'Know Thine Enemy as Thyself': Discerning Friend from Foe under Anti-Terrorism Laws

By Walker, Clive P. | Melbourne University Law Review, April 2008 | Go to article overview

'Know Thine Enemy as Thyself': Discerning Friend from Foe under Anti-Terrorism Laws


Walker, Clive P., Melbourne University Law Review


[The embedded nature of the terrorist risk appears to demand the treatment of one's neighbour as potentially both friend and foe. One of the consequences is the application of 'all-risks' policing measures, such as stop and search powers. But can this wide casting of the intelligence web or the application of policing powers both enhance security and keep the faith with constitutional values? In this article, all-risks policing of terrorism will be considered by reference to the stop and search powers under s 44 of the Terrorism Act 2000 (UK) c 11. Since reasonable suspicion does not found policing action, it is important to examine the consequent patterns of usage and the forms of governance over them. This article will explore the nature and usage of the special stop and search powers since the), are key to an understanding of how 'neighbour' terrorism is now being addressed.]

CONTENTS

I   'Neighbour' Terrorism
II  'All-Risks' Policing Powers
III 'All-Risks' Policing through Stop and Search Powers
       A Statutory Provisions
       B Statistics as to Usage
IV  The Containment of 'All-Risks' Policing
       A Case Law
       B Other Aspects of Containment
V   Conclusion

I 'NEIGHBOUR' TERRORISM

According to Sun Tzu's The Art of War:

   If you know the enemy and know yourself, you need not fear the
   result of a hundred battles. If you know yourself but not the
   enemy, for every victory gained you will also suffer a defeat. If
   you know neither the enemy nor yourself, you will succumb in every
   battle. (1)

The old sage, Sun Tzu, had in mind that one's enemy would be an outsider--schooled in other cultures and ways of thinking. Overcoming the cognitive gaps would be advantageous to refining one's own strategies and tactics. Notably, these arts of war were propounded before globalisation. In olden times, anyone not fitting a stereotype--be it national, ethnic, racial or cultural--could be marked out as a potential foe. But with porous borders, it is much more difficult to answer the question: who is my neighbour and who is my enemy?

Applying these considerations to contemporary terrorism, an archetypal outsider is embodied by the convenient figure of Osama bin Laden--depicted as an alien, uncivilised cave-dweller. (2) Yet, whilst foreigners remain a threat, the menacing figures in the contemporary stage of terrorism are often our neighbours from within. For example, the London bombings of 7 July 2005 were carried out by three second-generation British citizens whose parents were of Pakistani origin and an individual who had been residing in Britain almost since birth. (3) The attempted bombings in London on 21 July 2005 were likewise perpetrated by long-term residents. (4) The 'neighbour' bombers of the 2005 London bombings and 2006 transatlantic aircraft plot (5) were not isolated aberrations, since it is known that British citizens have engaged in terrorism not only on their own soil but also on foreign soil, disregarding whether they killed neighbours or aliens. Examples include Richard Reid, who attempted to explode a shoe bomb on a transatlantic flight in 2001. (6)

In light of these precedents, it can no longer be claimed that the enemy in war is 'in a specially intense way, existentially something different and alien' and the negation of our existence, the destruction of our 'way of life'. (7) Rather, we are increasingly unsure of how to typecast our enemies, and the embedded nature of the terrorism risk seems to demand the treatment of one's neighbour as potentially friend and foe. One of the consequences is the application of 'all-risks' policing measures, which treat almost anyone and everyone as a risk. Nevertheless, how can the casting of the intelligence web or the application of policing powers be used to enhance security while, at the same time, avoid social division or the wholesale repression of constitutional values? …

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