Extra-legality in Counter-Terror

Posted By October 29, 2007 No Comments

Almost every aspect of our responses to terrorism is subjected to inquiry and dissection these days – except one. Is it right to use violence outside of the law against domestic terrorism, and if so, what are the advantages and what are the potential penalties?

It is somewhat disturbing to think about the various euphemisms and evasions that have been employed to cover something ugly over the past century. While ‘special action’ was a deliberate misdirection employed for a lot of Maoist, Nazi and Soviet atrocities, ‘extralegal’ at least infers that something is outside of the law and is therefore questionable… and that questions won’t always be answered.

In the sense of counter-terrorism, extralegal normally implies actions and responses that might not be legal – and one should remember that ethics, morality and legality are not invariably synonymous. The famous Israeli pursuit and assassination of the architects of the 1972 Munich massacre of their Olympic athletes was not legal in the Western European states where the murderers were hunted and slain. Nor could it be said that the actions of the Israeli hunters were always (or even mostly) ethical. Was this campaign a moral act? Certainly! An outrageous evil was avenged and a measure of justice was achieved.

In counter-terrorism, extralegal actions have a long history, but very little of it seems to be adequately documented; which is not surprising. This essay has been contemplated for a long time (about seven years) and reflects some suspicions that the author formed nineteen years ago; but which have largely proved nigh-impossible to research. Much of what is here – particularly about events in Ulster — reflects a few tidbits and scraps gathered here and there; and these simply cannot make a conclusive argument.

In Canada’s experience there is the notorious barn-burning incident in May 1972, in which members of the RCMP Security Service attempted to set a barn on fire to prevent an apparent meeting between members of the FLQ and the Black Panthers. The act was illegal – a wiretap warrant for the meeting had been disallowed and if the meeting could be cancelled, perhaps the next one could be taped. Moreover, the attempted barn-burning was incompetently executed: Diesel oil doesn’t catch fire very easily, whereas if the offending officer had used gasoline or even just touched a match to straw, things might have turned out quite differently. This was one of a number of incidents that occurred during the 1970s, and which eventually resulted in the McDonald Inquiry into the service and the eventual creation of CSIS. [1]

It is common sense that extralegal responses to terrorism are hazardous — particularly in a functioning democracy, which must be based on the rule of law. If resort is made to the domestic use of force outside of a legal framework, it should only be entrusted to the most disciplined and intelligent of police and military personnel; and if documented evidence of the existence of such acts even appears, somebody up the chain of command had better be prepared to face the consequences. To do otherwise is to invite the authorities of the state engaged in counterterrorism to concede much of their moral advantage, and will certainly tempt them into becoming as monstrous as the terrorists they oppose. One can only use domestic extralegal methods at their peril.

Moreover, few terrorist groups even rate consideration for extralegal responses. When a group is domestic, small, and ineffectual in technique; they can be easily countered within the framework of conventional police work and the legal system. For example, the Animal Liberation Front has made less than a dozen murder attempts in 30 years and its cells tend to be self-recruited, self-taught and self-financed. Using extraordinary measures against them would be entirely unnecessary. The RCMP Security Service’s actions against the FLQ in the early 1970s seemed vital at the time as Canada had little experience with sustained terrorism before the 1970 October Crisis. But as subsequent experience has taught us, the FLQ was relatively minor compared to the Babbar Khalsa or al Qaeda. Other situations are different and some threats are truly dire.

Ulster:The latest round of ‘The Troubles’ began in August 1969 when rioting in Ulster moved away from civil rights issues toward the more familiar Irish tradition of religious/nationalist factionalism. Almost 38 years passed before the implementation of a power-sharing government in Ulster that involved both Gerry Adams and Ian Paisley in May 2007. The history between these dates is long, complicated, and turbulent. However, three things remain clear:

  1. The ultimate risk in Ulster was of an eruption of general civil conflict between the populations backing the Provisional Wing of the IRA (and its Marxist/Nationalist cause, occasionally wrapped in a Catholic cloth); and the Protestant paramilitaries. Preventing this from happening was the reason behind the deployment of the British Army into Ulster in the first place.
  2. The Provos were experts at terrorism – having a long tradition to draw on and some unique skill sets. They did succeed in assassinating a close relative of the Queen (Earl Mountbatten, along with several of his friends and family members); nearly killed two British Prime Ministers with a superbly designed time bomb and a giant improvised mortar; introduced the car bomb to Europe; and were using sophisticated weaponry when most European terrorists were still trying to master pipebombs and pistols.
  3. The British were determined to keep the conflict confined to the British Isles – if not just in Ulster itself — and to limit the ability of the IRA to destabilize larger sections of society. The British government always had at least one pipeline open to the Provisional Wing of the IRA in a bid to keep the group and the attendant conflict within reasonable limits. One illustration of the conventions that arose between the British and the terrorists was a code word that Provos gave when phoning in a bomb threat to indicate that the threat was real, and that the IRA was indeed responsible for it. [2]

The IRA made occasional attempts to escalate the conflict, expand it outside of the British Isles and to attack high value targets, but the British sharply curbed them. Several incidents are a matter of public record. On May 8th, 1987 eight leading members of the East Tyrone Brigade of the IRA launched the latest in a series of bombings designed to eliminate the presence of security forces near South Armagh. However, twenty-four SAS troopers were lurking in ambush as they delivered their attack on a police station and all eight were repeatedly shot (receiving about 60 rounds apiece). Similar tactics were used on several other occasions – most notably in Gibraltar in March 1988 when another three members of the IRA were repeatedly shot dead. At the time, they were planning a car bombing against the British garrison there as part of repeated attempts to commit terror on British troops who had been rotated out of Ulster.

Military behaviour like this brings out the usual viewing-with-alarm and hand-wringing from the expected quarters. Military personnel repeatedly shooting ‘civilian’ terrorists seems excessively brutal especially to those who expect reactions to terror to remain entirely within the purview of the police and courts. It should be pointed out that the Provisionals also felt horrified by these incidents. The normal career path for an IRA man was to eventually be caught, tried (and to grandstand from the prisoners’ dock) and be honorably jailed as a hero of the cause. The idea that a group of highly skilled soldiers might someday be waiting to pump 60 bullets into you alone is unsettling; especially if you realize that there will no hope of escape, no refuge, no chance of surrender, nor any real possibility of fighting back against such an attack.

On the other hand, the IRA did eventually stop delivering truck bombs to isolated police stations, and stopped trying to kill British soldiers who had been rotated out of Northern Ireland. Violence, as Clausewitz points out, is a message in itself. In such a manner, it would seem that the British helped manage the IRA to keep the conflict within tolerable limits.

Despite the best attempts of numerous critics, portraying these ambushes by the SAS as being extralegal failed to achieve much condemnation; homicide is not invariably murder. However, did British troops or police sometimes act entirely outside of the law during the Ulster conflict? If they did, nobody has been able to prove it, nor will such proof ever likely be forthcoming.

Yet the IRA had many weapons that they never really used, or employed only once or twice. Some of these were weapons that were finally ‘decommissioned’ after much delay in 2005. Essentially the Provos had refused to be seen handing weapons over to the authorities, as that would look like they actually accepted defeat and were surrendering. Eventually, to save face, a compromise was reached whereby their more interesting weapons were destroyed by the Provisionals in front of independent witnesses (a Catholic priest, a Protestant minister and three members of the International Independent Commission on Decommissioning). Among these were three tons of Semtex, seven SAM-7 anti-aircraft missiles, RPG-7 anti-tank rockets, over 20 machineguns including heavy DShK Soviet models, and a thousand rifles; apparently including at least one Barrett .50 caliber sniper rifle.

There is a story about the latter and no proof whatsoever to back it up. It is offered as a theory that might explain why some of these heavier weapons were never used.

A Barrett .50 caliber sniper rifle fires the same cartridge as the M2 Browning heavy machine gun – a weapon of deserved fame for many decades. A .50 caliber bullet fired from a similar rifle by a Canadian soldier set the world record for a long distance sniper kill – 2,430 metres – in Afghanistan in 2002. While not shooting nearly that far, apparently an IRA sniper on the Irish side of the border had killed a British sentry a kilometer away in South Armagh (.50 caliber bullets are not stopped by most sets of body armor, either). Letting the Provos use a sniper rifle that could fire at such distances from across a national border had the potential to be another unmanageable problem for the conflict; and according to the anecdote, there were quiet words exchanged in Whitehall (the seat of the British civil service), in a quiet base in Herefordshire (home to the SAS) and quiet words to some members of the same regiment in Ulster.

The end result was allegedly that the suspected sniper was kidnapped from his front porch early one morning (possibly from a residence in the Republic of Ireland), subjected to a hasty interrogation in the back of a car to confirm that he was the sniper, and then his corpse was dumped into a ditch in South Armagh. In any event, whether the story is true or not, the Barrett .50 caliber rifle did not reappear in active use after its initial debut.

Spain: There is a long history of Basque separatism arising out of northeastern Spain, and the Basque terrorist group Euskadi Ta Askatasuna (ETA) is but the latest of these – albeit with a Marxist Leninist twist. Formed in 1959, ETA was soon based in France as Francisco Franco’s Spain was an authoritarian police state at heart. In the 1960s, as the Franco regime mellowed, ETA made occasional forays into Spain itself, making a few minor attacks. During this time, the French authorities were tolerant of ETA’s presence, believing they could play a role in undermining the Spanish regime.

Everything changed after Franco’s death in November 1975. Franco had cleared the way for the royal heir, Juan Carlos de Bourbon, to ascend the Spanish throne and the monarch then spent the next three years managing a transition to a constitutional monarchy, and generally overseeing the emergence of the prosperous democracy that Spain is today. However, two groups rapidly emerged to oppose these changes: GRAPO (a small and highly delusional group of violent Maoists that still endures) and ETA. The Basque Marxists did everything they could to fill the transitional period with violence, and were soon killing dozens of people every year – particularly through a series of spectacular assassinations.

In Spain, the tradition of democracy was fragile, and the country was unused to terrorism after the long strictly enforced quiet of the Franco regime in the Post-War years. Given ETA’s growing outrages and its safe sanctuary areas in France, it was perhaps inevitable that extralegal action would begin. In 1983, Grupos Antiterroristas deLibeacion (GAL) began the first of a series of attacks on ETA members and supporters – real or supposed. Over the next four years, some 27 killings occurred inside both Spain and France. Some of the killers were, or had been, Spanish National Police members; others were hired from the French and Portuguese underworlds. [3]

In 1987, the story about GAL began to leak out and apparently the group was functioning with the tacit approval of the governing Spanish Socialist-Worker’s Party (PSOE) and the Prime Minister. While this latter allegation has not been proven, it was subsequently determined that GAL was funded and seemingly directed by a handful senior police officers, members of the Interior Ministry, and some PSOE members.

The Spanish government had no choice but to try and convict those leaders of GAL that came to its attention. Having made a sacrifice to the Law, Spain’s new institutions survived the scandal. The net results of GAL’s campaign have been hard to accurately assess. On the debit side, the existence of GAL has been a bloody shirt that ETA members and Spanish Marxists still wave whenever possible – though after twenty years, nobody else pays much attention to this anymore.

On the other hand, in 1986 voices of Basque moderation started to express opposition to ETA, and the pace of the terrorist group’s operations fell off and it has never again been as deadly as it was before GAL began to kill its members. In January 1988, ETA even agreed to a ceasefire for the first time. Additionally, seemingly stung by GAL activities on its soil, the French began to deny automatic sanctuary to ETA members, and started to cooperate with the Spanish in reducing the overall effectiveness of the Basque terrorists.

The Punjab: Too many Westerners habitually under-estimate the size and complexity of India. A rough and boisterous democracy that is finally starting to reach towards its true potentials; India also far exceeds all of Europe and North America combined in terms of population. Moreover, it has numerous ethno-cultural-linguistic fault-lines contained within it. Since independence and partition in 1947, the challenge for India has always been to remain intact. To allow any major secession movement to succeed is to risk collapsing into myriad squabbling mini-states.

Of the regional secessionist challenges that have appeared in India, perhaps the most severe they have yet endured came from the Sikhs of the Punjab along the frontier with Pakistan. The Sikhs are a talented minority (being gifted soldiers and merchants) who are concentrated in the Punjab region. They also once had a kingdom of their own, and it was inevitable that a secessionist movement would someday appear.

As it was, the circumstances that finally ignited a full blown campaign of terrorism inside the Punjab were complicated and the Indian government was certainly not blameless… particularly after violently quelling one group that had lodged itself in the Golden Temple of Amritsar in 1984. This had the effect of a bucket of gasoline splashed on a smoldering fire.

To further condense a convoluted history that has plenty of blame to assign to all parties; the main thrust of the insurgency in the Punjab eventually settled on the Babbar Khalsa. This group, like so many other militants in so many other situations, not only waged war against the authorities, but also sought to impose its interpretations of proper behaviour on the community it claimed to be championing. A similar pattern emerged among the Sikh immigrant communities elsewhere in the World with similar results: The Sikh unity that arose after the Golden Temple incident was replaced with internal quarreling between militants and moderates. This slowly had the effect of turning Sikh against Sikh; which in combination with a number of hard-nosed government measures (often far harsher than any Western government would dare contemplate); eventually tipped the balance against the insurgents – but only after other events in later years. [4]

Among the many features of the Indian government’s response to the Punjabi insurgency was the suspension of several fundamental rights (including Habeas Corpus), uninvestigated allegations of torture by police and jailors, and summary detentions of suspected supporters of the Sikh militants. This did little to quell the insurgency, and Sikh terrorists were gaining in expertise and audacity – with a growing number of high profile attacks matched to an escalating body count. The worst year for the conflict was 1991, in which some 3,300 people died in the Punjab. At this point, several developments coincided.

While the Indian response to the insurgency was already quite strict, the Punjab was declared to be a ‘disturbed area’ under India’s 1983 Disturbed Areas Act; and direct Presidential rule was imposed. This gave police and security forces even broader powers. Worse still for the Babbar Khalsa and other Sikh insurgents was a threat that backfired on them: They had begun to target the families of police officers both in the Punjab and in neighboring states; but this gave the police personal incentives for even more ruthlessness and a number of high-profile disappearances soon ensued.

As always, it can be difficult for police to find terrorists but it much easier to find their supporters. These can include lawyers, activists who conceal their efforts behind a “human rights” façade (like many supporters of the Tamil Tigers or the Jihad do today), businessmen, and a variety of others. A number of activists who were suspected – often flimsily – of being supporters of the Babbar Khalsa soon joined the swelling ranks of the disappeared. Moreover, many more suspects reported being brutally tortured than had heretofore been the case, and a number of Shot-While-Escaping or Died–While-Resisting-Arrest episodes occurred. Later, it transpired that at least 2,097 suspected terrorists and supporters were cremated (often clumsily, as almost half would be partly or fully identified later).

The net effect of this reaction was that the back of the insurgency was broken – and the threat dwindled throughout the 1990s. Draconian laws and measures were slowly withdrawn, although reports of disappearances and other abuses continued for years. A measure of stability returned to the Punjab accompanied by a growing prosperity; but the stability was strained somewhat by continued efforts by supporters and families of those who disappeared to get a measure of accountability and a slow rear-guard action by Indian police and security officials to inhibit this process. Yet the majority of Punjabis seem to have accepted the results without much complaint… either there was a broad acceptance of the necessity of harsh action for national survival, or else standards of expected conduct from Indian authorities remain low. As India slowly becomes a more prosperous and vibrant democracy, it remains to be seen if the legacy of the counter-terror campaign in the Punjab will attract much attention.

Observations: Outside of the UK, Spain and India, there are other examples of the use of extralegal measures in counter-terrorism – many of which were excessive, unnecessary and brutalizing. One need only look at Uruguay and Argentina in the 1970s, or El Salvador and Sri Lanka in the 1980s for bad examples. As has been seen so often in Latin America and elsewhere, death squads have a habit of running away with themselves (or might be swiftly mimicked by less capable personnel), which quickly brings things to the point where it is impossible to differentiate between the terrorists and the police or military. When such occurs, consequences may include the collapse of the moral authority of governments and their institutions, escalating insurgencies, economies sapped by sanctions, and the ruin of national reputations.

Yet the UK, Spain and India escaped these penalties, why?

Firstly, in these three countries extralegal measures do not seem to have been undertaken lightly. Neither Britain nor Spain used them immediately, nor did India unleash the full force of its police and security forces until seven years after the Khalsa insurgency became critical. A country that employs such measures immediately is little different from the terrorists who challenge it.

If extralegal action is to be undertaken, it had best be conducted by highly disciplined and specialized personnel (such as the British SAS Regiment) under limited and exact circumstances. This was not so true for the GAL, far less so for India — which perhaps gives the added bonus that there is no real history of extra-legality in Ulster to research, nor any conclusive proof that these did, in fact, occur (although plenty of seemingly debatable military tactics and intelligence techniques were also employed). There were eight trials and a set of inquiries in Spain about the GAL, and judicial inquiries in India.

If the British did have extralegal operations running against the IRA, these must have been confined to active members of the terrorist group itself. Police in India and the GAL went after members of front-organizations too – lawyers, spokespeople, money conduits, and “human rights activists” (one should remember that many front organizations have such self-styled activists who work to confuse the issue and create complexities for the society that the terrorists have targeted). While vital to the needs of a terrorist group, personnel belonging to front organizations often tend not to be directly involved in facilitating terrorist acts, and are more likely to be immediately missed.

Democratic societies demand accountability: If the press and the supporters of an internal terrorist campaign can generate a judicial inquiry that uncovers the existence of an extralegal program, somebody is going to have to answer for it – with jail time. A cabinet minister or senior civil servant who encourages such a campaign had best be prepared to fall on his sword. The Spanish, at least, got caught, and various officials paid the appropriate penalties. It remains to be seen if this will happen in India; although many years have elapsed since the worst offences of the Punjabi counter-insurgency campaign, the law in some democratic societies can have a long memory.

Additionally, as might be true in India particularly, the public could be prepared to accept the existence of extralegal activities, provided that they see these as a lesser evil than either the terrorists themselves, or what might transpire if the terrorists actually win. Principle does not trump necessity when survival is concerned: Thuggish behaviour by police and security forces that kill a couple of thousand people might well be implicitly preferable for most to the risk of a conflict that kills people in their tens of thousands or more.

The argument that extralegal killings have not been all that decisive is weak. Whatever the British and the Spanish did, the Provisional Wing of the IRA and the Basque ETA stayed within ‘tolerable’ limits that allowed a whole variety of other means to be successful. After seven years of growing violence in the Punjab, the Babbar Khalsa movement was rapidly quelled by the crackdown and has ebbed away since 1992.

For those with a strong moral objection to violence, two analogies come to mind. When inoculating people against a disease, sometimes the vaccine is itself derived from a weakened or attenuated version of the virus the shot is designed to protect against. When confronting a powerful forest fire or grass fire, sometimes it is necessary to use deliberately set back-fires to contain it.

Maturity sometimes means deliberately not noticing small things, but being ready to intervene if they get out of hand. Even the most scrupulously honest know that little white lies are often necessary for smoothing over life’s awkward moments; contributing a couple of hundred dollars to a politician’s campaign fund is a wholesome aspect of democratic participation, while slipping a hundred thousand into his unofficial retirement fund isn’t. A police officer who accepts the occasional coffee from a storeowner on her beat may be maintaining relationships that are necessary to her task, which is not true of the one taking regular payments from drug dealers. Absolute limits on behaviour are usually nonsensical.

Finally, there are many who argue that the whole of counter-terrorism efforts can be confined to cops and courtrooms, and that no extraordinary measures are ever necessary. Perhaps a dose of practicality and a little more maturity about the use of force would be useful.