Clive Walker – Terrorism and the law

Clive Walker has just published his new book at OUP:

Terrorism laws and legal practices have been politically and socially controversial to a degree beyond almost any other legal issue during the past decade, and this analytical text contains extensive analysis of these controversies. Written by  leading commentator Clive Walker, Terrorism and the Law offers a thoughtful and up-to-date discussion of all the key materials on terrorism law. It provides comprehensive coverage of all major domestic, European, and international laws, and their impact on the UK. It also contains an extensive examination of implementation and practical problems, as well as comparison with closely comparable jurisdictions ranging from Australia, Canada, and the Republic of Ireland, to the United States.

The book contains five Parts. Part I focuses on meanings of ‘terrorism’ in law and political science. It provides the reader with an understanding of the political phenomenon and the legal concept, including its statutory definitions, which is essential to the book’s assessment of the strategies and tactics adopted in the codes of laws as well as policy statements. It also addresses normative constraints, such as human rights, and considers mechanisms of accountability.

Parts II-IV focus on the United Kingdom law and practice. It provides extensive coverage of the major UK terrorism legislation, namely: the Terrorism Act 2000; the Anti-Terrorism, Crime and Security Act 2001; the Prevention of Terrorism Act 2005; the Terrorism Act 2006; the Justice and Security (Northern Ireland) Act 2007; the Counter-Terrorism Act 2008; and the Terrorist Asset-Freezing etc. Act 2010. The themes comprise: investigatory and policing powers and interventions; the disclosure of Information, special criminal laws, special criminal processes, post-trial restraints and the penology of terrorism, executive regulation through control orders and immigration measures, terrorist funding and property, and protective security laws, structures, and regulations. The study encompasses wherever relevant the impact of European, international and transnational laws and practices, covering international transnational cooperation and extradition; key European Union law measures against terrorism; other international law measures against terrorist activities; and international human rights and terrorism.

Part V considers regional variations in Northern Ireland, with some reflections on the application of Scottish law, especially in the Lockerbie cases.

Part VI reflects the impact of European, international and transnational laws and practices, covering international transnational cooperation and extradition; key European Union law measures against terrorism; other international law measures against terrorist activities; and international human rights and terrorism.

Dennis Blair: US intel relationship with brutal countries damages national interest

Quote from the NY Times

Dennis C. Blair, the former top American intelligence official, said that while spy services in places like Libya and Egypt were cooperating with the United States against Al Qaeda, they were “aggressively and sometimes brutally suppressing dissent in their own countries.”

“Not only did these intelligence relationships interfere with our ability to understand opposition forces, but in the eyes of the citizens of those countries they often identified the United States with the tools of oppression,” said Mr. Blair, who served until last May as President Obama’s director of national intelligence. He added that the recent uprisings offer an opportunity to “align our intelligence relationships with our national values.”

A C.I.A. spokesman declined to comment about the agency’s ties to foreign intelligence services. But Michael Scheuer, who spent two decades at the C.I.A. in counterterrorism operations, said it was absurd to believe that such work could be done without the help of unpalatable allies.

“Foreign policy and intelligence doesn’t have anything to do with values,” Mr. Scheuer said. “It has to do with material interests and security. We would be blind in most of the world if we only dealt with Rebecca of Sunnybrook Farm.”

Terrorist Use of the Internet: Information Operations in Cyberspace

New CRS report address US federal government efforts to address cyberterrorism, includes comment on the Kill Switch Bill.

Tajik Supreme Court frees three convicted terrorists and lowers sentence of others involved in Tavildara events

The Supreme Court of Tajikistan released three convicts who were sentenced to up to 30 years of prison due to terrorism charges. The court also significantly relieved punishment of 26 others convicted in collaboration with terrorist groups, illegal possession of weapon, anti-government activities and other charges. They were part of 46 citizens arrested in connection to Tavildara 2009 events and convicted by the same court last June. The Supreme Court says that, although 29 of the convicts asked for the retrial of the verdicts, all 46 cases were revised. The Court generally confirmed its previous verdicts, but reduced the punishment.

Testimony from Bagram’s black jail

As reported on the Afghanistan Analysts Network:

After our arrest we were first taken to Tor Jail, or the Black Jail. It was terrible. They didn’t treat us like humans at all. They didn’t allow us to sleep. There was nothing to cover ourselves with. They insulted the Quran. Whenever we were taken to the bathroom, they left the door open. We never knew when it was time to pray or which direction we should face. We never saw sunlight. We were treated rudely during interrogation. Some people were also beaten, but that didn’t happen to me.

After 33 days in the Black Jail I was transferred to the big jail. Here we were visited by ICRC, which was good even though they had no authority. They brought letters, but they didn’t tell the press about us or about the circumstances we were in. The Human Rights Commission (AIHRC) didn’t come to the prison, maybe they were not allowed in. About a month before my release they came, but they were so young. What could they do?

Canadian prevented from flying because name was on US no fly list

The Economist reports that that a British man was prevented from flying home from Canada because his name was on America’s no-fly list. Dawood Hepplewhite was not allowed to board his Air Transat flight
from Toronto on February 13th when it was discovered that he was among
the 8,000 to 10,000 people prohibited by the US from flying over its
airspace. Even though Canadian airlines are not under any legal
obligation to give passenger information to the US, Mr Hepplewhite was
subsequently denied flights on Air Canada and British Airways.

unclear how Mr Hepplewhite’s name was given to American authorities.
Under existing Canadian privacy legislation, Canadian companies are not
supposed to supply customer information to foreign governments. But that
will change if a piece of Canadian legislation known as Bill C42, now
in its third reading in the House of Commons, is passed. The bill puts
in an exemption to the country’s privacy laws that will allow airlines
to divulge passenger information to the US, essentially giving American
authorities the final say on which passengers will be allowed on flights
due to pass over American airspace.

The Canadian Civil Liberties
Association has “serious concerns about the lack of legal safeguards in
Bill C42” and also the about the no-fly list’s fairness and the listing
process in general. “If a person believes they were wrongfully placed on
the US No Fly List, it is apparently very difficult to find out why
they were placed on the list, and difficult to get their name off of the
list,” the association said.
The American Civil Liberties Union, meanwhile, has brought a lawsuit
challenging the no-fly list as “unconstitutional” and “un-American”.

Pakistani government and ICRC at odds over access to detainees and applicablity of Geneva Conventions

Dawn reports that the Pakistani government has refused to allow the ICRC to visit jails in Khyber Paktunkhwa and Balochistan in order to visit hundreds of prisoners under charges of militancy and insurgency in Khyber and FATA. According to the ICRC and armed conflict exists in Pakistan’s north-West area, while Pakistan denies this and says that an ongoing ‘operation’ is taking place against ‘common criminals or anti-social elements’. Hence, the Pakistani government argues that article 3 of the Geneva Conventions is not applicable to the situation there, and that ICRC cannot visit prisons and detention centers in the area. The ICRC had access to prisons in Balochistan in July 2008, and in Khyber in October 2009. According to the Pakistani Human RIghts Commission more than 2600 detainees were arrested in Makakand division alone in 2009. Human Rights Groups.

Two fundamental privacy problems with the SWIFT agreement and Europol’s role in it?

EUROPOL’s Joint Supervisory Body recently performed its first inspection at Europol regarding the TFTP Agreement, which entered into force in August 2010. The TFTP Agreement gave the JSB a new task – to monitor whether Europol respects the provisions of personal data protection principles in the TFTP Agreement when deciding on the admissibility of the US’ requests to SWIFT. Europol is tasked with verifying whether the US’ requests are proportionate and necessary – according to conditions laid down in the TFTP Agreement. Europol can therefore approve or deny the transfer of SWIFT data to the US.

Under Article 34(1)3 of the Europol Council Decision, the JSB is tasked with reviewing Europol’s activities in order to ensure that individuals’ rights are not violated by the storage, processing or use of data held by Europol.

At its meeting of 11 October 2010, the JSB mandated a team to inspect Europol’s implementation of the TFTP Agreement, including all related items. The inspection took place in November 2010.

The inspection team found that some data protection requirements were not being met. The most important finding of the inspection was that the written requests Europol received were not specific enough to allow it to decide whether to approve or deny them. It was found that the US requests were too general and too abstract to allow proper evaluation of the necessity of the requested data transfers. Despite this, Europol approved each request it received. One of the JSB’s recommendations is, therefore, that Europol should contact the US Treasury Department to ensure that all future requests for SWIFT data comply with the criteria set out in the TFTP Agreement. The JSB concluded that proper verification of whether the requests are in line with the TFTP Agreement – on the basis of the available documentation – is impossible.

Europol advised that orally-provided information plays a role in its verification of each request. This information is provided to certain Europol officials with the stipulation that no record is made. This kind of procedure prevents JSB from checking whether Europol could have rightly come to its decisions. The JSB was therefore unable to evaluate whether the amount of data transferred to the US from SWIFT was proportionate and necessary, as required by the TFTP Agreement. The significant involvement of oral information renders proper internal and external audit, by Europol’s Data Protection Office and the JSB respectively, impossible.

The report was a cause of concern at the European Parliament. MEP Alexander Alvaro said:

As Members of Parliament we feel betrayed reading this report.We voted in favour [of this agreement last year] in the trust that both parties would apply the adopted agreement”, which “concerns the transfer of sensitive data belonging to our citizens”, he stressed, adding that “the credibility of Parliament and of this committee are being jeopardised. This is about trust and confidence of the public in what the EU did and is capable of doing here”.

MEP’s also criticized Europol’s role in supervising the agreement:

Entrusting this task to Europol “is like putting the fox in charge of the chicken coop” said Sarah Ludford (ALDE, UK). Several MEPs questioned Europol’s credibility, given that it transfers data in response to oral requests by the US authorities. MEPs asked that the Director of Europol to come to the committee to explain his views on this.

“Europol should not have been the body to oversee this – we all underlined at the time that Europol should not have been entrusted with this role”, said Stavros Lambrinidis (S&D, EL), adding that the fact that the agency only has 48 hours to answer requests would only make sense it they are “super duper”, which does not always seem to be the case.

Rui Tavares (GUE/NGL, PT), considered this a bad precedent for further agreements in this area. He stressed that Parliament must have access to the full report, including the classified sections. “We might have to engage in another battle for access to documents, but we are used to that”, he added.

National data protection commissioners weighed in as well. Here‘s German Federal Commissioner for Data Protection and Freedom of Information, Peter Schaar:

Even the very rudimentary public part of the inspection report confirms my fears. There are huge shortcomings. Political authorities at European and national level must immediately ensure that the shortcomings that were found will be eliminated. In Peter Schaar’s opinion, the findings of the inspection focus on the question already critically asked prior to the Agreement: Can and will Europol perform the assigned watchdog function properly at all?

One week later a second control mechanism seems to have failed. According to Article 15 of the SWIFT agreement, every EU citizen has the right to know if American authorities had access to personal banking data and if so, which authorities received that information.

For the past six months, Alexander Alvaro, a member of European Parliament from Germany’s Free Democrats, has been doing a test in an attempt to obtain the information entitled to him from German authorities. The result:

“The German authorities have not yet been able to find out whether data has been accessed at all. As such, the rights of EU citizens on correction, deletion or blockage of the data are being violated.”

Read the full story at Der Spiegel.

The always nuanced Steward Baker has another take on the issue though:

European Governments Screw Up; US To Suffer Consequences  That seems to be the theme of this article from the ever-predictable Der Spiegel, which recites a bunch of alleged failures by the German government in implementing the SWIFT data agreement, then raises the prospect of suspending the agreement, thereby cutting off US access to some financial data and making the world safer for funders of terrorism.

All in all, it seems clear that Europol is not the main culprit in this case. Europol has discharged its responsibilities as foreseen by the TFTP Agreement and implemented the necessary provisions correctly. The key recommendation in the Final JSB Inspection Report seeks to motivate the US Department of the Treasury to provide even more written documentation to Europol to carry out its verification role under Article 4. This is very similar to the findings and recommendations recorded by the review team. Read the Commission’s full assessment here.

Algerian Senate confirms lifting of emergency rule

The Algerian Council of the Nation (Senate) adopted unanimously President Bouteflika’s order to lift the state of emergency, which announced the official end of a situation that existed since 1992 to fight Islamist violence. Two other orders that were previously adopted by the National People’s Congress (ANP Chamber of Deputies), were adopted as well. The first order confirms that the National Popular Army (ANP) remains in charge for “rescue missions of public order outside emergency situations”, which covers counter-terrorism activities. The other order replaces administrative detention in the Code of Criminal Procedure by a new measure which has to be determined by a judge: a terrorist suspect can now be placed under house arrest for a period of three months. This period is renewable twice. Police custody has now been reduced to 48 hours, renewable only by the prosecutor. Similarly, arrests, searches and wiretapping are henceforth to be done under the supervision of a magistrate.

Pakistan ex-president Musharraf says UK gave ‘tacit approval’ to use of torture

[JURIST] Former Pakistani president Pervez Musharraf said that the UK gave “tacit approval” for torture of terror suspects, making the statements in a BBC documentary. Musharraf’s claims raise questions over UK’s public stance discouraging other countries from torturing UK citizens on its behalf. Musharraf, who was president of Pakistan from 1999-2008 and a key US ally against al Qaeda, told the BBC that he was never informed of the UK’s policy discouraging torture and defended the use of torture to fight al Qaeda. Claims that the UK allowed torture by other countries will be investigated by an independent commission set to begin work within the next two months.