British counterterrorism has traveled a path very different from America’s approach.
British counterterrorism has traveled a path very different from America’s approach.
E arlier this month, when we marked the 25th anniversary of the 9/11 atrocities, my reminiscences as a former terrorism prosecutor focused on the even more dimly recalled eight years prior to the suicide hijackings. (See here and here, and this Free Beacon review of Second Wave, a book about al-Qaeda’s plots to hit the United States again shortly after 9/11.) To my mind, the most underappreciated counterterrorism innovation is the transformation from the Clinton-era law enforcement paradigm to the law-of-war footing adopted by the Bush-Cheney administration after nearly 3,000 Americans were killed and iconic American sites were demolished or badly damaged.
In fits and starts, out of frustrating recognition that the crime model was a security disaster while the war model invited overkill that stifled American liberties, we’ve finally arrived at an uneasy hybrid: (a) military and intelligence operations against jihadist groups overseas; (b) intelligence and treasury mapping and monitoring of jihadist groups as they move money, personnel, and assets across borders and continents; and (c) law enforcement prosecutions of terrorists caught plotting attacks and of their abettors providing material support. It’s far from perfect, but it’s a vast national defense improvement over how things stood on February 26, 1993, when the World Trade Center was bombed — which I regard as the Sunni jihadists’ declaration of war against the United States. (Arguably, the Shiite jihadists had declared war in 1979, with the Iranian revolution followed by the siege of the U.S. embassy and Hezbollah’s attacks on U.S. installations and assassinations of American officials. But the WTC bombing was the global anti-American jihad’s proclamation that it could hit us in our homeland.)
The reports of a jihadist plot in Britain over the weekend, and particularly the frustration — including that expressed by President Donald Trump and Secretary of State Marco Rubio — that the five suspects apprehended were promptly released, is a reminder that the “war or crime” dilemma confronts the United Kingdom, just as it confronts every Western nation targeted by Muslim terrorists.
British counterterrorism has traveled a path nearly opposite our own.
Let’s set the stage. Five men in their mid-20s were arrested in the wee hours of Sunday morning in a village near the Royal Air Force base in Fairford. All five are British nationals (which hardly precludes the possibility that they are Muslim terrorists connected to overseas jihadist networks). They were suspected of plotting to attack the base, which our NATO ally allows the U.S. armed forces to use, including in connection with the ongoing Iran war. By Monday, all five had been released on bail. CBS News (in the report linked above) says the U.K.’s counterterrorism police stress that the men are “subject to stringent conditions on their movement and contact with others,” and that they “absolutely remain under investigation as we explore multiple lines of enquiry.”
These assertions are consistent with Secretary Rubio’s insistence that Sunday’s incident was “very serious” and “clearly involved” a foreign power — which could be a country or a terrorist organization, and which the president suggested could be Iran.
Nevertheless, the rapid release without charges, along with reports that the police found no explosives or weapons, has led to speculation that the men were not engaged in a terrorist plot at all — were, perhaps, just looking to steal fuel. Some of that supposition seems daft to me. (If you wanted to steal fuel, would you really try to pull that off at or near a fully armed and operational military base?) Yet, the doubts about whether this was truly terrorist activity, notwithstanding the implication that it was from statements of top officials with better intelligence than the public has, is understandable. After all, Britain has a long history of detaining terrorist suspects.
Let’s turn to that history.
In the 20th century, the U.S. had comparatively little experience dealing with organized terrorist activity. And our 1970s experience — spawned by the radical left’s activism against the Vietnam War and what it regarded as systematic, incorrigible racism — resulted in spying scandals that pressured the government to fortify due process protections. By contrast, throughout the century, Britain dealt with a low-thrum but often brutal terrorist war against the Irish Republican Army — and, in the last decades of “The Troubles,” the Provisional IRA. There had thus been episodes of internment of IRA suspects, a process that was refined over time into a form of pre-charge detention (i.e., the suspect is held in anticipation of criminal charges).
By 2000, the Troubles had subsided, but the U.K., like most of the West, was awakening to the jihadist threat. British counterterrorism law was amended to reach foreign operatives more readily. And after 9/11, anti-terrorism legislation led to indefinite detention of foreign nationals suspected of terrorism (deportation having become more difficult because of court decisions).
To summarize, while America stood firmly on a law enforcement counterterrorism footing until 9/11 occurred, the Brits, because of their different history, had long before carved terrorism out of their criminal justice system and subjected suspected terrorists to forms of detention, monitoring, and interrogation that would have violated ordinary due process rules.
Here’s the interesting dichotomy: While we’ve incorporated law-of-war measures since 9/11 (the most extreme being the continued use of lethal force overseas and some remaining indefinite detention), British law has scaled back its wartime measures under political pressure from progressives, Europe, and a growing (and very politically active) Muslim population.
Indefinite detention was reduced, first to 28 days of pre-charge detention, and now to 14 days. And that is a ceiling — not close to automatic because it is supervised by the courts, which will free a suspect if the proof seems weak. Moreover, if a suspect is released from detention, it is difficult to re-detain unless the police can show newly discovered evidence of guilt. On the other hand, the police have discretion to impose significant monitoring conditions on suspects who are released on bail — and then, if the suspects transgress the stringent release conditions, they can be charged and potentially detained for bail violations.
Consequently, a quarter century after 9/11, British law more resembles pre-9/11 U.S. counterterrorism than it did during and in the immediate aftermath of 9/11. I believe this is the reason the suspects have been released.
As a number of analysts have pointed out, this weekend’s arrests appear to have sprung from a reactive police investigation rather than an intelligence probe. That is, notwithstanding President Trump’s claims to the contrary, the Brits may not have been looking into these suspects for a long time; the five may instead have been grabbed because they were acting in a suspicious manner — it’s hard to tell because there are, for now, no formal allegations.
If that theory is right, then police are starting from scratch: They have some evidence of clandestine activity in a location that would be an attractive terrorist target, but they may (at least at the time of apprehending people) have had scant intelligence regarding their connections (if any) to foreign powers. Although investigators apparently believed that a bombing plot was afoot, current indications are that they did not seize explosives, bombing components, or other weapons.
Now, that doesn’t mean it wasn’t a bombing plot. Sunday could have been a dry run, or it could be that the five men arrested were supposed to meet up with other plotters who weren’t arrested and haven’t been identified — there are infinite possibilities. This much, however, seems clear: The investigation is in its early stages; what happened over the weekend was not the culmination of a counterterrorism probe in which, after days or weeks of observation, a bombing plot was thwarted.
From the perspective of the British police, the sensible course was to release the suspects on bail. It gives investigators the opportunity to monitor while exploring connections to other players and foreign powers. Simply stated, Britain is not on a war footing; it is in law enforcement mode. If police and prosecutors had pressed for detention without enough evidence to charge terrorism crimes, a judge would have set the suspects free, the government would have been humiliated, and the case would have been set back.
Of course, if the suspects are terrorists, then releasing them — even with monitoring — is a setback for British national security and, possibly, American military safety and effectiveness.
The longstanding quandary hasn’t changed. It can’t change. If a country sees itself as at war, national defense is the priority and suspected enemy operatives are detained even if the grounds for suspicion are sketchy or can’t be revealed in court for fear of exposing intelligence secrets and sources. If a country does not see itself at war, then terrorism is treated as a law enforcement issue, and due process for the suspects is prioritized over public safety.
That is frustrating, especially for Trump officials who seem to think — incorrectly — that they are empowered to “designate” suspected criminals as terrorists and then treat them as if they were alien enemy combatants with no due process rights. Yet it’s simply a fact that neither the British nor the American public feel sufficiently threatened at this moment to transition to a war footing. I’m not saying that’s a bad thing, or implying that I’d like to see it change — which would probably require a massive terrorist attack. Just that it’s a fact.