without a judicial warrant;
- Enter houses without a judicial warrant or a state of flagrancy;
- Break the secrecy of communication and correspondence without a judicial warrant;
- Maintain detained persons incommunicado even for their parents and lawyer;
- Maintain temporary detention for indefinite time;
- Bring terrorist to ad hoc or military courts;
- Use methods of inquiring that may seem like torture;
- Use intelligence obtained illegally in an investigation.
At the strategic level, the worldwide effort against terrorism is well-planed by the Security Council and other international actors concerned, well-oriented and effective. Today it is very difficult for a country or organization to give support to terrorists, finance illegal groups, and organize training camps for recruits, because State-Parties and/or the international community will penalize him with embargoes, restraints in economic and diplomatic affairs.
At the tactical level, however, the special powers given to prevent terror, usually not followed by accountability on administrative and criminal grounds for the misconduct of government agents, have caused a great fear in the population. Causing fear in a population, especially when this originates ostracism and detachment of minorities, is counterproductive and against all efforts to combat terrorism. It is not effective to combat fear with more fear.
9. THE ROLE OF INTELLIGENCE IN COUNTERTERRORISM
Intelligence can be defined as the operation of gathering information of an enemy, in the context of an Armed Conflict. Gathering intelligence is indispensable in preventing terrorism, since it can identify, understand and analyze terrorist menaces before they happen, and create material basis for criminal investigations and prosecutions, and also to build up preventive strategies. This is an essential function in a democratic country, since it enables fair trials, and is known for centuries.
However, now the powers and available procedures of intelligence agencies, with international share of information and an unprecedented cooperation to track terrorists and follow their activities, have led to a multiplicity of legal and administrative procedures that prioritize collective security in detriment to individual liberties.
It is a State responsibility to protect their citizens from any collective attack, and it is notorious that intelligence gathering is the only available instrument to prevent threats to the population. Also, terrorist actors that have supporters in other countries can be much better fought when all concerned governments, and their agencies, work together.
It is also doubtless that intelligence gathering must be confidential, not open to public scrutiny, in order to protect their operations, intelligence agents and, more important, the individuals investigated. New electronic devices and international cooperation have brought intelligence to the core of any counterterrorism effort, but this cannot bring lack of accountability for those who exceed in the use of investigative powers.
The separation of powers, characterized by the system of checks and balances among the Executive, Legislative and Judiciary, more than ever needs to be respected. Intelligence cannot make the Executive powers heavier and more important than the others.
In the same way, the rule of law (État de droit) and the due process of law, comprising respectively individual freedoms (communication, association, opinion, and others), and judicial guarantees (contradict the accusation, presumption of innocence, production of proofs, non acceptance of proofs illegally produced) are necessary to protect innocent people from misinterpreted intelligence and unfair trials.
Accountability is necessary to counterbalance the powers given to intelligence actors that abuse from their executive authority. Surely, if the activity requires secrecy, so does the legal procedure. The confidentiality of the prosecution is needed to protect the agents, their families and also the victim of illegal or abusive investigation. Compensation for the victim is also necessary, but the fact that the person understands the consequences of abusing from their powers, and the certainty that he will be punished, prevents him from misconduct.
The gathering of intelligence is always a potential threat to individual intimacy. Intelligence operations need to be secret, and so their sources. However, the transparency of the rule of law may be granted, not disclosing operational methods, but who the decision-maker of the abuse is, how the decision was taken, and what measures were taken to prevent, or punish, corruption, misuse of information or illegality.
The increase of executive powers by the Executive is also a potential ground for misconduct. All intelligence agencies have a daily report to their superiors, but there is no supervision from judicial organs. Also, close surveillance and law enforcement measures, like arrest, detention and interrogation, requires a judicial warrant to be in the due process of law.
When agents privilege intelligence, they are likely to take an opportunity to arrest a suspect, intercept his communications (mail, email, or phone) or invade his domicile outside the rule of law (no flagrant of crime or judicial warrant). This will happen only if there is no accountability, or no expectation of punishment.
The international cooperation among international agencies brought a new danger to the rule of law and judicial system: the share of proofs without knowing how it has been produced. Since the exchange of information is encouraged, an investigation may be carried on with proofs gathered in other countries.
Example: the legal system of the country A permits a mail interception without a judicial warrant. So the proof was legal in national law, although it may lead to an unfair trial. This proof may be used to require an extradition to country B, which forbids this illegal procedure. If the extradition is granted, the B country will have used illegal proofs, disfiguring the due process of law granted in country B.
In some cases the extradition is granted even when the person may be subject to mistreatments due to his race, religion, nationality, political opinion or for participating in a certain group. This condition prevents him from being extradited, according to the Principle of Non-Refoulement.
In some procedures, when there is not enough proof for a prosecution, the extradition has been replaced to rendition. The rendition is required for intelligence gathering, and the suspect is sent to the foreign country for interrogation, with no advice to his family. However, without a legal procedure, the rendition is forced disappearance, a crime in international law.
The Terrorist Surveillance Program (TSP), conducted by the National Security Agency (NSA) in the United States, operating sometime after Sep 11th but known only since 2005, permitted electronic close watch of potential members of Al Qaida, or connected groups, without a judicial warrant when one of the persons involved was outside the US. The TSP was in conflict with the previous Foreign Intelligence Surveillance Act, and the new regulation was confirmed later. All tracking of communications outside the US does not require judicial authorization and scrutiny, even if one person in the US is involved (REPORT OF THE INTERNATIONAL COMMISSION OF JURISTS, 2008, pg. 83).
The powers of investigation and arrest without a judicial warrant shall be exceptional, temporary and require enough suspicion based on previous information and data gathered. In no way they may be used in everyday investigation, even when the integrity of a Nation is concerned. The international cooperation against terrorism includes, besides intelligence sharing, law enforcement and immigration measures.
Among the issues that the gathering of intelligence arises in what concerns the legality of an interrogation are:
- No identification of the interrogators;
- The absence of a lawyer during the suspect’s interrogation;
- The right to intervene, through a lawyer, in unclear or ambiguous questions;
- The right to inform the family of his detention;
- The right to not respond to any questions he does not want to answer;
- The right to deny answering a question with no presumption against him;
- The right to choose a lawyer of his own choice (he is appointed by the interrogator);
- The communication in confidence with the counselor;
- Detention with no time limits, or repeatedly renewed;
- Detention by executive powers, with no judicial confirmation;
- No access to legal remedies, like Habeas Corpus, to discuss the detention in a court;
- Impossibility to require agents to testimony in court.
Violations may take place not only when the intelligence is gathered, but mainly when there are no specific criteria or regulations about the access and use of such information. A database information system with no clear specifications and description may refer to a national as a terrorist threat, and share this information. When the national travels abroad, or makes business overseas, he will be misjudged as a potential threat and suffer from delays in immigrations, bank transfers and even mail delivery.
The legal aspects in the conduction of an investigation about terrorist activities and the treatments of detainees will be discussed in the next Chapter.
Personal knowledge about a person is usually a sensitive issue, and they may be used for purposes other than criminal investigation, or sent to third countries or to agents with no national accountability in their national judicial system.
The first legal rule in intelligence services, concerning secrecy
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