Blog | July 19, 2017

“Was Known to the Authorities”: The Limits of Counterterrorism

BY: AMB. (RET.) JACOB ROSEN-KOENIGSBUCH

In recent years, following bloody terrorist attacks in Europe, the United States and Australia, we frequently hear that “the perpetrator was known to the authorities.” It has practically become de rigueur, a statement typically appearing 12-24 hours after an attack. Authorities disclose such statements through various media outlets, indicating there was neither a blunder nor negligence in play, rather, that “watchful eyes” already knew of the perpetrator and very often, the person of interest remained on their radar for quite some time.

Owing to the troubling frequency of terrorist attacks, it is important to analyze and understand the intent behind this pattern of communication—a disconcerting array of obstacles that impair the work of criminal and counterterrorism authorities and legal experts.

Realities in the Field

According to one study, 57 percent of perpetrators who brushed shoulders with the law through more conventional offences such as robberies, street fights or selling narcotics, were imprisoned. It is important to note that, in recent years, European and U.S. prisons have become incubators of radicalization, rather than rehabilitation. Petty criminals, under the influence of charismatic inmates, are sometimes drawn to radical ideologies. The authorities are quite aware of this increasing reality, but the alternative―separating influencers from the easily influenced―is a costly and complicated procedure, so there is little they can do about it.

More worrisome is the fact that upon release from incarceration, there is no real system in place to evaluate whether an inmate has taken on radical ideologies. The second problem to emerge is who is responsible for "following up" and maintaining tabs on suspect individuals. Which authority should be responsible for tracking the individual and do they have the manpower and resources to do so?

Of course, the hope is that former inmates will be rehabilitated and become productive members of society. Unfortunately, economic realities and challenges in society frequently mean a potential return to criminal activity, or even a move into other nefarious activities.

Currently, an integrator that can assemble or evaluate data, which can then be gathered by police or intelligence services within its own domains, is nonexistent. All too often, individuals become subject to law enforcement evaluation only after direct contact or support of an extremist group (or activity). Additionally, the recent disclosure concerning female ISIS members highlights the need to focus on both genders.

Unless hard evidence exists, it is unlikely that the suspect will become a high priority, considering the overwhelming volume of tasks facing enforcement authorities compounded by limited available resources. Suspects are placed on a so-called watch list, which is limited to periodical monitoring of social media and digital communications. This monitoring depends on the authorities’ capacity and the sophistication of the target’s electronic devices.

Police, intelligence and security monitoring systems are imperfect; they can process vast amounts of data, but do not have the resources to monitor all suspects around the clock. The heinous acts perpetrated in Paris 2015 by Said and Cherif Kouachi and Amedy Coulibaly are evidence of this unfortunate reality.

Now, let us assume that at some point, the suspect catches the attention of the law, prompting some degree of surveillance. A logical first step might be to initiate contact with the suspect’s family or engage through his/her community. If the family and community leaders are powerless and admit that they have very little control or influence over the suspect’s behavior, then the individual may be summoned for a "frank" discussion with one of the agencies (e.g. local police, a special branch officer in the police headquarters or the Ministry of Interior) aiming to temper his/her manner and perhaps, instill fear. Parallel to that, authorities may intensify monitoring activities, including tracking and analyzing digital communications. Though these steps may seem practical, they are often neglected.

The decision to adopt these steps described above typically occurs when a counter terrorism expert has the right instinct―not necessarily the evidence―that the individual in question should be considered a high-priority target.

On those occasions where more tangible though not incriminating data is gathered, the suspect may be detained by the police. At this point, another reality may unfold: human rights activists and professionals may interject on behalf of the individual citing their civil rights against persecution or inconclusive evidence. The authorities have no choice but to either release him or present him in front of a judge to prolong his detention. Those who are acquainted with the organizational culture of the security authorities in democratic societies may recall their frequent frustration with existing anti-terrorism legislation.

Given the prospect of a suspect walking away free under these circumstances, security authorities may decide to continue surveillance without detention or arrest in the hope that further incriminating evidence will emerge in due course. However, the suspect may go underground and exist beyond detection and in the worst-case scenario, resurface and conduct yet another terrorist attack.

Legislative Concerns

While terrorism has adopted itself into the new age of technology and changed its modus operandi, the legislative systems in our democratic societies have not evolved as quickly. One such measure is the reactivation or re-introduction of administrative detention, which means arrest without a trial for a limited period with the necessary adjustments to 21st century requirements.

Another possibility is to follow the Japanese anti–terrorist bill, recently passed in preparation of the 2020 Tokyo Olympics. Although the bill draws criticism for its harshness, adopting certain parts—including the creation of a new offense of conspiracy to commit a serious crime, which allows the police to arrest terrorists before they attack (a similar provision exists in UK anti-terror law)—is certainly worth considering.

Despite criticism from human rights groups, the United Kingdom’s Investigatory Powers Act of 2016, setting out the legal perimeters for the UK Intelligence Community and police’s surveillance activities, may also serve as a blueprint for future legislation across many governments.

Despite labor and resources shortages, counter-terrorism organizations are actively adapting themselves to these new realities as much as possible. Equally important, the cherished legal systems, which until now have successfully protected and helped to maintain our democratic values and way of life, must also adjust to the ever-changing circumstances.

It is a process, but recognizing the issues and assessing the existing parameters and limitations may allow us to move past “known to the authorities” to a more effective system of addressing the conditions fueling extremism and preventing terrorist activity.

Ambassador (ret.) Jacob Rosen-Koenigsbuch served as Israel's ambassador in Jordan (2006-2009). He is currently an independent consultant on demographic mapping and collects books about "Lawrence of Arabia." 

The views expressed in this post reflect those of the author and not that of the EastWest Institute. ​