DETECTER: The Moral Risks of Preventive Policing in Counter-terrorism

I'm going to start listing details of publications of the DETECTER project here on the blog. D05.1 has been written by Tom Sorell as part of Work Package 3. You can read the whole thing here.

Executive Summary

1. Preventive policing is any action carried out by police with the intention of identifying and preventing a specific crime or a type of crime. Preventive policing can include “special investigation techniques”, including secret surveillance. These carry obvious moral risks.

2. Recommendaton Rec (2005) 10 of the Committee of Ministers of the Council of Europe outlines possible restrictions on the use of special investigation techniques. It suggests that the least intrusive special investigation measures should be used, if at all, only when the prevention or prosecution of serious crime requires it, and not in a way that conflicts with the right of anyone arrested to a fair trial. The principles reflect legal privacy protections under European Convention on Human Rights, Article 8, and Convention 108.

3. Liberal theory supports the approach of Rec (2005) 10. It permits the use of special investigative techniques in preventive policing if the crime that these techniques are intended to prevent is very serious, e.g. a terrorist attack. In particular, liberal theory permits the use of secret surveillance, if the choice of targets for the surveillance is evidence-based.

4. The form of liberal theory that best reconciles the demands of privacy and counterterrorism with those of liberty is a modified Kantian theory, which is less utopian in its assumptions about human beings than a Lockean theory, but which excludes the total concentration of power, as in a Hobbesian theory.

5. Liberal theory condemns terrorist acts not just because of the injury and death they cause, but because of the contempt for impartiality that terrorist groups display. Impartiality is central to the liberal design of government institutions.

6. Privacy in Kantian theory is primarily the scope agents have for deliberating and choosing life plans free from other people’s interference. In liberal theory generally, privacy is also the scope people have for forming intimate relationships without scrutiny and adopting harmless life plans (harmless means of pursuing happiness) without being subject to outside criticism.

7. Kantian theory does not justify restrictions on thought or expression of thought about terrorism or in favour of terrorism, but it does justify restrictions on actions that contribute to terrorist acts.

8. Expression of thought about terrorism, even expression of thought sympathetic to
terrorism, should not be criminalized from the point of view of liberal theory. This counts against e.g. the “glorification” of terrorism provisions in the UK Terrorism Act (2006).

9. Kantian theory implies that preventive policing can fairly employ “profiling” techniques for identifying suspects in counter-terrorism, so long as these are evidence-based.

10. “Profiling techniques” cannot justifiably be used alongside detention and trial procedures that are revised ad hoc for counter-terrorism purposes.