Published in July 2018.

 

 
  This module is a resource for lecturers   

 

Key issues

 

Both peacetime and armed conflict contexts require complex and extensive intelligence gathering efforts due to the transnational and global nature and activities of some terrorist groups. Therefore, multinational, inter-agency cooperation plays a critical role in counter-terrorism prevention.

Not only are intelligence gathering genuinely necessary from the perspective of national and international security imperatives, but they are perfectly lawful when conducted in accordance with the rule of law. However, the very nature of intelligence gathering, however, raises many issues associated with adherence to the rule of law. The International Commission of Jurists, in its global report Assessing Damage: Urging Action, captured them in the following terms:

There is a genuine problem involved. The prevention of terrorist acts relies on good intelligence, and intelligence gathering by its very nature requires some degree of secrecy. Sometimes to reveal covert intelligence-gathering methods, or the extent of what is already known or not known, will undermine the effectiveness of the operation and put lives at risk. At the same time, secrecy can sometimes be no more than a cloak to avoid proper accountability (International Commission of Jurists, 2009, p. 10).

Difficulties arise when the counter-terrorism practices of States cross the line of legality and legitimacy, thereby hindering rather than facilitating multinational cooperation and undermining the rule of law in the process, for example by utilizing unlawful coercive interrogation techniques contrary to international human rights law norms.

One contributing factor is where States broaden the mandate of intelligence agencies in a manner which blurs the line between the operation of intelligence agencies and law enforcement officials. Intelligence agencies are focused primarily on gathering information aimed at preventing terrorist attacks from occurring and are not directly involved in any subsequent criminal justice processes including accompanying procedural requirements and due process guarantees. Law enforcement officers are, in addition to preventing crime, responsible for the maintenance of public order through the investigation of crime and are concerned with the procedural requirements of due process, including the gathering of admissible evidence through lawful means which may be relied upon during subsequent court proceedings. On occasion, human rights concerns have arisen due to such factors as the differing ethos and goals between intelligence agencies and law enforcement officers not being reconciled; the lack of adequate training of intelligence agencies in basic human rights obligations and criminal justice due process requirements; and when there is an absence of adequate oversight and accountability mechanisms.

The rule of law implications of such factors may be compounded increasingly invasive forms of intelligence gathering methods, such as cyber surveillance, or mass data gathering which is a principal focus of this Module. These can be accompanied by 'legislative creep', whereby States seek, through legislation, to intrude more and more on personal privacy. In this context, there are accompanying concerns of 'Big Brother' authoritarianism and troubling restrictions on fundamental personal freedoms.

In terms of the structure of this Module, it commences by examining the relevant international then regional human rights law frameworks on the right to privacy. It then explores several contemporary issues, namely special investigation techniques, then surveillance and the interception of communications especially through metadata and GPS surveillance. Issues of privacy and intelligence gathering are then considered in an armed conflict setting. The Module ends by discussing issues regarding accountability and procedural oversight of intelligence gathering methods.

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

 
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