CONOCIMIENTOS BÁSICOS O ESENCIALES

The remainder of this chapter discusses how the ‘war on terror’ has impacted the legal and political dimension of citizenship through the introduction of counter terrorism legislation. Further, the relationship between the ‘war on terror’ and Islamic identities is explored, demonstrating how on the international level and the national level Muslims’ Islamic identities have become relevant to the ‘war on terror’ and thus significant to policing and polices of integration.

As stated in the previous chapter the global level is of great relevance to the ‘war on terror’. It was on the global level that terrorism was linked to Islamic identity. After the attacks of September 11th _{George Bush (2001) defined the enemy as an}

international network of terrorist organizations made up of a number of groups under the umbrella of al-Qaeda. Soros (2006) argues that this emphasis on al-Qaeda is counter-productive because the ‘war on terror’ categorizes groups which use terrorist tactics such as Al Qaeda, Hamas, Hezbollah, the Sunni insurrection and the Mahdi army in Iraq, as one. The response therefore homogenized and cast over ideological and political differences, constructing a vast number of different groups as sharing one purpose and as being the same. Through essentializing many groups which are in fact different from al-Qaeda, the ‘war on terror’ constructed the global enemy along a religious binary. As Turam (2004) states it was on a global context that Islam was singled out as being the major threat to Western democracies and civil society, with

Howell (2006, p.128) referring to the ‘unhealthy construction of Islam as enjoying a special affinity with terrorism’. A discourse around ‘new terrorism’ emerged which

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defined the enemy through casting an expansive definition of the enemy, with Islamic affiliation being the dominant factor. The enemy had to be constructed as representing a global risk and according to Beck (2006, p.148) the suspicion of terrorism could then give ‘the most powerful nation in the world carte blanche to construct ever changing representations of the enemy and to defend its ‘internal security’ virtually anywhere on foreign territory with military force’.

Discourses of security and risk where also reflected on the European level. According to De Goede (2008), the European Union has led the way in pre-emptive measures through introducing pre-emptive policies relating to the criminalization of terrorist support, data retention and asset freezing. It was through constructing terrorism as a global risk that measures designed to criminalize prior to criminal acts being committed were seen as necessary. The Convention on the Prevention of Terrorism was amended by the Council of Europe in 2005, and Klausen (2009) states that the convention required nation states to adopt policies aimed at eradicating recruitment and training for terrorism. The UK response maintained an emphasis on pre-emption and the construction of the enemy, especially the focus on Islamic identity which transcended from the international level to the national level. Terrorism, the criminalization of terrorism and justice were essentially re-interpreted within the wider agenda of global governance. Altheide (2007, p.287) states that

‘politicians joined terrorism with Iraq, the Muslim faith, and a vast number of non-western nations to strategically promote fear and use of audience beliefs and assumptions about danger, risk and fear in order to achieve certain goals, including expanding domestic social control’.

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Domestic social control was expanded through the introduction of counter terrorism legislation and thus it was the interpretation of truth and the legitimacy this conveyed which was important (Findlay, 2007).

The ‘war on terror’ produced a discourse defining the terrorist, as Brah (2009) states a suicide bomber is not a given, but socially constructed and produced. Under the Terrorism Act 2000, terrorism was defined as the use or threat of ‘violence against people and/or property designed to influence the government, to intimidate the public or a section of the public, or to advance a political, religious or ideological cause’ (Matassa and Newburn, 2003, p.468). Tadros (2007) and Stohl (2008) both argue that such a definition had the purpose of placing terrorism activity outside the political process. This placement is of significance because by extension the suspect of terrorism was then also placed outside the political process and democracy. Without the political process there is no legal status and therefore, the suicide bomber is dehumanised by accusations of having no respect for the lives of innocent victims (Findlay, 2007). It is through constructing terrorism as being outside the political process and humanity that principles of liberalism and human rights are legitimized as not existing. Thus the definition goes against cosmopolitainism because as Hudson (2008) argues, cosmopolitanism’s universalism means that terrorists or terrorist suspects cannot be treated in ways that violate their fundamental rights to life, since cosmopolitanism is essentially premised on universal human rights.

The Terrorism Act 2000 is primarily concerned with the prevention of terrorism, therefore criminalizing and making illegal a variety of actions to prevent

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terrorism9_{. However, this discussion will focus on Section 44 - 47 of the Terrorism}

Act 2000, under which police officers have the power to stop and search people in an area seen as being at risk from terrorism, even if they are not suspected of any breach of the law. According to Stone (2004, p.75) ‘what is unusual here is that the police need have no particular offence in mind; nor need they worry overmuch about the level of involvement of the person arrested’, therefore the concept of reasonable suspicion is void. The importance of reasonable suspicion is that it adheres to and is based on the assumption of innocent until proven guilty, as such placing a burden on the police to act according to an objective standard of suspicion. Therefore, when interpreted against the existing legislation which governs the relationship between the police and the citizen, the Terrorism Act 2000 can be said to be actively encouraging the police to use stop and search on the basis of an individual’s personal factors alone.

The Anti Terrorism, Crime and Security Act 2001 (ATCSA) was formally introduced into Parliament on November 19th _{2001, two months after the September}

11 attacks in America. It received royal assent and went into force on December 13th, 2001. However, on December 16, 2004 the Law Lords ruled that parts of the Act were incompatible with the European Convention on Human Rights, under the Act the state could indefinitely detain without charge a foreign terrorist suspect if the individual could not be deported for other legal reasons. In March 2005, Part 4 of the Anti- Terrorism, Crime and Security Act 2001 was replaced with a system of control orders under the Prevention of Terrorism Act 2005 (PTA). The PTA is one of the most controversial pieces of legislation to emerge. The Act allows for control orders to be made against any suspected terrorist, whether a UK national or a non-UK national, or

9 _{The Act criminalized the following - making it a criminal offence not to disclose to the police as}

soon as reasonably practicable, any information a person knows or believes might be of material assistance in: (i) preventing the commission of an act of terrorism anywhere in the world, and (ii) securing the apprehension, prosecution or conviction of a person in the UK, for an offence involving the commission, preparation or instigation of an act of terrorism.

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whether the terrorist activity is international or domestic. The control orders are therefore of a preventive nature, and as such are designed to restrict the activities of suspects who officials fear pose a threat if left unmonitored. Under the rules, the Home Secretary approves an order on the advice of the security services and ‘the court must only examine whether the decision of the Home Secretary to apply the control order based on his suspicion, might reasonably have been arrived at’ (Ansari, 2005, p.30).

Article 6 of the Human Rights Act 1998 deals most comprehensively with issues of legal rights, the article guarantees the right to a fair trial, including the following features as being essential to a fair trial, presumption of innocence, the right to know what charges exist, the right to prepare a defence and the right for legal assistance. These are the procedural rights which have long existed but were re- affirmed with the introduction of the Human Rights Act 1998. However, the right to a fair trial does not exist under counter terrorism legislation because a control order hearing is a closed hearing. The suspect does not know of the evidence, since control orders involve secret evidence, the suspect is unable to challenge the material and accusation. It is a basic principle of justice that a person should be able to challenge the evidence against them. The reason given for these secret hearings is that to make the ‘evidence’ public could jeopardize the security services methods of operation, their sources of information, place other people in danger or create a security risk. Control orders are therefore based on suspicion and risk, with both legitimizing a loss of liberty.

Under a control order suspects suffer a loss of liberty and vetting arrangements mean that those associated with the suspect are also restricted, which includes family members (Institute of Race Relations, 2007) (IRR). A control order

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can last indefinitely and yet it is suspicion alone which can determine the use of a control order. As is becoming apparent counter terrorism legislation has made legitimate substantive law and procedural law violations which under non counter terrorism legislation would constitute injustice. However, this Act also signifies how counter terrorism legislation has also redefined the function of punishment, indeed the place of punishment in criminal justice and the standard of proof required. Paye (2005) argues, this legislation places suspicion over fact, house arrest can be imposed not on the basis of what they have done, but according to what they could do. It is for this reason the Institute of Race Relations (2007) argue that control orders are forms of collective punishment, which violate natural justice and international law. The Terrorism Act 2006 received royal assent on the 30th _{March 2006 and was drafted as a}

response to the July 7th _{2005 London bombings. Although the response of the state to}

9/11 was just as authoritarian as the response on both the international and European level, the introduction of the Terrorism Act 2006, and period of detention that this Act legitimizes, 28 days far exceed the period of detention used by any other European state member (Liberty, 2007b). Like the Prevention of Terrorism Act 2005, this Act also legitimizes punishment, in the form of detention rather than control orders and therefore, the criticism regarding control orders are equally applicable to this Act.

It was in a climate where on the one hand the state introduced legislation amounting to the most comprehensive ‘charter of rights’ that the state also introduced counter terrorism legislation making the term domestic state crime applicable. The Human Rights Act 1998 became the most comprehensive system of human rights, detailing legal rights in the UK. According to Gearty (2004) the Human Rights Act 1998 acted to re-affirm the very principles and moral basis of law, the three core ideas which are Britain’s legal heritage, respect for civil liberties; the principle of legality;

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and the principle of respect for human dignity. The counter terrorism legislation will now be summarized according to the core principles of legality and therefore legal rights. Firstly, the discretion under the counter terrorism legislation means that ‘citizens no longer acquire that sense of security’ (Beccaria, cited in McLaughlin et al, 2004, p.18) as the law is not fixed and it is not known since the Home Secretary has the power to define and act on the basis of suspicion. Citizens are thus not given a fair opportunity to conform to the law. Secondly, the existence of punishment, house arrest and 28 days detention before the conviction of a crime means that the presumption of innocence no longer applies. Thirdly, as already stated the law incorporates the belief that citizens have individual autonomy and agency, thus possessing free will. Citizens are stripped of capacity and responsibility because

‘even if it appears almost certain that the person will commit an offence, respect for the individual as a moral agent must acknowledge a categorical ‘window of moral opportunity’ or chance to remain innocent’ (Smilansky, 1994, p.52 cited in Zedner, 2007, p.274).

The introduction of counter terrorism legislation has led to the conclusion that we now have a system for ordinary decent criminals and one for those suspected of terrorist activity (Cheong-Tham and McCulloch 2006 cited in Pantazis and Pemberton, 2009). The acceleration of risk and suspicion under this legislation has implications for the suspect community, as risk and suspicion alone determine the level of rights that exist.

The ‘war on terror’ marked an increase in the pervasive nature of risk in the criminal justice system. Amoore and De Goede (2008, p.8 cited in McCulloch and

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Pickering, 2009, p.629) state the ‘politics of pre-emption… go beyond the established language and techniques of risk’ that existed within the criminal justice system’. Pre- crime links coercive state actions to suspicion without the need for charge, prosecution or conviction and this had a direct impact on policing. Counter terrorism policing promotes the idea of the police as being an ‘intelligence agency’. It is essentially what the policing task of being proactive justifies in the form of detention and control orders which sets it apart from how intelligence and pro-active policing is used in non counter terrorism policing. As McCulloch and Pickering (2009) argue the preventive counter-terrorism framework is concerned with targeting and managing through restricting and incapacitating those individuals and groups considered being a risk. This has led to the construction of a ‘suspect population’ a population which is vulnerable to policing suspicion on the basis of possessing certain ethnic, religious and cultural traits. And it is the presence of such traits which determines as Zedner (2007, p.274) puts it ‘those within and without protection’, leading to the criminalization of those who are believed to commit ‘imaginary future harms’ (McCulloch and Pickering, 2009, p.629). What is of concern is that although as has been demonstrated the preventive agenda of counter terrorism policing encourages profiling, profiling as a means of preventing terrorism is ineffective (Ansari, 2005; McCulloch and Pickering, 2009). It follows that because there is no due process and there is a pre-occupation with attributing risk, innocent people will suffer because as Mythen and Walklate (2008, p.13) argue, ‘innocent people are rendered risk repositories by virtue of sharing some or other of the characteristics of the ‘typical’ terrorist’. Further, according to Zedner (2007) it is because the concern of policing has shifted from accessing individual offenders to classifying suspect populations that

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as long as one falls into the category of suspect population, the need to identify individual risk need not exist.

Policing has come under much scrutiny since the introduction of counter terrorism legislation. The scrutiny has related to the powers the police have under counter terrorism legislation and therefore led to questions regarding how the police balance these powers without alienating communities. Within this context the idea of the police as serving communities and operating through consent has been highlighted. According to Klausen (2009), after the London bombings there was a shift in policing practice, with community policing principles being applied to counter terrorism enforcement. Although countering terrorism is one aspect of police work, for Grabosky (2008) ordinary policing and counter terrorism are the same because both require that the police protect communities and that mutual respect and trust exist. As stated previously, the police are seen as having dual roles, as being part of the apparatus of the state and serving the interests of the state and also as being accountable to communities through policing by consent. Within the counter terrorism context the idea of serving communities has become fragmented with counter terrorism policing being primarily concerned with pre-emption and profiling and thus requiring the police to use their discretion to criminalize those who are believed to commit future harms.

Pickering, McCulloch and Wright-Neville (2008) point out the relevance of community policing for culturally and religiously diverse societies. Within the counter terrorism context this aspect of community policing is important since it could ensure that through knowledge of cultural and religious identities the police are in a better position to recognize those who constitute a risk and not homogenize identities. Innes (2006) relates community policing to neighbourhood policing,

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arguing that neighbourhood police officers are well positioned to engage with communities’ members and thus enhance the existence of trust which will facilitate the exchange of information from the community to the police and this is a more effective way of countering terrorism. However, although Innes (2006) highlights the significance of neighbourhood policing as a way of building trust, Klausen (2009) argues that although efforts have been made by the police to build trust with Muslim communities, with the emphasis being on collaboration between the police and Muslim organisations the sense of trust established through collaborations fails to filter down to the general Muslim public.

In counter terrorism policing trust and legitimacy are of great importance as are notions of ‘reasonableness, compromise and respect for the individuals’ rights’ (Kennison and Loumansky 2007, p.151). However, beyond the principles highlighted as being important, policing within the counter terrorism context has become increasingly difficult because of the number of different policing units, each with its own agenda and way of policing. To give a brief idea as to heterogeneous nature of the police, Walker (2005b, p.387) states there has been a growth in intelligence policing which is evident through the creation of the

‘Joint Terrorism Analysis Centre (JTAC) within the Security Service and the development of regional offices by the Security Service. Other developments include the regionalization of police Special Branches and ports policing, and the establishment of a Police International Counter Terror Unit (PICTU) based within the Metropolitan Police and the National Counter Terrorism Security Office (NaCTSO) within MI5’.

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Further, Kennison and Loumansky, (2007, p.152) state a variety of civilians and non- civilians contribute to policing ‘through a range of agencies and actors’ and similarly, Miller (2010) highlights the introduction of the Neighbourhood Policing Programme and thus ‘the pluralization of the police makes it difficult in defining who the police are’ (Kennison and Loumansky, 2007, p.157). The heterogeneous nature of the police makes notions of trust and legitimacy harder to implement. For example, neighbourhood police could prioritize a community form of policing but other policing units may adopt ‘hard’ policing methods and as Kennison and Loumansky (2007) argue, there is the further differentiation of whether the policing unit is employed by local state authorities or central state. Although the heterogeneous nature of the police has been acknowledged, for the purpose of this research Muslim citizens will be asked about their perceptions and experiences of the police, without any reference made to any particular form of policing. The main reason for this is that, the research is concerned with subjective understanding and therefore it may be the case that respondents understand the police as one single institution and asking