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Islam

The Legal Fight Against Terror

The flexible nature of modern terrorism, and the failure to share information between governments, are hampering the capacity of intelligence agencies and states to implement a joint response

The ferocity of the recent attacks in Paris has reopened the debate on terrorism prevention measures. However, it is the boundaries of the terrorist phenomenon itself that have become blurred. It is not possible to apply a single, all-encompassing definition to the law, and this means that it is difficult to regulate anti-terrorist policies without creating conflict in the field of international relations. And the more the terrorist phenomenon evolves over time, adapting and adopting newly available technologies, the more difficult it becomes to reach a consensus. This does not mean that terrorism lacks common traits, however generic, that trace a common thread linking many criminal events. While it will never be possible to agree completely on the various reasons that motivate terrorists to act (politics, religion, economics), or identify a single modus operandi, a common denominator of the phenomenon lies in its transnational nature.

 

 

The 9/11 archetype

 

Modern terrorists never remain in one place, but are constantly on the move, coordinating their activities internationally, thanks to the available technology. This is typified by the attacks against the United States on 11 September 2001, where the perpetrators and planners, located at various points around the globe, were able to organize their activities simply by using common e-mail accounts, with shared credentials, which any of the co-conspirators were able to access. All organizational details were defined via email messages, saved as drafts, but never forwarded to another account, where criminals posted additional details from time to time, through the use of special codes. On the other hand, more recently, so-called combatants are often recruited via the deep or dark web, an impenetrable area of the digital network that terrorists use because it guarantees to remain anonymous, both to those they recruit and to law enforcement agencies: an activity that produces the maximum results with the minimum effort.

 

 

Today's terrorism is characterized by the ease with which it is possible to obtain the tools with which it operates. By using chatrooms, or even web-based video gaming networks, it is possible to bring people from various different countries together in one place, in order to coordinate individual attacks.

 

Terrorism has ceased to be a phenomenon where its causes, effects and prevention strategies are limited to individual states, having been replaced by organizations capable of planning and carrying out their attacks at international level.

 

This has been evident for over a decade, from the moment the global community began to take steps towards adopting a shared response to the terrorist phenomenon, thereby fostering international cooperation. It must be said, however, that such initiatives have only met with partial success. Even before the events in Paris, the ineffectiveness of concerted action was raising concerns about the possibility of such large scale attacks taking place, but governments have been unable to prevent events of this nature, even when they have been aware of the danger in advance.

 

 

Free movement

 

One of the flaws in the counter-terrorism system is the incomplete nature of the available information about the movement of persons. The European Union, which is currently taking steps in this direction, may be viewed as a homogeneous entity: there are rules in place allowing for the exchange of information between states, including information regarding criminal investigations. But outside the European area there is no lingua franca for information. Recently, for example, with regard to the use of social networks, the European Union made it clear that the personal data processing legislation in force in the United States differs radically to that in force in Europe, offering less guarantees against the infringements of civil rights, and that not all information pertaining to European citizens may be processed by U.S. intelligence agencies, without prior consent and the full awareness of the individuals regarding the purposes for which the information may be collected. This also applies to the information exchanged by social network users, which is also subject to restrictions on its use. This is good news for privacy, but less so for security. Social networks normally represent a valuable source of intelligence. Another question regards internal flights. Together with the United States, the European Union has stipulated international agreements that guarantee the transmission of personal data of European passengers on flights to and from America, which is why there have been no repeats of 11 September 2001 so far.

 

However, such systems can never be totally infallible, and the consequences for other countries may be even more serious. Terrorists know this, and they take advantage. For example, it is impossible to identify the information that is exchanged regarding the passengers on a Russian flight departing from Egypt, which is why there is a greater risk of an attack on that route.

 

 

Proper data storage

 

All this would seem to paint a rather gloomy picture for the war against terrorism. However, there is another way of looking at things. If Presidents Vladimir Putin, Barack Obama and the European Union hold conflicting opinions on armed intervention in the Middle East, it is clear that mapping the movements of suspect individuals, who find that they are more or less free to come and go as they wish in these areas, would be beneficial to all parties; in the light of recent events that have affected all these governments, to one degree or another, it may be possible to agree on a common strategy for achieving such an end more easily.

 

Any such initiative would be of a highly technical nature: it would involving ensuring proper data storage, guaranteeing that such data are not used for any purpose other than that which they were collected for, and, in particular, establishing the conditions under which such information could be used for law enforcement rather than simply preemptive purposes.

 

 

This last point is especially delicate. The information that the intelligence agencies can collect and use to foil terrorist attacks may or may not be used when prosecuting the perpetrators of criminal activities. The law and criminal procedure establish safeguards for the protection of the accused, including full transparency and fairness of the sources. But intelligence agencies do not work that way, since they also use information that would not be admissible in court. This is the price we must pay for our safety and security, but in the final analysis, prevention is better than cure.

 

 

* Fiorella Dal Monte is currently reading for her PhD in Commerical and Personal Law at Ca 'Foscari University in Venice

 

 

 

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