What the state must do about what one might or might not do
Over the past few weeks, stories of British, American and Australian youth leaving their homes to join ISIS have littered the headlines. Their actions are not easily digested by the public-at-large and as a result, people are deeply uncomfortable with the implications. What compels someone in the modern day, especially someone so young leading a cushy life in a developed, opportunity-filled country to up and join a radical belligerent force?
As a response to such acts, the United Kingdom recently passed the Counter-Terrorism and Security Act, 2015, which broadly prevents persons from exiting or entering the state for any purpose related to terrorism, along with compelling the monitoring of individuals that may be drawn into terrorism. Under this law, the UK flirts with infringing upon its citizens’ freedom to hold an opinion in a manner that seems innocuous at first glance, but may have damaging repercussions in the future. The argument then hinges itself upon a debate between the importance of upholding national security and the relative value of each individual right to hold their own opinions without interference, even opinions that are radical or wildly unpopular.
If the role of these authorities is to play a role in preventing people from being drawn into terrorism, how do they know who might be drawn into terrorism to begin with? Again, if there were an actual criminal act that indicated that a person was being drawn in, then there would be no need for such a provision
Section 1(1) of the Act allows for “[T]he seizure and temporary retention of travel documents where a person is suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity.” If agents of the UK government have reasonable grounds to believe that the individual is exiting the country for “the purpose of involvement in terrorism-related activity,” they may seize travel documents and prevent the person from leaving. This may or may not lead to the filing of criminal charges, which means the interference with travel is not done on the basis of criminal conduct. Travel is suspended on the basis that the person leaving may participate in future criminal conduct. In other words, non-criminal patterns of behaviour informed by opinions the person holds, their online activity, their public persona, etc, serve, in part, as the basis for restriction on their movement. Section 1(1) may be a first step towards the establishment of guilt by virtue of holding an opinion.
Section 26(1) of the UK’s Counter-Terrorism and Security Act states, “A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism.” This provision is substantially more vague than Section 1(1), but the implications for the freedom to hold an opinion are similar. A positive duty is placed on the specified authorities (members of local government, prison management, educational authorities, health care officials and the police) to have “due regard” in monitoring their respective domains as a counter-terrorism measure.
The vagueness is purposeful and enforcement is addressed on a case-by-case basis at the behest of the office of the Secretary of State. That means that Section 26(1) is a catchall. It is intended to place the onus of observation of people that may be sympathetic to terrorism, pre-criminals so to speak, upon a wide range of authorities to discover as many people as possible that may have a soft corner for ISIS, for example, or some other entity involved in terrorism.
If the role of these authorities is to play a role in preventing people from being drawn into terrorism, how do they know who might be drawn into terrorism to begin with? Again, if there were an actual criminal act that indicated that a person was being drawn in, then there would be no need for such a provision. Thus, at the heart of the provision is the understanding that people will be evaluated by these specified authorities based on their opinions and any non-criminal manifestations of those opinions to determine whether they are being drawn into such terrorism-related activity. Such an evaluation may lead to certain persons being additionally monitored and worse, but because Section 26(1) is vague, all of this potential unpleasantness, this chipping away at a person’s basic right to hold opinions without interference, can be swept neatly under the rug as mere speculation.
It would serve the state well to employ similarly vague laws to monitor the opinions of citizens as a method of terrorism prevention. By not outright trampling on well-established human rights, the Pakistani government could offer a sheepish mea culpa in exchange for using people’s opinions to vilify them under cover of law
All of this is intended for the greater good, to protect the public, to ensure national security and the like. In the future, other states may consider the provisions of the UK Act as a model for the development of their own counter-terrorism regime. In Pakistan, for example, organisations involved in terrorism also rely on radicalisation and anti-state sympathising for recruitment. It would serve the state well to employ similarly vague laws to monitor the opinions of citizens as a method of terrorism prevention. By not outright trampling on well-established human rights, the Pakistani government could offer a sheepish mea culpa in exchange for using people’s opinions to vilify them under cover of law.
What it comes down to is a balancing test in which the security and integrity of the many is balanced against the intrusion on the rights of the few. Where the public-at-large believes it has nothing to worry about, it also has no reason to concern itself with those who have the audacity to hold a radical and unpopular opinion, even if they subsequently commit no criminal acts. There is a looming threat dangling precariously above and in countering this threat there is little room for the strict adherence to each and every human right.
