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Arrests Cast New Light on British Anti-terror Policies

August 15, 2006 at 6:10 PM EST
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KWAME HOLMAN: President Bush today chose the National Counterterrorism Center, created in the wake of the 9/11 attacks, as the backdrop to highlight his administration’s work to protect the United States. He also used the occasion to praise the British effort last week to foil the airline plot.

GEORGE W. BUSH, President of the United States: Because of the good work in Great Britain and because of the help of the people there at NCTC, we disrupted a terror plot, a plot where people were willing to kill innocent life to achieve political objectives.

KWAME HOLMAN: Twenty five people have been arrested and one released in Britain, where the investigation continues. British intelligence reportedly kept suspects tied to the alleged plot under surveillance for months and did not move against them until Pakistani officials made several related arrests.

The British success had Homeland Security Secretary Chertoff wondering if U.S. counter-terror measures should follow the British model.

MICHAEL CHERTOFF, Homeland Security Secretary: Well, I think certainly making sure that we have the ability to be as nimble as possible with our surveillance is very important. And frankly, their ability to hold people for a period of time gives them a tremendous advantage.

Now, there are some legal restrictions here under the Constitution that they don’t have, but their nimbleness and their flexibility are important tools we want to have here, as well.

KWAME HOLMAN: The emphasis of U.S. counterterrorism efforts has appeared to be on stopping plots as soon as possible and not on the continued surveillance of suspects.

When the first hints of a plot Attorney General Gonzales called “al-Qaida-inspired” surfaced in Miami in June, U.S. law enforcement moved quickly to arrest the seven people involved.

ALBERTO GONZALES, U.S. Attorney General: You know, our philosophy here is that we try to identify plots in the earliest stages possible because we don’t know what we don’t know about a terrorism plot. And that, once we have sufficient information to move forward with a prosecution, that’s what we do.

KWAME HOLMAN: However, Attorney General Gonzales has ordered a comparative review of U.S. and British counter-terror laws.

Enforcement vs. intelligence

Robert Leiken
Nixon Center
[T]he British can be more nimble, both because of their laws and because of the politics. They're allowed to get a wiretap without a court order. They can detain a terror suspect for as long as 28 days before he has to be charged.

JIM LEHRER: Margaret Warner takes our story from there.

MARGARET WARNER: And for more on the U.S. and British approaches to terror suspects, we're joined by Tom Parker, a former British counterterrorism official. He teaches terrorism studies at Bard College in New York State.

Robert Leiken, director of the Immigration and National Security Programs at the Nixon Center, he's writing a book on terrorism in Western Europe.

And Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic magazine.

Welcome to you all.

So, Bob Leiken, how different are the U.S. and British authorities when it comes to -- when they confront a potential terror plot, in the investigatory phase?

ROBERT LEIKEN, The Nixon Center: I think, as Secretary Chertoff said, to use his words, the British can be more nimble, both because of their laws and because of the politics. They're allowed to get a wiretap without a court order. They can detain a terror suspect for as long as 28 days before he has to be charged.

MARGARET WARNER: As opposed to 48 hours here in the States?

ROBERT LEIKEN: Yes, although that can be overridden by a judge, but yes. And in England, if you visit England, you'll see cameras all over the place, television cameras. Everything is on film.

And there's less pressure on the police to disrupt. Since 9/11, America has felt or the administration has felt that it's really important not to let anything happen again, and so they tend to pull the trigger very quickly on investigations.

MARGARET WARNER: Tom Parker, you're a veteran of this British system. Tell us about it. How does it work? And how different is it from the way it works here?

TOM PARKER, Yale University: The big difference, I guess, is there is a split of focus in the United Kingdom between both law enforcement and intelligence gathering. There's a clear distinction, and that makes for different doctrine in the way the British approach counterterrorist investigations.

Primarily, the big difference you heard the attorney general here talking about, taking out plots in their early stages. In the U.K., we're more inclined to let investigations, intelligence investigations, run longer, that way learning more about the cell, more about their potential connections both within the United Kingdom and outside it. And that gives us a better picture, a more complete picture of the threat that we face.

MARGARET WARNER: And what tools can the British authorities use in surveillance that American law enforcement cannot?

TOM PARKER: I don't think there's a great difference in the tools available but in the way the tools are used. As Bob Leiken said, there is a difference in the way that we apply for telephone intercepts in the United Kingdom.

In the intelligence sense, these are authorized by the home secretary, by a political figure, not by a judge. But it still is a fairly rigorous process. Reasonable grounds have to be provided for the application, and it is put through a series of very stringent bureaucratic checks.

There's also a limit in terms of capacity, as well. In the United Kingdom in any given year, probably no more than a thousand or two thousand telephone taps operate, so there's a capacity limitation. But broadly speaking, the range of investigative tools are the same; it's how they're applied.

MARGARET WARNER: Is there not also greater authority that the British have, Mr. Leiken, to infiltrate groups? Tell us about that.

ROBERT LEIKEN: Well, it's partly a question of authority. It's partly a question of how well you know the Muslim, in this case, usually, the Muslim community.

This plot, this latest airline plot, was basically intercepted by infiltration. In the United States, if we want to go to a mosque, infiltrate a mosque, we have to get a court order. We have to go before a judge. You have to show at least reasonable suspicion. It used to be probable cause.

MARGARET WARNER: So in other words, that U.S. law enforcement has to depend more on, say, informants, rather than sending one of their own agents essentially undercover to pretend to be part of some group?

ROBERT LEIKEN: Or rather than, as happens in France and in Britain, getting a convict, not one of your own agents, but someone who you can turn in prison to work for you.

Big Brother is watching

Jeffrey Rosen
George Washington Law School
[B]oth because of constitutional concerns and also because of the tremendous difference in the political culture of America and Britain, we've decided that we don't want to authorize our police force to engage in domestic surveillance.

MARGARET WARNER: So, Jeffrey Rosen, on surveillance and particularly camera surveillance, we know that in Britain there are cameras all over the place. Do they make much more extensive use of them than they do here?

JEFFREY ROSEN, Law Professor, George Washington University: It's interesting. The British government's own studies found that there was no connection between the proliferation of the cameras and the decline of violent crime or terrorism.

They tend to be used for pretty pedestrian crimes, for car thefts in parking lots or for making kids feel like they're being watched even when they're not. They're quite popular in Britain. Civil libertarian concerns haven't a big constituency there. There's a difference in the political culture.

But basically they were installed because of fears of IRA terrorism but quickly came to be used for charging car taxes for cars that don't leave the central city of London. Essentially, they were sold for one purpose and are used for a different one.

MARGARET WARNER: And used for parking tickets.

But, Mr. Parker, if you go back to the 7/7 bombings, the two bombings in London, the suspect were identified, were they not, pretty quickly not only off the tape or off the camera surveillance tape, but because they had camera surveillance tape from earlier times where they'd been tracking them?

TOM PARKER: Absolutely. Video records are a fantastic investigative tool, but they are typically a post-incident tool. So this is something really that helps detectives rather than intelligence officers.

But it is tremendously useful. The authorities in the United Kingdom were able to track the bombers back to their point of origin largely through camera systems. They could see how the plot unfolded, and they could see the dry runs that took place, as well. So you have a very powerful tool.

MARGARET WARNER: And how important, Bob Leiken, is it that in Britain there is specialized domestic intelligence agencies, so-called MI-5?

ROBERT LEIKEN: It's very important. Unlike the United States, there's one agency that has a mission for dealing with terrorism. It doesn't have a crime-fighting aspect. It's sheer intelligence. It's not really a police organization.

MARGARET WARNER: And domestic.

ROBERT LEIKEN: And it's domestic. They have MI-6, which is their external, but they have an organization that has a very specific mission and that has a certain amount of organizational know-how.

MARGARET WARNER: Unlike here.

JEFFREY ROSEN: Yes, we have a very strong suspicion of domestic intelligence because of the scandals in the 1970s involving Martin Luther King and President Nixon's political opponents. We've refused to let the FBI engage in domestic surveillance and have left that primarily up to the CIA abroad.

And that's being challenged by the Bush administration, which has asserted the right to engage in warrantless surveillance, even domestically. And that's now being challenged in court. But so far, both because of constitutional concerns and also because of the tremendous difference in the political culture of America and Britain, we've decided that we don't want to authorize our police force to engage in domestic surveillance.

After the investigation

MARGARET WARNER: Now, staying with you for a minute, how different is it once suspects are captured, again the British versus American systems?

JEFFREY ROSEN: Well, as we've discussed, in Britain you can detain someone without charge for 28 days. In America, generally you have to be brought before a magistrate within 48 hours.

That's a tremendously important difference for the British because it allows them to delay arrests to allow investigations to proceed because they don't have to develop probable cause. They know that they can swoop down and detain someone without cause at any moment.

Once you are formally arrested in America, there are more protections at trial, greater access to lawyers. You can challenge your conviction as unconstitutional under the writ of habeas corpus, which Britain very interestingly has cut back on since 9/11. This cradle of English liberties has now been severely restricted. And that, too, is being challenged in America as the administration has asserted the right to detain people as enemy combatants indefinitely.

MARGARET WARNER: At Guantanamo.

And, Tom Parker, there is also a difference in how much the media can be told or can report on the suspects, the case against them. I mean, it's remarkable how little detail, for instance, we really know a week after the London terror plot was foiled, the alleged plot, about the suspects or the plot.

TOM PARKER: This is true of any criminal case in the United Kingdom. Essentially, evidence is sub judice until the case comes to court. So this is a court-imposed restriction rather than anything that reflects a culture of secrecy. The idea is to avoid prejudice in the trial.

Separated by a common language

Tom Parker
Former British counterterrorism official
[T]he big difference is the Bill of Rights and the Constitution. We don't have that. We have evolved practice over centuries. You have clearly defined areas of protection for your citizens.

MARGARET WARNER: I want to ask all three of you -- and I'll begin with you, Mr. Parker -- we come from a very common law heritage, along with the British. How do you explain that our systems do have these significant differences, our systems and practices?

TOM PARKER: Well, as I recall, there was a revolution.

MARGARET WARNER: You mean this is what King George wanted to do and the colonists didn't want to have done?

TOM PARKER: Well, I mean, the big difference is the Bill of Rights and the Constitution. We don't have that. We have evolved practice over centuries. You have clearly defined areas of protection for your citizens.

We have protections that have evolved over time, but there's always been that tension between the needs of the state and the rights of the individual. Right from the get-go in the United States, those rights were protected. One of the difficulties investigators face here is rolling back how some of those rights have been interpreted in the light of abuses in the 1970s.

MARGARET WARNER: What would you add to that, Bob Leiken?

ROBERT LEIKEN: I would add a little cold water, in the sense that I think that we're somewhat more similar than perhaps has been suggested. Tony Blair, after the July 7th attacks, he tried to get 90 days for a period of holding people for detention.

He had a whole list of things that he wanted to do, and he ran up against a fairly formidable privacy lobby. So while Arnold Bennett, who is a British novelist a century ago, said we're two countries separated by a common language, we still have certain things in common.

MARGARET WARNER: And your thoughts on that?

JEFFREY ROSEN: I'm just struck by the differences. I mean, when you think about the fact that after 9/11 it was proposed in America to set up a British-style surveillance system of cameras, and there was plenty of political support for it, but it was opposed by a lobby of civil libertarian liberals and libertarian conservatives, this unusual bipartisan coalition, which is a strong minority strain in American culture.

It reflects our suspicion of state authority in all of its forms and those revolutionary changes that we were discussing earlier, the fear of the King George seizing John Wilkes' diaries because he wanted to prosecute his political opponents, which led to the Bill of Rights, is very much alive and well here and has led us to give far less unchecked authority to the state than they have in Britain.

MARGARET WARNER: And just briefly, would you then -- as you know, the attorney general has ordered a review of the two systems and to see whether there are things from the British system that should be adopted here. Would most of these changes have to be done -- are they constitutional differences or could this be done through law?

JEFFREY ROSEN: The Constitution as we know is what the Supreme Court says it is, so it would be silly to say clearly that anything is constitutional or not. And it also is the fact that most of the protections for privacy have come not from the courts but from political opposition in America.

So if I were going to bet about where the major pushback would be -- and it will be strong, although there'll be strong support for it, as well -- I think in the end it will be up to Congress and the American people about whether we are going to go down the road of Britain.

MARGARET WARNER: All right. Jeffrey Rosen, Bob Leiken, and Tom Parker, thank you so much.

JEFFREY ROSEN: Thank you.