Are there guarantees in counter terrorism?

Lawyers don’t get a good rap most of the time.  After all, wasn’t it Shakespeare who wrote in Henry VI, Part 2 “the first thing we do, let’s kill all the lawyers”.  A tad harsh that.

I’m not sure what it is exactly that elicits such anger and fury when it comes to lawyers.  Is it their high fees?  Is it the arrogance that some demonstrate?  Is it the frivolous lawsuits they bring?  Hmm, maybe that third one has something in it.

We have all heard of truly stupid actions brought to court.  You can Google the most ridiculous if you want.  These cases tie up proceedings needlessly and bring about unnecessary delays in real deliberations on real crimes.  While this is not the only reason, some crooks get off because they cannot have their day before the judge in a reasonable amount of time.  To my mind, if a lawsuit does not pass the “You’ve got to be kidding” test it has no business being heard.

A worrisome trend of late is the wave of launching terrorism cases.  Victims and/or the families of deceased members get together and sue whomever they think to be behind the act of terrorism that befell them.  A good example would be the so-called Saudi 9/11 lawsuit entered in US court under the Justice Against Sponsors of Terrorism Act (JUSTA).  This law has not actually succeeded in any victories against terrorists, to my knowledge, and in any event US presidents aren’t exactly keen to support action against their allies (like Saudi Arabia, though what Trump thinks about this is anyone’s guess).  It is unclear whether such efforts will ever amount to anything since terrorist groups are not likely to show up to defend themselves in a court of law.  Maybe a moral victory is all that can be expected (I am NOT dismissing the sense of loss of life, but I am questioning whether a court is the right place to exact a remedy).

An even more worrisome event came to the fore the other day.  German media is reporting that a lawyer representing a victim of the Christmas market attack could sue the German government for millions of euros for failing to prevent the attack.  According to the lawyer, Germany did not give its citizens adequate warning of the attack and did not put up concrete barriers early enough to deter the terrorist.  Hence he wants to sue on behalf of his client.

OK, just a minute here.  My obvious biases aside – i.e. 32 years in intelligence – this is indeed a frivolous and dangerous precedent setting case.  It is also blindingly ignorant of what intelligence is, what it is not, what it can do and what it can’t.  I swear that if the case goes to court and someone yells “intelligence failure!” I will counter sue for stupidity.

I am sure that there was some information that terrorist attacks were possible in Germany (and Europe) over the Christmas period. In fact, the US State Department warned its citizens to be ‘vigilant’ – whatever that is (oh, look, a terrorist!).  But I am pretty sure that no intel came in of the form “Anis Amri will hijack a truck, kill the Polish driver, drive to Berlin and hit this market on this day at this time at this specific spot”.  If German intelligence had that much info and didn’t act on it THAT would be grounds for a lawsuit.

Furthermore, I have bad news for the lawyer and the unfortunate victims.  Intelligence agencies around the world collect HUNDREDS of pieces of information DAILY that relate to threats.  Some of it is good and some is not but it takes time to differentiate the good from the bad.   It is not an easy task and the Bourne movies are a poor model for how it really works (sorry to burst the bubble of Matt Damon fans).

Should this case proceed and should it succeed I predict the following.  The CIA, MI5, CSIS, ASIO, the BfV, the AIVD and every other intelligence agency will issue hourly (minutely??) warnings of possible terrorist attacks in order not to be accused of negligence or incompetence.  In light of these announced threats, no one will move from their beds (or might even hide under them) – EVER.  Do we want that kind of existence?  I know I don’t.

Terrorism is a part of life (death).  It is tragic and it rips apart families and it causes unending pain.  But it remains thankfully rare.  And the number of attacks our spies and cops stop is orders of magnitude greater than the ones that succeed.

So before you think it right to sue the pants off your security service, park your raw emotions aside and think this through.  Winning a lawsuit does not bring the loved one back, does nothing to make the abilities of intelligence agencies better and it would be next to impossible to prove incompetence or negligence.  So why bother?

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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