Playing with Fire?

By Gary Schmitt

Britain is modifying its counterterrorism laws, but they continue to reflect the serious threat of terrorism.

At the end of January, the British government announced changes to some of the more controversial counterterrorism laws the previous Labour-led government put in place. Modified were the length of time a terrorism suspect could be detained without being formally charged, the system of “control orders” in which terrorist suspects could be held under house arrest, and police use of stop-and-search powers. At first blush, the modifications seem designed to water down the existing measures, perhaps as a gesture by Conservatives to their coalition partners, the Liberal Democrats, who have long complained that the measures violate Britain’s civil rights tradition.

Undoubtedly, the proposed changes are less strict. In the case of stop-and-search powers, previously the police wielded virtually total discretion in designated areas; now, to engage in a general stop and search, they need intelligence of a specific threat or, absent that, some suspicion on the policeman’s part that a search is warranted. As for detention, the government will allow the current 28-day detention law to lapse, reverting to a 14-day maximum period in which a terrorist suspect may be held before being charged. Finally, the system of control orders (in which individuals deemed highly dangerous are held under house arrest indefinitely because they cannot be tried due to certain types of intelligence being barred from use in court, or because returning them to their home country would likely lead to their torture) will be modified to allow a suspect more liberal use of phone and Internet, and more freedom of movement during the day. The control order also will be limited to a two-year period, after which it can only be extended based on new intelligence.

The primary goal of the statutes is preemption, not securing convictions.

But before one concludes that the Tory government has gone completely wet, it is important to note that the measures as retained still reflect that the United Kingdom faces a serious terrorist problem. Yes, the police will have to be more circumscribed in stopping and searching citizens, but they will still have the power to use their best judgment and not be required to justify stops based on indisputable signs that a terrorist crime is about to occur. Similarly, the 28-day detention power was rarely used, and the government is proposing to retain in its pocket draft emergency legislation reinstituting the longer period, should investigators find themselves dealing with multiple, complex plots that require more investigative time. As for the proposed changes to the control orders—what critics have called Britain’s domestic Guantanamo—the fact remains that individuals will still be held under tight supervision without ever being charged with a crime. Under the new regime, the suspects will be electronically tagged and prevented from visiting particular places or traveling overseas. While they will be allowed to use cell phones and the Internet, police will have access to passwords and call logs.

Individuals will still be held under tight supervision without ever being charged with a crime.

For civil libertarian critics of the past measures, these modifications are wholly insufficient—at best, an effort to rebrand “in a slightly lower fat form.” In turn, critics of the liberalizing drift of the changes see the government’s reform as “political fudge,” driven by the need to provide a favor to Deputy Prime Minister and Liberal Democratic leader Nick Clegg in light of his party’s sinking popularity. Both sets of critics are right. These are not wholesale changes and, by and large, the Home Office would not have recommended them if left to its own designs.

That said, one should not ignore that these rather forward-leaning laws remain on the books. And the clear intent of both the present statutes and the modified ones is to prevent the kind of devastating attacks that occurred in the United States in 2001, in Spain in 2004, and in London in 2005. Their primary goal is preemption, not securing convictions.

The government will allow the current 28-day detention law to lapse, reverting to a 14-day maximum period in which a terrorist suspect might be held before being charged.

Moreover, it is reasonable to expect that, after a number of years observing the laws in practice, the government could make further modifications. As Benjamin Wittes and Adam Klein write in an important new article in the Harvard National Security Journal, “Preventive Detention in American Theory and Practice,” preventive detention in the United States has a long history. It has been applied to foreign nationals during war, material witnesses in criminal trials, aliens facing deportation, the mentally ill, the intoxicated, and so on. But, as they point out, these authorities have also been expanded as exigencies demanded and narrowed at times as experience allowed.

It remains to be seen, of course, whether these changes are prudent modifications and still meet the internal security threats the United Kingdom faces from Islamist terrorists. With the London Summer 2012 Olympics just around the corner, that proposition will soon be tested.

Gary Schmitt is director of the American Enterprise Institute’s Program on Advanced Strategic Studies and editor of and contributing author to Safety, Liberty and Islamist Terrorism: American and European Approaches to Domestic Counterterrorism.