muslim community around Finsbury Park. The government began to realise that most of the community wanted to get rid of the radical cleric. David Blunkett said: ‘They did [want to get rid of him], but it was belatedly when they did something about it. I mean, you wouldn’t have perceived it at that time. It became more evident as time went on.’177 A Metropolitan Police officer admitted that in the case of Abu Hamza and Finsbury Park ‘we weren’t listening to the communities as good as we could have been’.178 The initial decision not to arrest demonstrators at the Danish embassy in February 2006 appears to be a further example of police applying the principle of respect for communities in the wrong context. Indeed this principle continued to be influential. In September 2006, the then Metropolitan Police Commissioner Sir Ian Blair’s first reaction to Abu Izzadeen’s heckling of the Home Secretary in east London was to say that it was ‘extraordinarily difficult’ to clamp down on Islamist extremism without offending many Muslims.179 Nevertheless, the police gradually began to learn that respect for communities did not have to entail the toleration of extremists for whom most Muslims actually had little time. With Muslim community sentiment and strategic/threat assessment considerations now both appearing to favour a different approach to supporters of Islamist terrorism, the authorities took a more invasive approach against them from 2006 – without causing damage to their relationship with Muslim communities.180

177 178 179 180

Interview with David Blunkett, UK Home Secretary 2000–4 [UK-G], London, 23 January 2007. Interview with a Metropolitan Police officer working on community engagement [UKM], London, 30 November 2006. ‘Reid heckled during Muslim speech’, BBC News Online. On British Muslims’ largely positive perceptions of the police, see Martin Innes et al., Assessing the Effects of Prevent Policing, Universities Police Science Institute, Cardiff University, March 2011, pp. 6–8: www.upsi.org.uk/research-reports.

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French counterterrorist operations: an invasive campaign The fight against operational terrorists Extensive suppression at home; covert operations abroad France’s experience of Islamist terrorism in the 1990s began as a spillover from the civil war between the Algerian regime and the most radical element of the Islamist movement in that country, Le Groupe Islamique Armé (GIA). Since the outbreak of the conflict in 1992, the French authorities had noticed the arrival in France of numerous members of Algerian Islamist groups.181 The first clear sign of a direct threat to French interests came when the GIA killed two Frenchmen in Algeria in September 1993 and kidnapped three French consular officials a month later.182 Among the reasons for the GIA’s animosity towards France was its colonial history in Algeria and its support for the military regime in power there.183 Apart from sending security officials to Algeria to investigate, the French authorities responded by launching Operation Chrysanthemum within France on 9 November 1993. Over two days, 110 people suspected of links to Algerian militant groups were questioned, eighty-eight of whom were arrested and taken into custody by police working on the orders of investigating magistrates.184 One senior counterterrorist officer of the French Police National recalled that even though the arrests in this operation were ‘perfectly justified’ from a ‘technical and judicial’ point of view, ‘one must admit that there was a political climate’. The Algerian Islamists ‘were killing and taking French citizens hostage’, he said, ‘it was necessary to start [tackling them]’.185 It appears that Charles Pasqua, the then Interior Minister, wanted to send a signal with this operation that the French government intended to suppress Islamist activity within its borders.186 Yet the investigators did not find much evidence of terrorist activity in this operation, the senior police officer recalled. ‘We didn’t find much’, he said, ‘we saw that some things were going on, but we didn’t yet understand everything.’187 Of the eighty-eight people arrested in the operation, eighty-five were released within days and only three were 181 182 183 184 185 186 187

Jeremy Shapiro and Benedicte Suzan, ‘The French experience of counterterrorism’, Survival 45:1 (Spring 2003), 80. Gunaratna, Inside Al-Qaeda, p. 122. Shapiro and Suzan, ‘The French experience’, 79; see also Chapter 1. Ibid., pp. 80, 84. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. See Shapiro and Suzan, ‘The French experience’, 80. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007.

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incarcerated and put under formal investigation (‘mis en examen’).188 Although the police and magistrates had little intelligence basis for arresting this large number of people, they did not hesitate to do so, whether it was to send a political signal to the GIA or to satisfy their operational requirements. Some sections of the French media criticised Operation Chrysanthemum as a ‘rafle’ – a word which specifically evokes the indiscriminate rounding-up of Jewish people during the German occupation of France in the Second World War.189 Yet this was just the beginning of several large arrest operations against suspected militant Islamist networks. In 1994, the police conducted raids against Algerians in France who were suspected of supplying weapons and other material to Algeria for use by the GIA in the civil war.190 The biggest operation that year was against what became known as the ‘Chalabi network’ (named after its alleged ringleader). Ninety-three people were arrested during an operation on 8 November 1994, seventy-eight of whom were put under formal investigation.191 Over the next year, a further seventy-six people said to be connected to this network were arrested, with sixty of these being put under formal investigation. Thus, by the time the case reached court in 1998, 138 people alleged to be linked to the Chalabi network were put on trial.192 There was hard evidence at the core of this investigation, such as the discovery of caches of Kalashnikov weapons, grenades and explosive materials.193 However, fifty-one of the 138 people accused of involvement in the Chalabi network were later acquitted of all terrorist charges in court.194 It appeared that this extensive operation had stretched too far. Having successfully combated a GIA plane hijack in December 1994 (see further details below), the French authorities now had confirmation that the Algerian group was prepared to carry out terrorist acts within France itself. The security agencies intensified their extensive operations 188

189 190 191 192 193 194

Fédération Internationale de Ligues des Droits de l’homme (FIDH), France: Paving the way for arbitrary justice, Report No. 271–2, March 1999, p. 31: www.fidh.org/Paving-theway-for-arbitrary. When a suspect is arrested in France, within four days the authorities must decide either to drop the case against him or to pursue it further by putting him under formal examination/investigation (mis en examen). See Chapter 4 for further details. Shapiro and Suzan, ‘The French experience’, 80. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Shapiro and Suzan, ‘The French experience’, 80. FIDH, France: Paving the way for arbitrary justice, pp. 11–12. Ibid., p. 10; interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Pierre-Antoine Souchard, ‘Jugement “Chalabi”: le tribunal relaxe 51 personnes du principal chef d’accusation’, AP (Associated Press), 22 January 1999.

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to disrupt potential terrorist activity linked to the group. On 2 June 1995, 400 police officers were mobilised to arrest 131 people in Paris and three other French cities, dismantling a support network for the GIA and other Algerian groups.195 However, the intelligence services did not know of the existence of parallel Islamist terrorist networks in Lyon and Lille, which launched a series of attacks the following month. In the period from July to October 1995, six terrorist attacks were carried out in Paris and Lyons, killing ten people and wounding over 150.196 The GIA carried out the first and most professional of these attacks on the Paris RER transport system, killing eight people, and they were behind most of the other bombings. However, some of the attacks may have been attempted by ‘copycat’ freelance terrorists not directly linked to the GIA. During a three-month period, bombs were planted with frightening regularity and left to explode without warning in locations ranging from the underground, to near the Arc de Triomphe, to outside a Jewish school.197 The French security agencies launched a massive operation to find those responsible and managed to stem the flow of attacks by capturing groups of suspected terrorists in Lyons, Chasse-sur-Rhone and Lille.198 However, one year later in December 1996, a further attack on the Paris RER killed four people and injured eighty. Similarities between this bombing and the previous year’s attacks led the police to believe that it too was carried out by Algerian-linked Islamist terrorists, although they never succeeded in finding those responsible.199 French officials continued to perceive a substantial terrorist threat to their country over the next year or so. On 26 May 1998, shortly before the World Cup was due to kick off in France, the police arrested fifty-three people on suspicion of plotting an attack against the tournament. Acting on the basis of requests by the French police, a further twenty-seven individuals were arrested that same day by the authorities in Belgium, Switzerland, Italy and Germany.200 Apart from documents and large sums of money, however, little incriminating evidence was uncovered in the raids. As a senior police officer recalls, ‘We didn’t find much . . . some 195 196 197 198

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Shapiro and Suzan, ‘The French experience’, 80. Shaun Gregory, ‘France and the war on terrorism’, Terrorism and Political Violence 15:1 (Spring 2003), 132. Shapiro and Suzan, ‘The French experience’, 80–1. Nathalie Cettina, ‘The French approach: vigour and vigilance’, in Marianne van Leeuwen (ed.), Confronting Terrorism: European Experiences, Threat Perceptions and Policies (The Hague: Kluwer Law International, 2003), p. 90. Stéphane Berthomet and Guillaume Bigot, Le jour où la France tremblera (Paris: Éditions Ramsay, 2005), p. 26; Barry James, ‘Troops join police patrols after deadly train blast: Paris fears new terror attacks’, International Herald Tribune, 5 December 1996. FIDH, France: Paving the way for arbitrary justice, p. 30.

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groups which were more or less plotting, but very weakened.’201 In this context, forty of the fifty-three people arrested in the French raids were released within forty-eight hours. It was reported that the operation was planned by investigating magistrate Jean Louis Bruguière, in consultation with the then Minister of the Interior, Jean Pierre Chevènement.202 For another former investigating magistrate, however, the questionable results of the operation showed the need for magistrates to be ‘prudent when the intelligence officers propose an operation to them which is visibly a political initiative’.203 Although they may once again have cast the net too wide with their arrests, the French security agencies’ World Cup operation did add further to their by now extensive intelligence coverage of Islamist terrorism. According to a former official of the domestic security service, the Direction de la Surveillance du Territoire (DST), they had intelligence indicating that some of the suspected militants arrested in France during the operation had links not only to other European countries and to Algeria, but also to Pakistan.204 It was part of a trend perceived by French officials whereby the Islamist threat to France was broadening beyond the Algerian issue and diaspora to take in networks with international connections and a more universal hostility towards the West in general. The first major indication of this had come in March 1996 when a bomb was discovered and dismantled near a police station in Lille on the eve of a G-7 summit there. This attempted attack was the work of a gang later dubbed the ‘Groupe Roubaix’, a band of French Islamic converts and secondgeneration French North Africans, which had been schooled in Islamist militancy not in Algeria but in Bosnia and Afghanistan.205 By 1998, as was outlined in Chapter 1, the GIA had split and many of its former European-based members reorganised under the aegis of the newly formed Groupe Salafiste pour la Prédication et le Combat. This shift to the GSPC, which had links with Osama Bin Laden, was a further indication of the internationalisation of the Islamist terrorist networks in France.206 By 1998, according to a senior counterterrorist police official, the French security agencies believed that the militant Algerian networks 201 202 203 204 205 206

Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. FIDH, France: Paving the way for arbitrary justice, p. 30. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Gunaratna, Inside Al-Qaeda, p. 125. See Chapter 1; and International Institute for Strategic Studies, ‘A complex web’, Strategic Comments 9:6 (August 2003).

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in France and Europe ‘were no longer working for the Algerian war, which they had practically lost all hope in, but they were working for global Islamist extremism’.207 In line with their evolving threat perception, the French security agencies expanded their operations overseas. Addresses found in the personal organiser of one of the deceased members of the Groupe Roubaix in 1996 revealed the group’s links with individuals in Italy, Belgium, Algeria, Britain, Canada and the United States. In the most notable operation to follow from this, French intelligence (with limited Canadian co-operation) began to conduct surveillance in Montreal on a group of Islamist militants. These included the Algerian, Ahmed Ressam, who was later stopped in December 1999 on the US-Canadian border with a truck full of explosives intended for use in an attack on Los Angeles airport.208 Information provided by the French authorities helped the FBI to identify Ressam’s accomplices, and investigating magistrate, Jean Louis Bruguière, later testified at his trial in the United States. One of Ressam’s colleagues in Montreal, Fatah Kemal, was later convicted of terrorism charges in France.209 The case of Ressam – a GIA operative trying to attack America – was, according to a senior French counterterrorist official, ‘the symbol for us of this change’ to a transnational form of Islamist terrorism.210 Another example of France’s substantial overseas intelligence work on terrorism was their file on Zacarias Moussaoui, who they knew had been in contact with Islamist militants in various countries since at least 1996. Arrested in the United States in August 2001, this French citizen of Moroccan descent was later accused of links to the 9/11 hijackers and convicted of conspiracy to commit terrorist acts.211 As was mentioned in Chapter 3, French intelligence also had detailed information on Djamel Beghal’s activity in Afghanistan in 2000–1: who he met, how and where he travelled, how he received training in explosives and was given a mission by an Al-Qaeda figure to attack American interests in Paris.212 According 207 208 209 210 211 212

Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Shapiro and Suzan, ‘The French experience’, 67, 87. Verena von Derschau, ‘De cinq à huit années de prison ferme pour les chefs présumés d’un réseau islamiste’, AP (Associated Press), 6 April 2001. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Shapiro and Suzan, ‘The French experience’, 87; ‘Q&A: Moussaoui trial’, BBC News Online, 3 May 2006: http://news.bbc.co.uk/2/hi/americas/4471019.stm. Direction de la Surveillance du Territoire, Bordereau D’Envoi à Monsieur le Procurer de la République (Objet: Djamel Beghal), Paris, 7 September 2001 (copy in author’s possession).

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to a statement later made by the Defence Minister, French military intelligence operatives were on the ground in Afghanistan before 11 September 2001.213 Perhaps France’s biggest overseas intelligence operation against Islamist terrorists at this time was in London – or ‘Londonistan’ as they called it. Many GIA-linked extremists had fled to Britain when the French authorities mounted those massive operations against the Algerian Islamist networks in France in 1994 and 1995.214 According to a retired French intelligence official, agents from France’s foreign intelligence agency – the Direction Générale de la Sécurité Extérieure (DGSE) – were in London in 1997 tracking Abu Walid, who was wanted in connection with the 1995 bombings in France.215 Reda Hessaine, an Algerian undercover journalist, was an informant for the DGSE for almost two years at this time, passing them information on the GIA-linked militant activity in Finsbury Park mosque in particular.216 According to both Hessaine and a former senior DST official, French intelligence was eager to keep itself informed on the activities of Abu Qatada, Abu Hamza and some of their associates in London.217 French officials believed that the GIA’s newspaper al-Ansar, published in Finsbury Park, was providing operational directions in code to Paris-based militants. The French were highly critical of the British security agencies’ tolerance of Islamist extremists whom they believed were posing a threat to France.218 Such was the perceived inaction of the UK authorities that the DGSE’s operations in London went beyond the sphere of pure intelligence. According to retired DGSE official Pierre Martinet, France’s foreign intelligence agency, which is a defence institution, had a team of undercover military operatives from its ‘Draco’ unit in London ready to assassinate leading suspected terrorists, if called upon.219 In similar vein, Reda Hessaine claims that his DGSE handler told him that they were considering kidnapping Abu Hamza.220 Although such contingency plans never came to pass, they were an indication of how far the French security agencies may have been prepared to go to respond to the threat as they perceived it. 213 214 215 216 217 218 219 220

Gregory, ‘France and the War on Terrorism’, 139. Bamford, ‘The United Kingdom’s “war against terrorism”’, 742. The retired DGSE official is Pierre Martinet. See O’Neill and McGrory, The Suicide Factory, p. 126. Reda Hassaine, ‘Undercover agent’, Sunday Times, 17 July 2005; O’Neill and McGrory, The Suicide Factory, pp. 123–36. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007; O’Neill and McGrory, The Suicide Factory, pp. 104, 123–8, 134. See, for example, the criticism by Jean-Louis Bruguière, quoted in the Introduction. Cited in O’Neill and McGrory, The Suicide Factory, pp. 125–6. Ibid., pp. 123, 125–6.

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Put under pressure by France’s extensive domestic counterterrorist operations, Algerian Islamist terrorists moved not just to the UK but also to other European countries. Though potentially ready to act unilaterally, the more typical reaction of the French authorities was to engage in joint operations with other European states to prevent foreign-based terrorists from assisting or carrying out attacks within France. Apart from the World Cup operation mentioned above, French intelligence tracked a number of GSPC cells across Western Europe in co-operation with their counterparts in Germany, Spain, Italy and Britain. This led to arrest operations in 2000 and 2001 that broke up GSPC cells in London and Milan and prevented a Frankfurt-based group from carrying out a planned attack on Strasbourg’s Christmas market in December 2000.221 An indication that the previously inactive British authorities could work with France on counterterrorism, this co-operation with the UK and other western states increased after the September 11 attacks on America. In 2002, a multilateral counterterrorism centre, ‘Alliance Base’, was established in Paris. Headed by a Frenchman and staffed by officials from France, Britain, Germany, Canada, Australia and the United States, the base is unique in that it actually plans operations, instead of simply acting as a forum for information-sharing.222 The leading French role in the base seemed to reflect its allies’ acknowledgement of France’s longer experience of combating Islamist militancy and their perception that France has some of the most draconian judicial tools available among western democracies to deal with terrorism.223 In the decade after 2001, the overall level of counterterrorist arrests in France continued to be extensive. Between 2002 and 2010, the French authorities arrested some 2,650 people on suspicion of terrorism.224 Of these arrests, approximately 900 were made in connection with Islamist extremism.225 For all terrorism arrests, it is estimated that around 40 per cent of those arrested are put under formal investigation (mis en examen), 221 222 223 224

225

Gregory, ‘France and the war on terrorism’, 139; Cettina, ‘The French approach: vigour and vigilance’, pp. 73–5, 77. Dana Priest, ‘Help from France key in covert operations’, Washington Post, 3 July 2005. For example, the Franco-German co-operation on the case of Christian Ganczarski, discussed in Chapter 4, was instituted through the Alliance Base. This is derived from: Nicolas Sarkozy, ‘Evolutions en matière de sécurité depuis 2002’, Speech at the Hôtel de Beauvau, 8 June, 2006: http://www.interieur.gouv.fr/sections/ le_ministre/interventions/archives-sarkozy-2005-2007/08-06-2006-evolutions-securite; and Europol, EU Terrorism Situation and Trend Report (TE-SAT Reports, 2008–11): www.europol.europa.eu. See Francois Heisbourg and Jean Luc Marret, Le Terrorisme en France aujourd’hui (Paris: Ed. des Equatuers, 2006), p. 62; and Europol, EU Terrorism Situation and Trend Report (TE-SAT Reports, 2008–11).

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while most of the rest are released.226 In some individual operations, however, the proportion was rather different. One of the largest French counterterrorist operations in living memory was carried out on the instructions of the magistrate Jean Louis Bruguière in June 2003 as 164 people linked to the Iranian opposition group – the People’s Mujahedin of Iran – were arrested on terrorism charges in a swift series of raids. Yet only seventeen of these were placed under formal investigation, raising questions about why the other 147 people were swept up too.227 Apart from arrest operations, the French authorities have also had recourse to a range of other options to disrupt the Islamist milieu. Since 2005, raids on Muslim-owned businesses and mosques have been co-ordinated by the ‘Regional Centres to Combat Radical Islam’ (pôles régionaux de lutte contre l’Islam radical) as part of a policy to monitor and disrupt the ‘support base’ of Islamist extremism and terrorism. These regional centres were established in each of France’s twenty-two metropolitan regions by order of the Ministry of the Interior. They carry out health and safety checks and administrative closures of businesses suspected of providing financial or other support to terrorism or ‘radical Islamist networks’.228 Common targets include fast food restaurants, cafes, call centres, bookstores and clothes shops. The broad remit of the pôles régionaux to target ‘radical Islam’ in general – not just those who engage in or support terrorism – enables them to operate on a large scale. In 2005, for example, the regional centres carried out checks on 558 businesses and forty-seven mosques and prayer halls across France. These raids resulted in 276 judicial penalties and 310 administrative penalties, fifty-five of which were executed.229 In 2004, eighty-eight such raids were carried out across the Paris region alone, involving 1,173 people, of which 185 were arrested and taken into custody, but only eight prosecuted.230 A former senior counterterrorist official of the DST confirmed that such methods were used to disrupt people suspected

226

227

228

229 230

As the French government does not routinely disseminate such information, this percentage is derived from exact figures covering the 2002–6 period only, given in: Sarkozy, ‘Evolutions en matière de sécurité depuis 2002’. Nathalie Cettina, ‘France: inventaire des procedures judiciaires ouvertes à l’encontre de terroristes islamistes (1999–2006)’, Centre Français de Recherche sur le Renseignement, Note d’Actualité 51 (20 September 2006): www.cf2r.org. Open Society Justice Initiative, Ethnic Profiling in Europe: Counter-Terrorism Activities and the Creation of Suspect Communities, June 2007, p. 10: http://ejp.icj.org/IMG/ OSIsubmissionJune2007.pdf. Piotr Smolar, ‘Les lieux de prosélytisme de l’Islam radical mis en difficulté’, Le Monde, 11 April 2006. This was according to a Renseignements Généraux report, leaked to the media. See ‘The French lesson’, Economist, 13 August 2005.

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of links to terrorism. ‘Yes’, he said, ‘health and safety checks, close a restaurant, do an administrative closure . . . We have not succeeded in determining evidence of criminality. So we use these other means, yes, for sure.’231 Along with Bruguière’s June 2003 operation, these raids showed that the French authorities remained capable of carrying out large, even indiscriminate, operations. Nevertheless, the overall trend in the first decade of the new century was for individual counterterrorist operations to be more discriminate than they had been during the 1990s. Among the largest operations conducted against Islamist terrorism after 2000 was the arrest of approximately thirty to forty people from the so-called ‘Chechen networks’ in a series of raids in 2002 and early 2004.232 With the uncovering of formulas for the production of toxic gas and evidence of an effort to make poisons, twenty-five of these people were later convicted of participation in a terrorist ‘association of wrongdoers’.233 In another significant operation in September 2005, police detained a group of nine people – led by Safé Bourada, a veteran of the 1995 terrorist campaign – all of whom were later convicted in relation to a plot to bomb the Parisian metro and Paris Orly Airport.234 This was followed by the arrest of twenty-eight people in two operations in December 2005, during which several kilograms of explosives, assault rifles, revolvers and bulletproof vests were found. Rather than planning attacks in France, however, this network was suspected of carrying out armed robberies to finance terrorist campaigns abroad, including that of Abu Musab al-Zarqawi’s network in Iraq.235 In the following years, the French services mounted several targeted operations to disrupt alleged terrorist attack planning against France, notably 231

232

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234 235

As Chapter 3 outlined, starting in 1998 the DST intelligence agency also carried out law enforcement investigations and arrests in its other capacity as a judicial police service. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Based on figures cited in press reports, I assess that between thirty and forty people were arrested in this operation, although the precise figure is unclear because of the number of raids at different times and the sometimes incomplete nature of the information cited in the reports. These include: Verena von Derschau, ‘Six personnes mises en examen dans l’enquête sur les filières tchétchènes’, AP, 12 January 2004; and Pierre-Antoine Souchard, ‘Les islamistes interpellés ne visaient pas que des cibles russes, selon des enquêteurs’, AP, 28 December 2002. Verena von Derschau, ‘Filières tchétchènes: de huit à dix ans pour cinq prévenus’, AP, 14 June 2006; Verena von Derschau, ‘Début lundi à Paris du procès dit des “filières tchétchènes”’, AP, 18 March 2006. See also Chapter 1. See Chapter 1 for further details. Elaine Sciolino, ‘French, seeing terror plot, arrest 20 during raids in Paris region’, New York Times, 13 December 2005; ‘French operation nets terrorism suspects’, Guardian, 15 December 2005; Eric Pelletier, Jean-Marie Pontaut and Romain Rosso, ‘Les braqueurs du djihad’, L’Express, 22 December 2005.

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in the cases of Kamel Bouchentouf in 2007 and Rany Arnaud in late 2008, as well as in the controversial case of Adlène Hicheur, arrested in October 2009 (see Chapter 1 for details). These and other operations indicated the police’s tendency to make smaller and more discriminate counterterrorist operations after 2000 than they had during the 1990s. One investigating magistrate confirmed this trend. ‘Today,’ he said, ‘you never see a group of more than twenty to thirty [being arrested].’236 Throughout the period since the Islamist terrorist threat to France emerged in the mid-1990s, the French security agencies have shown a willingness and a capability to make a forceful tactical response to the threat. On 24 December 1994, four members of the GIA hijacked an Air France Airbus at Algiers airport, killing three hostages and releasing sixtyfive women and children over the next two days before they were finally allowed to take off. However, the French services tricked them into landing the plane at Marseilles airport rather than their intended destination of Paris. At Marseilles, the Gendarmerie’s elite firearms unit, the Group d’Intervention de la Gendarmerie Nationale stormed the plane, killing the four GIA members and rescuing the remaining passengers alive.237 In the midst of the series of terrorist attacks on France in 1995, the Gendarmerie’s Escadron Parachutiste pursued Khaled Kelkal to hills near Lyons and killed him following an exchange of gunfire. Suspected to be one of the main perpetrators of the attacks, Kelkal’s fingerprints had been found on a bomb that failed to explode.238 Police units have also engaged Islamist terrorists. When the Groupe Roubaix, as mentioned above, attempted to set off a bomb in Lille in March 1996, they were tracked down by the police within twenty-four hours. A five-hour gun battle ensued, and the group refused to emerge from the house that they were holed up in even as it caught fire. Many were burned alive.239 In March 2012, Mohamed Merah killed three off-duty French soldiers and four Jewish civilians in successive attacks before being surrounded in his Toulouse flat by officers from the police’s elite firearms unit, the RAID (l’unité de Recherche, Assistance, Intervention et Dissuasion). Merah opened fire and repelled the initial assault on his apartment before settling down to negotiations with the police. When these produced little result, the RAID threw flash grenades into the flat to increase the pressure on the suspect. Some thirty-two hours into the stand-off, the police 236 237 238 239

Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. Gregory, ‘France and the war on terrorism’, 131. Nathalie Cettina, L’antiterrorisme en question (Paris: Éditions Michalon, 2001), pp. 127–8. Shapiro and Suzan, ‘The French experience’, 86–7.

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entered the flat, prompting Merah to fire repeatedly on officers, which they responded to by shooting him dead.240 As in Britain, the basic rule governing the French domestic security agencies’ use of firearms is that an officer can open fire if that is the only way to stop what he believes to be a threat to his own life or the life of another person. As one senior police official put it, ‘the rule is legitimate defence: of oneself or others’.241 Unlike the British, however, the French security agencies have not attempted to elaborate on this basic principle nor have they issued a specific policy on firearms tactics against suspected suicide bombers. An experienced police investigator said that responding to this threat did not require a review of current procedures: ‘No, I think the rule is clear. Everybody regards a suicide bomber as being a threat to oneself or others.’ A police officer will make his ‘assessment of the threat’, he said.242 The senior police official elaborated on this: ‘If the police officer perceives – with good reason, with good reason – that the person represents a threat to others, he can shoot, he can shoot.’243 Does this leave too much dependent on the judgment of the individual officer? After all, the British police’s ‘Operation Kratos’ was an attempt to bring intelligence and a specific set of tactics to bear on the difficult challenge of judging whether or not a suicide bomber is present and disabling him. On the other hand, the French police’s justification of their decision not to issue a specific policy on suspected suicide bombers echoes a criticism of ‘Operation Kratos’ made by Britain’s independent police reviewers (see above). The senior French police official put it thus: ‘It is [the individual officer] who decides . . . it was an error for the British to give instructions in advance because that always gives the impression of a general authorisation [to shoot].’244 Overall, the leadership of the French police leave a good deal to the judgment of the individual officer, and they are clear that the officer can open fire if he believes that he is facing a suicide bomber. Threat perceptions and a normative consensus This section seeks to explain why French operations against suspected Islamist terrorists 240 241 242 243 244

Angelique Chrisafis, ‘Mohamed Merah vowed to go out in a hail of bullets’, Guardian, 23 March 2012. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Ibid.

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evolved as they did. Although there are no overall arrest statistics available for the 1990s, we know from press reports how many were arrested in the largest operations, including Operation Chrysanthemum (88 arrests), ‘Chalabi’ (169), the June 1995 operation (131) and the 1998 World Cup raids (53). If we consider also the operations carried out during the three-month bombing campaign of 1995 and the many other less publicised arrests, it is clear that France made extensive counterterrorism arrests during the 1990s. During the 2000s, operations continued to be far-reaching, with some 900 people detained in cases of Islamist terrorism between 2002 and 2010. For almost two decades, then, France has mounted extensive operations against suspected Islamist terrorists, including a substantial range of overseas intelligence operations. Given the significant coercive capabilities of their special forces and police and their preparedness to shoot suspected suicide bombers if necessary, the French have also made a forceful tactical response to the threat. France’s operational approach has been informed by its perception of the threat posed by Islamist terrorism. Since the mid-1990s, the government and security agencies have viewed the intentions of Islamist terrorists as hostile to France, unrestrained and focused on maximising casualties. Passenger debriefings following the GIA’s plane hijack in 1994 indicated that the terrorists had spoken of ‘martyrdom’ during the operation, and French officials later stated their belief that the GIA had intended to crash the plane into the Eiffel Tower or blow it up low over central Paris.245 The repeated use of no-warning bombs in the 1995 attacks also indicated the perpetrators’ unrestrained intentions. Officials’ concerns about the potential for suicide attacks in France increased after 9/11, in particular when they learned that some young French citizens were receiving training in such tactics abroad and when they saw AQIM deploying suicide bombs to devastating effect in Algeria.246 Secondly, in terms of terrorist capability, in 1995 and 1996 French officials saw how conventional explosives could cause significant damage and disruption. As was mentioned in Chapter 1, they also warned in more recent years that Islamist terrorists may succeed in deploying unconventional weapons. Finally, concerning proximity, French officials have long perceived the Islamist terrorist threat as emanating from both home and abroad and they adapted to the development of foreign-based

245 246

Gregory, ‘France and the war on terrorism’, 131; Shapiro and Suzan, ‘The French experience’, 80. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. See Chapter 1 for further discussion.

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threats to France by expanding their intelligence operations against terrorists abroad. This threat perception – particularly of the terrorists’ intent to cause mass casualties – implied a preventive logic of counterterrorism that led the French security agencies to make an extensive and forceful operational response. As would be expected by balance of threat and strategic choice theory, the French endeavoured to make an adaptive response to changes in the perceived threat environment. When British officials developed a similar threat perception to that of the French after 2001, the UK also followed this preventive logic and mounted similarly extensive and forceful counterterrorist operations. Notwithstanding these similarities, the French police’s actions against suspected operational terrorists also differed in some important respects from those of the British police even when the two states shared a similar perception of the threat. In 2005–6, when the perceived threat to the UK was as high as it had ever been, the British police’s arrest operations remained targeted and discriminate; only on two occasions were more than fourteen people arrested in an individual operation (with the highest number arrested being forty-three). However, when the perceived threat to France reached a high point in the mid-1990s, the French police were arresting as many as 131 people in a single operation. One former counterterrorist police officer said that it was the policy of the security agencies during the 1990s to conduct wide-ranging arrest operations. ‘Before, we could arrest very widely and arrest many people. In fact, it was a police policy, decided by the police hierarchy, which said: “We arrest the maximum number of people – because we have the means to do so – and then we see what that gives. After the interrogations, the confrontations, we release the people who have nothing to do with it.”’247 This policy ‘generated mass arrests’, he said. However, arresting large numbers of people in individual operations meant that the police also detained many people who were innocent or, at least, against whom the police had little incriminatory evidence. The former police officer explained: ‘The policy was . . . to get results quickly. . .. to fish. Your net is wide. You catch little guys, but also some big fish. So the goal is to catch the most possible; too bad for the little fish – but good, for the big fish.’ However, because of this approach, the officer admitted: ‘we saw that very few people were really put under formal investigation’ (mis en examen). ‘Today’, he continued, ‘it is necessary to be more precise . . . we have more of a tendency to really select the people 247

Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007.

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we arrest, to do investigatory work to eventually prosecute the person.’248 The contrast drawn by this officer between more recent practice and the ‘policy’ of the 1990s indicates that relatively little attention was given in French counterterrorist operations at that time to whether or not they possessed real intelligence against the large numbers of people being arrested. It was in these circumstances that the police mounted operations such as Chrysanthemum in 1993 (eighty-eight arrested, only three formally investigated) and the World Cup raids in 1998 (fifty-three arrested, thirteen formally investigated). As the police carried out these arrests, they were being directed by investigating magistrates with the 1998 operation being approved by the leading counterterrorist magistrate, Jean Louis Bruguière, praised by police for his ‘flexibility’, as we saw in the last chapter. In the opinion of another former counterterrorist magistrate, however, some of these mass arrests were indiscriminate. Referring to the ‘Chalabi’ operation of 1993–4 (169 arrests), he said: ‘We did a real rafle on the initiative of the intelligence services and the judges accepted to do this rafle.’249 A former senior official of the DST was more circumspect, but he did admit that the Chalabi investigation mixed up people who had very different levels of responsibility in the network.250 Asked about the 1998 World Cup operation, the former investigating magistrate said: ‘We wanted to clean out the Islamic base a little, and we were too strong.’251 A former police officer said that although he preferred the more discriminate approach of today, the wide-ranging operations of the 1990s ‘had an effectiveness, nevertheless, because you gather lots lots lots of information’.252 A senior counterterrorist police officer commented similarly that ‘we have a tendency to arrest the most numbers of people possible in order to understand what is going on’.253 Another police officer explained how this search for information drove the mass arrests of the mid-1990s: ‘At that time, they were the first operations that we did

248 249

250 251 252 253

Ibid. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. As mentioned above, the word rafle evokes the indiscriminate round-up of Jewish people in Vichy France. Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Interview with a former counterterrorist investigating magistrate and Prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007.

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[against Algerian Islamist networks]. We didn’t have a choice . . . we didn’t know the individuals very well. We had a lot of names coming to us. We didn’t know who was the most important. So at the beginning, we did very big pick-ups.’254 We have seen how the preventive logic of operations implied that the British police after 9/11 also made early arrests even in cases where they were unsure of the evidence picture. Not only did the French police do this, but they went much further on many occasions, making arrests – not on the basis of developed intelligence or evidence – but as a trawling exercise to gather information about a threat of which they lacked knowledge at that time. As officials admit, this led to rafles in which many ‘little fish’ were arrested. This testimony, along with the examples cited above, points to a pattern of indiscriminate arrest operations by the French counterterrorist police during the 1990s. A strategic choice perspective sheds light on some of the factors that favoured this approach, chiefly the French perception of the threat as severe and proximate (with a large number of militants based in France) and officials’ lack of information about the terrorists for a number of years after the threat emerged in 1993. However, these two conditions were also present in the case of the UK in the years after 9/11 (see Chapters 1 and 3). Yet the British police did not respond with indiscriminate operations such as those carried out by the French. The crucial factor, which made the difference here, was the contrasting domestic normative contexts in which the British and French security agencies operated. We have seen how the high level of norm competition in the UK, with police feeling under scrutiny from the media and other sections of elite British society, militated against the police launching indiscriminate arrest operations. By contrast, when the Islamist terrorist threat to France developed in the mid-1990s, there was a normative consensus that permitted the French police a greater degree of latitude than their British counterparts. As Chapter 2 outlined, the predominant view in France is that the security of the Republic generally supersedes concerns about the liberty of individuals. Leading actors in French politics and society are sensitive to what they regard as latent threats to the stability of the state, and France has long maintained powerful security and intelligence agencies to keep such potential threats under control. As Shaun Gregory argues, ‘a degree of rigour by the forces of the state is widely, though of course not universally, seen as the necessary price for continued security and order’.255 Such attitudes give the state’s security agencies considerable room for 254 255

Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Gregory, ‘France and the war on terrorism’, 134. For a similar view, see Shapiro and Suzan, ‘The French experience’, 84, 88, 92.

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manoeuvre. There is no indication that the French counterterrorist police feel greatly pressurised by public or other forms of scrutiny in their work. In the British de Menezes affair, many of the police officers involved were grilled in open court and questioned under caution by the Independent Police Complaints Commission, whose findings were made public. However, the actions of the French counterterrorist police are not scrutinised by an independent agency, but by an internal body that is responsible to the director of the Police Nationale – the Inspection Générale de la Police Nationale.256 In 2006, for example, the IGPN investigated allegations that some police officers tortured detainees captured in connection with the 1995 terrorist attacks against France – but its findings were not made public and the issue generated little public comment.257 In similar vein, it is also interesting to note that the French authorities do not periodically release general statistics that would allow outside observers to compare counterterrorist arrests against charges and convictions. Such statistics are released at regular intervals in the UK and they have been the focus of public comment in a way that helps to keep the police’s actions under scrutiny.258 Statistics are not released in this way in France, and so no such public discussion ensues.259 Instead, the atmosphere is such that some French counterterrorist officials are content to ‘talk tough’ in the media, evidently feeling that this approach is valued by most of those who matter in society. For example, after the large arrest operation related to the 1998 World Cup, one official source told Le Monde that the raids were done to ‘give the anthill a good kicking’ (‘donner un coup de pied dans la fourmilière’).260 Describing the Islamist milieu in such terms, and hinting that the state’s security agencies engage in harsh and sweeping operations, does not provoke controversy but has instead become a somewhat popular phrase, repeated by members of the French counterterrorist community. Another official, specialised in terrorism cases, paid tribute to investigating

256

257

258 259

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Ministère de l’Intérieur, ‘L’inspection générale de la police nationale’, 3 February 2012: www.interieur.gouv.fr/sections/a_l_interieur/la_police_nationale/organisation/igpn. A parallel body – the Inspection Générale des Services – inspects the Paris police. ‘France to probe police “torture”’, BBC News Online, 13 February 2006: http://news. bbc.co.uk/2/hi/europe/4709076.stm; interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. See FIDH, France: Paving the way for arbitrary justice, p. 5. In a one-off release of information, the Police National provided statistics on terrorism arrests – but not on charges or convictions – to Le Monde in May 2005. There was also a statistic on terrorism arrests and charges buried deep in a speech by Nicolas Sarkozy, in June 2006. Both of these sources are cited above. However, the release of these pieces of information in isolation did not stimulate any public debate. Quoted in: FIDH, France: Paving the way for arbitrary justice, p. 30.

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magistrate Jean Louis Bruguière in 2005 by saying: ‘He is constantly giving the ant-hill a good kicking. He is permanently getting at them.’261 Also repeated by journalists,262 the phrase indicates the value placed on wide-ranging, even indiscriminate, disruption of suspected terrorist networks in France. It is difficult to believe that such a phrase could become a part of British police officers’ contributions to public discourse. They do not adopt such a tone, even in off-the-record comments to the media, not least because of the controversy that would surely follow. That such phrases are appropriate in France indicates the existence of a normative consensus on security issues, in which context the police feel confident about talking tough. This consensus affords the security agencies a relatively wide degree of latitude, which permitted them to make indiscriminate counterterrorism arrests during the 1990s and leaves that option open to them today if they feel it necessary. As we saw above, when British officials compare their counterterrorist operations to those of France or the United States, it is usually to highlight the perceived excesses of those states, in which context they then point up their own more ‘proportionate’ approach. By contrast, some French officials’ comparisons of themselves with other states provide further indication of the value that they place on harassment as a counterterrorist philosophy. Speaking in 2005, Alain Chouet, a former head of the DGSE’s directorate for crime and terrorism, said: ‘One cannot quite imagine Anglo-Saxon countries imitating our tactic of harassment, sometimes without real elements of proof. It’s true that sometimes it’s a bit borderline, but it upsets the networks, stops them from going into action.’263 Although the normative consensus in French society allows its security agencies a wider zone of permissibility than that afforded to the British, this zone nevertheless has its limits. In 1999, French counterterrorist officials found that they had crossed that line in the ‘Chalabi’ operation of the mid-1990s. January 1999 saw the culmination of the mass trial of 138 people suspected of involvement in the Chalabi network. Such were the logistical difficulties of trying such a large number of people in one case that the trial took place 40 kilometres outside Paris, in a gymnasium attached to a prison. A law had been passed just nine months before the trial was due to begin, enabling such exceptional measures to be taken.264

261 262 263 264

Quoted in: Arnaud de La Grange, ‘Paris et Londres: deux méthodes face à la menace terroriste’, Le Figaro, 12 July 2005. See, for example, Oliver Talles, ‘Face au terrorisme, le modèle français’, La Croix, 24 October 2005. Quoted in: De La Grange, ‘Paris et Londres: deux méthodes face à la menace terroriste’. FIDH, France: Paving the way for arbitrary justice, p. 17.

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In the large gymnasium, far from the courtrooms where justice was normally dispensed, and with over eighty gendarmes present to keep watch on the 138 defendants, an ‘authoritarian’ impression was created, as one human rights organisation put it.265 The already controversial trial caused an additional stir when the verdicts were announced and fifty-one of the 138 accused were acquitted of all terrorism charges. Some of the people had spent as long as three years in pre-trial detention, before being acquitted of all charges.266 In November 2000, the then First President of the Cour de Cassation, Guy Canivet, himself took charge of the hearing at which over twenty of those acquitted were awarded compensation for being wrongfully detained in prison.267 This exceptional gesture by the highest judge in France indicated his disapproval of the conduct of the Chalabi case, which had brought French judicial investigations of terrorism into disrepute. In this context, six years after their first rafles against Islamist terrorism, the Chalabi trial was the catalyst for the police and investigating magistrates to rethink their practice of large, often indiscriminate, operations. While counterterrorist officials today still claim that their large operations of the 1990s had positive results, they do acknowledge that these tactics were problematic. One counterterrorist police officer said that an important police objective – disruption – was achieved in the Chalabi operation: ‘At a policing level, we dismantled a network.’ In view of the many acquittals, however, he admitted that ‘the investigatory goal was not reached’. The problem, he thought, was that managing 138 cases was too much for the two investigating magistrates charged with the work. After the result of the Chalabi case, he said, ‘we realised that it was too big’.268 Other police and intelligence officers agreed that the large operations of the 1990s had often resulted in the arrest of too many people to prosecute at once. A senior counterterrorist police officer said: ‘I think that today, we no longer do these types of operations. I think that there is a reflection on the negative aspects of these types of operations because, after [the arrests], it becomes very difficult to instruct a case. You have too many people being prosecuted’.269 A former senior official of the DST

265 266 267

268 269

Ibid., p. 18. Ibid., pp. 11–12. Human Rights Watch, In the Name of Prevention: Insufficient Safeguards in National Security Removals, HRW 19:3(D), June 2007, p. 8. Interview with Michel Tubiana, experienced defence lawyer on terrorism cases and President of the French Ligue des droits de l’homme (2000–2005) [FR-P], Paris, 23 February 2007. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007.

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commented similarly on the Chalabi case: ‘At the judicial level, it wasn’t very good. It was a failure because there were too many people.’270 At first glance, the comments of these police and intelligence officers seem to reduce the difficulty with large operations to a management problem: too many people to prosecute effectively. However, their judgments also rest on a normative standard, which stipulates that it is inappropriate to pursue charges against large numbers of people if many of them cannot be prosecuted successfully. The presence of this standard – which stems from the more general norm of respect for individuals’ rights – was indicated by the widespread disapproval provoked by the Chalabi case. French society’s zone of permissibility did not extend as far as allowing mass trials that gave the impression of indiscriminate prosecution. One counterterrorist investigating magistrate summarised the lesson of the Chalabi case as follows. ‘There was this tendency to cast a wide net’, he said, ‘Today that is finished . . . because we really learned that one must not go too far in [charging people with] “association of wrongdoers”.’271 Notwithstanding the importance of the normative context, it should also be noted that the decrease in the French authorities’ use of large operations was also done against the background of a perceived change in the proximity of the Islamist terrorists threatening them. According to a senior counterterrorist police official, the terrorist threat to France for most of the 1990s was ‘very territorial’, with a large number of militants based within the country. This meant that the police’s ‘investigations were very centred on France . . . with big operations in France’, he said. However, by approximately 1998–9, he continued, the services perceived that ‘the very French character of the [terrorist] networks had disappeared’ and that the threat to France was becoming increasingly ‘international’ instead. With many Islamist terrorists now based in other European countries, there was less demand for large operations in France. Counterterrorist operations became ‘very international’, he said, ‘with, in general, a lesser part in France . . . some operations, which were very much linked to things that were happening in other countries’.272 As mentioned above, many Islamist militants had left France during the 1990s under pressure from the authorities’ extensive operations. As another police officer put it, the French started fighting Islamist terrorism before the rest of the world. Speaking in 2006, he believed that 270 271 272

Interview with a former senior DST counterterrorist intelligence official [FR-F], Paris, 30 January 2007. Interview with an investigating magistrate specialised in terrorism [FR-M], Paris, 22 February 2007. On the broad ‘association of wrongdoers’ offence, see Chapter 4. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007.

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this determined action was having two effects; first, that there were ‘more than 250 prisoners linked to Islamist terrorism’ in detention in France at that time and, secondly, that many of the terrorist networks had moved to other countries: ‘Great Britain, for sure . . . but also Italy, Spain, Germany’.273 The officer also mentioned a second reason why the demand for massarrest operations had decreased. Since a key reason for conducting such actions was the French services’ relatively low level of knowledge of the Islamist threat when it first emerged in the 1990s, the subsequent increase in their intelligence coverage reduced the need for wide-ranging arrest operations. ‘Today’, he said, ‘we have a more definite knowledge of the phenomenon. We know the drivers [of terrorism] . . . so we try to hit [them].’274 Several French officials said that the level of the terrorist threat remained high during the decade or more after 1999, citing various plots and pointing out that AQIM or other Islamist terrorists could infiltrate France from other countries.275 Nevertheless, the perceived flight of much of the terrorist threat abroad is relevant to understanding why individual arrest operations within France after 1999 tended not to be as wide-ranging as they had been during the previous decade. In the Chalabi investigation, counterterrorist officials had violated the relatively wide zone of permissibility afforded to them by French society. The disapproval generated by this case influenced the security agencies’ move towards more discriminate operations after 1999, a development that was also facilitated by the increase in their intelligence coverage and the flight abroad of many of the Islamist terrorists threatening France. Nevertheless, this was a change in degree – not in kind. Mass arrests did not end completely even after the Chalabi trial, and the pôles régionaux conducted raids on hundreds of businesses and premises, merely on suspicion of being linked to ‘radical Islam’. The French authorities were still able to conduct large and even indiscriminate operations if they felt it necessary. Zero tolerance of supporters of Islamist terrorism The French authorities have taken a consistently invasive approach against suspected supporters of Islamist terrorism since the mid-1990s. 273 274 275

Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Ibid. Interview with a senior French police official and a French counterterrorist police officer [FR-U&V], 9 December 2010; interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. See also Chapter 1.

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This sustained campaign has not only caused many militants to leave the country but has also contributed to a situation whereby support for Islamist extremism in France has been muted and largely outside the public sphere. Ironically, this silencing of terrorist supporters has not been done by prosecuting people for speech crimes, such as incitement to terrorism. Few people have been convicted of the offence of ‘directly inciting . . . acts of terrorism . . . [or] commit[ing] apologie of these acts’.276 This offence seems to be more narrowly defined than its British counterparts, but the French government has not tried to broaden its terms over the last decade. The authorities have rather pursued a two-pronged approach to tackling supporters of Islamist terrorism: arrests and prosecutions using the offence of ‘association of wrongdoers’, and administrative deportations. ‘Association of wrongdoers’ is an offence capable of broad interpretation, as we saw in Chapter 4, and investigating magistrates have applied this offence not just to those involved in operational terrorism, planning or logistical support, but also to people who support Islamist militancy in more general ways such as those who offer ideological support for violence. For example, the imam Chellali Benchellali was charged with participation in an ‘association of wrongdoers’ in 2004 as part of the investigation into the ‘Chechen network’, in which his son, Menad, was a leading member.277 Although convicted of the offence in 2006, he was only sentenced to two years in prison, of which eighteen months were suspended. It was just enough to cover his period in pre-trial detention and he was soon released. When the government sought to deport Benchellali some months later, it alleged that he had close relations with militants and that he ‘incites openly jihad during very politicised sermons’.278 Yet none of his offending statements cited by the authorities referred to France, nor did they incite terrorism as such.279 To the extent that Benchellali was supporting terrorism, it was general or indirect support of a kind that merited less than two years in prison. Such cases are quite common with, for example, thirty-nine of the eighty-seven people convicted in the Chalabi case being given sentences of less than two 276

277 278 279

Between 1994 and 2005, only five people were convicted of this offence. See Code Pénal, Art. 24, para. 5; Council of Europe, ‘Apologie du terrorisme’ and ‘incitement to terrorism’, (Strasbourg: Council of Europe Publishing, 2004), pp. 99–100; and Casier Judiciaire Nationale, Condamnations prononcées pour des crimes et délits en matière de terrorisme: 1995–2005 (copy in author’s possession). Verena Von Derschau, ‘Filières tchétchènes: dix ans de prison requis contre cinq prévenus’, AP, 4 May 2006. For details on this case, see: Human Rights Watch, In the Name of Prevention, pp. 60–2. Ibid.

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years.280 It is clear that not all of the hundreds of people convicted of ‘association of wrongdoers’ in recent decades were operational terrorists or providers of logistical support to terrorism. The offence has also proved useful against Islamist radicals engaged in propaganda, radicalisation or other indirect forms of support for terrorism. The mass arrests of the mid-1990s thus sent a signal not only to operational terrorists but also to the broader Islamist milieu. But after arrest, what does one do with those who are merely engaged in indirect forms of support for terrorism? With some such cases meriting only two years or less in prison for the offence of ‘association of wrongdoers’, French counterterrorist officials have availed themselves of another legal tool against suspected Islamist extremists. As one police officer explained: ‘Radical Islamists too often scoff at being sentenced to prison, but there is one thing they dread above all: expulsion from French territory.’281 Although it cannot be used against French citizens, deportation can be applied to foreign nationals, which make up a significant part of the radical Islamist milieu in France. It has proved an important tool in the French authorities’ clampdown on extremism. During the 1990s, a number of suspected supporters of terrorism were deported to at least three countries: Morocco, Tunisia and Turkey.282 However, France did not deport Algerian Islamists to their home country between 1992 and 1999, because a bloody civil war was raging there and the Algerian regime was carrying out extrajudicial executions of its enemies and interning them in secret camps.283 This ‘posed a problem’, a senior Interior Ministry official recalled, because some perceived threats to national security could not be removed.284 French officials found a creative solution of sorts to this problem on at least one occasion when nineteen Algerians were collectively deported to Burkina Faso in 1994. Held in an abandoned Gendarmerie barracks for one month – apparently in contravention of French law – the Algerians were dubbed ‘Islamists’ and ‘accomplices of terrorists’ by then Interior Minister Charles Pasqua. He ordered their urgent deportation as a signal to foreign extremists in France. ‘May this serve as a lesson to those who do not respect the laws of the Republic and

280 281 282 283 284

Ibid., p. 8. ‘Police officer’ quoted in: Jean Chichizola, ‘Onze religieux islamistes en instance d’expulsion’, Le Figaro, 27 September, 2006. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Ibid.; ‘3,000 “disappeared” in Algeria – Amnesty’, BBC News Online, 3 March 1999: http://news.bbc.co.uk/2/hi/middle_east/290033.stm. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007.

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those of hospitality’, he said.285 Nevertheless, in keeping with their international treaty requirements, the French government did not deport Algerians back to their country of origin during the 1990s because of the risk that they could be tortured or mistreated there.286 In 1999, however, a new Algerian president came to power. The senior Interior Ministry official recalled: ‘Bouteflika came in, in any case. There was an amnesty’ (for militants opposed to the regime). Things were ‘visibly’ changing, the official said. With the government judging that there was not the same risk of mistreatment as before, ‘progressively’ France began to deport Islamist extremists back to Algeria.287 Algerians form a major part of the radical Islamist milieu in France – a reflection of the Algerian origins of contemporary Islamist terrorism in the country. Given that they could now be expelled without a problem, the deportation option became increasingly important in the following years. Between 2001 and 2010, the French authorities expelled 129 ‘radical Islamists’ in administrative deportations, twenty-nine of whom were ‘imams or preachers’.288 The vast majority were sent to Algeria, although there are also cases of people being returned to Egypt, Tunisia, Morocco and Turkey at the very least.289 In the period during which France deported 129 suspected Islamist extremists on national security grounds, the British authorities deported only nine such individuals.290 There were two immediate reasons for this divergence. First, individuals only have limited means of preventing their deportation in France because of the relevant legal regulations and because of the swift expulsion practices of the French authorities. On the legal side, the lodging of an appeal against an administrative deportation in France does not automatically suspend expulsion. The individual can still be deported to his home country, and his appeal take place in his absence (he may return to France only if he wins the appeal). Other kinds of ‘petitions’ may suspend the deportation if a judge agrees to them.291 In several cases, however, the French authorities have

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Human Rights Watch, In the Name of Prevention, p. 8. The most important treaties in this context were the European Convention on Human Rights (ratified by France in 1974) and the UN Convention against Torture (ratified 1986). Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Brice Hortefeux, ‘Expulsion d’Ali Ibrahim el Soudany’, (press release) 19 August 2010; and Brice Hortefeux, ‘Expulsion d’un imam’ (press release) 7 January 2010: www. interieur.gouv.fr. Human Rights Watch, In the Name of Prevention, p. 32. See also the press releases by former Interior Minister, Brice Hortefeux, cited above. See above this chapter and Chapter 4. Human Rights Watch, In the Name of Prevention, pp. 2, 23, 36.

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pre-empted such legal moves by putting the individual on a plane home within just a few days of the deportation order being issued – before a petition can be lodged at a court.292 In the UK, by contrast, the lodging of an appeal automatically halts a deportation, and the government does not swiftly remove deportees before they have a chance to lodge a petition at court.293 The second, and crucial, reason why France has been able to deport a large number of Islamist radicals is that even when such cases are appealed, the French courts have tended to accept the government’s view that such individuals can be sent back to certain authoritarian regimes. Since 1999, in the crucial case of Algeria, the French courts have not overturned any of the government’s deportation decisions on the basis that radical Islamists face a risk of torture or mistreatment if they are returned to that country.294 The English courts took precisely the opposite view until 2006–7, when they gradually came round to accepting that suspected Islamist militants could be returned to Algeria. Whereas the French courts have not stood in the way of deportations to Tunisia or Egypt over the last several years, the English courts would not allow deportations to those two countries.295 The accommodating stance of the French judiciary in allowing individuals to be sent back to certain authoritarian regimes has been crucial for enabling those Islamist deportations to be implemented since 2001. The different stances of the English and French judiciaries on this substantive issue is the main reason for the contrast between the overall deportation records of the two states. It is in this context that the French government has been able to place deportations at the centre of its invasive approach to tackling Islamist extremism. Foreign-born supporters of terrorism are ejected remarkably quickly from France. For example, when Nicolas Sarkozy announced a clampdown on ‘preachers of hate’ in the aftermath of the London bombings in July 2005, twelve allegedly radical clerics were expelled from the 292

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They include the cases of Abdullah Cam (expelled within one day of the deportation order being issued), Abdelkader Bouziane (also within one day), Chellali Benchallali (two days), Samir Korchi (three days) and Nacer Hamani (seven days). For further details, see: Human Rights Watch, In the Name of Prevention, pp. 41, 45, 57, 61, 62. As was outlined above, such appeals have delayed deportations for years in a number of cases. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007; Human Rights Watch, In the Name of Prevention, p. 36. The British government has no ‘DWA’ arrangements with these countries so the courts would not allow national security deportations there (see Chapter 4). Notwithstanding the potential for democratic transitions in both states, many conditions would need to be met before the English courts would approve of such deportations.

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country within two months.296 The then Interior Minister encapsulated the French approach, saying that such radicals ‘will leave the territory and they will leave quickly. In this area, we don’t intend to tolerate anything’.297 In a speech the following November at the National Assembly, he announced: ‘Since 1 January 2005, we have expelled nineteen Islamist fundamentalists. The preachers of hate do not have a place on the national territory!’298 The approach of French authorities has raised questions about their attitude to the risk of torture in authoritarian states. Some of France’s deportations have failed to sufficiently take into account the risk of torture, and have contravened its international treaty obligations. The United Nations Committee Against Torture, which monitors compliance with the Convention against Torture, has twice found the French authorities to have been in breach of the treaty, notably in 2007 when it ruled that France’s deportation of an Islamist militant to Tunisia had put the man in serious danger of being subjected to torture there.299 It is interesting to probe into deportations that have been made on the grounds of incitement to hatred or violence, which are often the main reasons cited for the deportation of radical Muslim clerics. Researchers from Human Rights Watch have had direct or indirect access to the files of a number of deportation cases in France. Documenting these case studies in a report, they have shown that in at least three cases where radical clerics were arrested for deportation, the main speech crime allegations concerned their anti-western and pro-Islamist political or religious views. In other words, there was no record of the clerics making statements that substantially encouraged or incited people to use violence in pursuit of their goals.300 Nevertheless, the three were deported. In similar vein, the French intelligence agencies look to send a signal in their public statements that they are concerned about radical Islam as such. This includes people who do not necessarily support violence but simply hold radical political views or adhere to strict forms of religious practice, such as Salafism. The then director of the Renseignements Généraux (RG), Pascal Mailhos, spoke to Le Monde in 2005 about conversions to radical Islam:

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Katrin Bennhold, ‘France stands firm on deportation of cleric’, International Herald Tribune, 26 July 2005; Colin Randall, ‘France ejects 12 “preachers of hate”’, Daily Telegraph, 30 July 2005. Bennhold, ‘France stands firm on deportation of cleric’. Nicolas Sarkozy, speech to the National Assembly, Ordinary Session, 23 November 2005: www.assemblee-nationale.fr/12/cra/2005-2006/076.asp#P207_57062. Human Rights Watch, In the Name of Prevention, pp. 39–40; France was found to have violated Art. 3 of the Convention. Ibid., pp. 50–65.

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‘The phenomenon is soaring and worries us . . . the Salafis are about 5,000 people . . . [Salafism] offers outcast people a new way of life with spiritual and social perspectives.’301 While it is generally recognised that few religious Salafis actually advocate violence, the French intelligence agencies keep a close eye on them to forestall any potential move towards terrorism.302 Mass arrests (especially in the 1990s), widespread raids by the pôles régionaux, deportations and extensive monitoring have contributed to the muting of support for Islamist terrorism in France. There have been no centres of extremism in the country as prominent as the Finsbury Park mosque was in London, nor have there been propagandists for terrorism as prominent as Abu Hamza. Indeed, during the 1990s, some of the most extreme propaganda for the terrorists threatening France was coming out of the UK, notably al-Ansar, the newspaper produced in Finsbury Park which eulogised the GIA’s campaign against the French and Algerian regimes.303 In France, meanwhile, supporters of Islamist terrorism were being driven underground. According to the RG, by 2005 only around fifty of France’s 1,700 mosques and prayer places were under the influence of ‘radicals’ (and not all of these supported violence).304 That year, the director of the RG also confirmed that ‘there are less radical sermons’ in the mosques.305 One example of this trend was the case of Abdelkader Bouziane, an imam who the French authorities alleged was inciting people to terrorism. An intelligence note written in 2004 said that Bouziane did not make extreme statements in his sermons, so as to avoid attracting attention. Rather, it alleged, his declarations in favour of violence were ‘reserved for the circle of militants he has selected’.306 While Abu Hamza, Omar Bakri and others revelled in their public notoriety in Britain for several years, France’s consistently invasive measures had long since restricted the options of supporters of terrorism on its soil. The previous section outlined how French threat perceptions and the large degree of normative consensus in society shaped the state’s actions against operational terrorists. The interaction of these two factors also explains why France took a consistently invasive approach against 301 302 303 304 305 306

Quoted in: Piotr Smolar, ‘L’antiterrorisme, selon le patron des RG’, Le Monde, 25 November 2005. ‘The French lesson’, Economist, 13 August 2005. O’Neill and McGrory, The Suicide Factory, pp. 112–13, 124. See Smolar, ‘L’antiterrorisme, selon le patron des RG’; and ‘The French lesson’, Economist. Quoted in: Smolar, ‘L’antiterrorisme, selon le patron des RG’. Renseignements Généraux, Note Blanche on Abdelkader Bouziane, submitted as evidence to Council of State, 12 May 2004, as translated and quoted in: Human Rights Watch, In the Name of Prevention, p. 58.

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supporters of Islamist terrorism. First of all, officials’ perception of an unrestrained terrorist threat led them to pursue not just operational and logistical assistance cells, but to go further back along the food chain to tackle people whose words may have been helping to boost that threat. As Mr Sarkozy put it, ‘We must act against these radical preachers who are capable of influencing the youngest and the weakest minded.’307 Louis Caprioli, who was head of counterterrorism at the DST from 1998 to 2004, had a similar view. ‘Behind every Muslim terrorist is a radical imam’, he said.308 With extremist clerics being viewed as radicalising young people towards violence, the French moved directly against those clerics. While threat perceptions thus informed the authorities’ invasive approach, the normative consensus in French society was crucial because it gave them the necessary latitude to pursue their preferred methods. The principle of security-maximisation was bolstered in France – as it was in the UK – by the perceived presence of a severe terrorist threat. However, while the security principle was contested by several opposing norms in Britain, such ideas did not have a significant influence on the French case. Norms of political asylum and protection from torture did lead France to refrain from delivering Islamists into the hands of their mortal enemies in the Algerian regime during the bloody civil war there. After 1999, however, the French were quick to start deporting suspected extremists to Algeria even though, as some counterterrorist officials admitted, questions remained about the nature of the Algerian regime. One former investigating magistrate, speaking in 2006, said of these deportations: ‘It’s true that in Algeria, everything is possible. It is a power which is a little capricious . . . it’s possible, but it’s not our problem . . . We believe that an Algerian who has come to commit a serious act on the national territory has no reason to stay here.’309 Other officials denied that deportees to Algeria faced a risk of torture or mistreatment. One senior police and Interior Ministry official said: ‘Ah now, there is no problem [in Algeria]. It has been clarified.’310 Thus, there was general agreement among counterterrorist officials – albeit for different reasons – that norms of political asylum or protection from torture did not arise in this case in contradiction to the demands of French security. This has been a 307 308

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Quoted in: ‘The French lesson’, Economist. Quoted in: Olivier Guitta, ‘Wahhabis, go home’, The Weekly Standard, 7 March 2005; former counterterrorist police officer, Stéphane Berthomet, offers a similar perspective in: Berthomet and Bigot, Le jour où la France tremblera, pp. 70–7. Interview with a former counterterrorist investigating magistrate and prosecutor and then Member of the French National Assembly [FR-N], Paris, 5 July 2006. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007.

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consensus view across the relevant elites in France throughout the last decade or more, including, crucially, the French judiciary. According to two administrative judges and one legal observer interviewed by Human Rights Watch, the French administrative courts have been reluctant to overturn government deportations on the grounds of risk of torture.311 Though their English counterparts often took the opposite view, the French courts usually accepted their government’s efforts to deport Islamist radicals back to certain authoritarian regimes. The senior Interior Ministry official confirmed this trend: ‘We [the government] have lost sometimes – some [deportees] have had a decision annulled – but in any case, that is fairly rare.’312 The normative consensus on the priority of French national security enables the government to rapidly deport suspected extremists from the country, limit their grounds of appeal and make these deportations stick over the long term. The ‘security first’ principle has not been opposed either by the norms of freedom of expression or respect for communities. Regarding the former, we have seen how the French authorities have been able to deport radical clerics who have not necessarily incited violence but have rather expressed controversial views on political and religious issues. Equally, the norm of respect for communities does not arise in the French context. In contrast to Britain’s tradition of multiculturalism, the French republican model of integration has been sceptical of giving official recognition to distinct immigrant ‘communities’ based on an ethnic or religious identity.313 Against this general background, there has been no watershed event in France comparable to Britain’s Macpherson Inquiry, in which the police have been put under major public scrutiny, nor have the security agencies themselves felt the need to rethink how minority communities are policed. Counterterrorist officials tend to say that discontent in the ‘sensitive districts’ of the banlieues outside French cities is driven by broader problems of unemployment and perceived discrimination – not by police practice.314 The implication is that the solution to disorder in the banlieues is to be found in economic and social reforms, rather than in changes to policing. As one former officer put it, ‘In France . . . the police 311 312 313

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Human Rights Watch, In the Name of Prevention, p. 36. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. The classical indication of this has been the fact that the state does not collect statistics on the religion or ethnicity of its citizens because this is considered contrary to the republican model. On the French model, see Favell, Philosophies of Integration; ‘The war of the headscarves’, Economist, 5 February 2004. This view was expressed in: Interview with a senior counterterrorist official of the Police Judiciaire [FR-O], Paris, 9 February 2007; interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007.

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do police work. Voilà: police work in the strictest sense of the term.’ In his view, French people believe that the role of the police is ‘to arrest people’ – not to be an ‘animator in the neighbourhoods . . . not to play football with the kids in the cités [public housing blocks in the banlieues]’.315 Police officials are not concerned that their operations against suspected Islamist terrorists and their supporters could foster disaffection or a turn to extremism in the broader Muslim communities of France. One senior officer said that counterterrorist operations ‘are not always in the sensitive districts’ and that such operations provoke less problems than ordinary police actions, in any case. Asked about the riots in Lyons, which followed the shooting of Khaled Kelkal in 1995, he said that people had rioted because the police had killed a man from the banlieues – not because they were angry about counterterrorist operations in general. In any case, ‘it was very quick’, he recalled: no more than ‘two or three days’ of trouble in Kelkal’s neighbourhood. The Muslim community in France had ‘very little sympathy’ for Islamist terrorism in his view.316 Another counterterrorist police officer said that he was aware of how the British police ‘itself tries to discuss with the different communities’. France had a different approach, he believed, which was to say that ‘it is for the community itself to play its republican role, and it’s not for the services of the state to come and remind [people] of the essential rules of community life in France in any case’.317 Police officers either deny that counterterrorist operations fuel disaffection among French Muslims or they do not believe that the police should have to tailor its approach to assuage the concerns of a particular community in any case. Given this republican world view, there is nothing in the way of ‘community considerations’ to restrain the French security agencies from taking an invasive approach against Islamist radicalism.

Threat perceptions and norms: explaining counterterrorist operations The two cases examined in this chapter show a mix of differences and similarities, which have evolved considerably over the last two decades. Between 1995 and 2001, the contrast between France’s extensive counterterrorist operations and Britain’s relative inaction was readily explained 315 316 317

Interview with a former DNAT and DST counterterrorist investigator [FR-H], Paris, 16 February 2007. Interview with a senior official of the French national police and Interior Ministry [FR-I], Paris, 5 February 2007. Interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006.

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by the fact that the former perceived a high level of threat from Islamist terrorists during this period, while the latter perceived little or no threat from the Islamists on its soil. When the two states’ perceptions of the threat converged after 2001, their counterterrorist operations also converged to the extent that both states now carried out similarly extensive and forceful operations. Balance of threat and strategic choice theory offer a simple and compelling explanation of this trend: actors will, to the best of their ability, design counterterrorist operations that are tailored to the characteristics of the perceived threat. Perceiving Islamist terrorism as an unrestrained threat led both states to develop a similar preventive logic of operations, according to which they made extensive and early arrests, including in many cases where they were unsure of the evidence picture. The security agencies in France and Britain also made a similarly forceful tactical response to Islamist terrorism in this context. These kinds of adaptive responses to the perceived threat environment can be explained by strategic choice theory in a manner consistent with the broad rational choice paradigm. However, there have also been a number of differences between the two states’ counterterrorist operations, which strategic choice theory cannot explain. First of all, an important difference was observed between France and the UK’s actions against suspected operational terrorists. A normative consensus on security issues in French society permitted its counterterrorist agencies to mount large and indiscriminate arrest operations when Islamist terrorism became a threat to France during the 1990s. Such mass arrest operations were never possible in the UK. Even when the terrorist threat was perceived to be serious in the years after 2001, which gave a boost to the principle of security-maximisation, this idea was contested by rival norms concerned with proportionality and individual rights. One reflection of this norm competition is the high degree of public scrutiny that police in the UK feel themselves to be under. This has influenced specific operations and militated against any move to mass arrests or indiscriminate operations.318 In France, although the normative consensus in society gives the security agencies a wider zone of permissibility than that afforded to the British, events in 1999 showed that this zone had its limits. Six years after the first 318

It is more difficult, but nevertheless possible, to have public scrutiny of security agencies’ overseas operations. Numerous allegations of MI5 complicity in the torture of individuals by foreign intelligence services after 9/11 raised questions about its adherence to international anti-torture norms. However, the subsequent public controversy and scrutiny on this issue may have significantly reduced the agency’s willingness or ability to collude in torture. The lack of comparable information or media investigations into this topic in France makes it difficult to do a comparative analysis of the two cases in this respect.

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rafles in the Islamist milieu, the result of the Chalabi mass trial generated disapproval in society and led French police and investigating magistrates to scale back their use of large and indiscriminate counterterrorist operations. This was also done at a time when the French agencies were more confident about their overall intelligence coverage of Islamist terrorism and in the context of a perceived flight of many terrorists abroad. The general trend over the last decade has thus been for the French police’s counterterrorist operations to be more discriminate than they were in the 1990s – although at least one mass arrest was made in 2003, and other types of large-scale disruptive raids continued to be mounted. By contrast, the British security agencies have had a consistent record of discriminate arrest operations – even when their overall intelligence coverage of Islamist terrorism was low (after 9/11) and when the threat remained a highly proximate one with as many as 2,000 people on British soil suspected of engagement in terrorist activity. There is one direct comparison, which proves revealing in this context. Considering 1994–6 in France and 2004–6 in the UK, these periods in the two countries’ recent histories were particularly marked by perceptions of a high level of threat – each one punctuated by Islamist terrorist attacks in 1995 and 2005 respectively. Faced with these similar scenarios, the French and British operational responses displayed some important similarities, as outlined above. It was nevertheless noticeable that France mounted indiscriminate arrest operations during its time of peril, while the UK refrained from doing so during a period when it perceived a similarly high level of threat. This divergence cannot be explained with reference to the threat environment, but instead shows how counterterrorist operations are partly shaped by the domestic normative contexts in which they have been conceived. Turning to the second theme of this chapter – operations against suspected supporters of terrorism – there have been further significant differences here between Britain and France. Whereas France took a consistently invasive approach against supporters of Islamist terrorism, the British authorities showed considerable restraint in their dealings with extremists for several years after 9/11. The extremist ‘safe haven’ at Finsbury Park mosque remained intact until 2003, and several radical clerics continued their activities for months or years after that. This divergence can be explained by the contrast between France’s normative consensus on security issues, and the norm competition on these issues found in British society. While security-maximisation was a salient consideration in both countries, the difference between the cases was that this principle went unopposed in France, while it was contested by at least three opposing norms in the UK.

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First, the principle of political asylum, as upheld by the English judiciary, significantly constrained the British government’s attempts to deport Islamist extremists. This norm was not so much in evidence in France’s approach to deportations after 2000. It is worth noting that both situational and institutional factors are controlled for when considering the two states’ approaches to this issue. Britain and France were faced with the same situation – prospective deportations to Algeria. It was not a question of different laws or institutional rules either, since both states were subject to the European Convention on Human Rights (ECHR) and other relevant international treaties.319 As the then British Prime Minister Tony Blair ruefully noted in 2005: ‘France and Spain, to name just two other European countries, do deport . . . The assurances given by the receiving nation are adequate for their courts, and these countries are also of course subject to the [ECHR] and apply it directly in their own law.’320 Rather than general differences between Britain and France’s institutional structures, the key variation here was in a specific ideational sphere: the configuration of security and political asylum norms in the two countries. It was in these different normative contexts that the English courts rejected assurances from Algeria for several years, while their French counterparts accepted them. These different contexts also explain why France has deported Islamist radicals to Egypt and Tunisia, while Britain has not. When the Blair administration began to put pressure on the English courts to change their stance on such cases after the 2005 London bombings, one official from the French Interior Ministry commented wryly on the deportation issue. ‘We know that Britain is going through a reflective phase’, he said, ‘but in France, we are not asking too many questions.’321 Secondly, the norm of freedom of expression imposed some constraints on British decision-making, but was not so much in evidence in the French case. France has gone further than the UK, in that it has deported Islamists who have radical political or religious beliefs, but who have not necessarily advocated the use of violence in pursuit of their goals. In similar vein, the pôles régionaux explicitly target ‘radical Islam’ as such, and the French intelligence agencies are keen to send a public signal that they have all forms of radical Islam under surveillance. The British security agencies do not send such signals because the idea of targeting or monitoring people who are not involved in violence has proved far more 319 320 321

As Chapter 4 argued, the nature of British and French judicial institutions does not provide an explanation either. 10 Downing Street, ‘PM’s Press Conference – 5 August 2005’. Quoted in: Leppard and Ungoed-Thomas, ‘MI5 lists 50 “preachers of hate”’.

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controversial in the UK. The traditional British view on this was typified by one ‘security official’, quoted in the media in 2005. ‘Listening to a radical cleric or a moderate cleric is not a criminal offence’, he said. ‘Free speech is entirely lawful and we don’t monitor the activity of people going to mosques.’322 A senior Metropolitan Police officer, working on intelligence, told me: ‘We need to get better at this sort of thing [monitoring religious radicals] but the nature of British society is that we are not good at it. It’s a tricky one. Do we monitor churches too?’323 Despite such complications, several reports have claimed that in the years after the 2005 London bombings the British police increased its information-gathering on Muslims thought to be ‘vulnerable’ to violent radicalisation.324 However, such moves were vigorously opposed by NGO campaigns and media scrutiny, which may have restricted any growth of intelligencegathering against people who were not involved in violence.325 At the same time, the British authorities’ prosecutions and deportations continued to focus only on people who had supported or encouraged the use of violence. Finally, we have seen how the norm of respect for communities is prevalent in British society and in its police forces. The French police, on the other hand, did not see it as appropriate to dialogue with a particular section of society, nor to tailor its approach to meet that community’s concerns. Embedded in their societies’ contrasting models of integration and reflecting their own historical experiences, the different world views of the French and British police led them to make divergent responses to a similar problem. The British police’s concern about Muslim community disaffection contributed to their relatively restrained approach to tackling Islamists who supported violence. By contrast, the French counterterrorist police were less concerned about Muslim community sentiment, in which context they took a consistently invasive approach against radicals who incited terrorism, and even some who did not. The UK authorities began to make a more substantial effort in this domain by 2006–7 as it became clearer that the toleration of certain extremists was not necessarily entailed in the principle of ‘respect for 322 323 324

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Quoted in: Stephen Fidler, Jimmy Burns and Roula Khalaf, ‘The UK’s foment of Islam’s radical fringe’, Financial Times, 13 July 2005. Interview with a senior Metropolitan Police (Special Branch/Counter Terrorism Command) officer [UK-K], London, 5 July 2007. Jason Bennetto, ‘MI5 conducts secret inquiry into 8,000 al-Qaida “sympathisers”’, Independent, 3 July 2006; Arun Kundnani, Spooked: How Not to Prevent Violent Extremism (London: Institute of Race Relations, 2009); Vikram Dodd, ‘Government anti-terrorism strategy “spies” on innocent’, Guardian, 16 October 2009. Paul Thomas, ‘Failed and friendless: the UK’s “Preventing violent extremism” programme’, British Journal of Politics and International Relations 12:3 (2010), 448–50.

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communities’. Nevertheless, the British approach continued to be influenced by that norm and by the principles of political asylum and freedom of expression. The blend of similarities and ongoing differences between the French and British cases highlights both the relevance of a strategic choice perspective for counterterrorism studies and its limitations. When faced with a similar perceived threat, there was a clear convergence between the approaches of two states on some core aspects of counterterrorist operations, as well as a gradual and partial convergence towards a more invasive approach against supporters of Islamist terrorism. All of this would be expected by strategic choice theory, given its emphasis on the perceived threat environment. However, the theory would not predict that, faced with a similar strategic setting, one state would resort to a pattern of indiscriminate mass arrest operations while the other state would eschew that option. A strategic choice perspective also struggles to explain the sharp contrast between the British and French approaches to dealing with supporters of Islamist terrorism between 2001 and 2006, and the still significant differences between them on the issue to this day. These differences stem from the varied normative contexts in which operations against Islamist terrorism are conceived. With domestic normative contexts differing from state to state, there is a strong basis on which to conclude that the character of counterterrorist operations depends not just on strategy but also on society.

Conclusion

Even if it can kill on a war-like scale, terrorism is a crime – not an act of war. This is the conviction of those responsible for British and French counterterrorism. In their bid to show that intelligence, police, and criminal justice (rather than military) measures are capable of dealing with the most radical forms of terrorism, they have created more flexible and preventive legal regimes, expanded their intelligence operations and established more muscular forms of policing. The counterterrorist powers of the British and French states have thus increased as they have faced Islamist terrorism, but this has not been a linear evolution, nor has it taken the same form in the two states. We have seen how Britain has relied mainly on its ordinary courts, while its use of additional administrative powers has been contested and constrained. The French authorities have taken a more consistent approach, integrating special anti-terrorism procedures into their criminal justice system, which has allowed them to be more draconian in their application of such powers than the British. France has taken a zero tolerance attitude to Islamist extremism, including the use of indiscriminate round-ups. The UK has a more mixed record of dealing with extremists and even when the authorities ramped up their efforts in the face of a rising threat after 2001, British operations remained targeted and discriminate. We have also seen important differences concerning the organisation and reform of counterterrorist agencies: rivalries between the French security agencies, but a strong integration of intelligence and justice; a well-functioning relationship between police and intelligence in the UK, but a judicial-intelligence divide. To account for these areas of divergence between British and French counterterrorism, we drew attention to the importance of certain historical legacies. The distinctive norms, institutions and routines found in Britain and France have exercised a strong influence, leading the two countries to make different responses to a similar threat. In this concluding chapter, I discuss the implications of these findings for Britain and France’s ability to respond to terrorism and for our understanding of the prospects for international co-operation against terrorist threats. The final part of the 316

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conclusion considers the contribution of this book to the literature on explanations of state responses to terrorism, to International Relations scholarship, and to the debate on the future development of the liberal democratic state. An effective counterterrorist strategy needs to be able to monitor, investigate, capture and prosecute the adversary in order to prevent attacks, imprison those who pose a threat, and reduce levels of terrorist activity. But it must do all this without raising the political temperature in a way that could contribute to radicalisation. It must aim instead to lessen support for terrorism and reduce the numbers of people seeking to get involved in militant networks. While it is beyond the scope of this study to provide a full empirical analysis of the effectiveness of Britain and France in achieving such aims, we can make a comparative assessment of how the two countries’ different approaches affect their ability to counter terrorism across four areas. Let us first consider the surveillance and investigation of terrorists, with a particular focus on how intelligence and law enforcement is co-ordinated in this context. It is clear that the French counterterrorist agencies’ informal routines have allowed them to make an agile response to terrorism, notably by bringing together intelligence officials and magistrates on investigations. Yet these routines have also allowed an intelligence agency, the Direction Centrale du Renseignement Intérieur (DCRI), to take over key areas of police competence and fostered competition between the two sides. The DCRI has a far-reaching capability to monitor and investigate Islamist terrorism, but a question remains as to whether the relatively low level of co-operation between it and the police hinders France’s ability to identify threats and prevent terrorist attacks.1 In Britain, on the other hand, the intelligence and police agencies have both maintained important and distinctive roles in countering Islamist terrorism. Building on their pre-existing formal routines, they intensified their co-operation in a way that has strengthened their ability to monitor and investigate terrorism. The challenge for the British is to maintain a coherent inter-agency response even after the increase in the number of regional police units involved in terrorism investigations. The connection between security agencies and the judicial system is a second crucial element of counterterrorism, particularly for prosecutions and the handling of evidence. Here, France’s legal system and integrating institutional conventions have enabled investigating magistrates to work directly with security and intelligence officials in a way that has facilitated 1

As was outlined at the end of Chapter 3, this question could be raised in relation to the March 2012 shootings by Mohamed Merah.

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the introduction of sensitive intelligence material into court. This unique relationship strengthens the French authorities’ ability to successfully prosecute and imprison terrorist suspects. In the UK, against a rather different legal and institutional background, judges keep their distance from security agencies and there is more limited co-operation between the intelligence sphere and the world of prosecution and justice. The British authorities have more problems introducing sensitive intelligence material, such as intercept, into court in a way that will both protect sources and meet the legal system’s disclosure requirements. As some cases have shown, this relatively weak link between intelligence and justice can constrain the authorities’ ability to introduce sufficient evidence in court to successfully prosecute and imprison terrorist suspects. On the other hand, the French – by allowing the DCRI to do both intelligence-gathering and the provision of evidence for trial – open up a greater possibility that evidence will be withheld or manipulated by the intelligence agency. Even investigating magistrates, who are charged with overseeing the DCRI’s treatment of evidence, admit this point. The British – by allocating these two tasks to different agencies and by maintaining police responsibility for evidence – have reduced the likelihood of such manipulation occurring. Thirdly, when making an overall assessment of the two states’ antiterrorist legal regimes, a trade-off becomes apparent between ability to prosecute and capacity for maintaining the legitimacy of the state and legal system. As Chapter 4 showed, the procedures of English justice in terrorism cases are less flexible than those of France, while its terrorism offences are also narrower in scope. Both states have been able to successfully prosecute and imprison many terrorist suspects. However, the flexibility of the French procedures has enabled the authorities there to do this in a relatively smooth manner, while for the British it has been a more complicated effort of trial and error, with some significant prosecution failures along the way. While the French response gains legitimacy by being integrated into its judicial system, justice in terrorism cases is still dispensed in conditions that are very favourable to the authorities: non-jury courts with convictions often based on the broad ‘association’ charge, following a pre-trial inquiry process that affords a lot of power to investigating magistrates. There is evidence that the more draconian aspects of this system have undermined confidence in the legitimacy of the French state among sections of its Muslim community.2 In the UK, the legal protections offered after arrest and the use of the ordinary English courts 2

See the testimony in: Human Rights Watch, Pre-empting Justice: Counterterrorism Laws and Procedures in France, July 2008, pp. 74–7: www.hrw.org/en/reports/2008/07/01/preempt ing-justice-0.

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for trials have given legitimacy to the state’s counterterrorist policy. When justice is seen to be done through ordinary courts, this can undermine extremist narratives and contribute to the long-term effort to reduce support for Islamist terrorism.3 Yet a major complicating factor has been the controversy generated by the British authorities’ use of administrative powers to detain terrorist suspects (until 2004) and later to impose control orders on them. Though they have been used in relatively few cases, such violations of principle have gained a great deal of attention in the media and public sphere and have undermined the perceived fairness of the British response. To the extent that these powers are reduced, this will help to shore up the legitimacy of the UK’s legal response to terrorism. The fourth and final area to consider is Britain and France’s counterterrorist operations, which have also had different consequences, both in their direct impact on terrorist networks and potentially also in their longer term effects on levels of radicalisation. Any assessment of these effects is complicated, however, because of the parallel influence of broader social factors and other areas of government policy. During the 1990s, the British security agencies allowed Islamist extremist networks to become established within the UK and did not tackle them in a concerted way until some years after 9/11. By that time, levels of radicalisation and support for Al-Qaeda were growing fast in Britain for a variety of reasons, both long- and short-term.4 Foreign policy decisions were one important factor here. The wars in Afghanistan, and particularly in Iraq, as well as the broader rhetoric of the ‘war on terror’, contributed to an increase in the political temperature within the UK, including at community level. According to the former head of MI5, Baroness Manningham-Buller, the British involvement in Iraq ‘substantially’ increased the terrorist threat facing the country at that time and was a significant factor behind the radicalisation of young people into Al-Qaeda-inspired violence.5 Foreign

3 4

5

See Professor Michael Clarke, ‘Haste and leisure in the war on terror’, Guardian, 9 September 2008. Though authors differ and research is at an early stage, socio-economic deprivation and perhaps the UK’s multicultural integration philosophy could be long-term factors that favour separation and radicalisation. See Brendan O’Duffy, ‘Radical atmosphere: explaining jihadist radicalization in the UK’, PS: Political Science and Politics 41:1 (2008), 37–42; and Robert Leiken, Europe’s Angry Muslims (New York: Oxford University Press, 2012), pp. 212–16, 266–7. A former head of MI5 has spoken about the rapid growth in radicalisation from 2003. See Chapter 5 above, and ‘Iraq inquiry: Ex-MI5 boss says war raised terror threat’, BBC News Online, 20 July 2010: www.bbc.co.uk/news/uk-politics10693001. ‘Iraq inquiry: Ex-MI5 boss’, BBC News Online. On the effect of the Iraq war and related perceptions of injustice, see O’Duffy, ‘Radical atmosphere’.

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policy was thus exacerbating the problems facing those responsible for tracking terrorist networks in the UK. The British government and security agencies came to regret their permissive stance during the ‘Londonistan’ years. Yet to go from that position to an indiscriminate crackdown on the Islamist milieu in Britain after 9/11 would hardly have been wise either. According to what is sometimes called the ‘backlash’ thesis, the counterterrorism literature tells us that indiscriminate operations contribute to radicalisation within target communities and can lead to a growth in the terrorist threat.6 Al-Qaeda’s ideology was already finding increasing numbers of followers in the UK in the years after 2001. An overly heavy-handed police approach could well have exacerbated the situation further, helping such ideologies to win an even larger audience than they already had. In the event, as we have seen, the normative context in the UK was not one that permitted such a response. The police made extensive but discriminate arrests, which caused major disruption to terrorist networks, and they gradually took action against supporters of terrorism. Yet the relative restraint of the police was equally important, since it helped Britain to avoid a dramatic escalation of the situation, which could have divided communities, bolstered extremism, and led to more terrorist attacks in the UK. The British authorities have thus been able to recover somewhat from the mistakes of the recent past. The inopportune combination of two elements – allowing radical networks to become established in the 1990s and the increase in the political temperature during the ‘war on terror’ years – may have been a particularly combustible one in terms of radicalisation and recruitment into terrorism in the UK. The French authorities, by contrast, did not allow Islamist extremist networks to put down roots in their country during the 1990s. Then, with its opposition to the invasion of Iraq in 2003, France became widely identified as an opponent of the ‘war on terror’ at a time when British leaders were very much associated with it.7 Steering clear of this combustible combination may have helped France to avoid a major growth in Islamist radicalisation, although it still faced a substantial terrorist threat, as we saw in Chapter 1.8 6

7

8

See Paul Wilkinson, Terrorism versus Democracy (Abingdon: Routledge, 2006), pp. 89–102; Ignacio Sanchez-Cuenca and Luis de la Calle, ‘Domestic terrorism: the hidden side of political violence’, Annual Review of Political Science 12 (2009), 41–2. For an example of this identification, recall the warm welcome extended to President Chirac by the Algerian public in 2003. See ‘Algerian press hails Chirac visit’, BBC News Online, 4 March 2003: http://news.bbc.co.uk/2/hi/africa/2816691.stm. French security officials said that their country’s opposition to the war in Iraq allowed it to avoid a key ‘mobilising’ factor for Islamist extremists, which helped to marginally reduce the threat to France at least during the height of the conflict. However, they emphasised that France – for a range of other reasons – nevertheless continued to face a substantial

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Not just making a concerted effort against violent extremism, the French authorities went further, especially during the 1990s, and mounted indiscriminate arrest operations in Muslim communities. The French security agencies have also used various other legal and administrative tools to conduct extensive ‘harassment’ of Islamists, as one official put it.9 However, France does not, at least up to now, provide a neat validation of the backlash thesis. Notwithstanding its more repressive approach to domestic counterterrorist operations, France did not experience a greater growth in radicalisation or terrorism than the UK.10 Given that France did not suffer a significant terrorist attack on its soil for over fifteen years after 1996, some analysts have been tempted to conclude that an aggressive, French-style response to terrorism works.11 Indeed there is considerable prima facie evidence for the operational effectiveness of the French counterterrorist agencies in monitoring and disrupting terrorist networks. Many Islamist militants even moved away from France, to neighbouring European countries, as a result of such measures. However, before firmer conclusions can be drawn about the overall effectiveness of the French approach, we need to know more about the factors that shape political protest and violence by Muslims in France. According to research by Koopmans et al., France’s assertive republican philosophy of assimilation provides a ‘harsh political context’ that has driven French Muslims generally into subdued and ‘defensive’ forms of political protest. This is ‘not a pacified’ position, however, and French Muslims could under certain circumstances become more ‘assertive’, the authors argue.12 Future research should explore whether similar dynamics may be found among the tiny proportion of Muslims in France that would consider supporting terrorist violence. If aggressive action by the

9 10

11

12

overall threat from Islamist terrorism. See the analysis by a former head of counterterrorism at France’s foreign intelligence service, the DGSE: Alain Chouet, ‘Questions du journal “La Croix”’, 8 July 2005: http://alain.chouet.free.fr/documents/faq10.htm. Similar views were expressed in an interview with a French police counterterrorist official [FR-E], Paris, 4 July 2006. Alain Chouet, as quoted above in Chapter 5. On radicalisation and terrorism in France, see Leiken, Europe’s Angry Muslims, pp. 3–16, 266; and Gilles Kepel, Beyond Terror and Martyrdom (Cambridge, MA: Belknap, 2008), pp. 181–2. Some authors have praised the French approach as effective, noting the ‘extraordinary powers’ of its counterterrorist agencies. See Reuel Marc Gerecht and Gary Schmitt, ‘France: Europe’s counterterrorist powerhouse’, American Enterprise Institute: European Outlook 3 (November 2007), p. 5: www.aei.org/docLib/20071101_22370 EuO03Gerecht_g.pdf; and Marc Perelman, ‘How the French fight terror’, Foreign Policy, 19 January 2006: www.foreignpolicy.com/articles/2006/01/18/how_the_french_fight_terror. Ruud Koopmans, Paul Statham, Marco Giugni and Florence Passy, Contested Citizenship: Immigration and Cultural Diversity in Europe (Minneapolis: University of Minnesota Press, 2005), pp. 168–73, 177–8. It should be noted that riots in French banlieues are not Muslim

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state has driven Islamist terrorism onto the defensive in France, could it also be having counter-productive effects? Observers such as Jeremy Shapiro and the International Crisis Group have argued that invasive counterterrorist operations and tough tactics by the general police in the banlieues fuel disaffection among Muslims against the French state, and may contribute towards support for Islamist terrorism.13 One cannot exclude the possibility that a terrorist attack, a heavy-handed police operation or some other polarising event could lead to a backlash among sections of the community that would involve higher levels of support for and radicalisation into terrorism. As France and the UK have taken different paths in counterterrorism, they have nevertheless been aware of the need for a coherent international response to the threat. What do the findings of this book tell us about the prospects for co-operation on counterterrorism between Britain and France, and between western states more generally? Some conclusions can be drawn if we consider the mix of similarities and differences between the two cases and the factors that are driving these outcomes. The British and French experiences show, first of all, that a common or similar perception of the threat is the cornerstone of international co-operation against terrorism. If it is lacking – as it was in the 1990s – co-operation will be deficient, and major friction is possible. The failure of the British authorities to deal with militants that France perceived as a threat to itself led the latter to consider taking extreme measures on British soil that would have posed major problems for relations between the two countries had they been carried out. Where threat perceptions are similar – as they were after 9/11 – then international co-operation will tend to reach a much higher level. Britain and France have thus been able to iron out many of their differences on counterterrorism over the last decade, engaging in significant bilateral and multilateral initiatives. Both have been among the leading drivers of European Union co-operation on counterterrorism, notably on the European Arrest Warrant, informationsharing and the retention of telecommunications information. Yet they do not regard the EU as a uniquely important setting for such co-operation,

13

group protests but amount rather to a ‘ghetto youth revolt’ by diverse groups of secondgeneration immigrants. See Olivier Roy, ‘The nature of the French riots’, Social Science Research Council, 18 November 2005: http://riotsfrance.ssrc.org/Roy. Jeremy Shapiro, ‘French responses to terrorism from the Algeria war to the present’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), p. 280; International Crisis Group, La France face à ses Musulmans: Émutes, Jihadisme et Dépolitisation, Rapport Europe No. 172, 9 March 2006, pp. i–ii, 2, 21–2. For testimony indicating that tough counterterrorism measures fuel disaffection among some French Muslims and may contribute to support for terrorism, see Human Rights Watch, In the Name of Prevention: Insufficient Safeguards in National Security Removals, HRW 19:3(D), June 2007, pp. 83–7.

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given their close involvement in smaller groups for information exchange such as the G6 and the Prum Convention.14 At the operational level, France and the UK’s counterterrorist services co-operate bilaterally and with their counterpart agencies from other European and western states.15 Some of the differences between Britain and France’s approaches to counterterrorism are not of a kind that necessarily poses problems for international co-operation. Take the divergent organisational routines of agencies within each state, for example. Just because the British counterterrorist services rely on formal and regularised arrangements for their own co-operation at national level does not mean that they cannot work adequately with the French or American agencies, for instance, in the more informal way which is typical of international police and intelligence co-operation.16 The same is true to some extent of the differences between counterterrorist operations in the two states. A British police officer observing one of the mass arrests that his French counterparts have carried out might disagree with that approach, or reflect that ‘we can’t do that’, but it probably won’t stop him from co-operating with the French police against a common threat. Other differences of approach, however, pose greater challenges for international co-operation. The English courts refused for over ten years to approve the deportation of Rachid Ramda to France to answer charges that he financed the 1995 terrorist attacks. During that time, English judges were concerned that key evidence against Ramda may have been obtained through torture and stated that he was at risk of ‘degrading treatment’ if deported into the hands of the French judicial system.17 In a context where French judges were at this time approving deportations to Algeria and other authoritarian regimes, the French government was indignant that Britain would not deport a terrorist suspect to France. When judiciaries in different countries take such different approaches, it poses considerable problems for international co-operation.

14

15

16 17

Marianne Van Leeuwen, ‘The EU Counter-Terrorism Wave: Window of Opportunity or Profound Policy Transformation’, in Marianne van Leeuwen (ed.), Confronting Terrorism: European Experiences, Threat Perceptions and Policies (The Hague: Kluwer Law International, 2003), pp. 195–202. The British and French agencies co-operated on the 2002–3 ‘ricin’ investigation, for example, and both are involved in the Alliance Base centre. See Chapter 5 above, and Ursula C. Schroeder, The Organization of European Security Governance: Internal and External Security in Transition (Abingdon: Routledge 2011). Schroeder, European Security Governance, pp. 126–8. ‘The non-trial’, Economist, 20 October 2005; Armelle Thoraval, ‘Ramda: Dix ans de bras de fer diplomatique’, Liberation, 17 February 2006.

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Given the porous borders of the Euro-Atlantic area, neighbours and allies take a deep interest in Britain and France’s counterterrorist policies. US officials have sometimes been concerned at the constraints on the UK’s response. When they saw that Britain was not taking action against Abu Hamza in the years after 9/11, they requested his extradition to the United States. American officials equally expressed their concern at the release of Abu Qatada and a senior suspected Al-Qaeda terrorist on bail in 2008.18 The US government also viewed with alarm the huge growth in British-based Islamist terrorist networks; such groups had relatively easy access to the US homeland thanks to the visa-waiver programme.19 Identifying these militants as one of the leading threats to the United States, American officials visited British Muslim communities and mosques and even funded anti-radicalisation programmes in the UK.20 They also took a keen interest in France, though some of their concerns here were very different. As a US embassy official in Paris wrote in a private briefing, ‘The real problem is the failure of white Christian France to view its dark-skinned and Muslim compatriots as citizens in their own right.’ The danger over the long term, he warned, was that such attitudes could push some French Muslims into the hands of extremists and terrorists.21 As we have seen, some of these French and British attitudes and practices are deeply rooted in their institutions and domestic norms. US policy seemed to reflect an awareness of this fact since, instead of trying to browbeat their allies into major domestic policy change, specific international responses were pursued. American intelligence agencies became deeply involved in monitoring Islamist terrorists based in the UK.22 The United States and the EU signed Passenger Name Records (PNR) agreements, which required the Europeans to transfer data on travellers to the US authorities.23 Such developments, which involved considerable concessions from Britain and the EU, were possible in part because those on the European side agreed that some of their citizens or residents posed a potentially radical threat both to Europe and to the United States. It was 18 19 20 21 22 23

John Burns, ‘2nd terror suspect released in Britain’, New York Times, 4 July 2008. Tim Shipman, ‘CIA warns Barack Obama that British terrorists are the biggest threat to the US’, Telegraph, 7 February 2009. Tim Ross and Steven Swinford, ‘Wikileaks: US launched anti-extremist campaign to reverse UK radicalization’, Telegraph, 4 February 2011. Tom Heneghan, ‘Scathing US view of French unrest and Muslim integration in WikiLeaks’, Reuters, 2 December 2010: http://blogs.reuters.com/faithworld. Shipman, ‘CIA warns Barack Obama’. Wyn Rees, Transatlantic Counter-terrorism Co-operation: The New Imperative (London: Routledge, 2006); Javier Argomaniz, ‘When the EU is the ‘norm-taker’: the Passenger Name Records Agreement and the EU’s internalization of US Border Security norms’, Journal of European Integration 31:1 (2009), 119–36.

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an indication that if threat perceptions are similar, then differences of approach or potentially intractable problems can be addressed. Finally, let us consider how this book’s findings may contribute to some interrelated debates on counterterrorism, International Relations (IR) theory, and the evolution of liberal democracy. As was discussed in the Introduction, a study of France and the UK has important implications for the debate on which theories may offer the best explanation of state responses to terrorism. Some arguments in this debate can be grouped together under the ‘realist’ umbrella. The most pertinent version of this view (offered by Shapiro and Byman) is that the nature of a state’s counterterrorist policy depends on its own capability and the nature of the threat that it is facing.24 Others stress the importance of realism not just for understanding counterterrorist policy but for the broader debate on the nature of International Relations after 9/11. Thus, for Colin Gray, IR realist theory – which was severely challenged during the 1990s – was vindicated by the September 11 attacks and their aftermath. In his view, structural anarchy and other underlying conditions favouring conflict, threats and ‘suppression’ did not go away during the 1990s but simply manifested themselves more clearly after 2001 in the actions of ‘Americans, Russians, the Chinese and bands of murderous religious zealots’.25 What these authors have in common is their emphasis on how actors in world politics have a strong incentive to respond to threats, unmediated by other concerns. If this argument is true anywhere, it should be true of the subject matter of this book. Islamist terrorism has been the most direct and potentially destructive threat to western states since 9/11 and, as such, has been a major security priority of governments. Nevertheless, my study of two leading western states indicates that realism is only partially relevant to understanding how governments respond to threats such as that posed by Islamist terrorism. I have found that a modified version of realist theory – focused on threat perceptions rather than threats – can account for some of the trends observed in the French and British cases. The commonalities in their responses to Islamist terrorism indicate that the actions of states are influenced in part by their perceived threat environments in a manner that is to some extent consistent with realism and strategic choice theory. However, an account focused solely on threat perception could not explain the significant differences between the cases. This led us to 24 25

This view is outlined above in the Introduction. Colin Gray, ‘World politics as usual after September 11: realism vindicated’, in Ken Booth and Tim Dunne (eds.), Worlds in Collision (New York: Palgrave Macmillan, 2002), p. 228.

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highlight how France’s and the UK’s distinctive norms, institutions and routines have played a key role in shaping the divergence between their respective approaches to counterterrorism. This is noteworthy since, as Chapter 2 indicated, the study of this leading security priority of governments can be seen as a hard test for constructivist, institutional and organisational routine theories, particularly for their claim that historical legacies shape current policy in ways that can reduce the likelihood of efficient outcomes. Nevertheless, the theories passed this test. I found that institutions and societal norms had a major influence on Britain and France’s development of divergent anti-terrorism powers and legal regimes, while the differences between their respective counterterrorist operations could not be explained without reference to the diverse normative contexts in which they were conceived. Organisational routines and institutional conventions played a similarly crucial role in shaping the two states’ ability to bring together intelligence, police, prosecution and judicial actors for counterterrorism. Since France’s and the UK’s counterterrorist policies have been strongly influenced by particular institutional and normative conditions, they are best regarded not as efficient reactions to the perceived threat environment, but as responses to that threat which are appropriate to the specific institutions and societies concerned. The policies that result from this process often involve trade-offs, as outlined above, between facilitating prosecutions and ensuring the legitimacy of the state, or between repressing terrorism and avoiding further radicalisation as a result of one’s own operations. Taking a thoroughly realist perspective or a purely constructivist view does not reveal the sorts of trade-offs that we have identified here. The argument put forward in this book is thus in keeping with recent moves in IR scholarship away from theory wars and towards complementary theory-building.26 Drawing on various perspectives to explain the trends observed, it indicates the feasibility of combining very different approaches, in this case, neo-realism with constructivist, institutional and organisation theories. The findings of the book also indicate that the relevance of ‘domestic politics’ approaches to security studies will be reinforced for as long as transnational Islamist terrorism is a top security priority of western states. This form of terrorism links foreign adversaries to ‘home-grown’ threats and is an important impetus behind the breakdown of the traditional dividing line between internal and external security. Domestic fields of activity that were previously less relevant are now increasingly 26

See Rudra Sil and Peter J. Katzenstein: Beyond Paradigms: Analytical Eclecticism in the Study of World Politics (New York: Palgrave Macmillan, 2010).

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incorporated into an extended conception of national security.27 In the fight against Islamist terrorism, not only are governments, militaries and external intelligence agencies active, but the fields of domestic intelligence, policing, prosecution and justice also take centre stage. As the British and French cases illustrate, this means that long-standing legal systems, institutional conventions and domestic norms are likely to prove powerful factors for ongoing divergence between states’ responses to terrorism. For that reason, western states’ policies will differ even when responding to a similar transnational terrorist threat. Future research should test this proposition further by measuring the extent of crossnational differences across more country-cases and more areas of counterterrorist policy, as well as testing the results against various explanations. Assessments of the relative importance of threats, threat perceptions, institutions and norms have implications for the debate on the evolution of the liberal democratic state and internal security services. If the threat is all-important, one might expect to see a drift towards an increasingly authoritarian state in response to a more radical terrorist threat. Thus, Laura Donohue warns that highly destructive terrorist attacks may lead to responses that ‘fundamentally change the [state] structure of each country’.28 However, if norms and institutions play a crucial role in shaping counterterrorist policy, then states in certain circumstances are constrained from making an overly repressive response to terrorism. An analysis of the British and French cases supports this view. In the context of the threat posed by radical forms of Islamist terrorism, new legal powers have been created, intelligence collection has expanded, and more muscular forms of policing have emerged. Yet, contrary to those that have perceived increasing authoritarianism in liberal democracies since 9/11,29 the trends revealed by this study are complex, not linear in nature. Norms and institutions are proving to be powerful factors for divergence in states’ approaches to counterterrorism law and operations. As the French case illustrates, some institutional conventions and societal norms can enable 27

28 29

Giovanni Capoccia, ‘Germany’s response to 9/11: the importance of checks and balances’, in Martha Crenshaw (ed.), The Consequences of Counterterrorism (New York: Russell Sage Foundation, 2010), p. 288. Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008), pp. 360–1. This argument has often been made in respect of the UK and the US since 2001. In the British case, its exponents have included former counterterrorist officials, lawyers and journalists. See Alan Travis, Clare Dyer and Michael White, ‘Britain “sliding into police state”’, Guardian, 28 January 2005; John Upton, ‘An authoritarian state is in the process of construction’, Guardian, 23 February 2004; and Simon Jenkins, ‘Not totalitarian, but guilty of creeping authoritarianism’, Guardian, 26 April 2006. For a more sophisticated exploration of this view, see Conor Gearty, Civil Liberties (Oxford University Press, 2007).

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the state to make a draconian response to terrorism. In other cases, however, such as the British case, institutions and norms are acting as a significant constraint on the introduction and use of anti-terrorism powers and the conduct of police and intelligence operations. Of particular importance here is the battle of ideas waged by civil liberty NGOs and sections of the media, legal and political elite against those in government who seek to expand the power of the state to combat terrorism. Full public debate and vigorous media coverage of counterterrorism can help to maintain a high level of awareness of civil liberties norms. The continual discussion and awareness of such norms are crucial conditions for reining in anti-terrorist legislation and upholding the standards of liberal democracy.

Appendix: list of interviews

France (all interviews conducted in French, except C and U/V, which were in English). [A] An official of the Secrétariat Général de la Défense Nationale, Paris, 7 February 2007. [B] An official of the Secrétariat Général de la Défense Nationale, Paris, 7 February 2007. [C] A member of the Livre Blanc steering committee, Paris, 13 July 2006. [D] A counterterrorist officer of the Gendarmerie Nationale, Paris, 21 February 2007. [E] A French police counterterrorist official, Paris, 4 July 2006. [F] A former senior DST counterterrorist intelligence official, Paris, 30 January 2007. [G] A counterterrorist investigator of the Police Judiciaire, Paris, 9 February 2007. [H] A former DNAT and DST counterterrorist investigator, Paris, 16 February 2007. [I] A senior official of the French national police and Interior Ministry, Paris, 5 February 2007. [J] A former government agency researcher on French counterterrorism, Paris, 10 July 2006. [K] Gilbert Thiel, an investigating magistrate specialised in terrorism, Paris, 22 February 2007. [L] A Ministry of Justice counterterrorism official, Paris, 10 July 2006. [M] An investigating magistrate specialised in terrorism, Paris, 22 February 2007. [N] A former counterterrorist investigating magistrate and prosecutor and then Member of the French National Assembly, Paris, 5 July 2006.

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Appendix

[O] A senior counterterrorist official of the Police Judiciaire, Paris, 9 February 2007. [P] Michel Tubiana, an experienced defence lawyer on terrorism cases and President of the French Ligue des Droits de l’Homme (2000–5), Paris, 23 February 2007. [Q] A member of the French Conseil Constitutionnel, Paris, 22 February 2007. [R] A member of the Presse Judiciaire (Associated Press), Paris, 21 February 2007. [S] A senior Ministry of Justice official, responsible for terrorism legislation, Paris, 15 February 2007. [T] A representative of a French-based human rights organisation, Paris, 20 February 2007. [U&V] A senior French police official and a French counterterrorist police officer, 9 December 2010.

United Kingdom [A] A former senior UK government official, London, 4 November 2005. [A] A former senior UK government official, London, 25 January 2007 (second interview). [B] A Metropolitan Police (Special Branch/Counter Terrorism Command) officer, London, 26 January 2007. [C] A former senior counterterrorist officer of the Metropolitan Police, London, 14 December 2005. [D] Lord Carlile, the Independent Reviewer of British terrorism legislation 2001–11, London, 1 December 2006. [E] A Metropolitan Police counterterrorist officer, 17 July 2006. [F] A senior UK government official working on legal aspects of counterterrorism, London, 7 December 2006. [G] David Blunkett, UK Home Secretary 2000–4, London, 23 January 2007. [H] Two British intelligence officials, London, 8 December 2006. [I] A Metropolitan Police counterterrorist officer, London, 21 November, 2005. [J] A representative of Liberty, the human rights organisation, London, 15 December 2006. [K] A senior Metropolitan Police (Special Branch/Counter Terrorism Command) officer, London, 5 July 2007.

List of interviews

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[L] A UK government official, London, 23 November 2005. [M] A Metropolitan Police officer working on community engagement, London, 30 November 2006. [N] A member of the Muslim Safety Forum, London, 14 December 2006.

Index

7/7. See terrorist attacks on London, 7 July 2005 Algerian war of independence, 16 effect on France, 60–1 Al-Qaeda, 1, See also Islamist terrorism affiliates, 21–2 core group, 22–3 freelance terrorists, 23–4 Al-Qaeda in the Islamic Maghreb, 33–5, 36–7, See also Groupe Salafiste pour la Prédication et le Combat ‘association of wrongdoers’ (French terrorist offence), 201–5, 302–3 Anti-Terrorism Crime and Security Act (2001), 212. See indefinite detention, Britain Bakri, Omar, 267, 270 ‘balance of threat’ theory, 38–9, 45, 46–7, 168, 234, 260, 294, 311 bin Laden, Osama, 21–3 hostility to Britain and France, 28, 32 Blair, Tony, 20, 28, 155, 219–20, 226–7, 227–8, 238, 262, 270, 313 Bloody Sunday, 19, 60 Blunkett, David, 145, 164, 207, 209, 225, 250–1, 275, 279, 280, 281 Brown, Gordon, 56, 228–9 Bruguière, Jean Louis, 1, 106–7, 108–9, 110, 111, 112, 113, 180, 285, 289, 298 Cameron, David, 56, 60, 80, 231 Capoccia, Giovanni, 9, 64, 242–3 Chalabi case, 204, 283, 298–300 Chirac, Jacques, 58, 85, 108 Clarke, Peter, 49, 150, 151–2, 157–8, 160, 192, 251–2, 256, 260–1, 268 Comité Interministériel de Liaison Anti-Terroriste, 85

Comité Interministériel du Renseignement, 85–6 communities, respect for, 56, 277–9, 281, 309, 310, 314–15 Conseil National du Renseignement, 86, 123, 128 constructivist theory, 52, 54–5, 75–6, 326–7, See also norms CONTEST strategy, 81–4, 207 control orders, Britain, 215–16, See also Terrorism Prevention and Investigation Measures judicial constraints on, 216–18 negative effect on legitimacy, 319 Counter Terrorism Command, 131. See Metropolitan Police Counter Terrorism Command Counter Terrorism Intelligence Units, Britain, 158–9, 162 Counter Terrorism Units, Britain, 158–61, 162 counterterrorism, dimensions of, 12 ‘covenant of security’, 248–51, See also ‘Londonistan’ Crown Prosecution Service, 137–8, 141, See also ‘pre-charge’ detention compared with French investigating magistrates, 137–9, 143–4 co-operation with police, 138, 141–3 public profile, 180–1 cultural explanations, 8–10, 75–6, See also norms Danish cartoon protest, London, 271, 281 de Menezes, Jean Charles, 259, 264 democracy. See liberal democracy deportations of suspected Islamist extremists, 219 Britain, 219–22, 273–5, 313 France, 303–6, 308–9, 313

333

334

Index

Diplock courts, Northern Ireland, 188–90, 225 Direction Centrale du Renseignement Intérieur, 92–3 co-operation with investigating magistrates, 117–18, 128–9, 179–80 formation of, 121–2 judicial investigations, 115–16, 122, 185–6 rivalry with Police Judiciaire, 126–7, 171–2 Direction de la Surveillance du Territoire, 92–3, 100–1 co-operation with investigating magistrates, 111–13, 116–18 intelligence on Islamist terrorism, 285–6 judicial investigations, 110–11, 115–16 relationship with Renseignements Généraux, 101–2 rivalry with Police Judiciaire, 124–7 Direction Générale de la Sécurité Extérieure, 18, 93, 287 domestic politics approaches to security studies, 11, 326–7 effectiveness of counterterrorism Britain and France compared, 317–22 different perceived routes to success, 174–5 European Convention on Human Rights, 59–60, 68, 212, 214, 219–20, 242–3, 313 European Union, 1, 322–3 Evans, Jonathan, 42, 226, 230 Executive Liaison Group, 134–6 Farr, Charles, 80 Finsbury Park Mosque, 3, 267–9, 279, 281–80 freedom of expression, norm of, 56, 273, 276–7, 309, 313–14 garde à vue. See ‘pre-charge’ detention Gendarmerie Nationale, role in counterterrorism, 93, 102–3, 124, 291 glorification of terrorism, 276–7, See also freedom of expression, norm of government departments, co-ordination of in Britain, 78–81, 89 in France, 84–6, 89 Groupe Islamique Armé, 25–6, 282, 283–4, 291 Groupe Salafiste pour la Prédication et le Combat, 26–7, 33–4, 43, 285, See also Al-Qaeda in the Islamic Maghreb

Hamza, Abu, 247, 250–1, 267–9, 279–81 Hizb ut-Tahrir, 272–3 Home Office, 78–9 and terrorism legislation, 145–6, 209–10, 212, 214–15, 217, 223–4, 228, 230–1, 265–6 home-grown terrorism, 29–30, 35–6, 40–1, 326–7 indefinite detention, Britain, 212–13 judicial review by Special Immigration Appeals Commission, 212–14 Law Lords ruling on, 214 negative effect on legitimacy, 319 institutionalist literature, new, 65–6, 75–6, 174, 326 institutions, 5–6, 9, See also inter-institutional conventions constituent elements of, 65–6 executive-legislature relationship, 66–7 interaction with norms, 76, 242–3 judicial review of legislation, 67–9 path dependency, 65 intelligence. See also intelligence agencies by name, notably MI5 and Direction de la Surveillance du Territoire distinguished from law enforcement investigations, 90–1 its use in charges and prosecutions, 117, 138–9, 140, 185 intercept material, use as evidence, 117 in Britain, 139–40, 144–5, 148 in France, 117 inter-institutional conventions, 5–6, 66, 75, 172–3 in Britain, 69–70, 136–7, 147, 235–7 in France, 69–70, 105–6, 115, 117–18, 235 Interior Ministry, France, 84, 89, 210–11 international co-operation against terrorism, 288, 322–5 investigating magistrates, France, 3, 69–70, 104–5, See also terrorism trials, France approval of large arrest operations, 282–3, 285, 289, 295 central role in terrorism investigations, 105–7 claim of impartiality, 178–80 co-operation with security agencies, 109–13, 115, 116–18, 128–9, 179–80, 181 powers, 106 Irish Republican Army, 18, 20–1, 150 Islamist extremism/support for terrorism, 12, 19

Index British response to, 265–7, 268–75, 279–81, See also ‘Londonistan’ French response to, 301–4, 305, 313, See also pôles régionaux de lutte contre l’Islam radical Islamist terrorism, 1, 21, See also Al-Qaeda ideology and motives, 24–5 Joint Intelligence Committee, 81, 164–6 Joint Terrorism Analysis Centre, 163–7 judges’ attitudes to governments’ security priorities. See also interinstitutional conventions; investigating magistrates in Britain, 146, 217, 222, 235–7 in France, 193–4, 235, 298–9, 305 judicial function, Britain and France compared, 136–7 juges d’instruction. See investigating magistrates, France Justice Ministry, France, 84, 107 Katzenstein, Peter, 8, 9–10, 44, 52–3 law enforcement. See also police operations, and organisations by name, notably Metropolitan Police and Direction de la Surveillance du Territoire (judicial investigations) distinguished from intelligence, 90–1 reconciled with intelligence, 117–18, 154, 168 legal systems, 6, 143–4, 326–7, See also judicial function civil law, 69, 104 common law, 70, 139 legitimacy of the state, counterterrorism and, 4, 318–19 liberal democracy, effect of counterterrorism on, 327–8 liberty, norms of, 5, 53 in Britain, 56, 227, 229, 238 in France, 57, 63, 299–300 liquid explosives case, 30–1, 147–8, 253 Livre Blanc strategy paper, 86–8, 119, 207–8 ‘Londonistan’, 246–8, 267–8, See also ‘covenant of security’ MacDonald, Lord, 181, 225, 229, 231–2, 238 Manningham-Buller, Baroness, 48, 140, 162, 229, 319 March, James, 71 media scrutiny, 61–3, 229, 238–9, 260–1, 264, 296

335 Merah, Mohamed, shootings in 2012, 38, 118–19, 171–2, 291–2 Metropolitan Police Anti-Terrorist Branch, 130, 134, 148–52, 153–4, 157–8, See also police operations against Islamist terrorism, Britain Metropolitan Police Counter Terrorism Command, 131, 134–5, 152, 153–4, 159–61 Metropolitan Police Special Branch, 130–1 co-operation with MI5, 131–4 merger with Anti-Terrorist Branch, 148–9, 152–3, 170–1 MI5, 129 co-operation with police, 132–4, 151–2, 156–7, 162 coverage of Islamist terrorism, 154–5, 254–5 expansion of, 155–6, 161–2 primacy on terrorism intelligence, 130–2, 153–4 role in evidence provision, 149, 150–1 wariness of sensitive intelligence in court, 139–40, 144–5 MI6, 13, 129, 135 multiculturalism in Britain, 277–8, 314 National Co-ordinator of Intelligence, France, 86, 123 non-governmental organisations, role in terrorism debates, 53, 61–2, 63, 214, 240–1, 328 norms, 5, 9–10, 52 and identity, 52–3 and public opinion, 63–4 articulation of, 53–4 indicators, 54–5 interaction with institutional factors, 76, 242–3 norm competition in Britain, 54, 55–6, 61–2, 227–8, 230–2, 237–40, 261–2, 265, 276 normative consensus in France, 54, 56, 62–3, 240–2, 296–8, 308 Northern Ireland anti-terrorist legislation in, 188–9 peace process, 20–1 repressive British operations in, 19–20 repressive methods re-evaluated, 59–60 Office for Security and Counterterrorism, 79–80 Olympics 2012, preparations for, 162–3 Omand, Sir David, 80, 81, 86 organisation theory, 71–2, 75–6, 174, 326

336

Index

organisational routines, 6, 70–1, 174–5 and a logic of appropriateness, 71 and path dependency, 72, 112–13 antecedents of, 73–5 definition of, 71 formal vs. informal routines, 73, 74–5 of British counterterrorist agencies, 132–6, 154, 169–71 of French counterterrorist agencies, 100–2, 103, 113, 117–18, 124, 127–9, 169–70, 173 pôles régionaux de lutte contre l’Islam radical, 289–90, 313 Police Counter Terrorism Network, Britain, 159–61 Police International Counter Terrorism Unit, Britain, 167 Police Judiciaire, anti-terrorist unit, 93, 109–10, 124–7, 171–2 police operations against Islamist terrorism, Britain discriminate arrest operations, 256–7, 260–1 expansion after 9/11, 251–4, 255 public scrutiny of, 62, 260–1, 264–5 tactics against suspected terrorists, 257–60 use of firearms, 258–60, 263–4 police operations against Islamist terrorism, France in 1990s, 282–5 in 2000s, 288–9, 290–1 indiscriminate arrest operations, 294–6, 298 indiscriminate operations re-evaluated, 298–301 public scrutiny of, 296–7 tactics against suspected terrorists, 291–2 use of firearms, 291–2 political asylum, norm of, 56, 276, 308–9, 313 ‘pre-charge’ detention, Britain and France compared, 182 information base for charge and for mis en examen, 183–6 length of detention, 183 role of lawyer, 182 ‘pre-charge’ detention, British efforts to extend length of, 227–30 pre-trial detention, Britain and France compared, 186–7 ‘prevent’ policy, Britain, 82, 83, 314 preventive logic of counterterrorism, 49–50 in investigations, 114–15, 150–2, 169

in law, 198–9, 209–11 in operations, 255–6, 294 procurers. See prosecutors, France proportionality, norm of, 56, 60, 261–3 prosecutors, France, 104–5, 107, 115–16 Qatada, Abu, 1, 220–1, 247, 249–50, 266 radicalisation, factors contributing to, 319–22 rational choice paradigm, 44, 168, 245, 311, See also strategic choice theory realist theory, 7–8, 45–6, 325, See also ‘balance of threat’ theory Renseignements Généraux, 92–3, 100–2, 119, 121–2, 134 Renseignements Généraux de la Préfecture du Police, 93, 102, 122 republican integration model in France, 309–10, 314 republicanism and the State in France, 6, 57–8, 63 resilience, British idea of, 56, 57, 238 ‘ricin’ case, 29, 43, 90, 158, 190–2, 252, 260–1 Sarkozy, Nicolas, 59, 112, 240, 305–6, 308 national security reforms, 86, 121–3 Secret Intelligence Service. See MI6 Security and Intelligence Co-ordinator, 80–1 Security Service. See MI5 security, norms of, 5, 53–4 in Britain, 55, 238, 261 in France, 56, 58–9, 61, 240–1, 308 ‘shoot to kill’, 19, 59, 265 Special Branch Regional Intelligence Cells, 157, 159 Special Branches of British police forces, 130, 132, 156–7, 159, 161–2, See also Metropolitan Police Special Branch Special Immigration Appeals Commission. See indefinite detention, Britain Stephen Lawrence (Macpherson) inquiry, effect on police, 277–9 strategic choice theory, 44, 47, 168, 234, 251, 260, 294, 296, 311, 315, 325 Terrorism Act (2000), 189 Terrorism Prevention and Investigation Measures, Britain, 218–19 terrorism trials, Britain, 190–1, 225–6, See also Diplock courts, Northern Ireland government concerns about, 191–2, 207, 226, 236 non-jury trials rejected, 225

Index terrorism trials, France, 192–3 Conseil Constitutionnel ruling on, 193–4 government confidence in, 207–8, 235 importance of investigating magistrate for, 194–8 terrorism, debate on definitions, 11–12 terrorist attacks on France, 1995 and 1996, 4, 25–6, 98–9, 108, 284 terrorist attacks on London, 7 July 2005, 4, 30, 253, 270 terrorist offences, 198–9 Britain, 199–201, 205–6, 209–10 France, 201, 205–6, 210–11, 302, See also ‘association of wrongdoers’ terrorist threats to Britain and France compared capability, 39–40 common threat, 42–3 intentions, 41 motives, 25, 28, 29–30, 32, 33, 36–7, 38, 41 plots, 25, 28–33, 35–6, 37 proximity, 40–1 strategic vs tactical threats, 41–2

337 threat perception, 2, 5, 43, See also ‘balance of threat’ theory; strategic choice theory and international co-operation, 322–3, 324–5 in its broad and narrow senses, 44 indicators, 46–7 more relevant than objective threat, 46 of British and French officials, 47–9, 168, 234, 251, 260, 280–1, 293–4, 308, 311 torture, allegations of involvement in, 62–3, 297 trials. See terrorism trials Unité de Co-ordination de la Lutte Anti-Terroriste, 92, 94–100, 166–7 veils and religious symbols, French ban on, 33, 36, 38 vulnerability, French ideas of, 56, 58–9, 61 Walt, Stephen. See ‘balance of threat’ theory Zakaria, Fareed, 45–6