Few concepts are as muddled as terrorism but David Anderson, the UK’s outgoing terrorism legislation watchdog, has brought insight and scrutiny to bear on one of the defining issues of our age, writes Peter Oborne
Politicians of all parties and many countries have sought to persuade their societies that terrorism is a unique and special form of crime.
They place terrorists in a category of psychopathic evil, marked out by their capacity for inhuman violence. They place terrorists beyond the pale of civilised society and, therefore, beyond the reach of negotiation and settlement. They say that terrorism is the most dangerous and gravest problem of our time.
Most of this political narrative is self-seeking nonsense. It allows politicians to strike resolute poses. It allows them to seek and obtain special powers and to expend huge sums on combatting terrorist threats, to the great benefit of defence and security interests, both public and private.
Few concepts are more widely discussed than terrorism, and few as poorly understood
Few concepts are more widely discussed than terrorism, and few as poorly understood. The idea is constantly reinvented, reshaped and distorted to fit transient political agendas.
As a result it has become muddled. There is no accepted definition. Many authoritarian regimes use the term to disparage legitimate opponents. Saudi Arabia, Egypt and most of the Gulf States describe political parties which advocate peaceful democratic change as ‘terrorist’.
Meanwhile in Britain the concept has been reshaped so that it does not apply only to acts of violence, but also to a range of activities which fall well short of violence. Terrorists are defined not only as men of violence, but also those whose views can be depicted as threats to the British state or the values and way of life of the majority of its people. In this way the concept has become part of the apparatus of state harassment.
The terror of a government
The word “terrorism” was invented after the French Revolution. Following the fall of the Bourbon dynasty in 1793, the government of the new French Republic fell into more and more radical and extreme hands, each with an increasingly shallow political base. The last of these, headed by Robespierre, applied a special regime of executions of its opponents, based on denunciation without trial. They described this themselves as the “Terror” and their policy entered the dictionary as “Terrorism”.
Significantly, the word began its life with a capital T as a proper noun – and it described a policy adopted by an organised government, not an insurrectionary group.
The Oxford English Dictionary recognised this when it defined terrorism as “government by intimidation as directed and carried out by the party in power” [my italics]. If that usage had survived, most of the governments in the world today would be defined as terrorist.
Instead it fell into disuse, only reappearing again in the mid 19th-century. This time, it was a way of getting to grips with anarchist violence, particularly that directed against the Tsarist regime in Russia. The term “terrorism”, without a capital letter, gained currency in the 50 years before World War One as the result of high-profile attacks on ruling dynasties and government ministers in Europe and on American presidents James A Garfield and William McKinley.
Joseph Conrad’s novel, The Secret Agent, concerns one such group, while Fyodor Dostoyevsky’s Devils places terrorism in a Russian context. The term covered a wide variety of perpetrators of violence, some isolated and self-directed assassins, others in well-organised movements with clear political objectives, such as the Irish Fenians.
It is worth noting that many terrorist movements of that period, particularly in Russia, were thoroughly infiltrated, and even sponsored, by governments.
The word almost vanished again after the outbreak of World War One for around half a century.
The disappearance is instructive. World war and totalitarianism changed the perspective. The years 1914-45 saw bloodshed and horror on a scale that makes the assassinations and other outrages committed by anarchists and nationalists in the west before 1914 – or for that matter Islamic terrorists after 2001 – inconsequential.
What makes a terrorist?
But we should notice something else. Terrorism in its original sense – the use of violence by a government for political purposes against its internal enemies – describes a great deal of what happened after 1914 with stunning accuracy. The assaults on the Russian population by Stalin, the atrocities of Mao’s communists, the assaults by Hitler’s armies on the civilian populations of Europe (though not the Holocaust, which was genocide) all fit into the original Oxford English Dictionary definition.
But these governments were rarely described as terrorist.
George Orwell, that attentive student of political language, went to Spain in the late 1930s and described the atrocities carried out by Franco’s army and its communist opponents during the Spanish civil war. Not once, as far as I can discover, did he use the word “terrorism”.
Yet a great deal of what he reported would today be regarded as exactly that. Indeed, Orwell himself could have been classified as a terrorist under contemporary British law as a consequence of fighting with an anarchist militia in the civil war.
Immediately following the Second World War, Britain faced violent uprisings in Kenya, Aden, Malaysia, Palestine and elsewhere. There is no doubt that these would have been labelled terrorist movements today.
However, the British rarely used this term – largely because these uprisings took place in distant colonies which they intended ultimately to abandon. Moreover, there was widespread international sympathy, especially in the United States, for the anti-colonial movements against the British.
Other imperial powers, particularly the French in Algeria, were more determined to hold on to their possessions and identified them as part of their state. They characterised their opponents as terrorists and often used terrorist methods (in the original sense) against them.
How 9/11 changed the definition
Terrorism came back into extensive use in the late 1960s and 1970s. This time it was largely associated with nationalist groups, above all the IRA, PLO and ETA, as well as the urban guerrilla movements which briefly gained traction in Europe and South America, the most notorious of which was Baader Meinhof. All of these movements were identified as threats to the security, even existence, of the host state.
Fear of terror has recast the way we live together as society, causing us repeatedly to change the law
In Britain the IRA’s activities differed from the anti-colonial uprisings the British had faced after the war because the IRA demanded a transfer of territory from the state of the United Kingdom, and even more because they caused civilian deaths on the British mainland. They inspired a range of measures previously thought unthinkable in peacetime (such as preventive arrest and internment), all based on the premise that the IRA’s crimes were in the special category of “terrorism.” Significantly, the British government had regular difficulty enlisting the support of the United States, where the IRA attracted a wide measure of sympathy.
Moreover, even at the height of the IRA offensives, the British governments concerned never closed the door to negotiation.
Only since the al-Qaeda attack on America on 11 September 2001 have western leaders identified terrorism as the most serious problem of our time. George W Bush launched his “war on terror” while Tony Blair, in 2004, thought that Islamic terror was an “existential” problem which would take a “generation” to solve.
Fear of terror has recast the way we live together as society, causing us repeatedly to change the law. In Britain new anti-terrorism laws have awarded fresh powers to the state. They include the Anti-Terrorism Crime and Security Act 2001, which was put on the statute book immediately after 9/11; the Criminal Justice (International Cooperation ) Act 2003; the Prevention of Terrorism Act 2005; the Terrorism Act 2006; the Counter-Terrorism Act 2008, the Terrorist Asset-Freezing Act 2010; the Terrorism Prevention and Investigation Measures Act 2011; and the Protection of Freedoms Act 2012.
A voice of reason on terror
Such was the environment inherited by David Anderson when he was appointed Independent Reviewer of Terrorism Legislation in February 2011. Anderson was a successful commercial barrister. He had no pre-conceived ideas or even experience in the field, although his clients included members of the Bin Laden family business. He had no known political allegiances.
Nevertheless, he has redefined the job of Terrorism Reviewer. His predecessor Alex Carlile, a former Lib Dem MP, had won the trust of the security services. However, Carlile is thought to have had less success at engaging with Muslim communities, which were most viscerally affected by the new terrorism legislation.
Anderson set out on a mission of open-minded enquiry. He made it known that he was keen to meet not just the intelligence services but everyone. He listened to Cage, the controversial advocacy group which describes its mission as “working to empower communities impacted by the War on Terror”, and the former Guantanamo detainee Moazzam Begg. He also dealt with the government-sponsored Quilliam Foundation, viewed with suspicion by many Muslims.
He soon wondered whether the word “terrorism” was an obstacle. Anderson wrote in 2013:
Many advanced countries managed until recently without special terrorism laws of any kind. The terror label – evocative as it is – risks distorting a thing to which it is attached by its sheer emotional power. Terrorism stands for everything that is extreme, dangerous, frightening and secret – qualities which render it glamorous to all who associate with it.
Seasoned criminals in Northern Ireland, chiefly concerned with enriching themselves by the smuggling of tobacco or of diesel, may profit from the status of terrorist to improve their standing in the sub-communities of sympathisers – thankfully now small and local ones – to which they belong. British Muslims travel to lawless parts of the world, seduced as young men have always been by the certainties of strong belief and the romance of hardship, comradeship and conflict.
The terror label – evocative as it is – risks distorting a thing to which it is attached by its sheer emotional power
– David Anderson, Independent Reviewer of Terrorism Legislation
Terrorism can make the careers of political leaders, prosecutors, journalists, lawyers and activists. It swells the budgets of military and intelligence services, publishers, universities and film studios. The police officer transferred to a counter-terrorism unit walks that bit taller. The provider of security fences or CCTV profits from the stardust that comes from appearing with 400 other exhibitors and 8,000 delegates at ‘an operationally critical two day event’.
All these people are, by the mere use of the T-word, taken out of the normal vocabulary of crime, government, commerce or academe into a mental space that is inhabited by Robespierre, Irish dynamiters, Russian anarchists, Olympic hostage-takers, mujahideen, desert emirs and, on the other side of the fence, Special Branch, undercover agents, Navy seals and drones. All have a shared interest in the problem being a serious and frightening one.
The very word has such magnetic qualities that ordinary compasses are not to be trusted anywhere near it. It might have been preferable if it had never found its way into the law. For our more sober juridical purposes, something more prosaic – politically motivated violent crime, perhaps – might have been more suitable.
But it is too late for that. The concept is now considered to be a legal one, for better or worse. We need to shield our compasses and try to work out how (if at all) these special laws are to be justified.
Anderson then went further. He questioned whether terrorism was such a big deal. He poured cold water on the idea that terrorism presents a “uniquely great threat to our lives and well-being”. He noted that “the shadow of the 9/11 attacks, with their 2,800 dead, is inescapable.”
However he added: “It is no disrespect to those victims to point out that 180,000 Americans have been murdered other than by terrorists in the years since 9/11 and that the 7/7 victims [of the 7 July 2005 London bombings] remained, at least until May 2013, the only people ever to have been killed by al-Qaeda on United Kingdom soil.”
He soon challenged the fallacy that the only kind of terrorism is Islamic. He reported that there had been 15 acts of terrorism in Northern Ireland in 2015 (22 the year before) – but no Islamic terrorism attacks in Britain at all.
Suppressing free speech
Anderson retained – and this is rare – a historical perspective. It was not long before he rubbished the idea that al-Qaeda’s international networks marked the emergence of a new form of terrorism. He pointed out that Fenian bombing campaigns in London during the 1880s depended on foreign training camps in New York, that the Gunpowder Plotters of 1605 were educated by foreign Jesuits, that explosive expert Guy Fawkes was recruited in Flanders.
He noted that there was nothing new about suicide bombings: “They have a long history in warfare, have accounted for many world leaders in the past, including Alexander II of Russia in 1881, the Tsar who freed the serfs, and [suicide attacks] were much practised during the late 20th century in the Lebanese Civil War and by the Tamil Tigers [in Sri Lanka]“.
Most heretical of all, Anderson questioned the need for terrorist laws, at any event as a means of expressing special public revulsion, pointing out that the common law was often enough:
James McArdle, the Canary Wharf bomber, was charged with murder and convicted of conspiracy to cause explosion. The four men whose rucksacks failed to explode in London two weeks after the 7/7 bomb were convicted of conspiracy to murder, as were the eight men accused of the airline liquid bomb plot of 2006. That plot was described by one of the trial judges as the ‘most grave and wicked conspiracy ever proved within the jurisdiction’. It is the origin of the continuing requirement to empty water bottles before getting on a plane. In none of those cases was it suggested that a specialist terrorist offence would more effectively have marked the public mood.
As terrorism reviewer, Anderson has consistently highlighted the danger of using the spectre of terrorism in order to suppress social protest. The classic case concerns David Miranda, detained at Heathrow under Section 7 of the Terrorism Act 2000 in 2013 for carrying files related to information obtained by the whistleblower Edward Snowden. Anderson wrote:
By holding (with faultless logic) that the politically motivated publication of material endangering life or seriously endangering our lives, health or safety can constitute terrorism, the court admitted the possibility that journalists, bloggers and those associated with them could, as a consequence of their writing, be branded as terrorists and subjected to a wide range of penal and executive constraints. The consequences for free speech were very grave.
Anderson is a withering critic of the idea of non-violent extremism (a core part of Theresa May’s Prevent Duty Guidance, which decrees that “being drawn into terrorism includes not just violent extremism, but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.)
Anderson rubbished the idea that al-Qaeda’s international networks marked the emergence of a new form of terrorism
He warned this means that people who are “miles away” from terror, risk being investigated simply because of their religion, rather than any intent or desire to commit a violent offence.
He has stopped short of calling for Prevent to be scrapped, but he has urged a review of the Prevent strategy and suggested there should be an assessment of Prevent comparable in some ways to his own role as terrorism reviewer.
But Anderson is not a reliable Guardian-reading leftie. He sided with the government on the Investigative Powers Act. To the despair of libertarians, he declared that he had not the “slightest doubt that bulk interception, as it is currently practised, has a valuable role to play in protecting national security”.
His recommendation that this practice should continue subject to “additional safeguards” was denounced by Liberty as “unlawful, unnecessary and disproportionate“.
The need for moral courage
The post of intelligence reviewer dates back more than 40 years, ever since the Prevention of Terrorism (Temporary Provisions) Act became law in the wake of the Birmingham pub bombings of 1974. Mervyn Rees, the home secretary at the time, also announced the creation of an independent reviewer of legislation.
The Prevent strategy sails on, despite Anderson’s criticisms, and the government seems to be on course to press forward with counter-extremism legislation
The first reviewer was Lord Shackleton, son of the famous Antarctic explorer, while the second, Lord Jellicoe, was the son of a World War One admiral. Anderson was approached in the old Whitehall fashion.
“I was offered the part time post of Independent Reviewer by three strangers,” he recalls. “They gained access to my Chambers by subterfuge, having told my clerks that their employer, the Home Office, sought my legal advice. Once in the conference room, they revealed their identities and conveyed the wish of the Home Secretary – to whom I had no connection or political affiliation – that I should accept the job”.
One of Anderson’s achievements has been to update the method of appointment. The next reviewer has come through a formal appointment process, rather than a quiet tap on the shoulders behind the scenes.
Anderson is due to step down shortly. He will leave office in some ways a disappointed man. His recommendations to reduce the scope of the terrorism acts have been systematically ignored by ministers. The Prevent strategy sails on, despite Anderson’s criticisms, and the government seems to be on course to press forward with counter-extremism legislation.
Terrorism remains an offence which governments, however many innocent civilians they slaughter in pursuit of political ends, are unable to commit.
Nevertheless, for six years, David Anderson has been a voice of sanity and a force for good. He has brought intellectual clarity, moral courage, a sense of perspective and, perhaps above all, earned the trust of all sides.
By Peter Oborne
Source: Middle East Eye