Evaluating the necessity of expanded counterterrorism powers
The concluding evaluation of the Dutch Criminal Investigation of Terrorist Crimes Act gives reason to critically, yet also realistically, review the necessity of investigative powers that were extended in the anxious wake of 9/11.
Last week, the Research and Documentation Centre of the Dutch Ministry for Security & Justice (WODC) published an evaluation of The Criminal Investigation of Terrorist Crimes Act. The Act came into effect on February 1st 2007 with the purpose of enabling the criminal investigation of terrorist crimes to start at an earlier stage and to have them continue for a longer period of time. In this way it would be possible to collect criminal evidence concerning a (supposed) imminent terrorist attack, resulting in the timely detection of suspects, the prevention of terrorist crimes and a successful prosecution of the suspects. This preventive aim would be achieved by both lowering the threshold to start a criminal investigation from a “reasonable suspicion” to “mere indications” and by extending the possibilities to collect information by using phone taps, internet taps, systemic observation and stop and search. The Act also extended the possibilities to keep suspects of terrorist crimes in custody while they – or their lawyers – are denied full access to their case files.
Of all counterterrorism laws that have been implemented in the Netherlands since 9/11, the Criminal Investigation of Terrorist Crimes Act is perhaps the most debated. The necessity, legitimacy and assumed effectiveness of almost all amendments were strongly questioned. Despite the criticism by various actors from within and outside the legislative procedure, the Minister of Justice at the time deemed the considerable and far-reaching extensions necessary due to the major interests and potentially very severe consequences that were at stake in the event of terrorist crimes. Nevertheless, since it was clear that the criticism could not be left unaddressed he agreed to have the application of the act monitored and to have the effects of the act evaluated after a five-year period. Despite the request to include evaluation clauses in other counterterrorist Acts as well, this is the only Act where this request has been successful. The application of the act was monitored each year between 2007 and 2011 by the WODC. By examining the underlying assumptions of the Act, its application in practice as well as the consequences for investigations, the evaluation aims to assess whether the Criminal Investigation of Terrorist Crimes Act contributes to an effective investigation of terrorist crimes.
As the report shows, between 2007 and 2011, a total of 106 terrorism-related criminal investigations were conducted in the Netherlands. The new statutory investigative powers were exercised during 18 of the 106 terrorism-related criminal investigations. As the report shows, this relatively low number can be explained by the fact that law enforcement officials working on terrorism-related investigations were not triggered to use the expanded powers. As they point out in the interviews that were conducted, law enforcement officials preferred to use investigative powers that already existed because these were deemed sufficient, but also because of their familiarity with the use of these powers and how they would hold up in court. As the report shows, it is not very likely that using the new investigative powers would have resulted in more or other information.
Between 2007 and 2011, the possibility to exercise special investigative powers based on the 'mere indications' criterion was used during 15 investigations. Of these 15 investigations, 13 had to be cancelled at a very early stage due to a lack of sufficient criminal evidence against the persons the investigations focused on, 1 investigation has been temporarily cancelled and 1 investigation resulted in a prosecution on the grounds of the suspicion of preparations for a terrorist crime. This case has still to be brought before court. Furthermore, the report also shows that the difference between starting a criminal investigation based on indications compared to a reasonable suspicion seems to be very small in practice. Special investigative powers can already be used if a suspicion is substantiated to a limited extent.
All in all, the report seems to confirm part of the concerns that were expressed during the legislative procedure. It remains questionable whether the legislative changes resulting from this Act were indeed necessary looking at the scope and possibilities offered by the criminal investigative powers already in existence. As a result of this, combined with a sense of unease among law enforcement officials to use these new and unknown powers, they have barely been put into practice making it difficult to draw firm conclusions with regard to the effectiveness of the Act. In order to get a clearer grasp of the effectiveness of the Act, but more importantly to see whether the Act’s far-reaching extensions continue to be exercised with due care, I sincerely hope the monitoring process of this Act will not end with the publication of this evaluative study. Evaluating how laws and policies play out in practice should not be something that happens occasionally nor only upon approval by the Minister. Especially when it comes to legislation that was drafted in times of heightened (inter)national political pressure and that can potentially have a far-reaching impact upon the lives of innocent people, it seems prudent to make evaluation mandatory.