of Law Enforcement

The Impact of Terrorism on the Transformation of Law Enforcement in the United States, United Kingdom and Canada Since the 1960s: The Relevance of 9/11 to the Thin Blue Line

The Impact of Terrorism on the Transformation of Law Enforcement in the United States, United Kingdom and Canada Since the 1960s:

The Relevance of 9/11 to the Thin Blue Line

Author: Valarie Findlay, Student ID: 110022104 School of International Relations - International Relations University of St. Andrew’s, Terrorism Studies, Scotland

[email protected]

May 21, 2015

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The Impact of Terrorism on the Transformation of Law Enforcement in the United States, United Kingdom and Canada Since the 1960s:

The Relevance of 9/11 to the Thin Blue Line

Author: Valarie Findlay, Student ID: 110022104 School of International Relations - International Relations University of St. Andrew’s, Terrorism Studies, Scotland

I hereby certify that this dissertation, which is approximately 15,000 words in length, has been composed by me, that it is the record of work carried out by me and that it has not been submitted in any previous application for a higher degree. This project was conducted by me as located in Ottawa, Canada from September 2014 to May 2015 towards fulfilment of the requirements of the University of St Andrews for the degree of M.Litt, under the supervision of:

Professor Richard English Date of submission: May 21st, 2015 Signature of candidate:

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Dedication To Mobi. The best Mobi ever.

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Acknowledgments I would like to express gratitude and appreciation to my supervisor, Prof. Richard English, for his guidance and encouragement.

As well, I was fortunate to have the support of some very bright and forward-thinking colleagues and experts. Thank you to the participants who took time out of their busy schedule to assist me with my research and answer my numerous questions: your time was greatly appreciated.

Lastly, heart-felt appreciation to my incredibly patient 'editor', Peter Maddocks.

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Table of Contents Abstract.........................................................................................................................7 Chapter 1 - Introduction .............................................................................................8 Chapter 2 - Methodology...........................................................................................10 Chapter 3 - Law Enforcement in the United States, United Kingdom and Canada: Its History and the 1960s to Present Day .................................................13 Understanding Police Power ...................................................................................13 Early Policing: Formalisation and Peel's Principles ................................................14 Reformation and Crime-Fighting vs. Crime-Prevention Models ............................16 Policing in the United States....................................................................................17 Policing in the United Kingdom ..............................................................................22 Policing in Canada ...................................................................................................25 Section Summary .....................................................................................................29 Chapter 4 - The Emergence of Militarisation and Contributing Factors .............31 Tactical Responses and Armament ..........................................................................31 Organisational Structure and Ethos .........................................................................37 Law Enforcement Recruitment ................................................................................38 Criminal Sophistication Through Technology and Weaponry ................................40 Public Opinion and Societal Change on Policing ....................................................41 Media and Technology ............................................................................................43 Section Summary .....................................................................................................44 Chapter 5 - Analysis of Key Terrorism-Related Strategies, Legislation and the Counter-Terror Model ..............................................................................................46 The Counter-Terror Model ......................................................................................46 Strategies and Legislation of the United States .......................................................46 Biological Weapons Anti-Terrorism Act of 1989.................................................46 Omnibus Counterterrorism Act of 1995 ..............................................................47 USA PATRIOT Act of 2001..................................................................................47 Other Terrorism-Related Legislation ..................................................................49 Strategies and Legislation of the United Kingdom..................................................50 The Prevention of Terrorism (Temporary Provisions) Act of 1974 and the Northern Ireland (Emergency Provisions) Act of 1973 .................................50 The Regulation of Investigatory Powers Act of 2000 ..........................................50 The Terrorism Act of 2000...................................................................................51 The Anti-Terrorism, Crime and Security Act 2001..............................................51 Other Terrorism-Specific Legislation ..................................................................52 Strategies and Legislation of Canada.......................................................................52 Anti-Terrorism Act of 2001..................................................................................52 Combating Terrorism Act of 2012 (Bill S-7) .......................................................53 Bill C-51 - The Anti-Terrorism Act of 2015 (as at March 2015).........................54 Other Terrorism-Specific Legislation ..................................................................54 5


Section Summary .....................................................................................................55 Chapter 6 - Comparative Analysis of Terrorist Incidents, Societal Conflict, Societal Change and Terrorism-Related Legislation..............................................57 United States - January 1, 1970 to December 31, 2013...........................................57 Unambiguous Terrorist Incidents ........................................................................57 Key Terrorist Incidents ........................................................................................58 Major and Minor Terror-related Legislation Impacting Law Enforcement........58 Incidence of Significant Societal Conflict and Significant Societal Change .......58 United Kingdom (Great Britain and Northern Ireland) - January 1, 1970 to December 31, 2013 ..................................................................................................60 Unambiguous Terrorist Incidents ........................................................................60 Key Terrorist Incidents ........................................................................................60 Major and Minor Terror-related Legislation Impacting Law Enforcement........60 Incidence of Significant Societal Conflict and Significant Societal Change .......61 Canada - January 1, 1970 to December 31, 2013 ....................................................63 Unambiguous Terrorist Incidents ........................................................................63 Key Terrorist Incidents ........................................................................................63 Major and Minor Terror-related Legislation Impacting Law Enforcement........63 Incidence of Significant Societal Conflict and Significant Societal Change .......63 Summary of Comparative Analysis .........................................................................65 Chapter 7 - Summary ................................................................................................67 Chapter 8 - Conclusions ............................................................................................69 Bibliography ...............................................................................................................72 Interview Subject-Matter Experts ............................................................................72 Published Books.......................................................................................................72 Studies and Reports..................................................................................................74 Websites and Articles ..............................................................................................82

List of Figures Figure 1: Source - Author- Internal and External Responses Affecting Law Enforcement.................................................................................................................10 Table 2: Methodology - Data Analysis Summary Table ............................................12 Figure 3: United States: Unambiguous, Successful and Unsuccessful, Non-State Terrorist Incidents from Jan 1, 1970 to Dec. 31, 2013 (Line Chart Source - START GTD/Scatter and Timeline Source - Author)...............................................................59 Figure 4: United Kingdom: Unambiguous, Successful and Unsuccessful, Non-State Terrorist Incidents from Jan 1, 1970 to Dec. 31, 2013 (Line Chart Source - START GTD/Scatter and Timeline Source - Author)...............................................................62 Figure 5: Canada: Unambiguous, Successful and Unsuccessful, Non-State Terrorist Incidents from Jan 1, 1970 to Dec. 31, 2013 (Line Chart Source - START GTD/Scatter and Timeline Source - Author)...............................................................64

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Abstract Law enforcement in the United States, United Kingdom and Canada has seen a substantial transformation over the past half century, primarily due to its inextricable ties to legislation. Some practitioners and professionals allege that 9/11 was the marquee event that signified not only a new type of terrorism, but a new type of policing that was broadened by legislative change and integrated into the counterterror model.

Were the events of 9/11 responsible for the transformation of law enforcement and a watershed of legislation in the subject nations or did they serve to reveal a transformation that had been occurring for decades? The argument of this dissertation is that this transformation had been occurring, somewhat inconspicuously, for several decades and with proper context and scrutiny it can be established that 9/11 was incidental to the transformation. By separating the actual causality and correlation of responses to events and their role in the transformation of law enforcement, this could disentangle presumptions that might influence future legislative decisions.

The tested hypothesis was that the transformation of law enforcement, including its militarisation, in the United States, United Kingdom and Canada were due to numerous legislative responses to terrorist incidents, societal change and societal conflict that impacted police powers from the 1960s to present day.

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Chapter 1 - Introduction The transformation of law enforcement in the United States, United Kingdom and Canada is neither notional nor speculative and understanding how and when this transformation occurred is important to its organisational future. Responses by law enforcement to the threat landscape have occurred within existing police powers and through the broadening of police powers by new or modified legislation and their integration into the counter-terror model. Both of these scenarios are a result of responses to terrorist incidents, societal conflict and societal change that affected programmatic, administrative, technological and strategic areas of law enforcement 1 (Moore, 1997) in an effort to maintain civil order and manage crime. Where operational responses by law enforcement have been excessively aggressive or where police powers breached the boundaries of civil rights, characterised by the adoption of military weaponry, technology and ethos, it has been termed militarisation and viewed to be in direct contrast to the traditional principles of law enforcement. Regardless of the numerous foreign and domestic terrorist 2 attacks towards the United States 3 , the United Kingdom and Canada in past decades, the events of 9/11 have been unequivocally pinpointed as the driving force for a watershed of legislation and transformation of law enforcement and their operational capabilities, sometimes to the extent of militarisation. Proponents have argued that was the necessary modernization of law enforcement, reflecting increased societal aggression and sophistication of 1

M.H. Moore et al., Innovations in policing: from production lines to jobs shops in Innovation in American Government: Challenges, Opportunities, and Dilemmas (Washington D.C.: Brookings Institute, 1997). 2 United States, Department of State, List of Designated Foreign Terrorist Groups http://www.state.gov/j/ct/rls/other/des/123085.htm. 3 University of Maryland, START, Global Terrorism Database: http://www.start.umd.edu/gtd/. 8


crime and terrorist groups 4 , while critics have argued this was a high-handed, arbitrary response to conflated threats, underscoring deficiencies in obtaining threat intelligence. More accurately, it speaks to the unforeseen challenges that have arisen in the formulation of effective domestic public safety and national security responses 5 that are aligned with democratic values, as violent events rooted in societal change shifted to threats of domestic radicalization, globalised terrorist groups and the rise of jihadism. As seen in recent years, irrespective of the challenges and effectiveness of these responses, if the rights and freedoms of inhabitants of a democratic society are impinged upon or sacrificed, civil rights advocates are quick to charge the manifestation of an anti-democratic police state mentality 6 and the erosion of civil rights, privacy and freedoms.

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Lois M. Davis, et al., Long-Term Effects of Law Enforcement’s Post-9/11 Focus on Counterterrorism and Homeland Security (National Institute of Justice, 2010). 5 Carsten Bockstette, "Taliban and Jihadist Terrorist Use of Strategic Communication", Connections The Quarterly Journal, Vol. VIII, Number 3, (Summer 2009). 6 American Civil Liberties Union (ACLU), Militarisation,: https://www.aclu.org/militarization. 9


Chapter 2 - Methodology The methodology that was chosen incorporated quantitative and qualitative research and field data and a grounded theory approach to test the hypothesis. A conceptual model was designed, as illustrated in Figure 1, to encompass the impact of terrorist incidents, societal change and societal conflict on law enforcement organisations and legislation, such as where a response may occur within existing police powers or where a response may influence legislation that broadens police powers.

Figure 1: Source - Author- Internal and External Responses Affecting Law Enforcement

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Selection and Review of Conceptual and Research Data In order to provide a comprehensive and balanced analysis, a wide selection of historical and current academic, professional and news material was collected, reviewed and analysed, using the methods listed in Table 2, and are noted below:

o

Relevant aspects in the history of law enforcement,

o

Organisational structure of law enforcement,

o

Militarisation and,

o

Law enforcement and legislative responses to: •

Terrorist incidents,

•

Societal conflict, and

•

Societal change.

With respect to organisational structure of law enforcement, data was gathered based on four following areas:

1. Programmatic (programs, skills, etc.), 2. Administrative (organisational structure, support, ethos, etc.), 3. Technological (computerisation, armament, equipment, etc.) and 4. Strategic (overarching strategy, objectives-driven capabilities, etc.) 7 .

The research studies and literature were obtained from academic and professional material and selected based on applicability to subject nations and time period. As well, subject matter experts were selected for interview to gather field data allowing

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Moore, pp. 274-98. 11


for in-depth discussion on particular concepts, especially recent events, and the crossexamination of comparative features.

Table 2: Methodology - Data Analysis Summary Table

Presentation, Analysis and Interpretation of the Data The qualitative data is presented in narrative form and quantitative data is presented in statistics, as well as linear charts, scatter charts and timelines for analysed data specific to terrorist incidents, legislation, societal conflict and societal change for each nation.

To prove the hypothesis, the analysed data was categorised into one of four outcomes:

1.

Legislative responses impacting law enforcement over the time period as a result of various events or incidents

2.

Legislative responses impacting law enforcement as a result of 9/11,

3.

Law enforcement responses within existing police powers over the time period as a result of various events or incidents, and

4.

Law enforcement responses within existing police powers as a result of 9/11.

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Chapter 3 - Law Enforcement in the United States, United Kingdom and Canada: Its History and the 1960s to Present Day Understanding Police Power In the United States, police power is bound by Constitutional law and defined as the ability for states to regulate and enforce order for the betterment and welfare of its inhabitants. One of the issues of police power under US Constitutional law is the ambiguousness of the term, as emphasised in the Massachusetts land rights case, Commonwealth v. Alger in 1851, when Justice Lemuel Shaw stated that “it is much easier to perceive and realize the existence and sources of [police power] than to mark its boundaries or prescribe limits to exercise." 8

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This interpretation is traced back to

common law traditions centuries earlier, as in the Latin phrase salus populi suprema lex esto ("the health of the people shall be the supreme law"), 10 and is still valid and defensible today.

In the United Kingdom police power is maintained by statute law, specifically in the Police and Criminal Evidence Act of 1984 and the Police Act of 1996, to "protect life and property, preserve peace and to prevent and detect criminal offences" 11 and is firmly rooted in the principle of policing by consent, defined as public support, accountability and integrity in exercising powers. The concept of policing by consent can be complex in its operalisation due to the United Kingdom's uncodified nature of the Constitution, distribution of operational powers and the ability to coercively 8

Scott M. Reznick, "Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model for Definitional Scrutiny", Washington University Law Review, Vol 8, Issue 1 (January 1978). 9 MassCases.com, Commonwealth v. Alger, http://masscases.com/cases/sjc/61/61mass53.html. 10 Elmer E Smead,, "Sic Utere Tuo Ut Alienum Non Laedas: A Basis of the State Police Power", Cornell Law Review, Vol 21, Issue 2, Article 3 (February 1936) pg. 277, 278. 11 Thomson Reuters, Practical Law, Chapt 3 - Common Offences and Defences (August 2012). 13


maintain order on exception, as noted in the Criminal Justice and Public Order Act 1994 and the Terrorism Act of 2000. 12

In Canada, police power is governed by the Canadian Constitution that maintains the balance between legislatures, the courts and "the rights of individuals and the demands of democratic society"; it is also constrained to some degree by the pseudolegislative charter, the Canadian Bill of Rights. 13 Operational aspects are defined by several pieces of federal legislation, as in the Criminal Code of Canada specific to law enforcement and peace officer powers, the Anti-Terrorism Act specific to responses to terrorist activities by all counter-terror stakeholders and the RCMP Act specific to the Royal Canadian Mounted Police (RCMP) as a national police force.14

Early Policing: Formalisation and Peel's Principles The earliest policing system in the United Kingdom, known as kin policing, emerged around 900 A.D. 15 as a voluntary assembly that was reactionary rather than preventative, responding after criminal activity and only when requested by victims or witnesses. Eventually necessity brought about semi-structured systems, as seen in the United Kingdom's better structured and semi-formal frankpledge, which was also adopted in Boston, Massachusetts and was the first known system of law enforcement in the United States. 16

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Dr. Rob Mawby and Dr. Alan Wright, Police Accountability in the United Kingdom, Commonwealth Human Rights Initiative, (Keele University, January 2005). 13 Marilyn Pilon, Search, Seizure, Arrest and Detention Under The Charter, Publications Canada, Law and Government Division, February 2000. 14 Government of Canada, Justice Laws, Criminal Code of Canada, http://lawslois.justice.gc.ca/eng/acts/C-46/page-1.html. 15 David R. Johnson, The Early Days of American Law Enforcement (Wheeling, IL: Forum Press, 1981). 16 Albert Alschuler, "Ancient Law and the Punishment of Corporations: Of Frankpledge and Deodand", 14


As settlements thrived in England and Colonial America in the late 1700s, publiclyfunded police departments became essential in maintaining order as trade and active seaports increased petty crime, prostitution, public drunkenness and disorderly conduct. In this model, ranked hierarchy was the accepted standard with police chiefs appointed by political leaders, bringing about the issue of police corruption. To address the "lawlessness of the police" and "systematic corruption" in municipal policing, Sir Robert Peel developed nine principles in 1829, also claimed to be a collaborative effort with Metropolitan Police commissioners 17 , as an ethical foundation for policing by consent. 18

This began a process of formalisation and 'professionalisation' in law enforcement in many cities in the United States and Canada, obliging the establishment of additional police forces into the late 1800s. Similarly in the United Kingdom, the United Kingdom the Town Police Clauses Act 1847 19 and the Harbours, Docks, and Piers Clauses Act 1847 20 extended policing to the national level and the County and Borough Police Act of 1856 21 made it a compulsory service. In Canada, the evolution was slower beginning in 1873 with the formation of the North-West Mounted Police

Boston University Law Review (1991) pp. 309. 17 United Kingdom Government, Policing by Consent https://www.gov.uk/government/publications/policing-by-consent. 18 National Police Museum, The Early Days of Law Enforcement http://www.nleomf.org/museum/news/newsletters/online-insider/2012/April-2012/early-daysamerican-law-enforcement-april-2012.html. 19 Irish Statute Book, Office of the Attorney General, Town Police Clauses Act 1847 http://www.irishstatutebook.ie. 20 Ibid, Harbours, Docks and Piers Clauses Act 1847. 21 United Kingdom Parliament http://www.parliament.uk/about/livingheritage/transformingsociety/laworder/policeprisons/overview/nationspoliceforce/. 15


(NWMP), now known as the Royal Canadian Mounted Police (RCMP), to meet the needs of its vast geographical areas. 22

Reformation and Crime-Fighting vs. Crime-Prevention Models In the early 1900s, August Vollmer had developed a vision for policing by applying the concepts from management, sociology, social work, psychology and technology, bringing about further reformation to policing in the United States. 23 Recognising that changes in morals, values and the erosion of social institutions were creating conflict and increased crime and corruption, Vollmer saw intrinsic value in restructuring and reforming policing to meet the needs of this new society. Later in the 1950s, Orlando W. Wilson, a Vollmer protégé, brought forward a different model of professional policing that introduced crime-prevention and technological advancement. 24 Formally adopted in 1967 in the President’s Commission on Law Enforcement and Administration of Justice, Wilson's recommendations for preventative motorised patrols and rapid response were endorsed and accepted as part of the basic foundation and viable strategy for law enforcement 25 ; this was the earliest evidence of the convergence of programmatic, technological and strategic areas.

As law enforcement matured with civilisations and societies, so did their programmatic and administrative structures through the adoption of proactive prevention methods and core functions of order maintenance and community services.

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Royal Canadian Mounted Police, History, http://www.rcmp-grc.gc.ca/hist/index-eng.htm. George L Kelling and M. H. Moore, The Evolving Strategy of Policing, No. 4, National Institute of Justice, U.S. Department of Justice and the Program in Criminal Justice Policy and Management, Harvard University (November 1988). 24 O.W. Wilson and Roy McLaren, Police Administration (US: McGraw-Hill, December 1963) 25 The President's Commission On Law Enforcement, "Challenge of Crime in a Free Society", Law Enforcement and Administration of Justice, https://www.ncjrs.gov/pdffiles1/nij/42.pdf. 23

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While there was considerable vacillation between the crime-fighting and community policing models, these advancements had introduced the functional elements of law enforcement still seen in present day organisations.

Policing in the United States From the 1960s to the late 1970s, law enforcement organisations in metropolitan cities, such as Los Angeles, Chicago, New York City and Detroit, were met with major social, political and criminal issues associated with the Civil Rights Movement, Vietnam War protests and the beginning of the War on Drugs, as part of evolving social equity, values and structure. 26 Police response towards these protests and demonstrations were frequently viewed as repressive and violent, deteriorating into riots that fostered hostility and condemnation toward police.

In an attempt to identify the root cause of violent clashes between the public and police, in 1964 President Lyndon Johnson appointed a national commission to study the erosion of police-citizen relations 27 ; findings suggested that racial bias had manifested itself in police culture and was resulting in unwarranted deadly force and a 'them versus us' attitude by police. To tackle the issue, programmatic and administrative innovations, such as specialisation in the form of dedicated drug units, riot squads and special weapons and tactical teams (SWAT), were developed and implemented; organisational ethos was not part of the instituted approaches.

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Facing History, Eyes on the Prize: America's Civil Rights Movement 1954-1985, https://www.facinghistory.org/sites/default/files/publications/Eyes_on_the_Prize.pdf. 27 Library of Congress, The Civil Rights Act of 1964: A Long Struggle for Freedom http://www.loc.gov/exhibits/civil-rights-act/civil-rights-era.html. 17


Experiencing limited success, the crime-fighting model of the 1970s had been replaced by a socially-conscious, citizen-centred Peelian approach that focused on positive relationships in patrolled communities. This appeared to be the first concerted effort to incorporate programmatic and administrative approaches into an overall strategy to foster effective community policing. The polar opposite of the crimefighting model, community policing was considered to be a 'soft approach'; the role of the police officer was that of a problem-solver and mediator who was actively engaged in the community, often through foot patrols, community meetings and strategically accessible sub-units. 28 Advocates claimed that the effectiveness of the community policing approach lay in its mobilisation of various resources to solve problems and identify root causes, thereby encouraging long-term stability.

With the crime-fighting model quite maligned due to its association with police aggression and deterioration of police-citizen interactions, this new approach to problem resolution was welcomed by politicians but staunchly resisted by some cadres of law enforcement organisations. Community policing, proving to be beneficial to the community and fostering budgetary responsibility through prevention, was integrated into the national strategy to control violent crime in the Violent Crime Control and Law Enforcement Act of 1994. 29 After a long period of declining crime in 2005, the sharp increase in violence, the first since 1991 30

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,

motivated politicians and law enforcement to urge the federal government to further 28

John S. Dempsey and Linda S. Forst, An Introduction to Policing, Chapt. 1 (Cengage Learning, 2009). 29 The United States House of Representatives, Violent Crime Control and Law Enforcement Act of 1994, http://www.gpo.gov/fdsys/pkg/BILLS-103hr3355enr/pdf/BILLS-103hr3355enr.pdf. 30 Federal Bureau of Investigation, Crime Statistics, http://www.fbi.gov/stats-services/crimestats. 31 Braga, "Police Innovation and Crime Prevention: Lessons Learned from Police Research over the Past 20 Years". 18


reinvest in these innovative prevention programs, leading to their entrenchment - even if not always fully accepted and operationalised - into the current model of policing.

Many iterations of community policing arose from the traditional model and were comprehensively described as major programmatic innovations in American policing in Police Innovation and Crime Prevention: Lessons Learned from Police Research over the Past 20 Years (Weisburd and Braga, 2006) 32 , such as broken windows policing, pulling levers policing, third-party policing, hot spots policing, COMPSTAT (Complaints Statistics Reporting and Analysis model) and evidence-based policing. In the Broken Windows: The Police and Neighborhood Safety (Wilson and Kelling, 1982) 33 , it was claimed that "the incidence as well as the fear of crime is strongly related to the existence of disorderly conditions in neighbourhoods" and that much like "a building in disrepair conveys the impression that it has been abandoned and encourages criminals or delinquents to damage it further" this would lead to increased incivility and disorderly behaviour in that community.

Abstracted from criminologist Jean-Paul Brodeur's low policing concept, as described in High Policing and Low Policing: Remarks About the Policing of Political Activities 34 , the model of broken windows policing became popular in larger cities as the ideal programmatic concept in managing and controlling community-level crime. Irrespective of the potential benefits to communities and crime prevention,

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Anthony A. Braga, Ph.D and David L. Weisburd, Ph.D., "Police Innovation and Crime Prevention: Lessons Learned from Police Research over the Past 20 Years" (presented at the National Institute of Justice Policing Research Workshop: Planning for the Future, Washington, DC, November 28-29, 2006). 33 George L. Kelling, "Broken Windows and Police Discretion", National Insatiate of Justice, Manhattan Institute Research Report, (October 1999), https://www.ncjrs.gov/pdffiles1/nij/178259.pdf. 34 Jean-Paul Brodeur, "High Policing and Low Policing: Remarks About the Policing of Political Activities, Social Problems", Vol. 30, No. 5 (1983). 19


community policing "represented fundamental changes to the business of policing", as noted in Police Innovation and the Future of Policing (Sparrow, Moore and Kennedy) 35 and was not straightforward in its implementation into organisational cultures that were resistant to change. This was echoed in an interview with Prof. Linda Duxbury, Carleton University, who collaborated on the RCMP's organisational reformation under the Task Force on Governance and Cultural Change in the RCMP. 36

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In keeping with the need for policing to pursue an empirical

understanding of the community level causes of crime, Prof. Maria Haberfeld, John Jay, CUNY, agreed on the benefits of community policing and emphasised the benefits of what she referred to open communications policing as a programmatic response, recognising that "community policing can lead to bias and alienation, but open communications policing can improve the quality of intelligence" as it operates based on collaboration, inclusiveness, vested interest and mutual benefits. 38

The need for community involvement and reliable intelligence was also emphasised in an interview with Jim Bueermann, George Mason University: "We know that the selfradicalised do not show up on the intell radar; it is the mosques, family, neighbours that will report these concerns - but only if they are confident in police, experience a solid community policing model and are allowed to co-produce public safety with positive interaction and partnering with community". 39 The inference being that

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Moore, pp. 274-98 Prof. Linda Duxbury, Sprott School of Business, Carleton University (Author Interview, Dec. 18, 2014) 37 David Brown, "Rebuilding the Trust: Task Force on Governance and Cultural Change in the RCMP", 2007, https://www.publicsafety.gc.ca/cnt/cntrng-crm/tsk-frc-rcmp-grc/_fl/archive-tsk-frc-rpt-eng.pdf. 38 Prof. Maria Haberfeld, Department of Law, Police Science, John Jay, CUNY (Author Interview: Dec. 17, 2014) 39 Jim Bueermann, Police Foundation; Senior Fellow, George Mason University, Center for Evidence Based Crime Policy (Author Interview Nov. 25, 2014). 36

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intelligence is not enough; intelligence must be of good quality, reliable, timely and relevant, and therefore gathered in a collaborative, voluntary and socially-sensitive context.

Despite many obstacles, including the preference for the crime-fighting model, twothirds of local police departments in the United States had adopted community policing into program areas by the early 2000s, ranging from drinking and driving, repeat sex offenders, prostitution and theft prevention programs. Still, officers who were deployed to these programs were expected to wear multiple hats, serving as safety experts, counsellors, sociologists, problem solvers, educators and liaisons to community resources. 40 When these programs were instituted in the most disparate and crime-ridden communities, significant improvements were noted, however, success across the board was hard to track due to evolving crime trends and the lack of adequate metrics and baselines.

When the events of 9/11 occurred, police organisations in the United States were advanced in their practices but unanticipated challenges were presented to community policing models, especially in cross-jurisdictional operations, national surveillance of suspected terrorists and intelligence gathering and sharing. Adding to these challenges, 9/11 was more than a series of violent attacks towards civilians; it was a direct attack on American values of freedom and liberty and a threat resonating with all democratic nations. In The Rise of Anti-Americanism (O'Connor and Griffiths, 2007), the events of 9/11 are described as "quintessential anti-American acts, which

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Brian A. Reaves, Ph.D., Bureau of Justice Statistics, Community policing policies of local police departments, by size of population served, 2007, Table 27, pg. 26. http://www.bjs.gov/content/pub/pdf/lpd07.pdf. 21


satisfy all of the competing definitions of Anti-Americanism". 41 Transpose this perspective onto heightened nationalism and the public's expectation for retaliation, the sentiment was as palpable as the media images that continued for months and years after. The current community policing models had little capability in combating such a deep hatred for an entire society. Consequently, the USA PATRIOT Act was swiftly enacted with enhanced domestic security procedures, removal of earlier restrictions for law enforcement and the discretionary application of the law to deter and punish suspected terrorists 42

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; later, it would be criticised for its use against non-

terrorist activities and blamed for the over-securitisation of America.

Prior the impacts of 9/11, it was presumed that the next decades would see police organisations institutionalising innovative practices, decentralising their organisations and adopting administrative adjustments under overarching strategies that addressed crime trends in their particular jurisdictions. Instead, what had materialised was the adoption of a homogenised approach that was arbitrarily extended to drug crime, organised crime and suspected criminal activities of all levels resulting in a "more professional model [of policing] that is distant from the community". 44

Policing in the United Kingdom From the 1960s to the 1980s, a unique policing model was maturing from the United Kingdom's governmental structure and societal culture, still very much aligned to the

41

Brendon O'Connor, Martin Griffiths, Anti-Americanism: Volume 4: In the 21st Century, (Greenwood, 2007). 42 United States, Department of Justice website, USA Patriot Act, http://www.justice.gov/archive/ll/highlights.htm. 43 United States, Department of the Treasury, FinCEN, US Patriot Act http://www.fincen.gov/statutes_regs/patriot. 44 Weisburd, Policing Innovation Contrasting Perspectives. 22


Peelian approach. With the slowing economic trend, labour inequity, unemployment, racial conflict and Irish Republican Army (IRA) bombing campaigns 45 , the United Kingdom saw a substantial increase in conflict marked by uprisings in Chapeltown in 1975, Southall in 1979 and Brixton in 1981 and 1985. In the midst of this unrest, law enforcement struggled to stabilise their administrative and programmatic structure within Peel's principles and wrestled with specialisation of crime-fighting and police unit autonomy. 46

To make matters more complex, the centralisation of police forces revealed community-centred deficiencies as societal needs continued to evolve, creating a void in community-level services. Specifically, commissions were at odds in determining the most appropriate long-term structure to meet societal needs, as noted in the Scarman Report on urban rioting in ethnic minority communities resulting from the official inquiry into the Brixton Riots. The Scarman Report observed that "police had become too remote from their communities", "local citizens should have more input into police policy making" and that "police tactics should be more sensitive to the growing cultural pluralism of Britain’s major cities". It concluded that the traditional view was still relevant and that the primary duty of the police "is to maintain public order". 47

45

BBC News: http://news.bbc.co.uk/2/hi/uk_news/1201738.stm. United Kingdom Government, National Crime Squad Service, Annual Report Statement of Accounts for the National Crime Squad, November 2006 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228686/0016.pdf. 47 Sarah Neal, "The Scarman Report, the Macpherson Report and the Media", Journal of Social Policy, pp. 32, 55–74. 46

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Despite a declining crime rate in the 1990s in all major crime categories, including the murder rate 48 , a more authoritarian stance had been adopted by the policing in the United Kingdom; armed officers were a common sight at national assets, public places and infrastructure, such as the new militarised transportation officers. Police officers in the United Kingdom patrol officers remained unarmed, except in Northern Ireland or under special circumstances, and their foundational features remained aligned with the principles adopted by the Metropolitan Police Service over a century ago. However, even though the United Kingdom was not a direct target of 9/11, policing in the underwent a major transformation. The United Kingdom responded with legislation on level with the USA PATRIOT Act promoting policing into the counter-terror model and the introduction of a hyper-modernised community policing program, CONTEST, the new counter-terror strategy. 49

The Prevent pillar of CONTEST empowered police to address community and societal problems that might encourage the radicalization of individuals and allowing them to intervene and counter ideologies 50

51

and the Protect pillar intensified scrutiny and

securitisation of infrastructure, borders, utilities, transportation and public places under operational jurisdiction of police. 52 To date, some success has been reported on CONTEST in the report Operation of Police Powers Under the Terrorism Act 2000, 2012 to 2013 but it has also revealed on balance concern: arrests for terrorism-related offences were up from 206 persons in 2011/12 to 249 persons in 2012/13 with forty48

United Kingdom Peace Index 2013 http://www.visionofhumanity.org/sites/default/files/UKPI_Fact_Sheet.pdf. 49 United Kingdom Government website, CONTEST overview. 50 Sir David Omand, Securing the State, (C Hurst & Co Publishers, Jan 2012). 51 United Kingdom Government website, CONTEST Strategy. 52 Garry Hindle, "Policing Terrorism in the UK", Oxford Journals: A Journal of Policy and Practice, Vol 1, Number 1, 2007. 24


two per cent of terrorism arrests resulting in a charge, up 2 percentage points from 2011/12. Of the charges brought, only 35% were terrorism-related. 53

Throughout the 2000s, the focus of policing in the United Kingdom remained squarely on terrorism with current legislative change under development to continue to broaden police powers, to the extent that the need for a Bill of Rights 54 has been raised by Parliamentarians to prevent the further encroachment of civil rights. 55

Policing in Canada Policing in Canada from the 1960s to 9/11 resembled that of the United Kingdom, where thereafter it yielded more to the organisational structure and community policing models of the United States, albeit with much less demand for resources. Like the United Kingdom, Canada embodies a significant symbolism in peacekeeping in the RCMP, which has operated more like a military organization than a police force since its founding in 1873. 56

Described as a "decentralised, national police force", the RCMP is conversely autonomous at the detachment and unit level but receives central orders and direction from the federal government under the RCMP Act of Canada. 57 As other municipal and provincial forces emerged, the RCMP grew and saw increased autonomy in

53

United Kingdom Government website, Police powers under the Terrorism Act 2000, 2012 to 2013. RT.com, "Human rights debate in Britain is ‘regressive’" March 27, 2015 18:29, http://rt.com/uk/244689-scottish-human-rights-politics/. 55 Hugo Gye and Jack Doyle, The Daily Mail, "How Britain is becoming a SAFER place to live", April 24, 2013 http://www.dailymail.co.uk/news/article-2313942/UK-Peace-Index-Rate-murders-violent-crimefalling-faster-Western-Europe.html. 56 Royal Canadian Mounted Police website. 57 David Brown, "Rebuilding the Trust Task Force on Governance and Cultural Change in the RCMP" 54

25


provincial and regional divisions but remained very much tied to the mission, values, regulatory conduct and RCMP brand.

The societal demands of the 1960s in Canada contrasted greatly from the United States; Canada seemed to be better known for peaceful demonstrations and societal opposition, such as demonstrations against the use of undercover narcotics agents, legalisation of marijuana, generalised public disorder 58 and ice hockey riots. However, not to be minimised, ice hockey riots were often responsible for substantial damage and injury. In Montreal in 1993, the Montreal Canadiens won their 24th Stanley Cup inciting riots that caused 168 injuries, 49 of which were police officers, and over $10 million dollars in property damage to the home team's city. In general, the Canadian police response was less aggressive than the United States and was, in some cases, convivial. 59 Regardless, unsophisticated conflicts such as these caused police organisations an administrative and programmatic drain, their responses shored up with fire hoses, tear gas and rubber bullets.

Canada did experience some similar issues to the United States, such as racial conflict, but not with the same level of intensification and pervasiveness. Individualised and isolated racism, as in the 1968 student protest at Sir George Williams University in Montreal 60 , was more common than wide-spread racial movements. At this time, there was more concern over aboriginal rights conflicts and

58

Historica Canada website, Black History Canada, http://www.blackhistorycanada.ca/.php?themeid=21&id=10. 59 The Hockey News, List of Significant Hockey Riots in Canada, http://www.thehockeynews.com/articles/40857-Heres-a-list-of-significant-hockey-riots-inCanada.html. 60 Historica Canada, Black History, http://www.blackhistorycanada.ca/.php?themeid=21&id=10. 26


the threat of Quebec federalism, the "quiet revolution", which brought about the October Crisis in 1970, one of Canada's most infamous terrorist incidents.

The October Crisis centered on the Front de Libération du Québec, a Québécois terrorist group, and a series of violent acts that culminated in the kidnapping of the British trade commissioner and Quebec Minister of Labour (and his subsequent murder). This led to the government's unprecedented response of invoking federal legalisation, the War Measures Act, where law enforcement was granted temporary powers to perform searches and arrests without warrants and prolonged detentions without charges or the right to legal counsel.

The most controversial aspect of this response was the assignment of police outfitted in riot gear and high calibre firearms alongside soldiers at critical public and national assets - something the Canadian public were unaccustomed to. 61 Equally controversial, the two month long Oka Crisis in Quebec in 1990, considered to be an aboriginal conflict by some and a domestic terrorist incident by others, was responded to by armed military, the Quebec provincial police, the Sûreté du Quebec, and the RCMP under statutes in the Criminal Code of Canada before being resolved by military-led negotiations.

Events such as these spurred programmatic and administrative formalisation and technological advancement into the 1980s to address Canada's changing crime trends. The Canadian government managed to maintain an arms-length relationship between law enforcement and the military but utilised them effectively in joint responses with

61

CBC News website, http://www.cbc.ca/history/EPISCONTENTSE1EP16CH1PA4LE.html. 27


the RCMP and local police through existing legislative measures to deal with incidents that threatened domestic and national security.

The events of 9/11 underscored the importance of the relationship between the United States and Canada as seen in its allied response in the introduction of legislation aligned to the United States' USA PATRIOT Act and military response. Later, this was perceived to be driven more by public policy than the threat of terrorism and Canada's legislative response was intended to preserve its multilateral relationship with the United States and shared infrastructures. 62 Based on past responses it has been postulated that Canada would have responded with similar measures to the October Crisis and the Oka Crisis had 9/11 been executed on Canadian soil. 63 After 9/11, crime rates had stabilised and even decreased in many Canadian cities 64 but terrorist activities rose, suggesting enhanced police powers under Canada's AntiTerrorism Act and the Criminal Code had little impact on deterrence and prevention of terrorist activities within Canada. Complaints of police brutality and misconduct, such as the G8 and G20 protests, the shooting of Sammy Yatim by Toronto police and Taser death of Robert Dziekanski by the RCMP 65 , had also risen and enjoyed long exposure in the media.

62

Department of Justice website, Anti-Terrorism Act, http://www.justice.gc.ca/eng/cj-jp/ns-sn/actloi.html. 63 Reg Whitaker, "Keeping Up with the Neighbours - Canadian Responses to 9/11 in Historical and Comparative Context", Osgoode Hall Law Journal, Vol 41, Number 2/3, Article 5 (Summer/Fall 2003) http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1411&context=ohlj. 64 Marc Ouimet, Explaining the American and Canadian Crime Drop in the 1990s, Champ Penal, Vol. I, 2004, http://champpenal.revues.org/448. 65 Ministry of Justice Canada, Braidwood Phase 2 Report May 2010, http://www.ag.gov.bc.ca/public_inquiries/docs/BraidwoodPhase2Report.pdf. 28


Despite discourse among minority political parties and academics zeroing in on the disruption of terrorist activities and radicalisation at the community level, the Canadian government responded with military support and retrofitted legislation, most notably Bill C-51, that broadened police powers and intelligence agency powers 66 and the doubling of its military expenditures to $92 billion in following decade. 67

Section Summary In the subject nations over the period of the 1960s to present day, a combination of military response, legislative hobbling of civil rights and a preference for securitisation over intelligence has brought deep concerns for their democratic future. In summarising the changes seen in law enforcement in the United States, United Kingdom and Canada over the past half century, an observation emerged reminiscent of Sir David Omand's conceptual elaboration of Ambrogio Lorenzetti’s 14th century fresco in Siena, The Allegory of Good Government and Bad Government.

Lorenzetti’s fresco depicts 'Good Government' from country to city levels as virtuous, fair, equitable and citizen-centred resulting as harmonious citizens thriving in a climate of peace, security, prosperity and culture that fosters stability in the community. 'Bad Government' is depicted as rule by tyranny, fear, insecurity and the depravity of citizens resulting in a climate of chaos, disorder, poverty and lack of community.

66

Parliament of Canada, House Of Commons Of Canada Bill C-51, http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6932136& Col=1&File=4. 67 David Macdonald, "The Cost of 9/11 Tracking the Creation of a National Security Establishment in Canada", Rideau Institute, https://milnewsca.files.wordpress.com/2011/09/cost-of-9-11.pdf. 29


In Ormand's Securing the State, he emphasises the foundational principles of community policing where "public security in a democracy is rooted in the public's confidence in the government’s ability to manage risk in ways that respect human rights and the values of society" 68

69

and that governments must take heed as "security

rests on the sensible management of risk not on its elimination" through "a delicate balancing act for governments in maintaining justice, freedom of movement and of speech, civic harmony and the right to security".

68

Omand, Sir David, Securing the State. Omand, Sir David, Cornish, Dr Paul, Transcript: "Securing the State: A Question of Balance", Chatham House (June 2010) http://www.chathamhouse.org/sites/files/chathamhouse/public/Meetings/Meeting%20Transcripts/0806 10davidomand.pdf. 69

30


Chapter 4 - The Emergence of Militarisation and Contributing Factors A wide area to study, it is worth noting that weaponry has not been the only technology attracting controversy; data meant to yield useful intelligence has been marred by misuse, lack of management, integrity techniques and oversight resulting in key decisions being made on "inaccurate, outdated or incomplete records". 70 As well, the exact etymology of militarisation is vague and the term has not been limited to law enforcement. The militarisation of sport 71 , corporations, school systems 72 and the Internet 73 have become a frequent idiom when describing any organization instituting excessive authoritative or regulatory constraints where once civilian directed.

Tactical Responses and Armament The criticisms of aggressive policing practices often affixed to militarisation or militarised responses and lineated to extreme policing methods, such as zerotolerance policing, that interfere with criminal, civil and administrative laws, doing little to address the causes. 74 In discussing militarisation of operational tactics with Jim Bueermann, George Mason University 75 , he noted that "the fatal flaw in logic with respect to militarisation is that it is a controlling reaction towards a threat after

70

Harley Geiger, Center for Democracy and Technology, "FBI's Guardian Terror Database Filled with Outdated, Unfounded Information", November 19, 2008, https://cdt.org/blog/ig-terror-database-filledwith-outdated-unfounded-information/. 71 Huffington Post, The Militarization of Sports,Sept. 9, 2004, http://www.huffingtonpost.com/williamastore/the-militarization-of-sports_b_912004.html. 72 The Berkley Review of Education, The Militarization and the Privatization of Public School, 2011: http://www.academia.edu/655649/The_Militarization_and_Privatization_of_Public_Schools. 73 War in Context, http://warincontext.org/2013/02/26/the-militarization-of-the-internet/. 74 P.N. Grabosky, "Zero Tolerance Policing", Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice, No. 102 (January 1999) http://aic.gov.au/media_library/publications/tandi_pdf/tandi102.pdf. 75 Jim Bueermann, (Author Interview, Nov. 23, 2014). 31


the fact" and that is "at odds with traditional policing and does not foster community policing - are they warriors or public servants?"

The implications of armament as a technological advancement in policing in the United States, United Kingdom and Canada are distinctly different. In the United States, weaponry has become an important accessory of operational policing, as well as a cultural point of division and contention with society in general - there is a accepted belief in one faction that the higher the fire power, the safer society is. Conversely, the United Kingdom has taken an unconventional stance rejecting most armament for patrol officers with more emphasis on managing and diffusing confrontations.

While the United Kingdom has maintained its unarmed status and community-focused model 76 , drawing a comparison to the United States, there is a notable disparity despite its initial influence on early policing in the United States. Consider that in 2013, the minority of armed police in the United Kingdom discharged their firearms only five times, causing zero fatalities77 and in 2012, there was only one "justifiable" killing of civilians compared to 409 by United States police in the same year. Canada had followed the United States' adoption of weaponry but in a much more conservative fashion and with much more reluctance, presumably due to the societal opposition to firearms as a defensive tool.

76

William G. Bailey, The Encyclopedia of Police Science, (Routledge, 1995) pp. 307-312. MIC.com, Marcie Bianco, "The U.K's Solution to Police Brutality Is Something the U.S. Would Never Consider", November 26, 2014: http://mic.com/articles/105118/the-clear-solution-to-policebrutality-is-one-no-american-will-talk-about. 77

32


The early 1960s saw the technological advancement of weaponry of all types including less-than-lethal, non-lethal and the development and enhancement of field, protective and surveillance equipment. In the United States, the most obvious was the replacement of six-shot revolvers with semi-automatic handguns soon to be followed by assault rifles, soft-body armour and other types of carry-equipment, such as capsicum sprays and conductive energy devices (CEDs, also known as Tasers). By the 1990s, nearly every American law enforcement organisation had been modernised with military-grade equipment and beat cops were a feature of the past having been gradually replaced by heavily-armed and highly-skilled officers. Adding to the controversy of militarisation, police began to cross-train with the military and attend external training centres, such as Thunder Ranch and Frontline in the United States, bringing policing further into the grey areas of military ethos and farther from traditional principles.

In 1997, police armament took an unprecedented turn with the United States' 1033 Program created by the National Defense Authorization Act resulting in scathing criticism by the ACLU, as evidenced in their "Towns Don't Need Tanks" campaign against Keene City, New Hampshire and Richland County, South Carolina. Both towns had acquired military surplus through the Program with their sheriff's offices insisting this equipment was a valuable and much needed asset to law enforcement. The ACLU had noted that the majority of crimes in these areas are gambling and theft related and were most certainly on the decline; the reason indicated on the 1033 Program application was "terrorism". 78

78

ACLU website, War Comes Home. 33


On the surface, arguing the need for a level playing field with respect to armament is easy but determining the operational and tactical benefit of advanced armament is complex and difficult to conceptualise; additional or more powerful armament does not necessarily guarantee public security. To demonstrate this, several active shooter incidents and tactical responses by police in subject nations are detailed below for consideration and comparison:

o Christopher

Dorner's

rampage

in

February

2013

in

Orange, Los

Angeles and Riverside counties, California, ending in Dorner's suicide after a well-armed two week man-hunt, revealed several incidents of mistaken identities and violation of the Los Angeles Police Department's use-of-force policy. 79 o In New Brunswick, Canada in June 2014, Justin Bourque armed with a semiautomatic rifle and a stockpile of ammunition went on a shooting rampage, hiding in the woods, killing three RCMP officers and wounding two in an ambush attack; this was similar ambush set-up as the Mayerthorpe incident in Alberta, Canada that claimed the lives of five RCMP officers in 2005. o In Ottawa, Canada in October 2014, Michael Zehaf-Bibeau walked up to a Canadian Armed Forces ceremonial soldier at the War Memorial during the day and killed him with a Winchester 30-30 hunting rifle. He then walked two blocks, past numerous tourists and substantial police presence in the area, to the Parliament Buildings and continued shooting using only five of his seven rounds until he was shot point blank. 79

Jim Bueermann, "Police Under Attack: The Southern California Law Enforcement Response To An “Attack On Our Own” - Lessons Learned In The Wake Of The Christopher Dorner Shootings", Police Foundation (US), http://incidentreviews.org/wp-content/uploads/2014/05/Police-Under-Attack.pdf. 34


o The stabbing and hacking murder of soldier Lee Rigby in Woolwich, United Kingdom by Michael Adebolajo and Michael Adebowale at the Royal Artillery Barracks occurred during the day with numerous passers-by and local police nearby, as an act of vengeance for the killing of Muslims by the British armed forces. 80

In all cases and at both extremes, there appears to be little that enhanced sophistication of weaponry could have done to thwart or diffuse and end the attack. It is important to recognise that an effective tactical and armed response must take into account several factors, such as skill (e.g. weapon handling, tactical manoeuvres), weapon power (e.g. firearm calibre, strength of capsicum spray), suitability of the weapon to the incident (e.g. long-range rifle, short-range handgun or close/enclosedquarters firearm), resources (training, skills, numbers, partners, etc.) and environment (density, remoteness, familiarity by police and by suspect, etc.).

Short of intensive, ongoing weapons and tactical training for all officers, outfitting every patrol car and officer with a wide range of weapons-response for all occasions and up to the second intelligence in active situations, the effectiveness of advanced armament seems to over-reach practicality. Regardless of this, the inquiry into the incident in New Brunswick called for advanced weapons for RCMP officers 81 , as did the Mayerthorpe incident 82

83

, while the shooting in Ottawa that had dozens of

80

The Daily Mail, "Revealed: MI5 'would have been able to prevent' Lee Rigby's killing if Facebook had alerted authorities to killer's online threats to 'murder a soldier'", November 24, 2014, http://www.dailymail.co.uk/news/article-2848617/MI5-able-prevent-Lee-Rigby-s-killing-internetcompanies-alerted-authorities-graphic-online-murder-threats.html. 81 Royal Canadian Mounted Police, Moncton MacNeil Inquiry: http://www.rcmpgrc.gc.ca/pubs/moncton/moncton-macneil-eng.htm. 82 Mayerthorpe Inquiry Report; report filed with Minster of Justice/RCMP as fatal inquiry report; follow-up news item: http://www.mayerthorpefreelancer.com/2015/01/17/rcmp-took-far-too-long35


officers scrambling around for hours trying to locate the shooter or shooters, called for additional security measures and armed personnel around Parliament in particular; most controversial was the assignment of an armed police guard for the Canadian Forces ceremonial soldier who stands at the War Memorial: police guarding the military.

Protests-turned-riots have also acted as the theatre for militarisation as in the recent riots in April 2015 in Baltimore, Maryland following the in-custody death of the young black American, Freddy Gray, playing out similarly to the Ferguson Riots. In an interview on The Current on CBC Radio Canada, Marisela B. Gomez, resident of Baltimore and activist with Social Health Concepts and Practice, made pointed observations in her first-hand experience of the riots. 84 She described the police response as if "the gauntlet had be thrown down" and the war had begun. Police were "gearing up" with tactical equipment, uniforms and attitude - an attitude that portrays impoverished black people as violent and unpredictable and treats them as such. Ms. Gomez, as well as others, charge that the police response to the riots are indicative of a systemic racism in police organisations and increased societal segregation; the same causes cited in the report following the Ferguson Riots. 85

The underlying and consistent lesson from the Baltimore riots and many others is that repression and segregation beget anger and when protests are met with further bias and more repression with no redress of grievances, the result is explosive and violent. implementing-lesson-of-mayerthorpe-shooting-moncton-report. 83 David Brown, "Rebuilding the Trust". 84 CBC Radio News, Baltimore Riots, http://www.cbc.ca/radio/thecurrent/the-current-for-april-292015-1.3053360/baltimore-riots-locals-say-unrest-is-response-to-systemic-racism-1.3053379. 85 CBC News, Ferguson Riots, http://www.cbc.ca/news/world/ferguson-shooting-police-employeefired-2-suspended-over-racist-emails-1.2981622. 36


In short, these communities were no longer the reason for policing but the object to be policed. While militarisation is a real concern for the United States and Canada, the United Kingdom has clearly not garnered the same level of scrutiny, presumably due to the century-old tradition of unarmed patrol police and policing by consent. 86

Organisational Structure and Ethos The visible features of policing suggest that the blurring between military and police is not a new phenomenon and can be traced back to televised images in the coverage of the 1950s race riots, Vietnam War demonstrations and other civic uprisings, especially in the United States. While there are a number of organisational elements that mark militarisation in law enforcement, specialisation played a key role and sustained the greatest impact in its organisational transformation. Law enforcement found value in temporary, specialized units, such as Red Squads from the Haymarket Riots of 1886, riot squads from the 1950s and Special Weapons and Tactical Teams (SWAT) from the 1960s, that were specially trained and equipped to physically confront and manage active or clandestine threats. When these units became permanent irregular cadres within police forces in the 1970s, this may have marked the beginning of functional militarisation in policing.

In the United States, SWAT responses are controversial and frequently criticised as being an excessive response akin to 'when all you have is a hammer, everything looks like a nail'. In the study Militarization and Policing - Its Relevance to 21st Century Police, Prof. Peter Kraska estimated that the total number of SWAT deployments per

86

European Communities, "Final Report on the Study on the Industrial Implications in Europe of the Blurring of Dividing Lines Between Security and Defence", 2010,, page 265, http://ec.europa.eu/enterprise/sectors/defence/files/new_defsec_final_report_en.pdf. 37


year in the U.S. had increased to 60,000 per year in 2011 - over 160 per day - and were responding to minor incidents, such as neighbourhood poker games, suspected underage drinking and the enforcement of alcohol and occupational licensing regulations. Even the effectiveness of the SWAT response has been called into question, a sentiment echoed in an interview with Prof. Maria Haberfeld, John Jay, CUNY. Haberfeld stated that the adoption and continued use of specialised tactical teams and rapid deployment teams are without governance or programmatic guidelines and lack empirical research on their effectiveness. 87

In Radley Balko's book, Rise of the Warrior Cop, he describes the longer term impact of the increased use of SWAT teams and botched or mistaken raids as a response resulting police being psychologically isolated from the communities they serve and is part of what he refers to as the “police-industrial complex”. 88 As a result, increasing public opposition and backlash has been directed towards police, sending a clear message as seen in the Ferguson Riots and its nation-wide demonstrations: the public was no longer willing to tolerate arbitrary brutality and authoritarianism too closely resembling that of military tactics. 89

Law Enforcement Recruitment Possibly the foundational building blocks of ethos, recruitment in policing and its practices have been closely scrutinised, generating controversy in their target audience, medium of distribution and its message, arguably an increasingly 87

Prof. Maria Haberfeld, (Author Interview Dec. 17, 2014). Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces (Public Affairs , 2013) Kindle Edition. 89 The Economist, "Overkill: Police in Missouri suburb demonstrate how not to quell a riot", http://www.economist.com/news/united-states/21613272-police-missouri-suburb-demonstrate-hownot-quell-riot-overkill.

88

38


militaristic one. In discussing police recruiting and training with Prof. Paul McKenna, Dalhousie University, he described police recruitment as similar to military recruitment, where there is a distinct focus on armed and unarmed physical skills and priority on masculine values. 90 Prof. Linda Duxbury, Carleton University expanded on the psychological basis for this imagery; the commonality between law enforcement and the military is expressed in the 'them versus us' attitude where attribution theory enacts attribution error, a self-serving bias and the process of othering. 91

92

In 2014, a recruitment video for the Royal Newfoundland Constabulary Association in Newfoundland, Canada was met with criticism due to its fantastical Hollywood characteristics and militaristic message. Aimed at young audiences and circulated widely on the internet, it features officers in riot and battle gear, carrying assault rifles and running with police dogs with a tense music track blaring in the background. Defended by the Royal Newfoundland Constabulary Chief as necessary to "get the attention of potential young recruits", critics argue it is unrealistic portrayal of policing in the small isolated marine province and glorifies combat-style tactics rarely used even in larger cities. 93 Coincidentally, the Royal Newfoundland Constabulary is

90

Prof. Paul McKenna, Adjunct, Faculty of Graduate Studies, School of Information Management, Dalhousie University (Author Interview Nov. 2014). 91 Prof. Linda Duxbury (Author Interview Dec. 18, 2014). 92 Fred Dervin, "Cultural identity, representation, and Othering", http://users.utu.fi/freder/dervinhandbookcorrect.pdf. 93 CBC News, "RNC chief defends hard-hitting recruitment video", Oct 21, 2014, http://www.cbc.ca/news/canada/newfoundland-labrador/rnc-chief-defends-hard-hitting-recruitmentvideo-1.2807330. 39


currently embroiled in an incident of excessive use of force in the shooting death of a suspect in an interview at the suspect's residence. 94

On the heels of recruitment, police education and training is also an important factor in the context of militarisation. Prof. Maria Haberfeld, John Jay, CUNY, stated that "there is a difference between [police] education and training", pointing to Orlando W. Wilson's idea of professionalisation and the belief that professionally educated police were crucial to the model. Haberfield also noted that "police are recruited and trained as soldiers and expected to perform as psychologists", indicative of the incongruence between expectations, training and on the job performance stressors that police experience. 95

Criminal Sophistication Through Technology and Weaponry Although crime in the United States, United Kingdom and Canada has been on the decline, criminal sophistication has increased substantially through the access to inexpensive and advanced technologies. These numerous advancements have resulted in not only improved weaponry and communications but have enhanced and streamlined organisational structures, information sharing in various formats, mobilisation, networking and 'trade craft'.

Thirty years ago, criminal sophistication was limited to manual networks, knowledge and weaponry at the street level and through in-person exchanges. Now, everchanging and functionally robust technologies are simple to use and enable many

94

CBC News, " Newfoundland-Labrador Premier's Security Involved in Fatal Shooting in Mitchells Brook", April 5, 2015: http://www.cbc.ca/news/canada/newfoundland-labrador/premier-s-securityinvolved-in-fatal-shooting-in-mitchells-brook-1.3021859. 95 Prof. Maria Haberfeld, (Author Interview Dec. 17, 2014) 40


features and functions that are attractive to criminals, such as anonymity, channels to transmit funds, supply chain for the exchange stolen and counterfeit goods, moneylaundering and the acquisition of nearly any illegal item imaginable. Obviously, the Internet and the many Internet-enabled wireless devices have had the most influential impact all of these areas, even at the recruitment and planning levels of terrorist and criminal activities. As well, the sophisticated weaponry that is legally available to the general public and also through black market channels are unprecedented and have posed uniques issue due to the ease of access to concealed lethal, non-lethal and large scale weapons and ballistic-proof equipment and materials.

Aside from operational impacts, these advancements have outpaced and pushed the limits of legislation, regulations and the criminalisation of activities related to their production, possession, acquisition and use. One example is that of 3D-printed plastic firearms, suppressors and full-auto conversion kits 96 ; the irreconcilable concerns that have risen from their unregulated nature and difficulties of detection by scanning technologies have left law enforcement and legislators at a momentary loss of enforceable recourse and control.

Public Opinion and Societal Change on Policing When law enforcement responds aggressively or when the use of force towards a noncompliant individual is misaligned to the resistance or is outside what would be deemed an acceptable, adverse public opinion resulting in a compounded negative effect. It has been suggested that excessive force is an indicator, or mirror, of society

96

NPR.org, "Plastic Guns Made with 3D-Printers Pose New Security Concerns", Nov. 14, 2013, http://www.npr.org/blogs/alltechconsidered/2013/11/14/245078880/plastic-guns-made-with-3-dprinters-pose-new-security-concerns. 41


itself and that police adopt to adapt in criminalized environments by adopting processes, such as othering 97 , which amounts to the diminishment and marginalization of individuals. While this may make up the necessary psychological armour that enable police "to do their job" under extraordinary circumstances, it may also be viewed as a preliminary or requisite element to militarisation. 98

99

Interestingly, statistics on reported incidents of police brutality or excessive use of force represent the minority of cases, except where systemic, such as the reports from Ferguson Riots and the LAPD Rampart Scandal. 100 In the United States, the 2008 US IACP statistics accounted for 1.9 percent of all incidences of calls for service and were categorised as police brutality, up from .04 percent in 1995. 101 A Canadian study conducted with the Calgary Police Force by Dr. Christine Hall showed incidents of excessive use of force, whether applied or threatened, accounted for 0.7% of all police interactions. 102

Though questions arise from this data: are the systemic cases excluded from these statistics predominant and pervasive enough to warrant further examination and analysis? Or are the small number of high-profile police brutality and misconduct cases in the media enough to alter public perception? 97

Fred Dervin, "Cultural identity, representation, and Othering". Theodor W. Adorno, et al. "The Authoritarian Personality", 1951. 99 Allison T. Chappell and Alex R. Piquero, "Applying social learning theory to police misconduct, University of Florida, Deviant Behavior" 25: 89–108, 2004, http://ww2.odu.edu/~achappel/DB_article.pdf. 100 WSWS, LAPD Rampart Scandal and Its Social Roots, March 2003, http://www.wsws.org/en/articles/2000/03/lapd-m13.html. 101 "Emerging Use Of Force Issues: Balancing Public and Officer Safety", Report from the International Association of Chiefs of Police/COPS Office Use of Force Symposium, March 2012, pp. 7, 11, http://www.theiacp.org/portals/0/pdfs/emerginguseofforceissues041612.pdf. 102 Dr. Christine Hall and A/Sgt Chris Butler, "Public Police Interaction and its Relation to Use of Force by Police and Resulting Injuries to Subjects and Officers”, Law Enforcement Executive Forum, December 2008, http://www.cacole.ca/resource%20library/conferences/2009%20Conference/Chris%20Butler.pdf. 98

42


Media and Technology There is little debate on the influence of media and the impact of images and negative portrayal of law enforcement in entertainment on public opinion but is the media's influence is sufficient enough to instil a psychological contagion that outlives the original news piece? Whether actual or projected, as in media coverage of police misconduct or entertainment’s portrayal of police, both have been shown to create a damaging effect in particular instances. 103

104

Television media coverage of race riots

in the 1950’s and Vietnam War demonstrations in the 1960’s to the wide and rapid distribution of video and images using the Internet during the Occupy Movement, the influence of media and 'every man’s media' 105 has been prevalent for several decades but growing exponentially in the last decade. While a camera-armed public can bring an empirical layer of oversight and proof of record to incidents of police brutality or misconduct, it can also contribute to the negative opinion and perceived impunity of police. 106

There is evidence of this deterioration in public opinion and trust in recent events and the public is finding ways to present their case. In early April 2015, following the fatal shooting of an unarmed black man by a police officer in South Carolina, a video had surfaced from a member of the public showing what appeared to be the officer planting evidence to support claim of necessity in firing upon the man. This has been cited by some advocates of police reform evidence for the need for complete police

103

Noam Chomsky, Debate with Hannah Arendt, Susan Sontag, et al., Transcript, "The Legitimacy of Violence as a Political Act?", December 15, 1967, http://www.chomsky.info/debates/19671215.htm. 104 The Economist, "The Ferguson Protests: Guns, police and the people", Aug 15th 2014, http://www.economist.com/blogs/democracyinamerica/2014/08/ferguson-protests-0. 105 Term describing where the public are armed with cameras, recording devices and internet access. 106 Rob Procter, "Reading the Riots; Investigating England's summer of disorder", Warwick Institute for the Science of Cities, http://www.wisc.warwick.ac.uk/research/3-reading-riots/. 43


reform, but also demonstrates the increased power of technology to help advance their fight. With smart phones and a growing number of 'apps' 107 produced by activists making the process of capturing and broadcasting videos of police interacting with citizens fast, easy and free, often adding anonymity, preserving evidence and shifting liability, a powerful weapon to counter police brutality has been discovered. 108

In discussing conventional media and social media with Prof. Paul McKenna, Dalhousie University, he suggested that police organisations need to learn to partner with all levels of media to establish control of the message and its distribution. But there is another issue: there is a public insatiability. "The public has a normal and natural bias towards police; we like to know we have these teams and police organisations play it up". The 'if it bleeds, it leads' is still very much an axiom of media and the public is very much a part of the problem. 109

Section Summary The impacts of advances in weaponry and technological capabilities have been significant at operational level of law enforcement, on criminals and the public and in criticisms of current policing practices where militaristic features represent the antithesis of democratic process and deterioration of civil rights, freedom and privacy. An irreconcilable paradox in expectations has occurred: police are serving the public and are dressing and acting like warriors.

107

Describing applications independently developed for smart phones, tablets, etc. that are internet enabled and provide context to data. 108 The Star, "Cop Watch app records police-citizen interactions", Jan. 28, 2015, http://www.thestar.com/news/gta/2014/01/28/cop_watch_app_records_policecitizen_interactions.html. 109 Prof. Paul McKenna (Author Interview Nov. 23, 2014). 44


Adding to this complexity is the broadening of legislation that requires that police train as soldiers, perform as psychologists and play to both sides - one of goodwill ambassador and the other, aggressive enforcer - and the legislative control of technologies. Further to that, the persistence of high-profile cases in the media involving claims of police brutality and misconduct suggest that a small number of incidents can alter public perception limited only by generational memory.

In closing, there is credible research, as cited in Perceptions of the Criminal Justice System: Television Imagery and Public Knowledge in the United States (McNeely, 1995), that suggests media portrayals of police have reasonable impact on public opinion and trust. 110 Similarly, in Trust and Confidence in Criminal Justice (Sherman, 2001), major domains that affecting public trust and confidence in the criminal justice system were studied determining that its conduct and practices had a profound impact on public trust. Simply stated, when these domains were aligned there was a perceived fairness, trust was increased, positively impacting compliance with the law; when these domains were misaligned, compliance with the law was negatively impacted. 111

110

Connie L. McNeely, "Perceptions Of The Criminal Justice System: Television Imagery and Public Knowledge in the United States, Journal of Criminal Justice and Popular Culture" (1995), http://www.albany.edu/scj/jcjpc/vol3is1/perceptions.html. 111 Lawrence W. Sherman, "Trust and Confidence in Criminal Justice", University of Pennsylvania, (2001), https://www.ncjrs.gov/pdffiles1/nij/189106-1.pdf. 45


Chapter 5 - Analysis of Key Terrorism-Related Strategies, Legislation and the Counter-Terror Model The Counter-Terror Model The complexity of protecting public space and national and critical infrastructure assets from societal conflict and terrorist activity has challenged the traditional security constructs of Western nations, as well as their law enforcement organisations. The common counter-terror model framework encompasses legislation, governance, horizontal support and vertical capabilities formalized and coordinated to provide measurable benefits and repeatable, that are proven response approaches. The enabling of communications into legislation, such as intelligence sharing, program planning and interoperability through common platforms and technologies 112 , has allowed for the incorporation of law enforcement into the model and ensured that it is a contributing partner.

Strategies and Legislation of the United States Biological Weapons Anti-Terrorism Act of 1989 The Biological Weapons Anti-Terrorism Act of 1989 113 was instituted to deal with the use of biological weapons by private individuals and non-state organizations but excluded "peaceful", or defensive, biological weapons research. Under this Act, it became a federal offence for any individual or group who "knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or 112

US Army, US Navy and Joint Chiefs of Staff - Counter Terrorism, Joint Publication 3-26, Chapts. 3-5 (October 2014), http://www.dtic.mil/doctrine/new_pubs/jp3_26.pdf 113 United States Library of Congress, S.993 Biological Weapons Anti-Terrorism Act of 1989, http://thomas.loc.gov/cgi-bin/query/z?c101:S.993.ENR:. 46


any organization to do so, shall be fined under this title or imprisoned for life or any term of years". As well, policing saw powers enhanced, albeit minor compared to recent bills and acts, to allow for the issuance of a warrant and the seizure and destruction of the biological materials where suspected for use as a weapon. The exact driver behind this Act is not clear but was likely tied to growing concerns in the 1970s over Arab states developing biological weapons and the biological attack at a restaurant in The Dalles, Oregon through contamination of food resulting in the poisoning of 751 individuals.

Omnibus Counterterrorism Act of 1995 As a direct response to the Oklahoma Bombing in 1995, the Omnibus Counterterrorism Act was introduced but not enacted, shortly after Executive Order 12947 that prohibited transactions with terrorists, in order to establish federal criminal jurisdiction over acts of international terrorism. The Act had contained seven provisions addressing substantive criminal law enhancements, immigration law improvements, controls over terrorist fund-raising, the marking of plastic explosives, restrictions on nuclear materials, procedural and technical corrections and improvements and antiterrorism assistance; many of these were brought into the USA PATRIOT Act of 2001.

USA PATRIOT Act of 2001 Immediately following the events of 9/11, the USA Patriot Act of 2001 114 was an allencompassing and controversial piece of legislation that mobilised all levels of law enforcement and introduced changes to restrictions in law enforcement agencies' 114

United States Library of Congress, S.1510 Uniting and Strengthening America Act. 47


intelligence gathering, the Secretary of the Treasury’s authority to regulate financial transactions and expanded powers and discretion of law enforcement and immigration authorities in the application of the law to deter and punish terrorists. 115 It has been charged

by

Republican

Senator

Joe

Biden

that

his

proposed

Omnibus

Counterterrorism Act of 1995 was dusted off and made up the foundation for the USA PATRIOT Act 116 with many measures remaining the same. On May 26, 2011, President Obama signed the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act, roving wiretaps, searches of business records and surveillance of lone wolves, individuals suspected of terroristrelated activities not linked to terrorist groups.

The Act has been, and still is, criticised by a number of organisations, such as the American Civil Liberties Union (ACLU), the Centre for Democracy and Technology (CDT), the Electronic Frontier Foundation (EFF) and Electronic Privacy Information Center (EPIC), charging it to be a violation of citizens' rights, privacy and unconstitutional under the Fourth Amendment of the US Constitution. In the FBI's Protecting the Homeland in the 21st Century report published in 2015, it was noted that various pieces of legislation, namely the Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), the Foreign Intelligence Surveillance Act (FISA), and the USA PATRIOT Act were essential to the key terror-related investigations and are critical to FBI’s ability to counter the threat of terrorism. It was also indicated that expanding and refining these authorities may be necessary but it did recognise that further expansion of the law enforcement and 115

United States Department of the Treasury, FinCEN, USA PATRIOT Act, http://www.fincen.gov/statutes_regs/patriot. 116 United States Library of Congress, S.390 - the Omnibus Counterterrorism Act of 1995. 48


intelligence powers "will raise civil liberties concerns and these concerns will need to be addressed". 117

Other Terrorism-Related Legislation o Foreign Intelligence Surveillance Act (FISA) of 1978 o Electronic Communications Privacy Act (ECPA) of 1986 o Communications Assistance for Law Enforcement Act (CALEA) of 1994 o Violent Crime Control and Law Enforcement Act of 1994 o Executive Order 12947, Jan. 23, 1995 o US Antiterrorism and Effective Death Penalty Act of 1996 o Executive Order 13224, Sept. 23, 2001 o Homeland Security Act of 2002 o Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 o Border Protection, Anti-terrorism, Illegal Immigration Control Act of 2005 o REAL ID Act of 2005 o Animal Enterprise Terrorism Act of 2006 o Military Commissions Act of 2006

117

Bruce Hoffman et al. "The FBI: Protecting the Homeland in the 21st Century", Report of the Congressionally Directed 9/11 Review Commission To The Director of the Federal Bureau of Investigation, March 2015, http://www.fbi.gov/stats-services/publications/protecting-the-homeland-in-the-21st-century. 49


Strategies and Legislation of the United Kingdom The Prevention of Terrorism (Temporary Provisions) Act of 1974 and the Northern Ireland (Emergency Provisions) Act of 1973 In response to IRA attacks in the 1970s, namely pub-bombing campaigns, the United Kingdom brought in temporary provisions in a series of terrorism-related legislation, primarily the Prevention of Terrorism (Temporary Provisions) Act of 1974 and the Northern Ireland (Emergency Provisions) Act of 1973, that would extend police powers, such as stop and search, detainment and intervention in the event of emergency response.

The list of proscribed groups were predominately nationalist groups such as the Irish Republican Army (IRA), Provisional Irish Republican Army (PIRA), the Irish National Liberation Army (INLA) and related loyalist splinter groups in the United Kingdom and Northern Ireland. These Acts were later re-written and amended in 1976 to directly address the continued IRA conflict and violence in Northern Ireland and again to address Islamic fundamentalists in 1984 and 1989; as threat origins broadened proscription lists were amended to reflect this. 118

The Regulation of Investigatory Powers Act of 2000 The Regulation of Investigatory Powers Act of 2000 was brought in to regulate the powers of public bodies to carry out surveillance and investigation, and cover the interception of communications as a response to terrorism and criminal use of technology and the internet and allowed surveillance and access a person's electronic communications by designated public bodies. The Act allowed for police to act with authority on the interception of communications and intrusive surveillance and 118

University of Ulster, CAIN, http://cain.ulst.ac.uk/hmso/pta1974.htm. 50


removes the requirement for interception warrants. Following a public consultation and Parliamentary debate, Parliament approved new additions in December 2003, April 2005, July 2006 and February 2010.

The Terrorism Act of 2000 The Terrorism Act of 2000 superseded and repealed the Prevention of Terrorism Act (Provisions) 1989 and the Northern Ireland (Emergency Provisions) Act 1996, was crucial in that it was the first permanent legislation to address terrorism, including international terrorism, and set the foundation for the United Kingdom's definition of terrorism. Prior to this, terrorism was a footnote in legislation, as in the Reinsurance (Acts of Terrorism) Act of 1993, and was defined as "acts of persons acting on behalf of, or in connection with, any organisation which carries out activities directed towards the overthrowing or influencing, by force or violence, of Her Majesty's government in the United Kingdom or any other government de jure or de facto". 119 Specifically, it allowed police to detain terrorist suspects for questioning for up to seven days and to stop-and-search any person or vehicle in designated areas without the need to suspect that person.

The Anti-Terrorism, Crime and Security Act 2001 Directly following the events of 9/11, the Anti-Terrorism, Crime and Security Act 2001 brought in measures that had been rejected from the Terrorism Act of 2000, as well as police powers that "allowed forceful obtainment of fingerprints and other identifying features to determine the identity of an individual, the operation of police outside of their natural jurisdiction to apprehend offenders or suspected offenders, 119

United Kingdom Government website, http://www.legislation.gov.uk/ukpga/2000/11/contents. 51


seize or preserve evidence relating to a crime and to act in order to prevent injury or harm to the public and more importantly, under Part 4, that foreigners - not British citizens - could be detained without trial". 120 The swift scribing and implementation of the Anti-Terrorism, Crime and Security Act 2001 brought criticism as it was charged to be under-analysed, quite ambitious in its length and breadth and received Royal Assent in a matter of months following the events of 9/11.

Other Terrorism-Specific Legislation o Police and Criminal Evidence Act 1984 o Criminal Justice and Public Order Act of 1994 o Police Act 1996 o CONTEST Counter-Terrorism Strategy 2001 o The Prevention of Terrorism Act of 2005 o The Terrorism Act 2006 o Counter-Terrorism Act of 2008 o Terrorism Prevention & Investigation Measures Bill 2011 o Counter-Terrorism and Security Act 2015

Strategies and Legislation of Canada Anti-Terrorism Act of 2001 Following the United States legislative response to the events of 9/11, the Canadian Parliament passed the Omnibus Bill, C-36, resulting in the Anti-Terrorism Act of 2001 that amended the Criminal Code, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and the Official Secrets Act, as well as other Acts. It

120

United Kingdom Government website. 52


increased sentences for terrorist acts, enabled freezing or seizure of financial assets of suspected terrorists, restricted the public release of sensitive information and granted police powers of surveillance, arrest, and detention. 121

In this Act, the Criminal Code was amended to define a terrorist group as "an entity that has as one of its purposes or activities the facilitating or carrying out of terrorist activity or that is an entity set out in a list established by regulation (proscribed groups)"; being an entity on the proscription list did not itself constitute a criminal offence. Worth noting, a terrorism offence was extensively defined under the Criminal Code of Canada to include "knowingly participating in, or contributing to, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity".

Combating Terrorism Act of 2012 (Bill S-7) With provisions in the Anti-Terrorism Act of 2001 related to preventative arrest and investigative hearings expiring in March 2007, the Canadian government proposed that these measures be renewed, to much opposition by party opponents. In February 2007, renewal of the provisions was voted down in the House of Commons 159 to 124 allowing them to expire. Bill S-7 was introduced in 2012, to propose the restoration of the expired provisions from the Anti-Terrorism Act of 2001 and to introduce new crimes for leaving Canada to join or train with a terror group. 122 In April 2013, the Bill was fast-tracked following the Boston Marathon Bombings and the foiled terror plot to derail a passenger train in Ontario and was passed into law.

121 122

Government of Canada, Justice Laws website. Ibid. 53


Bill C-51 - The Anti-Terrorism Act of 2015 (as at March 2015) Bill C-51 is a landmark piece of legislation in Canada as it stands to completely overhaul the current Anti-Terrorism Act, as well as other acts. It is currently under review after passing the second reading in Canadian Parliament and will likely come into force with only moderate changes under the majority government, the Conservatives, who have presented it. Consisting of five Parts, the legislation has been fraught with controversy and vocal opposition by security, counter and privacy terror experts, lawyers, opposing parties, civil right advocates, the general public and past Prime Ministers. Overall, it raises Canada's terror-related legislation to the level of the United States and United Kingdom in terms of pointed at prevention and detection of terror activities.

There has been significant criticism of the lack of accountability and oversight and the limited debate allowed on the Bill. 123 Currently, Bill C-51 is a daily news item as it goes through Senate review with public opposition mounting as details are analysed and described in layperson's terms.

Other Terrorism-Specific Legislation o Criminal Code Amendments regarding terrorism in 2001 o Recommendations from the Government of Canada's response to the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 in 2010 o Beyond the Border Strategy - US and Canada: Perimeter Security Agreement with the United States 2011 123

Government of Canada Publications website. 54


o Criminal Code Amendments regarding terrorism in 2013 o Canada's Strategy: Building Resilience Against Terrorism in 2013

Section Summary In theory, counter-terrorism strategies and legislation for the subject nations incorporate similar frameworks with legislative, governance, horizontal support and vertical capabilities that are aligned to the international level to meet national security and allied interest. Similarly, the intensive organisational effort required to strategically align domestic policing efforts with international counter-terrorism measures calls on various legislative and jurisdictional powers to allow for the establishment and execution of its functions. However, to be effective, legislative, regulatory and jurisdictional statutes must provide a clear definition of what constitutes terrorism and terrorist acts, and the bounds of interdiction must be understood.

The United States and United Kingdom's terrorism-related legislation have similar features specific to the enhancement of police powers. In general, prior to 9/11, legislation enabled police to interrupt activities suspected as terrorism-related with reasonable suspicion but began to follow a trend of being instituted swiftly, adopting previously rejected measures and the inclusion of proscribed groups and control factors after catastrophic attacks.

In Canada, prior to the Air India bombing in 1985, acts of domestic or foreign terrorism in Canada were dealt with under the Criminal Code of Canada under charges of murder, manslaughter, property damage, etc. As with the United States and

55


the United Kingdom, Canada did adopt a similar approach of responding to risk postevent, as opposed to defining threats and risks based on critical assessment and intelligence at the point of prevention. With the history of terrorism-related legislation more limited in Canada, responses to terrorist incidents appear to have been exercises in closing gaps and also to align legislation with allies.

In all subject nations, frequent criticisms of recent legislation have been redundancy of measures within the same legislation, 'new' measures were duplicated from existing laws in other legislation and the usual concerns of civil and humanitarian rights. As well, the emphasis on the degree of harm related to the threat of terrorism, albeit lower in incidence and prevalence in recent years, appears to have been the substantiation for broadening police powers by politicians and media in the subject nations. 124

Another commonality was the detection, interception and intelligence gathering capabilities normally reserved for intelligence agencies have gradually shifted to that of law enforcement, attracting criticism and fuelling fears of impunity and potential abuse that could grease the wheels of appeals courts for years to come.

124

Dan Gardner, Risk: Why We Fear the Things We Shouldn't - and Put Ourselves in Greater Danger, (Emblem, 2009). 56


Chapter 6 - Comparative Analysis of Terrorist Incidents, Societal Conflict, Societal Change and Terrorism-Related Legislation The following section provides a summary of terrorist incidents, societal conflict, societal change and terrorism-related legislation for the subject nations and is illustrated for each nation and presents a comparative view of three areas in the following charts: 1. Line chart showing all unambiguous terrorist incidents 125 , key terrorist incidents and minor and major terror-related legislation within the defined time period. 2. Scatter plot showing significant societal conflict that demonstrated impact, injury, damage or evoked response from law enforcement and levels of incidence within the defined time period. 3. Timeline showing significant societal change (events) that demonstrated impact, injury, damage or evoked response from law enforcement within the defined time period.

United States - January 1, 1970 to December 31, 2013 Unambiguous Terrorist Incidents The total unambiguous incidents for the stated period were 2,028 with a significant incident spike coming out of 1970 and between 1975 and 1978 as it continued a consistent downward trend; additional minor incident spikes were recorded in 2001, 2003, 2005, 2007 to 2010 and 2012.

125

University of Maryland, START, Global Terrorism Database, http://www.start.umd.edu/gtd/. 57


Key Terrorist Incidents There were several key terrorist incidents that preceded or were directly responsible for terror-related legislation: 1993 and 1997 World Trade Center Bombing, 1995 Oklahoma Bombing, 9/11 and 2015 Boston Marathon Bombings. The 2005 London Bombings were noted as important due to the allied relationship with the United Kingdom post-9/11, as well as its proximity to 9/11 and possible influence on the sunsetting of the USPA in 2011. Major and Minor Terror-related Legislation Impacting Law Enforcement An increase in terrorism-related legislation began with the Biological Weapons Act of 1989 and the Omnibus Counter-terrorism Act of 1995 with numerous other pieces of legislation in response to the violent domestic incidents, the Oklahoma Bombing, 9/11 (noting that the USA Patriot Act was scribed in response to the Oklahoma Bombing) and the Boston Marathon Bombings. The Oklahoma Bombing was the earliest and most deadly terror attack that influenced substantial legislation affecting and broadening police powers.

Incidence of Significant Societal Conflict and Significant Societal Change Societal conflict was concentrated and higher during periods of societal change related to the Civil Rights Movement and Vietnam War Protests in the 1960s with terrorist incidents being at their highest point at the beginning of the 1970s. Societal conflict incidents dropped significantly after 1970 and continued to decline steadily to present day with the exception of the mid-1980s to mid-1990s and a spike after 9/11.

The emergence of technological advancements in policing and an increase in enacted terrorism-related legislation aligned with a slow decrease in terrorist incidents 58


beginning in the mid-1970s. Prior to 1990, it appears as though law enforcement had been operating with existing police powers, and after this period, significant broadening of police power through legislation occurred and continued to present day.

126

Figure 3: United States: Unambiguous, Successful and Unsuccessful, Non-State Terrorist Incidents from Jan 1, 1970 to Dec. 31, 2013 (Line Chart Source - START GTD/Scatter and Timeline Source - Author)

126

Huffington Post; Reuters; University of Maryland GTD. 59


United Kingdom (Great Britain and Northern Ireland) - January 1, 1970 to December 31, 2013 Unambiguous Terrorist Incidents The total unambiguous incidents for the stated period were 3,763 with a significant spike in incidents by 1970. Numerous sporadic spikes in incidents were recorded from 1972 to 1995 with major spikes in 1979 and 1992-93 and minor spike from 1997 to 2001. Minor spikes in incidents in Northern Ireland were recorded in 2003, 2005, 2007, 2008, 2010 and a major spike 2013. Key Terrorist Incidents The key terrorist incidents revolved primarily around IRA bombing campaigns in Northern Ireland over the time period. Key terrorist incidents aside from IRA-related attacks were the 1985 Pan Am Flight 103 (Lockerbie), 2005 London Bombings and the 2007 Glasgow Airport bombing and 9/11. Major and Minor Terror-related Legislation Impacting Law Enforcement Major terror-related legislation emerged primarily in response to IRA attacks with the Prevention of Terrorism (Temporary Provisions) Act of 1974 and the Northern Ireland (Emergency Provisions) Act of 1973 (1976, 1984 and 1989), Regulation of Investigatory Powers Act of 2000 and Terrorism Act of 2000. The Anti-Terrorism, Crime and Security Act of 2001 was a direct result of 9/11 and other minor legislation accelerated after 9/11 as in the CONTEST Counter-Terrorism Strategy 2001, Prevention of Terrorism Act of 2005, Terrorism Act 2006. Counter-Terrorism Act of 2008, Terrorism Prevention & Investigation Measures Bill 2011 and CounterTerrorism and Security Act 2015.

60


Incidence of Significant Societal Conflict and Significant Societal Change In the United Kingdom, societal conflict and societal change were volatile and consistently aligned with labour protests, race riots and IRA Bombing campaigns with a notable decrease occurring in the mid-1990s with Islamic fundamentalist threats increasing thereafter. Prior to the increase in terrorism-related legislation in the 1990s, most legislation brought in were as temporary measures and in direct response to IRA campaigns. Data on societal conflict and societal change in the United Kingdom is difficult to separate and normalise as many incidents, such as IRA attacks, span both areas, as well as being classified as terrorist incidents.

The emergence of technological advancements in policing and an increase in enacted terrorism-related legislation align with a drop in terrorist incidents in the early-1990s except for the current spike. It appears as though law enforcement was significantly affected by legislation in the early 1970s with broadening of police powers occurring in the late 1990s continuing to present day.

61


127

Figure 4: United Kingdom: Unambiguous, Successful and Unsuccessful, Non-State Terrorist Incidents from Jan 1, 1970 to Dec. 31, 2013 (Line Chart Source - START GTD/Scatter and Timeline Source - Author)

127

Huffington Post; Reuters; University of Maryland GTD. 62


Canada - January 1, 1970 to December 31, 2013 Unambiguous Terrorist Incidents The total unambiguous incidents for the stated period were 61 with higher incidence recorded between 1971-72, 1979-80, 1981-82, 1984-1986 and several between 1998 and 2000 and 2006, 2008 to 2009 and for 2013.

Key Terrorist Incidents In Canada, terrorist incidents were minimal and sporadic with several spikes due to individual attacks. Notable attacks were the 1970 October Crisis, 1985 Air India Bombing, 1990 Oka Crisis, 2014 Moncton Shootings and 2014 Ottawa Shootings. The 1995 Oklahoma Bombing, 2005 London Bombing, 9/11 and 2015 Boston Marathon Bombings are referenced due to the allied relationships with target nations.

Major and Minor Terror-related Legislation Impacting Law Enforcement In Canada, major terror-related legislation were few but included most notably the Anti-Terrorism Act of 2001, Combating Terrorism Act of 2012 and the soon to be enacted Bill C-51 of 2015. An increase in enacted terrorism-related legislation began after 9/11 and continued to present day, however it has been suggested that Canada's response to the USA PATRIOT Act with the 2001 Anti-Terrorism Act was largely a public policy response.

Incidence of Significant Societal Conflict and Significant Societal Change There were minimal societal changes and the emergence of technology advancements in policing seemed insignificant. There does not appear to be a correlation between the increase in enacted terrorism-related legislation and a decrease in terrorist incidents - in fact, the opposite is demonstrated. Surprisingly, as with early attacks in 63


the United States, there were several major terrorist incidents that did not influence new legislation. Prior to 9/11, it appears as though law enforcement had been operating with existing police powers and temporary legislation.

128

Figure 5: Canada: Unambiguous, Successful and Unsuccessful, Non-State Terrorist Incidents from Jan 1, 1970 to Dec. 31, 2013 (Line Chart Source - START GTD/Scatter and Timeline Source - Author)

128

CBC News; University of Maryland GTD. 64


Summary of Comparative Analysis There is substantial evidence that numerous terrorist incidents occurred as early as the 1990s in the United States resulting in terrorism-related legislation that impacted law enforcement and police powers. In the United Kingdom, this occurred much earlier in the 1960s and was primarily IRA-related and originating as temporary measures, later adopted as permanent measures. In Canada, terrorism-related legislation emerged after and as a public policy response to 9/11 and the USA PATRIOT Act having a substantial impact on law enforcement. Before this, Canada dealt with terrorist incidents with long-standing measures, evoked temporarily, with law enforcement and the military eventually operationalising them as procedures.

Most major and minor legislation in subject nations were frequently enacted in proximity to, and often as a result of, terrorist incidents as early as the 1990s, including but not limited to 9/11, indicating a long term and wide spread casual effect. While there was a notable increase in minor legislation being enacted after the events of 9/11 in the United States, this was not a new phenomenon and may speak to strategy off passing less controversial, minor bills with speed and ease through the Democrat-majority House and Senate. Although not studied in detail, the degree of harm, number of causalities and symbolism of the target terrorist incident appear to correlate to increased speed of enactment, breadth of legislation and additional police powers, even for non-target nations who had allied relationships with target nations. In the United States and United Kingdom, there is a correlation between a reduction in terrorist incidents to enacted legislation, as well as technological advancements. In

65


Canada, surprisingly, recent years have shown an increase in enacted terrorism-related legislation and an increase in terrorist incidents.

In all subject nations, technological advancements (weaponry, computers, data analysis, etc.) in law enforcement have increased steadily since the 1960s and legislation reflected their use and dependency, showing significant impact on law enforcement, short of militarisation. However, there is a correlation of militarisation to technological advancements for policing with increased dependency aligned with societal conflict and drug crime in the United States.

Overall, societal conflict and societal change had less impact on legislation impacting law enforcement except for the casual association in the United Kingdom where it was a response to IRA Bombing campaigns and to some degree in Canada where Omnibus legislation was brought into address numerous societal issues.

66


Chapter 7 - Summary In recent decades, law enforcement in the United States, United Kingdom and Canada has seen substantial efforts to establish a standardised organisational model to address crime prevention and order maintenance, and now terrorism, with varying degrees of success. Although systemic barriers within the culture of organisations have slowed the institutionalisation of sustained change and continued progress, the areas of programmatic, administrative, technological and strategic innovation in law enforcement in the subject nations have been greatly influenced by a number of pieces of legislation over several decades. As indicated by the analysis, law enforcement in the United States operated primarily within their existing police powers until 1990 when powers were significantly broadened when a rash of major and minor terrorismrelated legislation emerged after the Oklahoma Bombing, continuing to present day.

In the United Kingdom, law enforcement operated under temporarily broadened powers in the 1970s in response to IRA bombing campaigns, followed by major and minor terrorism-related legislation that permanently broadened police powers in the 1990s. As with the United States, the United Kingdom saw a correlation in the increase legislation and adoption of technological advancements with a decrease in terrorist incidents prior to 9/11, except where exacted by the IRA.

In Canada, law enforcement operated under various pieces of legislation with terrorism-related crime falling under the Criminal Code of Canada and temporary measures, such as the War Measures Act, up until 9/11. While terrorist incidents were comparatively-speaking minimal and sporadic, there were several major terrorist

67


incidents from the 1970s to the 1990s that had no influence on new or existing legislation. In recent years, there has been an increase in terrorism-related legislation and an increase in terrorist incidents, questioning the effectiveness of the legislation or its proper implementation. In all subject nations, there is a suggested correlation between militarisation, technological advancements and legislative latitudes that were instituted in this context, but to a lesser degree in the United Kingdom.

Based on the analysis, the transformation in law enforcement had been occurring cumulatively over the decades and prior to 9/11, as evidenced by numerous incremental legislative changes as a response to terrorist incidents. As well, there is an indication that the degree of harm, number of causalities and symbolism associated with terrorist incidents, and possibly political strategy, correlate to the speed of enactment of legislation and the breadth of broadened police powers, suggesting a hasty response that lacked the required analysis and adequate time for review.

68


Chapter 8 - Conclusions Despite living in the safest period in civilised history, the dramatisation of the threat de jour by politicians and media has become commonplace in recent years, resulting from anytime-anywhere terrorism and a continuum of effect, as seen with the events of 9/11. Regardless, the responses to these threats fall frequently to law enforcement and will become increasingly important considering that by the year 2030 approximately seventy percent of the world's population 129 will be living in densely populated urban areas, the preferred target of terrorists. For this reason, two areas were identified for focus and further study.

First and foremost, strategically-driven legislation must deter terrorism as an ideology at the foreign policy level through collaborative, validating approaches as opposed to military and adversarial responses. A key step is acknowledging that terrorism is a multi-factored, multi-causal phenomenon with causal aspects that are distinctly different and separate from actual triggers. While the slow processes of civilisation, democratisation and desegregation of nations create a dependency for this transition, replacing broad-brush terminologies, single-cause assumptions and narrow responses with robust methods of resilient securitisation are powerful starting points. Preserving societal freedom is crucial and as stated in State Terrorism and Human Rights: International Responses Since the End of the Cold War, a foreboding question is posed "... [governments have] created new domains of crime, proscribing specific groups, expanding the definition of material support of terrorism, allowing 129

World Health Organization (WHO), Global Health Observatory (GHO) data, Urban population growth, http://www.who.int/gho/urban_health/situation_trends/urban_population_growth_text/en/. 69


convictions based solely on intent. They have remained democracies - how long will they continue to be/do so?" 130 A defining boundary must be drawn that explicitly identifies fundamental democratic values that cannot be traded, barter or revoked for the sake of securitisation.

The second area would develop a comprehensive legal and policy-driven definition of law enforcement and its principles, in order to ensure governance and accountability of leadership at the jurisdictional levels of law enforcement, thereby improving the effectiveness of programmatic responses. Although widely accepted, Moore's four organisational areas of law enforcement might also benefit from reassessment; current societies demonstrate a need for an organisational area in law enforcement that specifically addresses communication, both internally and externally to media and the public. As well, it has been shown that the public service of law enforcement depends on the support of the public, as stated in one of Peel's Principles, "the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect" 131 . This presents a reasonable foundation a needs and benefit assessment of an enhanced model of community policing or open communication policing.

In closing, much needs to be done to ensure that law enforcement effectively protects societies, reflects the democratic values of the nations they serve and are instrumental in their role in the counter-terror model. Still relevant today as it was over twenty years ago, Griffiths and Verdun-Jones stated in the Canadian Criminal Justice

130

Duncan, Gillian et al. , State Terrorism and Human Rights: International Responses since the End of the Cold War, (Routledge, Apr 2013). 131 United Kingdom Government website, Policing by Consent. 70


Journal that "there is considerable uncertainty on the part of both the police and the public about the role of the police in [Canadian] society." While there is vagueness, it is clear that the intended function of law enforcement remains squarely in the hands of legislators, but its desired function must be in the hands of the public. Until then, for as long as police power remains imprecise in its definition, it will remain misaligned with the needs and direction of societies and unmeasurable in its effectiveness.

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Shapiro, Jacob, The Terrorist's Dilemma: Managing Violent Covert Organizations, Princeton University Press, 2013, ISBN-13: 978-0691157214 Townsend, Charles, Making the Peace: Public Order and Public Security in Modern Britain, Oxford University Press, 1993, ISBN 978-0-19-822978-0 Weisburd, David, Braga, Anthony, Policing Innovation Contrasting Perspectives, Cambridge University Press, 2006, ISBN: 9780521544832 Whitehead, John, A Government of Wolves: The Emerging American Police State, Select Books 1st edition, 2013, ISBN-13: 978-1590799758 Wilson, O.W., McLaren, Roy, Police Administration, 1963, McGraw-Hill Inc., US, 2nd Revised edition, 1963, ISBN-10: 0070707243

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