Monday, 1 Jun 2020

Declan Power: 'The world is watching – we must handle Lisa Smith's return the right way and act as a guide to others'

As expected, Lisa Smith, upon her arrival back to this State, has been arrested on suspicion of terrorist activity and charged under the Offences Against the State Act.

This case will prove interesting and be watched by interested parties from both within and without this State.

The State will have already gathered the necessary intelligence on Ms Smith’s network of associations as well as her movements while in Ireland and her initial move to Tunisia.

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Much of any of this, however, is unlikely to constitute evidence of a crime. It will be what she did on moving to Syria that may possibly yield any evidence of crimes committed.

While undoubtedly much of Ms Smith’s own utterances in broadcast and print media is likely to be used as evidence against her, there will also have been attempts to gather evidence via interaction with partner state law enforcement and intelligence agencies, particularly those of the US and UK.

This is not new, however, as there is already a precedent established of using evidence gathered via external agencies in successfully prosecuting Irish citizens.

Following the Omagh bombing, the FBI and UK’s MI5 managed to infiltrate US citizen David Rupert into the confidence of both the Real IRA and Continuity IRA. The evidence gathered by Mr Rupert and those agencies was used to convict Michael McKevitt, of the Real IRA.

However, Ms Smith’s case will be seen as a chance to further apply a concept put forward in connection with countering terror a few years back by Thomas Wuchte, then director of the Organisation for Security and Co-operation in Europe (OSCE).

Mr Wuchte, a former military lawyer and graduate of Westpoint military academy, states that “…the legal process must be the primary instrument with which to contain terror”.

The real test now will be are Irish laws capable of being the tools with which to be able to contain the likes of those who, like Ms Smith, leave these shores to engage with organisations that are perpetrating acts of terror in a variety of jurisdictions.

While one strand of the investigation will focus on whether there is evidence that Ms Smith actually committed acts of violence or acted in direct support of such acts, such as training people in the use of firearms or being part of any planning or logistics networks that facilitated Isil operations, the other strand will be the more interesting one.

This strand will focus on whether the simple act of Ms Smith going to Syria and giving her allegiance to Isil is enough to allow the State to convict her in a way similar to those in years gone by who were sent to prison for being members of an illegal organisation like the Provisional IRA.

In the past decade, the concept of ‘Lawfare’ has emerged in the US, that is using and/or creating legislation that allows you to convict and incarcerate the enemy, as opposed to waiting until you meet them on the field of combat and have to kill or maim them.

The general idea is one of pre-emption and taking the moral high ground away from the terrorist. Treating the terrorist as a common criminal is an emotive one and our own recent histories of terrorist prisoners hunger striking both North and south for recognition as ‘political’ prisoners is a reminder of what such things are worth to the prisoner’s moral self-image.

Therefore, in order to deny this strategic opportunity and also to humanely treat those charged with terrorist crimes appropriately, while both on remand and following conviction, the State must act appropriately. It now seems it is.

Although the Garda Commissioner Drew Harris was quick to dismiss the need for a mass deradicalisation – or D-Rad programme – in Ireland, it appears the State has been quietly getting ready for Lisa Smith’s return, and indeed any other possible ‘Lisa Smiths’ by deciding that some sort of D-Rad response be considered.

Sensibly it seems we are taking a line already established by the EU. Drawing from the Council of Europe’s ‘Handbook for Prison and Probation Services regarding Radicalisation and Violent Extremism’, the State has been examining frameworks that may be applied for use in this jurisdiction.

The Probation Service has been appointed as the pivot for which these activities may be applied and as such members of this organisation have been engaging with the EU Network of PREVENT policy-makers.

The idea is to have a suite of options that can be considered part of any offender management programme, whether the offender is undergoing a sentence in prison or part of a court-ordered process stopping short of incarceration.

So if Lisa Smith were to end up convicted, an appropriate series of options can be put in place to address the unique set of influences that led her onto the path she has followed.

The bottom line is from both a legal perspective and if necessary from a punitive perspective, we have a unique opportunity to ensure this State has the right apparatus for containing violent extremist activities.

We have every reason to try to get the balance right, as the world will be watching and perhaps we might end up having something to teach them.

Declan Power is an independent security and defence analyst and currently leads the City College programme on Terrorism and International Security Studies.

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