Written evidence submitted by the Henry Jackson Society [CT 09]

The Henry Jackson Society (HJS) is a London-based think-tank founded on the global promotion of the rule of law, liberal democracy and civil rights. HJS specialises in the study of international terrorism, counter-terrorism and radicalisation.  This submission is a corporate view, based on original research and institutional expertise. 

How effective is the Government in working with foreign Governments and Multi-lateral organisations to counter terrorist threats at home and abroad?

1. After 11 September 2001, close intelligence cooperation is a necessity. This cooperation must be discreet, as it touches on sensitive, sovereign areas like intelligence and justice; as well as focuses on operational issues, for example, preventing planned terrorist attacks. As such, the United Kingdom (U.K.) believes that cooperation is more effective in a bilateral arena rather than a multilateral one.[1]

2. The U.K. is not alone in privileging bilateral relations. The United States (U.S.) prefers to cooperate with individual European Union (E.U.) member states rather than with the institution as a whole. Where speed, trust and flexibility are needed, individual partnerships have proven the most reliable forum for preventing terrorism. The U.S., for example, has praised the U.K.’s legal and administrative ability to take action against terrorists and their supporters, including asset freezing as well as its intelligence sharing, terrorist cells arrests and terrorist financing and logistics interdiction.

3. For security reasons and to minimise the risk of leaks, the U.K. rarely uses multilateral organisations. The majority of counter-terrorism cases in the U.K. do not involve other countries in the E.U. When it does, the U.K. prefers to co-operate directly with the security services of that particular country. The U.K. has a good reputation for bilateral counter-terrorism work.

4. The Home Secretary Theresa May has suggested that the U.K. should leave Europol in 2015, despite the recommendations of her senior advisors. The U.K. is expected to withhold support for a revamped Europol, which includes a merger with the European Police College, amid complaints that the restructure could restrict the independence of British police forces.

5. The Association of Chief Police Officers called the move a ‘massive step back for U.K. policing’, and the British director of Europol, Rob Wainwright, said: ‘It is undeniable that the demands of fighting international crime and terrorism require an ever-increasing level of co-operation between the member states.’[2] This will further damage the U.K.’s reputation within multilateral law enforcement organisations.

6. U.K. interaction with Europol is rare, and when Europol contacts the U.K. for specific information, it is often either incomplete or not provided. In comparison to other E.U. countries, such as Germany, the U.K. does not send many representatives to Europol. Also, unlike other E.U. countries, the U.K. utilises a liaison officer to Europol rather than a dedicated counter-terrorism official.

7. Individual country’s complex counter-terrorism structures can hamper internal and external dialogue. Harmonising such structures within partner countries could improve bilateral and international cooperation. A legal framework, for example, within which law-enforcement agencies could exchange information without encroaching countries’ sovereign rights would function as a shared space to enhance co-operation and would allow for regional differences.

Are Terrorism Prevention & Investigation Measures effective as an investigation measure?

8.       Terrorism Prevention & Investigation Measures (TPIMs) were introduced in order to control the threat posed by individuals who are thought to have engaged in Terrorism Related Activity (TRA) but cannot be prosecuted or deported.

9.       According to the government’s independent reviewer of terrorism legislation, the reference to ‘investigation’ in the legislation’s title is ‘a nod to the notion that subjects might, during the currency of a TPIM, engage in TRA which could be detected and then used as evidence in a criminal trial.’[3] A Senior Investigative Officer is assigned to each individual under a TPIM for this specific reason.

10.   Part of the reason for this focus on prosecutions is that the Liberal Democrats’ 2010 Manifesto stated that ‘the best way to combat terrorism is to prosecute terrorists, not give away hard-won British freedoms’. To this end, they pledged to scrap Control Orders, the predecessor to TPIMs.[4]

11.   However, to date, there have been no TPIM subjects successfully prosecuted for TRA. They have proven ineffective as an investigatory measure for a variety reasons.

12.   Firstly, those being monitored are aware of the fact. If there was insufficient evidence for prosecution (hence the TPIM being issued), the chance of that evidence existing once the subject knows they are being monitored is minimal.[5] The restrictions that TPIMs place subjects under – e.g. a curfew, electronic tag and limitations on access to electronic items – makes them aware that committing an offence without the possibility of being caught is unlikely.

13.   In this regard, the lack of prosecutions can be interpreted as a sign of success. It proves that TPIMs discourage TRA, with their effectiveness at prevention meaning there is little to investigate.

14.   Secondly, unlike Control Orders, TPIMs have a fixed two year limit. They cannot be extended unless the subject commits new TRA. Any suspected terrorist is aware of the two year window constraining their activities.[6] Therefore, the likelihood of any suspect committing TRA that would lead to their prosecution is low. Logically, they are more likely to refrain from TRA for the two years it would take to remove their TPIM. Therefore in early 2014, many of those under TPIM when the legislation was introduced will have their restrictions removed.[7] 

15.   Therefore, the ‘Investigation’ aspect of TPIMs has essentially proven to be obsolete. This is unsurprising, as the very existence of TPIMs is a result of the fact that some national security threats are impossible to prosecute and public safety measures need to be taken.

16.   Control Orders were equally ineffective in leading to prosecutions. Of the nine people under Control Order arrested on suspicion of committing a terrorist offence, one (11%) was charged – and this for activities prior to being placed under a Control Order. Furthermore, this prosecution was unsuccessful. Therefore, there was a zero percent success rate in prosecuting Control Order subjects for terrorism offences.[8]

17.   While TPIMs are of limited use as an investigatory measure, they more likely lead to convictions for a breach of the requirements they place on a suspected terrorist.

18.   In June 2013, ‘DD’ became the first person under a TPIM to be convicted of this. He breached his TPIM three times, and was jailed for nine months.[9] Another, ‘FF’, has just been charged for the same offence.[10]

19.   However, prosecutions are unlikely to be straightforward. For example, ‘BM’ was acquitted of breaching his TPIM in October 2102. Despite charges only usually being brought in such cases when a ‘substantial number of breaches had been committed’,[11] the jury accepted his explanation that he had simply forgotten about his requirement to attend a police station daily as part of his TPIM.[12]

20.   During Control Orders’ lifetime (2005 – 2011),[13] a total fourteen controlees were prosecuted for breach of their conditions, one on two separate occasions.[14]

21.   Of this total of fifteen potential trials, six (40%) resulted in no evidence being offered by the prosecution, as the trial was not seen to be in the public interest. Only two (13%) led to convictions: ‘MB’ (jailed for twenty weeks) and ‘BX’ (jailed for fifteen months). Two (13%) were also acquitted; one controlee (7%) absconded; and another left the U.K. of his own volition (7%). As of March 2012, a further three (20%) were awaiting trial.[15]

22.   There have been no convictions of Control Order or TPIM subjects based on TRA. A total of three have been convicted for breaches – yet substantially more cases have proven unsuccessful.

Has the Charity Commission reduced the ability of terrorists to obtain funding through charitable donations?

23.   The Charity Commission has demonstrated limited abilities to tackle fundraising by U.K.-based charities for terrorist purposes, and, more broadly, to vet or disqualify unsuitable charitable trustees by virtue of their association with terrorism. Two cases exemplify these limitations: the failure to address Interpal’s provision of financial support for the proscribed terrorist organisation Hamas;[16] and continued trusteeship of the Islamic Research Foundation International (IRF) by Indian cleric Dr. Zakir Abdul-Karim Naik despite a U.K. exclusion order against him on terrorism-related grounds.

24.   While Interpal (charity no. 1040094) has been investigated by the Charity Commission for funding Hamas on three occasions, insufficient evidence was found in each case.[17] The U.S. Treasury, however, designated Interpal as a terrorist organisation in 2003, stating that: ‘[it] has been a principal charity utilized to hide the flow of money to Hamas’ and that it is ‘a coordination point for other Hamas-affiliated charities’.[18] Furthermore, the U.K. Foreign and Commonwealth Office has stated that, ‘Hamas's political wing is represented [in the U.K.] by charitable organisations which raise and remit funds for welfare purposes’.[19]

25.   The perceived separation between Hamas’s political and military wings has been denied by senior Hamas members,[20] who acknowledge that welfare programmes are designed to keep ‘the flame of Jihad alight’.[21] Interpal was conceived as part of an international Hamas project to solicit funding;[22] and has consistently funded Hamas social welfare programmes via Hamas-controlled charities in Gaza and the West Bank.

26.   The Charity Commission’s failure to prove the allegations can be attributed to a lack of resources. Terrorist fundraising cases are handled by the London-based Compliance Investigations Unit (CIU), part of the Compliance Division.[23] In a 2010 interview, the head of the division acknowledged that it kept ‘as small a unit as possible in London for high-risk cases’ and that an allegation of links to terrorism does not guarantee an investigation.[24] In 2010-2011, the CIU handled sixteen terrorism-related investigations;[25] but the Interpal case suggests that it lacks the resources for complex terrorist financing investigations, including requirements for foreign travel, translation services or security measures.

27.   The 1996 investigation into allegations that Interpal funded the families of Hamas suicide bombers, for example, concluded that the charity did not hold records containing family details of the intended beneficiaries. The investigation was limited, however, to Interpal’s London office and failed to investigate how Interpal’s recipient Palestinian charities identified their beneficiaries.[26] Similarly, the 2003 investigation into Interpal failed to interview an overseas ally who had obtained documents stating that Interpal was one of the four primary financial sources for Hamas.[27] A Charity Commission spokesperson subsequently told the BBC’s Panorama that the 2003 investigation was ‘not in-depth’.[28]

28.   There is also inadequate monitoring following an investigation. The Charity Commission, for example, did not ensure that Interpal had complied with the recommendations of its 2003 investigation: during the 2006-2009 investigation it became aware that Interpal had not sought clarification from its recipient charities regarding their procedures for identifying beneficiaries.[29] Interpal had said it would invite international NGOs to independently verify the distribution of its funds, when in fact these NGOs were members of the Union of Good (UoG), an umbrella organisation established by Interpal in 2001,[30] which was designated as a terrorist organisation by the U.S. Treasury in November 2008 for transferring money between international charities and Hamas.[31]

29.   The Interpal case demonstrates that the CIU is not flexible enough to respond to charities’ efforts to circumvent regulation. In 2009, the CIU legally directed Interpal trustees to end the charity’s membership with the UoG because ‘its members included designated entities’;[32] and a 2012 case review concluded that Interpal had complied.[33] Since 2009, however, Interpal trustees have continued their involvement with both the UoG and senior Hamas leaders, as well as organised multiple ‘Miles of Smiles’ aid convoys providing cash and supplies to  Hamas.[34] The UoG Arabic website, for example, listed Interpal as late as March 2012;[35] and Interpal employees have been photographed on numerous occasions sharing political platforms with Hamas leaders. [36]

30.   The Charity Commission directive was limited to the UoG, rather than the individuals or organisations it represents or new manifestations of the organisation. As such, the Charity Commission fails to recognise the efforts of Interpal trustees to obfuscate their connections to UoG members and other designated organisations or individuals.

31.   In a broader sense, the Charity Commission has failed to challenge trustees who support Islamism-inspired terrorism. Currently, there is no legal mechanism to prevent individuals convicted for terrorism-related offences or excluded from the U.K. on terrorism-related grounds from becoming a charitable trustee. Such omission runs counter to the government’s 2011 commitment that it would no longer engage with or fund groups that fail to support British values or act as apologists for terrorist organisations.[37]

32.   Dr. Zakir Naik, for example, was excluded from the U.K. in June 2010 on the grounds that some of his public statements ‘justif[ied] terrorist violence and foster[ed] hatred’ and may have influenced those engaging in terrorist acts, including the 2006 and 2008 Mumbai attacks.[38] Dr. Naik continues to act as a trustee of the IRF (charity no. 1122086).[39] Moreover, the IRF was implicated in Dr. Naik’s exclusion order: of the 11 statements listed, three came from a 2007 IRF conference;[40] and one from the IRF website.[41] Financial statements show that IRF expends over £1million annually to ‘support’ its international TV channel, Peace TV, which Dr. Naik hosts.[42] Dr. Naik has previously stated on Peace TV that suicide bombings can be justified in Islam.[43]

Does the Government have the capability to examine and combat the use of communications (including via the internet) in TRA?

33.   The most pervasive aspect of internet communications, social media, has connected the internet with environments such as university campuses, providing extremists with greater opportunity to carry out TRA. This presents the Government and law enforcement agencies with a number of significant challenges.

34.   The Government is hampered in its ability to challenge the use of social media for TRA by the volume of material generated. Police officers state that despite efforts to include some monitoring of social media, forces are still reliant on the reporting of potential offences by the public. Monitoring social media is only one facet of a wider role, preventing the acquirement of detailed understanding and coverage.[44] To put the scale of the task into perspective, in June 2012 Twitter estimated that 400 million tweets were sent every day.[45] In a five day period encompassing the Woolwich Barracks attack, 19,344 tweets were addressed to the Metropolitan Police Twitter account, with 20.6% reporting a possible crime.[46]

35.   The global nature of social media means an individual in one country can share web pages hosted in a second with an audience in a third. The Counterterrorism Internet Referral Unit  was able to remove material from the internet on 156 occasions in the 15 months from its founding in 2010,[47] but the ease with which this material can be replaced (YouTube estimate that 100 hours of video are uploaded every minute)[48] and the reluctance of other countries and international firms to remove material makes this an almost impossible task.

36.   These difficulties facilitate the commission of a number of terrorism-related offences via social media, the most relevant of which are: Soliciting or incitement to murder; Fundraising for terrorist purposes; Proscribed organisation offences; Distribution or possession of a terrorist publication; Encouraging terrorism; Possession of a document containing information likely to be useful to a person committing or preparing an act of terrorism.[49]

37.   For example, in the academic year 2011/12 an individual used Facebook to share material with students at the University of Westminster which included two video slideshows showing insurgent fighters posing with weapons and engaged in firefights.[50] One featured voiceover by the former Al-Qaeda cleric Anwar Al-Awlaki, and the other by Abdul Rahman Saleem, convicted of inciting racial hatred in 2007 and inciting others to kill coalition soldiers in Iraq and Afghanistan in 2008.[51] A third video shared was of Yassin Chouka, a Specially Designated Global Terrorist.[52]

38.   The Abdul Rahman Saleem audio shared is extremely similar to the speech which formed the basis of his 2008 conviction, and it is likely that in sharing this material the same offence was committed. Yassin Chouka’s designation as an Al-Qaeda-associated figure, and his alleged position in Jundallah Media,[53] would also suggest that the sharing of this video would constitute a dissemination of terrorist publications offence. 

Henry Jackson Society

September 2013