Erik Camayd-Freixas, Ph.D.

INTERPRETING AFTER THE LARGEST ICE RAID IN US HISTORY:
A PERSONAL ACCOUNT
Erik Camayd-Freixas, Ph.D.
Florida International University
June 13, 2008

On Monday, May 12, 2008, at 10:00 a.m., in an operation involving some 900 agents, Immigration and Customs Enforcement (ICE) executed a raid of Agriprocessors Inc, the nation's largest kosher slaughterhouse and meat packing plant located in the town of Postville, Iowa. The raid ...officials boasted... was "the largest single-site operation of its kind in American history." At that same hour, 26 federally certified interpreters from all over the country were en route to the small neighboring city of Waterloo, Iowa, having no idea what their mission was about. The investigation had started more than a year earlier. Raid preparations had begun in December. The Clerk's Office of the U.S. District Court had contracted the interpreters a month ahead, but was not at liberty to tell us the whole truth, lest the impending raid be compromised. The operation was led by ICE, which belongs to the executive branch, whereas the U.S. District Court, belonging to the judicial branch, had to formulate its own official reason for participating. Accordingly, the Court had to move for two weeks to a remote location as part of a "Continuity of Operation Exercise" in case they were ever disrupted by an emergency, which in Iowa is likely to be a tornado or flood. That is what we were told, but, frankly, I was not prepared for a disaster of such a different kind, one which was entirely man-made.

I arrived late that Monday night and missed the 8pm interpreters briefing. I was instructed by phone to meet at 7am in the hotel lobby and carpool to the National Cattle Congress (NCC) where we would begin our work. We arrived at the heavily guarded compound, went through security, and gathered inside the retro "Electric Park Ballroom" where a makeshift court had been set up. The Clerk of Court, who coordinated the interpreters, said: "Have you seen the news? There was an immigration raid yesterday at 10am. They have some 400 detainees here. We'll be working late conducting initial appearances for the next few days." He then gave us a cursory tour of the compound. The NCC is a 60-acre cattle fairground that had been transformed into a sort of concentration camp or detention center. Fenced in behind the ballroom / courtroom were 23 trailers from federal authorities, including two set up as sentencing courts; various Homeland Security buses and an "incident response" truck; scores of ICE agents and U.S. Marshals; and in the background two large buildings: a pavilion where agents and prosecutors had established a command center; and a gymnasium filled with tight rows of cots where some 300 male detainees were kept, the women being housed in county jails. Later the NCC board complained to the local newspaper that they had been "misled" by the government when they leased the grounds purportedly for Homeland Security training.

Echoing what I think was the general feeling, one of my fellow interpreters would later exclaim: "When I saw what it was really about, my heart sank..." Then began the saddest procession I have ever witnessed, which the public would never see, because cameras were not allowed past the perimeter of the compound (only a few journalists came to court the following days, notepad in hand). Driven single-file in groups of 10, shackled at the wrists, waist and ankles, chains dragging as they shuffled through, the slaughterhouse workers were brought in for arraignment, sat and listened through headsets to the interpreted initial appearance, before marching out again to be bused to different county jails, only to make room for the next row of 10. They appeared to be uniformly no more than 5 ft. tall, mostly illiterate Guatemalan peasants with Mayan last names, some being relatives (various Tajtaj, Xicay, Sajché, Sologüí...), some in tears; others with faces of worry, fear, and embarrassment. They all spoke Spanish, a few rather laboriously. It dawned on me that, aside from their nationality, which was imposed on their people in the 19th century, they too were Native Americans, in shackles. They stood out in stark racial contrast with the rest of us as they started their slow penguin march across the makeshift court. "Sad spectacle" I heard a colleague say, reading my mind. They had all waived their right to be indicted by a grand jury and accepted instead an information or simple charging document by the U.S. Attorney, hoping to be quickly deported since they had families to support back home. But it was not to be. They were criminally charged with "aggravated identity theft" and "Social Security fraud" ...charges they did not understand... and, frankly, neither could I. Everyone wondered how it would all play out.

We got off to a slow start that first day, because ICE's barcode booking system malfunctioned, and the documents had to be manually sorted and processed with the help of the U.S. Attorney's Office. Consequently, less than a third of the detainees were ready for arraignment that Tuesday. There were more than enough interpreters at that point, so we rotated in shifts of three interpreters per hearing. Court adjourned shortly after 4pm. However, the prosecution worked overnight, planning on a 7am to midnight court marathon the next day.

I was eager to get back to my hotel room to find out more about the case, since the day's repetitive hearings afforded little information, and everyone there was mostly refraining from comment. There was frequent but sketchy news on local TV. A colleague had suggested The Des Moines Register. So I went to DesMoinesRegister.com and started reading all the 20+ articles, as they appeared each day, and the 57-page ICE Search Warrant Application. These were the vital statistics. Of Agriprocessors' 968 current employees, about 75% were illegal immigrants. There were 697 arrest warrants, but late-shift workers had not arrived, so "only" 390 were arrested: 314 men and 76 women; 290 Guatemalans, 93 Mexicans, four Ukrainians, and three Israelis who were not seen in court. Some were released on humanitarian grounds: 56 mostly mothers with unattended children, a few with medical reasons, and 12 juveniles were temporarily released with ankle monitors or directly turned over for deportation. In all, 306 were held for prosecution. Only five of the 390 originally arrested had any kind of prior criminal record. There remained 307 outstanding warrants.

This was the immediate collateral damage. Postville, Iowa (pop. 2,273), where nearly half the people worked at Agriprocessors, had lost 1/3 of its population by Tuesday morning. Businesses were empty, amid looming concerns that if the plant closed it would become a ghost town. Beside those arrested, many had fled the town in fear. Several families had taken refuge at St. Bridget's Catholic Church, terrified, sleeping on pews and refusing to leave for days. Volunteers from the community served food and organized activities for the children. At the local high school, only three of the 15 Latino students came back on Tuesday, while at the elementary and middle school, 120 of the 363 children were absent. In the following days the principal went around town on the school bus and gathered 70 students after convincing the parents to let them come back to school; 50 remained unaccounted for. Some American parents complained that their children were traumatized by the sudden disappearance of so many of their school friends. The principal reported the same reaction in the classrooms, saying that for the children it was as if ten of their classmates had suddenly died. Counselors were brought in. American children were having nightmares that their parents too were being taken away. The superintendant said the school district's future was unclear: "This literally blew our town away." In some cases both parents were picked up and small children were left behind for up to 72 hours. Typically, the mother would be released "on humanitarian grounds" with an ankle GPS monitor, pending prosecution and deportation, while the husband took first turn in serving his prison sentence. Meanwhile the mother would have no income and could not work to provide for her children. Some of the children were born in the U.S. and are American citizens. Sometimes one parent was a deportable alien while the other was not. "Hundreds of families were torn apart by this raid," said a Catholic nun. "The humanitarian impact of this raid is obvious to anyone in Postville. The economic impact will soon be evident."

But this was only the surface damage. Alongside the many courageous actions and expressions of humanitarian concern in the true American spirit, the news blogs were filled with snide remarks of racial prejudice and bigotry, poorly disguised beneath an empty rhetoric of misguided patriotism, not to mention the insults to anyone who publicly showed compassion, safely hurled from behind a cowardly online nickname. One could feel the moral fabric of society coming apart beneath it all.

The more I found out, the more I felt blindsighted into an assignment of which I wanted no part. Even though I understood the rationale for all the secrecy, I also knew that a contract interpreter has the right to refuse a job which conflicts with his moral intuitions. But I had been deprived of that opportunity. Now I was already there, far from home, and holding a half-spent $1,800 plane ticket. So I faced a frustrating dilemma. I seriously considered withdrawing from the assignment for the first time in my 23 years as a federally certified interpreter, citing conflict of interest. In fact, I have both an ethical and contractual obligation to withdraw if a conflict of interest exists which compromises my neutrality. Appended to my contract are the Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts, where it states: "Interpreters shall disclose any real or perceived conflict of interest... and shall not serve in any matter in which they have a conflict of interest." The question was did I have one. Well, at that point there was not enough evidence to make that determination. After all, these are illegal aliens and should be deported -no argument there, and hence no conflict. But should they be criminalized and imprisoned? Well, if they committed a crime and were fairly adjudicated... But all that remained to be seen. In any case, none of it would shake my impartiality or prevent me from faithfully discharging my duties. In all my years as a court interpreter, I have taken front row seat in countless criminal cases ranging from rape, capital murder and mayhem, to terrorism, narcotics and human trafficking. I am not the impressionable kind. Moreover, as a professor of interpreting, I have confronted my students with every possible conflict scenario, or so I thought. The truth is that nothing could have prepared me for the prospect of helping our government put hundreds of innocent people in jail. In my ignorance and disbelief, I reluctantly decided to stay the course and see what happened next.

Wednesday, May 14, our second day in court, was to be a long one. The interpreters were divided into two shifts, 8am to 3pm and 3pm to 10pm. I chose the latter. Through the day, the procession continued, ten by ten, hour after hour, the same charges, the same recitation from the magistrates, the same faces, chains and shackles, on the defendants. There was little to remind us that they were actually 306 individuals, except that occasionally, as though to break the monotony, one would dare to speak for the others and beg to be deported quickly so that they could feed their families back home. One who turned out to be a minor was bound over for deportation. The rest would be prosecuted. Later in the day three groups of women were brought, shackled in the same manner. One of them, whose husband was also arrested, was released to care for her children, ages two and five, uncertain of their whereabouts. Several men and women were weeping, but two women were particularly grief stricken. One of them was sobbing and would repeatedly struggle to bring a sleeve to her nose, but her wrists shackled around her waist simply would not reach; so she just dripped until she was taken away with the rest. The other one, a Ukrainian woman, was held and arraigned separately when a Russian telephonic interpreter came on. She spoke softly into a cellular phone, while the interpreter told her story in English over the speakerphone. Her young daughter, gravely ill, had lost her hair and was too weak to walk. She had taken her to Moscow and Kiev but to no avail. She was told her child needed an operation or would soon die. She had come to America to work and raise the money to save her daughter back in Ukraine. In every instance, detainees who cried did so for their children, never for themselves.

The next day we started early, at 6:45am. We were told that we had to finish the hearings by 10am. Thus far the work had oddly resembled a judicial assembly line where the meat packers were mass processed. But things were about to get a lot more personal as we prepared to interpret for individual attorney-client conferences. In those first three days, interpreters had been pairing up with defense attorneys to help interview their clients. Each of the 18 court appointed attorneys represented 17 defendants on average. By now, the clients had been sent to several state and county prisons throughout eastern Iowa, so we had to interview them in jail. The attorney with whom I was working had clients in Des Moines and wanted to be there first thing in the morning. So a colleague and I drove the 2.5 hours that evening and stayed overnight in a hotel outside the city. We met the attorney in jail Friday morning, but the clients had not been accepted there and had been sent instead to a state penitentiary in Newton, another 45-minute drive. While we waited to be admitted, the attorney pointed out the reason why the prosecution wanted to finish arraignments by 10am Thursday: according to the writ of habeas corpus they had 72 hours from Monday's raid to charge the prisoners or release them for deportation (only a handful would be so lucky). The right of habeas corpus, but of course! It dawned on me that we were paid overtime, adding hours to the day, in a mad rush to abridge habeas corpus, only to help put more workers in jail. Now I really felt bad. But it would soon get worse. I was about to bear the brunt of my conflict of interest.

It came with my first jail interview. The purpose was for the attorney to explain the uniform Plea Agreement that the government was offering. The explanation, which we repeated over and over to each client, went like this. There are three possibilities. If you plead guilty to the charge of "knowingly using a false Social Security number," the government will withdraw the heavier charge of "aggravated identity theft," and you will serve 5 months in jail, be deported without a hearing, and placed on supervised release for 3 years. If you plead not guilty, you could wait in jail 6 to 8 months for a trial (without right of bail since you are on an immigration detainer). Even if you win at trial, you will still be deported, and could end up waiting longer in jail than if you just pled guilty. You would also risk losing at trial and receiving a 2-year minimum sentence, before being deported. Some clients understood their "options" better than others.

That first interview, though, took three hours. The client, a Guatemalan peasant afraid for his family, spent most of that time weeping at our table, in a corner of the crowded jailhouse visiting room. How did he come here from Guatemala? "I walked." What? "I walked for a month and ten days until I crossed the river." We understood immediately how desperate his family's situation was. He crossed alone, met other immigrants, and hitched a truck ride to Dallas, then Postville, where he heard there was sure work. He slept in an apartment hallway with other immigrants until employed. He had scarcely been working a couple of months when he was arrested. Maybe he was lucky: another man who began that Monday had only been working for 20 minutes. "I just wanted to work a year or two, save, and then go back to my family, but it was not to be." His case and that of a million others could simply be solved by a temporary work permit as part of our much overdue immigration reform. "The Good Lord knows I was just working and not doing anyone any harm." This man, like many others, was in fact not guilty. "Knowingly" and "intent" are necessary elements of the charges, but most of the clients we interviewed did not even know what a Social Security number was or what purpose it served. This worker simply had the papers filled out for him at the plant, since he could not read or write Spanish, let alone English. But the lawyer still had to advise him that pleading guilty was in his best interest. He was unable to make a decision. "You all do and undo," he said. "So you can do whatever you want with me." To him we were part of the system keeping him from being deported back to his country, where his children, wife, mother, and sister depended on him. He was their sole support and did not know how they were going to make it with him in jail for 5 months. None of the "options" really mattered to him. Caught between despair and hopelessness, he just wept. He had failed his family, and was devastated. I went for some napkins, but he refused them. I offered him a cup of soda, which he superstitiously declined, saying it could be "poisoned." His Native American spirit was broken and he could no longer think. He stared for a while at the signature page pretending to read it, although I knew he was actually praying for guidance and protection. Before he signed with a scribble, he said: "God knows you are just doing your job to support your families, and that job is to keep me from supporting mine." There was my conflict of interest, well put by a weeping, illiterate man.

We worked that day for as long as our emotional fortitude allowed, and we had to come back to a full day on Sunday to interview the rest of the clients. Many of the Guatemalans had the same predicament. One of them, a 19-year-old, worried that his parents were too old to work, and that he was the only support for his family back home. We will never know how many of the 293 Guatemalans had legitimate asylum claims for fear of persecution, back in a country stigmatized by the worst human rights situation in the hemisphere, a by-product of the US-backed Contra wars of 1980s' Central America under the old domino theory. For three decades, anti-insurgent government death squads have ravaged the countryside, killing tens of thousands and displacing almost two million peasants. Even as we proceeded with the hearings during those two weeks in May, news coming out of Guatemala reported farm workers being assassinated for complaining publicly about their working conditions. Not only have we ignored the many root causes of illegal immigration, we also will never know which of these deportations will turn out to be a death sentence, or how many of these displaced workers are last survivors with no family or village to return to.

Another client, a young Mexican, had an altogether different case. He had worked at the plant for ten years and had two American born daughters, a 2-year-old and a newborn. He had a good case with Immigration for an adjustment of status which would allow him to stay. But if he took the Plea Agreement, he would lose that chance and face deportation as a felon convicted of a crime of "moral turpitude." On the other hand, if he pled "not guilty" he had to wait several months in jail for trial, and risk getting a 2-year sentence. After an agonizing decision, he concluded that he had to take the 5-month deal and deportation, because as he put it, "I cannot be away from my children for so long." His case was complicated; it needed research in immigration law, a change in the Plea Agreement, and, above all, more time. There were other similar cases in court that week. I remember reading that immigration lawyers were alarmed that the detainees were being rushed into a plea without adequate consultation on the immigration consequences. Even the criminal defense attorneys had limited opportunity to meet with clients: in jail there were limited visiting hours and days; at the compound there was little time before and after hearings, and little privacy due to the constant presence of agents. There were 17 cases for each attorney, and the Plea offer was only good for 7 days. In addition, criminal attorneys are not familiar with immigration work and vice versa, but had to make do since immigration lawyers were denied access to these criminal proceedings.

In addition, the prosecutors would not accept any changes to the Plea Agreement. In fact, some lawyers, seeing that many of their clients were not guilty, requested an Alford plea, whereby defendants can plead guilty in order to accept the prosecution's offer, but without having to lie under oath and admit to something they did not do. That would not change the 5-month sentence, but at least it preserves the person's integrity and dignity. The proposal was rejected. Of course, if they allowed Alford pleas to go on public record, the incongruence of the charges would be exposed and find its way into the media. Officially, the ICE prosecutors said the Plea Agreement was directed from the Department of Justice in Washington, D.C., that they were not authorized to change it locally, and that the DOJ would not make any case by case exceptions when a large number of defendants are being "fast-tracked." Presumably if you gave different terms to one individual, the others will want the same. This position, however, laid bare one of the critical problems with this new practice of "fast-tracking." Even real criminals have the right of severance: when co-defendants have different degrees of responsibility, there is an inherent conflict of interest, and they can ask to be prosecuted separately as different cases, each with a different attorney. In fast-tracking, however, the right of severance is circumvented because each defendant already has a different case number on paper, only that they are processed together, 10 cases at a time. At this point, it is worth remembering also that even real criminals have an 8th Amendment right to reasonable bail, but not illegal workers, because their immigration detainer makes bail a moot issue. We had already circumvented habeas corpus by doubling the court's business hours. What about the 6th Amendment right to a "speedy trial"? In many states "speedy" means 90 days, but in federal law it is vaguely defined, potentially exceeding the recommended sentence, given the backlog of real cases. This served as another loophole to force a guilty plea. Many of these workers were sole earners begging to be deported, desperate to feed their families, for whom every day counted. "If you want to see your children or don't want your family to starve, sign here" -that is what their deal amounted to. Their Plea Agreement was coerced.

We began week two Monday, May 19th. Those interpreters who left after the first week were spared the sentencing hearings that went on through Thursday. Those who came in fresh the second week were spared the jail visits over the weekend. Those of us who stayed both weeks came back from the different jails burdened by a close personal contact that judges and prosecutors do not get to experience: each individual tragedy multiplied by 306 cases. One of my colleagues began the day by saying "I feel a tremendous solidarity with these people." Had we lost our impartiality? Not at all: that was our impartial and probably unanimous judgment. We had seen attorneys hold back tears and weep alongside their clients. We would see judges, prosecutors, clerks, and marshals do their duty, sometimes with a heavy heart, sometimes at least with mixed feelings, but always with a particular solemnity not accorded to the common criminals we all are used to encountering in the judicial system. Everyone was extremely professional and outwardly appreciative of the interpreters. We developed among ourselves and with the clerks, with whom we worked closely, a camaraderie and good humor that kept us going. Still, that Monday morning I felt downtrodden by the sheer magnitude of the events. Unexpectedly, a sentencing hearing lifted my spirits.

I decided to do sentences on Trailer 2 with a judge I knew from real criminal trials in Iowa. The defendants were brought in 5 at a time, because there was not enough room for 10. The judge verified that they still wanted to plead guilty, and asked counsel to confirm their Plea Agreement. The defense attorney said that he had expected a much lower sentence, but that he was forced to accept the agreement in the best interest of his clients. For us who knew the background of the matter, that vague objection, which was all that the attorney could put on record, spoke volumes. After accepting the Plea Agreement and before imposing sentence, the judge gave the defendants the right of allocution. Most of them chose not to say anything, but one who was the more articulate said humbly: "Your honor, you know that we are here because of the need of our families. I beg that you find it in your heart to send us home before too long, because we have a responsibility to our children, to give them an education, clothing, shelter, and food." The good judge explained that unfortunately he was not free to depart from the sentence provided for by their Plea Agreement. Technically, what he meant was that this was a binding 11(C)(1)(c) Plea Agreement: he had to accept it or reject it as a whole. But if he rejected it, he would be exposing the defendants to a trial against their will. His hands were tied, but in closing he said onto them very deliberately: "I appreciate the fact that you are very hard working people, who have come here to do no harm. And I thank you for coming to this country to work hard. Unfortunately, you broke a law in the process, and now I have the obligation to give you this sentence. But I hope that the U.S. government has at least treated you kindly and with respect, and that this time goes by quickly for you, so that soon you may be reunited with your family and friends." The defendants thanked him, and I saw their faces change from shame to admiration, their dignity restored. I think we were all vindicated at that moment.

Before the judge left that afternoon, I had occasion to talk to him and bring to his attention my concern over what I had learned in the jail interviews. At that point I realized how precious the interpreter's impartiality truly is, and what a privileged perspective it affords. In our common law adversarial system, only the judge, the jury, and the interpreter are presumed impartial. But the judge is immersed in the framework of the legal system, whereas the interpreter is a layperson, an outsider, a true representative of the common citizen, much like "a jury of his peers." Yet, contrary to the jury, who only knows the evidence on record and is generally unfamiliar with the workings of the law, the interpreter is an informed layperson. Moreover, the interpreter is the only one who gets to see both sides of the coin up close, precisely because he is the only participant who is not a decision maker, and is even precluded, by his oath of impartiality and neutrality, from ever influencing the decisions of others. That is why judges in particular appreciate the interpreter's perspective as an impartial and informed layperson, for it provides a rare glimpse at how the innards of the legal system look from the outside. I was no longer sorry to have participated in my capacity as an interpreter. I realized that I had been privileged to bear witness to historic events from such a unique vantage point and that because of its uniqueness I now had a civic duty to make it known. Such is the spirit that inspired this essay.

That is also what prompted my brief conversation with the judge: "Your honor, I am concerned from my attorney-client interviews that many of these people are clearly not guilty, and yet they have no choice but to plead out." He understood immediately and, not surprisingly, the seasoned U.S. District Court Judge spoke as someone who had already wrestled with all the angles. He said: "You know, I don't agree with any of this or with the way it is being done. In fact, I ruled in a previous case that to charge somebody with identity theft, the person had to at least know of the real owner of the Social Security number. But I was reverted in another district and yet upheld in a third." I understood that the issue was a matter of judicial contention. The charge of identity theft seemed from the beginning incongruous to me as an informed, impartial layperson, but now a U.S. District Court Judge agreed. As we bid each other farewell, I kept thinking of what he said. I soon realized that he had indeed hit the nail on the head; he had given me, as it were, the last piece of the puzzle.

It works like this. By handing down the inflated charge of "aggravated identity theft," which carries a mandatory minimum sentence of 2 years in prison, the government forced the defendants into pleading guilty to the lesser charge and accepting 5 months in jail. Clearly, without the inflated charge, the government had no bargaining leverage, because the lesser charge by itself, using a false Social Security number, carries only a discretionary sentence of 0-6 months. The judges would be free to impose sentence within those guidelines, depending on the circumstances of each case and any prior record. Virtually all the defendants would have received only probation and been immediately deported. In fact, the government's offer at the higher end of the guidelines (one month shy of the maximum sentence) was indeed no bargain. What is worse, the inflated charge, via the binding 11(C)(1)(c) Plea Agreement, reduced the judges to mere bureaucrats, pronouncing the same litany over and over for the record in order to legalize the proceedings, but having absolutely no discretion or decision-making power. As a citizen, I want our judges to administer justice, not a federal agency. When the executive branch forces the hand of the judiciary, the result is abuse of power and arbitrariness, unworthy of a democracy founded upon the constitutional principle of checks and balances.,

To an impartial and informed layperson, the process resembled a lottery of justice: if the Social Security number belonged to someone else, you were charged with identity theft and went to jail; if by luck it was a vacant number, you would get only Social Security fraud and were released for deportation. In this manner, out of 297 who were charged on time, 270 went to jail. Bothered by the arbitrariness of that heavier charge, I went back to the ICE Search Warrant Application (pp. 35-36), and what I found was astonishing. On February 20, 2008, ICE agents received social security "no match" information for 737 employees, including 147 using numbers confirmed by the SSA as invalid (never issued to a person) and 590 using valid SSNs, "however the numbers did not match the name of the employee reported by Agriprocessors..." "This analysis would not account for the possibility that a person may have falsely used the identity of an actual person's name and SSN." "In my training and expertise, I know it is not uncommon for aliens to purchase identity documents which include SSNs that match the name assigned to the number." Yet, ICE agents checked Accurint, the powerful identity database used by law enforcement, and found that 983 employees that year had non-matching SSNs. Then they conducted a search of the FTC Consumer Sentinel Network for reporting incidents of identity theft. "The search revealed that a person who was assigned one of the social security numbers used by an employee of Agriprocessors has reported his/her identity being stolen." That is, out of 983 only 1 number (0.1%) happened to coincide by chance with a reported identity theft. The charge was clearly unfounded; and the raid, a fishing expedition. "On April 16, 2008, the US filed criminal complaints against 697 employees, charging them with unlawfully using SSNs in violation of Title 42 USC §408(a)(7)(B); aggravated identity theft in violation of 18 USC §1028A(a)(1); and/or possession or use of false identity documents for purposes of employment in violation of 18 USC §1546."

Created by Congress in an Act of 1998, the new federal offense of identity theft, as described by the DOJ (http://www.usdoj.gov/criminal/fraud/websites/idtheft.html), bears no relation to the Postville cases. It specifically states: "knowingly uses a means of identification of another person with the intent to commit any unlawful activity or felony" [18 USC §1028(a)]. The offense clearly refers to harmful, felonious acts, such as obtaining credit under another person's identity. Obtaining work, however, is not an "unlawful activity." No way would a grand jury find probable cause of identity theft here. But with the promise of faster deportation, their ignorance of the legal system, and the limited opportunity to consult with counsel before arraignment, all the workers, without exception, were led to waive their 5th Amendment right to grand jury indictment on felony charges. Waiting for a grand jury meant months in jail on an immigration detainer, without the possibility of bail. So the attorneys could not recommend it as a defense strategy. Similarly, defendants have the right to a status hearing before a judge, to determine probable cause, within ten days of arraignment, but their Plea Agreement offer from the government was only good for... seven days. Passing it up, meant risking 2 years in jail. As a result, the frivolous charge of identity theft was assured never to undergo the judicial test of probable cause. Not only were defendants and judges bound to accept the Plea Agreement, there was also absolutely no defense strategy available to counsel. Once the inflated charge was handed down, all the pieces fell into place like a row of dominoes. Even the court was banking on it when it agreed to participate, because if a good number of defendants asked for a grand jury or trial, the system would be overwhelmed. In short, "fast-tracking" had worked like a dream.

It is no secret that the Postville ICE raid was a pilot operation, to be replicated elsewhere, with kinks ironed out after lessons learned. Next time, "fast-tracking" will be even more relentless. Never before has illegal immigration been criminalized in this fashion. It is no longer enough to deport them: we first have to put them in chains. At first sight it may seem absurd to take productive workers and keep them in jail at taxpayers' expense. But the economics and politics of the matter are quite different from such rational assumptions. A quick look at the ICE Fiscal Year 2007 Annual Report (www.ice.gov) shows an agency that has grown to 16,500 employees and a $5 billion annual budget, since it was formed under Homeland Security in March 2003, "as a law enforcement agency for the post-9/11 era, to integrate enforcement authorities against criminal and terrorist activities, including the fights against human trafficking and smuggling, violent transnational gangs and sexual predators who prey on children" (17). No doubt, ICE fulfills an extremely important and noble duty. The question is why tarnish its stellar reputation by targeting harmless illegal workers. The answer is economics and politics. After 9/11 we had to create a massive force with readiness "to prevent, prepare for and respond to a wide range of catastrophic incidents, including terrorist attacks, natural disasters, pandemics and other such significant events that require large-scale government and law enforcement response" (23). The problem is that disasters, criminality, and terrorism do not provide enough daily business to maintain the readiness and muscle tone of this expensive force. For example, "In FY07, ICE human trafficking investigations resulted in 164 arrests and 91 convictions" (17). Terrorism related arrests were not any more substantial. The real numbers are in immigration: "In FY07, ICE removed 276,912 illegal aliens" (4). ICE is under enormous pressure to turn out statistical figures that might justify a fair utilization of its capabilities, resources, and ballooning budget. For example, the Report boasts 102,777 cases "eliminated" from the fugitive alien population in FY07, "quadrupling" the previous year's number, only to admit a page later that 73,284 were "resolved" by simply "taking those cases off the books" after determining that they "no longer met the definition of an ICE fugitive" (4-5).

De facto, the rationale is: we have the excess capability; we are already paying for it; ergo, use it we must. And using it we are: since FY06 "ICE has introduced an aggressive and effective campaign to enforce immigration law within the nation's interior, with a top-level focus on criminal aliens, fugitive aliens and those who pose a threat to the safety of the American public and the stability of American communities" (6). Yet, as of October 1, 2007, the "case backlog consisted of 594,756 ICE fugitive aliens" (5). So again, why focus on illegal workers who pose no threat? Elementary: they are easy pickings. True criminal and fugitive aliens have to be picked up one at a time, whereas raiding a slaughterhouse is like hitting a small jackpot: it beefs up the numbers. "In FY07, ICE enacted a multi-year strategy: ...worksite enforcement initiatives that target employers who defy immigration law and the "jobs magnet" that draws illegal workers across the border" (iii). Yet, as the saying goes, corporations don't go to jail. Very few individuals on the employer side have ever been prosecuted. In the case of Agriprocessors, the Search Warrant Application cites only vague allegations by alien informers against plant supervisors (middle and upper management are insulated). Moreover, these allegations pertain mostly to petty state crimes and labor infringements. Union and congressional leaders contend that the federal raid actually interfered with an ongoing state investigation of child labor and wage violations, designed to improve conditions. Meanwhile, the underlying charge of "knowingly possessing or using false employment documents with intent to deceive" places the blame on the workers and holds corporate individuals harmless. It is clear from the scope of the warrant that the thrust of the case against the employer is strictly monetary: to redress part of the cost of the multimillion dollar raid. This objective is fully in keeping with the target stated in the Annual Report: "In FY07, ICE dramatically increased penalties against employers whose hiring processes violated the law, securing fines and judgments of more than $30 million" (iv).

Much of the case against Agriprocessors, in the Search Warrant Application, is based upon "No-Match" letters sent by the Social Security Administration to the employer. In August 2007, DHS issued a Final Rule declaring "No-Match" letters sufficient notice of possible alien harboring. But current litigation (AFL-CIO v. Chertoff) secured a federal injunction against the Rule, arguing that such error-prone method would unduly hurt both legal workers and employers. As a result the "No-Match" letters may not be considered sufficient evidence of harboring. The lawsuit also charges that DHS overstepped its authority and assumed the role of Congress in an attempt to turn the SSA into an immigration law enforcement agency. Significantly, in referring to the Final Rule, the Annual Report states that ICE "enacted" a strategy to target employers (iii); thereby using a word ("enacted") that implies lawmaking authority. The effort was part of ICE's "Document and Benefit Fraud Task Forces," an initiative targeting employees, not employers, and implying that illegal workers may use false SSNs to access benefits that belong to legal residents. This false contention serves to obscure an opposite and long-ignored statistics: the value of Social Security and Medicare contributions by illegal workers. People often wonder where those funds go, but have no idea how much they amount to. Well, they go into the SSA's "Earnings Suspense File," which tracks payroll tax deductions from payers with mismatched SSNs. By October 2006, the Earnings Suspense File had accumulated $586 billion, up from just $8 billion in 1991. The money itself, which currently surpasses $600 billion, is credited to, and comingled with, the general SSA Trust Fund. SSA actuaries now calculate that illegal workers are currently subsidizing the retirement of legal residents at a rate of $8.9 billion per year, for which the illegal (no-match) workers will never receive benefits.

Again, the big numbers are not on the employers' side. The best way to stack the stats is to go after the high concentrations of illegal workers: food processing plants, factory sweatshops, construction sites, janitorial services-the easy pickings. September 1, 2006, ICE raid crippled a rural Georgia town: 120 arrested. Dec. 12, 2006, ICE agents executed warrants at Swift & Co. meat processing facilities in six states: 1,297 arrested, 274 "charged with identity theft and other crimes" (8). March 6, 2007 ...The Boston Globe reports...300 ICE agents raided a sweatshop in New Bedford: 361 mostly Guatemalan workers arrested, many flown to Texas for deportation, dozens of children stranded. As the Annual Report graph shows, worksite raids escalated after FY06, signaling the arrival of "a New Era in immigration enforcement" (1). Since 2002, administrative arrests increased tenfold, while criminal arrests skyrocketed thirty-fivefold, from 25 to 863. Still, in FY07, only 17% of detainees were criminally arrested, whereas in Postville it was 100% ..a "success" made possible by "fast-tracking".. with felony charges rendering workers indistinguishable on paper from real "criminal aliens." Simply put, the criminalization of illegal workers is just a cheap way of boosting ICE "criminal alien" arrest statistics. But after Postville, it is no longer a matter of clever paperwork and creative accounting: this time around 130 man-years of prison time were handed down pursuant to a bogus charge. The double whammy consists in beefing up an additional and meatier statistics showcased in the Report: "These incarcerated aliens have been involved in dangerous criminal activity such as murder, predatory sexual offenses, narcotics trafficking, alien smuggling and a host of other crimes" (6). Never mind the character assassination: next year when we read the FY08 report, we can all revel in the splendid job the agency is doing, keeping us safe, and blindly beef up its budget another billion. After all, they have already arrested 1,755 of these "criminals" in this May's raids alone.



The agency is now poised to deliver on the New Era. In FY07, ICE grew by 10 percent, hiring 1,600 employees, including over 450 new deportation officers, 700 immigration enforcement agents, and 180 new attorneys. At least 85% of the new hires are directly allocated to immigration enforcement. "These additional personnel move ICE closer to target staffing levels"(35). Moreover, the agency is now diverting to this offensive resources earmarked for other purposes such as disaster relief. Wondering where the 23 trailers came from that were used in the Iowa "fast-tracking" operation? "In FY07, one of ICE's key accomplishments was the Mobile Continuity of Operations Emergency Response Pilot Project, which entails the deployment of a fleet of trailers outfitted with emergency supplies, pre-positioned at ICE locations nationwide for ready deployment in the event of a nearby emergency situation" (23). Too late for New Orleans, but there was always Postville... Hopefully the next time my fellow interpreters hear the buzzwords "Continuity of Operations" they will at least know what they are getting into.

This massive buildup for the New Era is the outward manifestation of an internal shift in the operational imperatives of the Long War, away from the "war on terror" (which has yielded lean statistics) and onto another front where we can claim success: the escalating undeclared war on illegal immigration. "Had this effort been in place prior to 9/11, all of the hijackers who failed to maintain status would have been investigated months before the attack" (9). According to its new paradigm, the agency fancies that it can conflate the diverse aspects of its operations and pretend that immigration enforcement is really part and parcel of the "war on terror." This way, statistics in the former translate as evidence of success in the latter. Thus, the Postville charges-document fraud and identity theft-treat every illegal alien as a potential terrorist, and with the same rigor. At sentencing, as I interpreted, there was one condition of probation that was entirely new to me: "You shall not be in possession of an explosive artifact." The Guatemalan peasants in shackles looked at each other, perplexed.

When the executive responded to post-9/11 criticism by integrating law enforcement operations and security intelligence, ICE was created as "the largest investigative arm of the Department of Homeland Security (DHS)" with "broad law enforcement powers and authorities for enforcing more than 400 federal statutes" (1). A foreseeable effect of such broadness and integration was the concentration of authority in the executive branch, to the detriment of the constitutional separation of powers. Nowhere is this more evident than in Postville, where the expansive agency's authority can be seen to impinge upon the judicial and legislative powers. "ICE's team of attorneys constitutes the largest legal program in DHS, with more than 750 attorneys to support the ICE mission in the administrative and federal courts. ICE attorneys have also participated in temporary assignments to the Department of Justice as Special Assistant U.S. Attorneys spearheading criminal prosecutions of individuals. These assignments bring much needed support to taxed U.S. Attorneys' offices"(33). English translation: under the guise of interagency cooperation, ICE prosecutors have infiltrated the judicial branch. Now we know who the architects were that spearheaded such a well crafted "fast-tracking" scheme, bogus charge and all, which had us all, down to the very judges, fall in line behind the shackled penguin march. Furthermore, by virtue of its magnitude and methods, ICE's New War is unabashedly the aggressive deployment of its own brand of immigration reform, without congressional approval. "In FY07, as the debate over comprehensive immigration reform moved to the forefront of the national stage, ICE expanded upon the ongoing effort to re-invent immigration enforcement for the 21st century" (3). In recent years, DHS has repeatedly been accused of overstepping its authority. The reply is always the same: if we limit what DHS/ICE can do, we have to accept a greater risk of terrorism. Thus, by painting the war on immigration as inseparable from the war on terror, the same expediency would supposedly apply to both. Yet, only for ICE are these agendas codependent: the war on immigration depends politically on the war on terror, which, as we saw earlier, depends economically on the war on immigration. This type of no-exit circular thinking is commonly known as a "doctrine." In this case, it is an undemocratic doctrine of expediency, at the core of a police agency, whose power hinges on its ability to capitalize on public fear. Opportunistically raised by DHS, the sad specter of 9/11 has come back to haunt illegal workers and their local communities across the USA.

A line was crossed at Postville. The day after in Des Moines, there was a citizens' protest featured in the evening news. With quiet anguish, a mature all-American woman, a mother, said something striking, as only the plain truth can be. "This is not humane," she said. "There has to be a better way."

Des browne joins the TA as Part Time soldier

The Colin Cramphorn Memorial Lecture 24/4/07 Peter Clarke

Learning From Experience – Counter Terrorism in the
UK since 9/11

The Colin Cramphorn Memorial Lecture
24th April 2007

Deputy Assistant Commissioner Peter Clarke

Counter Terrorism Command – New Scotland Yard

I cannot begin to describe how great a privilege it is, indeed an honour, to be invited to deliver this, the first Colin Cramphorn Memorial Lecture. I was delighted when Dean asked me, but only later realised the enormity of the task. The challenge of putting together some thoughts that could in any way do justice to Colin’s memory was daunting. Colin, as everyone who knew him can testify, was a man of enormous knowledge of his chosen profession. But it was not simply a bookish knowledge. He had an instinctive feel for policing. He understood police officers, their thoughts, their hopes and fears. But he also understood communities. He knew what people wanted and expected from their police service. He was always able to see policing in a broader context, to understand the links and dependencies between the act of policing, if I can put it like that, and the communities and institutions that we as police officers serve. He knew that the relationship between the police and citizens is delicate, indeed often fragile. He also knew that maintaining that relationship depends not only on what happens on the street. He realised that if the public are to have confidence, it is vital that policing is properly understood by those who represent the interests of citizens at both local and national level, by local and central government, by the judicial system, and of course by the media.

This often feels like a complex web of sometimes competing interests, and it is that very complexity that Colin understood so well.

In a sense Colin has chosen my subject for me this evening. He knew that
when dealing with terrorism, almost above all other areas of policing, we have to
learn from experience. By its very nature it is political – in origins and impact. The
police response to terrorism can, and sometimes does have a severe impact on
communities. And as we have seen over the past few years, we are often working at


Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

the very limits of our capacity and capabilities. Our success or failure sometimes
rests in the hands of other agencies, or indeed overseas. And of course, we are
wrestling with all of this at a time when the threat appears to be increasing in both
scale and intensity.

My ambition tonight is to set out my personal view of developments in counter
terrorism in the United Kingdom since September 2001. And perhaps unsurprisingly
it will be from the perspective of a law enforcement practitioner.

First I would like to reflect on what has actually happened in the UK since 9/11.
What is the scale and reality of the threat? How is it different from the threat that we
faced for many years from Irish terrorism – and if it is different, why is that important?
Second, what has British policing done to respond? Third, I shall try to describe
some of the broader context in which we operate. What has been happening in the
law, in politics, in the media and in the communities we police? What impact has this
had on our ability to protect the public?

So what has happened since 9/11? I think it is no exaggeration to say that there
has been a complete change in our understanding of the terrorist threat. For 30
years or more we had been facing a deadly campaign of terrorism conducted by
utterly ruthless people intent on wreaking death and destruction. But it was different
to that which we now face.

Colleagues from around the world often say to me that the long experience that
we have in the United Kingdom of combating a terrorist threat must have stood us in
good stead. That the experience gained during some 30 years of an Irish terrorist
campaign would have equipped us for the new challenges presented by Al Qaeda
and its associated groups. To an extent that is true – but only to an extent. The fact is
that the Irish campaign actually operated within a set of parameters that helped
shaped our response to it.

It was essentially a domestic campaign using conventional weaponry, carried
out by terrorists in tightly knit networks who were desperate to avoid capture and
certainly had no wish to die. The use of warnings restricted the scale of the carnage,
dreadful though it was. The warnings were cynical and often misleading, but by
restricting casualties, were a factor in enabling the political process to move forward,
however haltingly.

I believe that if you take the reverse of many of these characteristics, you are
not far away from describing the threat we face today. It is global in origin, reach and
ambition. The networks are large, fluid, mobile and incredibly resilient. We have seen
how Al Qaeda has been able to survive a prolonged multi-national assault on its

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

structures, personnel and logistics. It has certainly retained its ability to deliver
centrally directed attacks here in the UK. In case after case, the hand of core Al
Qaeda can be clearly seen. Arrested leaders or key players are quickly replaced,
and disrupted networks will re-form quickly. Suicide has been a frequent feature of
attack planning and delivery – a stark contrast with the Irish determination to avoid
capture. There is no evidence of looking to restrict casualties. There are no warnings
given and the evidence suggests that on the contrary, the intention is frequently to kill
as many people as possible. We have seen both conventional and unconventional
weaponry, and to date, although perhaps this is not for me to judge, there has not
been an obvious political agenda around which meaningful negotiations can be built.

But it is important to understand that this analysis of the changing nature of
terrorism did not come to us in a flash of inspiration on 12th September 2001. It came
about as a result of us doing exactly what the title of this lecture suggests we should
do – Learn from Experience.

I came into my current role in counter terrorism in the aftermath of 9/11, in the
early part of 2002. At that time we were still struggling to understand the precise
nature of the threat in the UK. Was it real? Was there any intention to attack us here?
During the 1990s many people believed that the extremists and dissidents from
overseas regimes who were active in the UK were, if anything, pursuing agendas
against foreign governments, and posed little or no threat to the UK. Certainly, in
2002 the perception was that if there was a threat to the UK, its origins were
overseas. The spectre of a home grown terrorist threat was not yet with us.

During that year, 2002, we focussed on groups of North Africans, mainly
Algerians, to find out whether they were engaged solely in support, fund raising and
the like, or whether they posed a real threat to the UK itself. We followed a trail of
petty fraud and false identity documents across the country. Eventually that trail took
us to Thetford, where in the unlikely surroundings of rural Norfolk we found the first
real indication since 9/11 of operational terrorist activity here in the UK – recipes for
ricin and other poisons. That led us eventually to Wood Green and the chemicals, the
Finsbury Park Mosque, and of course the terrible murder of Detective Constable
Stephen Oake in Manchester in January 2003.

That case taught us many things, not least about our ability to operate across
borders, both within the UK and overseas. It showed us the difficulties that
international terrorist conspiracies pose for our domestic judicial system. For the
police, it also marked the beginning of our understanding of the impact that the
emerging distrust of intelligence in early 2003 would have on our relationship with the
media and therefore the public. This was the first time, in my experience, that the

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

police service had been accused of exaggerating the threat posed by terrorists in
order, it was alleged, to help the government justify its foreign policy.

But 2003 was notable not only for the scepticism with which some
commentators described the terrorist threat. What 2003 also brought was the
realisation that British citizens had been trained and recruited as terrorists. In April
Asif Hanif from Hounslow and Omar Sharif from Derby launched a suicide bomb
attack on a beach front bar in Tel Aviv. That same year, Sajid Badat was arrested in
Gloucester, still in possession of the component parts of his shoebomb from when he
had been planning, with Richard Reid, to bring down airliners in 2001. These and
others had been recruited to the jihadi cause, but there was still no indication that
there were plans for British citizens to mount attacks here in the UK. By and large, in
2003 the UK was a net exporter of terrorism.

That of course all changed in early 2004 when we investigated the alleged
‘Fertiliser’ plot. The jury in this case are still considering their verdicts, and so I must
be careful. Later that year, a convert to Islam, Dhiren Barot, was arrested for
planning attacks both in the US and here in the UK. In both cases there are current
judicial proceedings, but I am able to say that these investigations marked the
beginning of a trend that has now been repeated on several other occasions –
groups of British citizens travelling to Pakistan to receive training and instructions,
then returning to the UK and building up their networks here as they allegedly move
towards launching attacks. This of course is the pattern we saw with the July 2005
attacks here in London, and as other cases reach the Courts, a similar profile of the
networks we are facing will emerge.

In terms of the broad development of the threat, it is frustrating that I cannot
describe in more detail much of what we have discovered during the course of
investigations, but suffice it to say that the alleged plot to bring down airliners last
year was yet another step in what seems an inexorable trend towards more
ambitious and more destructive attack planning.

So what impact has all this had on our response from a law enforcement
perspective? The simple answer is that it has changed everything. That is not to say
that we have forgotten the lessons of dealing with 30 years of Irish terrorism – far
from it. But the change in the nature of the threat has meant that in turn we have had
to change the way in which we do business.

No longer can the police service feed off the crumbs falling from the end of the
intelligence table. In the past a case would sometimes come to the police after there
had been a great deal of investigation by the intelligence agencies. Sometimes we
would have little insight into what lay behind the case, and this was often deliberately

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

the case – to protect the evidential investigators from knowledge that could lead them
into difficulties when giving their evidence in court. This is no longer acceptable for
very sound legal reasons, but it is also not acceptable in terms of public safety. We
can no longer wait until the terrorist is at or near the point of attack before intervening.
It might give us the strongest evidence to do so –to capture the terrorist with the gun
or the bomb. But the risk to the public, in the age of suicide bombers and no notice
attacks, is simply too great. So what we have done is to develop a new way of
working. The police and Security Service now work together in every case from a
much earlier stage than would ever have happened in the past. The intelligence that
is gathered and assessed by the Security Service is in large part the lifeblood of
counter terrorism in the UK. Exploiting it is a shared endeavour. Setting joint
objectives and agreeing investigative strategies is not exceptional. It has become the
daily routine.

So how does this work? Well, in every case we strike a conscious balance
between developing evidence and public safety. We cannot take risks with public
safety, and so sometimes, if we cannot be sure how far advanced an attack plan is,
or if however hard we investigate we cannot bottom out the intelligence, we have to
intervene. Sometimes this inevitably means that there will not be enough evidence to
prosecute, and then we face the criticism that we are being indiscriminate in our
activities. The operation in Forest Gate in June 2006 is often held up as an example
of this. If anyone seriously believes that we, and here I mean the police, would
embark on an operation such as that lightly, or not genuinely believing it to be
necessary, they are quite simply wrong. Sadly, I can’t go into the full background of
the case, but if anyone is interested I would refer them to the Independent Police
Complaint’s Commission Report. The Commission came to the clear conclusion,
having seen the intelligence, that the operation was necessary and proportionate.

The point of all this is that we have got to give ourselves the best possible
chance to intervene before the public can come to harm. This means we have to be
able to attack terrorist finances, their logistics, their hostile reconnaissance, their
planning at every stage. To achieve this, we need to work with the Security Service in
a way that would have been unimaginable only a few years ago.

There can be no doubt that the most important change in counter terrorism in
the UK in recent years has been the development of the relationship between the
police and the security service. In my role as National Co-ordinator of Terrorist
Investigations I act as the bridge between the world of intelligence and the world of
law enforcement. In fact the metaphor is probably obsolete – it would now be more
accurate to describe it not as a bridge but a very wide two way street, and my job is
to make sure the traffic flows freely. It is no exaggeration to say that the joint working
between the police and MI5 has become recognised as a beacon of good practice.

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

Colleagues from across the globe, in law enforcement and intelligence, look to the
UK as a model, and many of them are, quite frankly, envious. That is why it is
sometimes frustrating to hear and read the same tired old comments about MI5 and
the police not working together. That is out of date. It is wrong, and is a lie that
deserves to be well and truly nailed.

So what has the British police service done to respond to the escalation in
terrorist activity? Are we relying on our traditional county, municipal and other
structures to give us the global reach we need? The answer, I hope you are
reassured to hear is ‘No’. But I have to say that my personal view is that we are still
very much in a transitional phase. British policing has always drawn its strengths
from its local roots and links into communities, and this of course must be preserved.
In the past, when terrorist activity was taking place outside London, what tended to
happen is that the Metropolitan Police would gird up its loins and become an
expeditionary force. The simple fact is that there was no unit, on the UK mainland,
dedicated to the investigation of terrorism outside London. This worked well enough
until, I would say, about 2002 when during the ricin investigation we found ourselves
spread across the UK. Then over the ensuing years the footprint of terrorism in the
UK spread ever wider, and it was simply unsustainable, either in terms of scale or
geography for the Metropolitan Police to continue in its traditional role.

The recent creation of regional Counter Terrorism Units is a major step forward,
and will definitely increase our ability to respond to the intelligence generated by the
Security Service, and to investigate acts of terrorism. Colin Cramphorn was one of
the first to see what would be needed in the future, and the nascent Counter Terrorist
Unit in West Yorkshire is testimony to his vision.

One of the challenges for counter terrorist policing is to give ourselves the ability
to operate internationally (for every case takes us across the world), but at the same
time not lose our local connections within communities. This is not going to be easy.
We must increase the flow of intelligence coming from communities. Almost all of our
prosecutions have their origins in intelligence that came from overseas, the
intelligence agencies or from technical means. Few have yet originated from what is
sometimes called ‘community intelligence.’ This is something we are working hard to
change. In London for instance, most Boroughs now have dedicated counter
terrorism intelligence officers, working hand in glove with local police. I welcome the
creation of the regional units, but I do sometimes wonder whether we have been
quite bold enough. Did we, in our first move into developing the necessary capacity,
achieve the clarity around governance and accountability that will surely be needed
in the future? Time will tell, but I am certain we are headed in the right direction.

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

I think what all this amounts to is that through learning from the experiences of
the past few years, we have developed a new concept of operations. We have
moved away from intervening when the evidence for prosecution became available,
to intervening when the risk to the public became unacceptable. You could call this a
‘Risk Management’ model of counter terrorism. If that sounds like ‘consultant speak’,
I apologise. Let me immediately revert to English. What I am saying is that public
safety will take precedence over evidence gathering, at all stages of an investigation.

I can illustrate this model in operation with the two cases I mentioned earlier
from 2004. In the first, Operation Crevice, it was clear to us, bearing in mind the
criticism we had received in 2003 for allegedly exaggerating the threat, and the
impact this was having on our relationships with Muslim communities, that we
needed to gather as much evidence as possible before making arrests. Not to do so
would invite inevitable criticism and the subsequent distrust this would generate
could have had an impact on our ability to conduct such operations in the future. In
order to be as sure as we could that there was no imminent threat to the public, we
and the Security Service mounted a surveillance operation that was unprecedented
in its scale. This was a classic case, if you like, of ‘running a case long’.

By contrast, the case of Dhiren Barot later that year was one where we simply
couldn’t control the risk. The intelligence rightly told us that he was involved in attack
planning, but we did not know how far advanced he was. We did not know whether
he posed an imminent threat or not. Surveillance could not give us the answers we
needed, and so the decision was made that we had to arrest him straightaway. It is
no exaggeration to say that at the time of the arrest there was not one shred of
admissible evidence against Barot. The arrest was perfectly lawful - there were more
than sufficient grounds, but in terms of evidence to put before a court, there was
nothing. There then began the race against time to retrieve evidence from the mass
of computers and other IT equipment that we seized. It was only at the very end of
the permitted period of detention that sufficient evidence was found to justify charges.
I know that some in the media were sharpening their pencils, and that if we had been
unable to bring charges in that case, there would have been a wave of criticism about
the arrests. Barot himself of course eventually pleaded guilty last year and received
a 40 year sentence.

One of the difficulties of course is that when we do intervene and charges are
not brought, the prevailing scepticism, indeed suspicion of anything that is described
as intelligence is such that it has been rare to receive the benefit of the doubt from
either communities or the media. And this is crucial. I think it is no exaggeration to
say that the lack of public trust in intelligence is in danger of infecting the relationship
between the police and the communities we serve. Trust and consent are two
concepts that lie at the heart of the relationship between the British police and the

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

public. We must maintain that trust. But how to do so? I have no doubt that the
operational and political independence of the police is the key to this. The
communities must believe, and it must be reality, that the police stand aside from
politics in the exercise of their powers. That is why the allegations of political
partiality that seem to have been made so lightly in recent times are so damaging.
They undermine the relationship between police and public. They undoubtedly inhibit
the flow of intelligence, and in doing so actually increase the risk to the public.

This whole question of trust in intelligence is enormously important. Obviously,
there is much that must remain secret, for obvious reasons. The difficulty is that
when an event like the operation in Forest Gate last year occurs, distrust of the
intelligence has led to demands for it to be scrutinised by community representatives,
not only after an operation, but even before it. I am the first to agree that we must find
ways to increase confidence in police activity, but we must be careful not to raise
unrealistic expectations with the community. In some areas of crime it has been
possible to share intelligence with independent observers and advisory groups. But
terrorist intelligence is very different. The sources, methods and equities are such
that it is often not in the gift of the police service to share it, even if we wished to. We
must find a way to make progress, so that confidence can be built, but I do not
predict that it will be easy.

The next area I wanted to look at tonight was what could be called the operating
context – those things that we have to take into account when conducting operations,
but over which we might have more or less influence.

The legal context is obviously critical for us, as it governs so much of what we
do. Legislation that is specifically designed to counter the modern terrorist threat has
proved to be highly controversial - and so it should be. Some of the legislation we
now have is very powerful. That places a responsibility on the police to use it wisely,
with discrimination, and in a way that will withstand the closest scrutiny. This is
essential if the public are to have confidence in what we are doing.

My personal view is that we now have a strong body of counter terrorist
legislation that by and large meets our needs in investigating these crimes and
bringing prosecutions. Prosecution through the courts, using judicial process that is
recognised and understood by the public, is of course is by far the preferred method
of dealing with terrorism. The government have responded to reasoned cases put
forward for change, to bring aspects of modern terrorism and support activity within
the remit of the criminal law. The new offence of ‘Acts Preparatory to Terrorism’ is a
good example. It closed a gap in our defences, and I’m sure will prove its worth in
several forthcoming trials. Prior to its introduction, the law was inadequate. The
Common Law of England was not designed to defend us against people who wish to

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

poison or irradiate the public. So we had the somewhat bizarre spectacle of Kamel
Bourgass, in the so called ricin case, standing trial for a conspiracy to cause a public
nuisance. There was no other offence that could properly reflect his behaviour and
give the courts adequate sentencing power. I shall repeat what I have said before,
that shoe-horning 21st century terrorism into 19th century criminal law cannot be the
best way to protect the public. I hope we have seen the last of this somewhat quaint
offence, described by one eminent lawyer as a ‘rag bag of odds and ends’ being
used in terrorist cases.

And yet there are still those who argue that we do not need specialist terrorist
legislation, that the ordinary criminal law is sufficient. Well, if that were the case, how
would we deal with those who undertake terrorist training? Or encourage others to do
so? Or who set out to influence youngsters and draw them into terrorism? Or who
reconnoitre targets? Or who collect information for others to mount attacks? Or who
know that terrorists are going to mount an attack but fail to notify the authorities? It
cannot be in the public interest for these things not to fall within the ambit of the law.
Parliament has decided that there should be specific offences to deal with these
activities, and that must be right.

But it is not only specific offences that are important – the surrounding legal
framework that enables us to investigate and prosecute modern terrorism has to be
in place. And developing this framework has at times been controversial, to say the
least.

Take the provisions for increasing the maximum period of pre-charge detention
to 28 days before a suspect must be either charged or released. I shall dwell for a
few moments on this episode, because it is important in several ways. The police
service was asked in 2005 to put forward suggestions to update and improve counter
terrorist legislation – a perfectly normal consultative process. Among a range of other
measures, we made a case for extending the period of pre-charge detention beyond
the then allowable 14 days, because the trends that had led to the increase from 7 to
14 days the previous year were continuing, and if anything accelerating. When asked
by how much the period of detention should be increased, we suggested a maximum
of 90 days, subject to judicial oversight. We were asking not for a police power, but
for a power to be vested in the courts on application from the police or the Crown
Prosecution Service.

As we all know, the ensuing debate, both in Parliament and elsewhere was a
little lively. I know there have been concerns expressed about the role of the police
service in that debate, and whether we overstepped the mark in terms of political
neutrality – but I find this slightly puzzling. If we are asked for our professional
opinion, and we express it, and the Government brings forward legislation, are we

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supposed to be silent the moment a draft Bill is published? We were accused of
being politically partial, but I reject that. I think what happened was that there was a
breakdown of the cross-party consensus that has generally prevailed in matters of
counter terrorism. The result of that breakdown was that it became impossible for us
to express our professional opinion without being open to the allegation of political
partiality. This must be unhealthy. Counter terrorism is political, of course it is, and
properly so. The problems start when the subject becomes politicised, and that is
what has happened. It is now difficult for the police service to express its professional
opinion on the subject without being accused of falling one side or other of a political
divide.

The political impartiality of the police service, inextricably linked as it is to our
operational independence, is of course one of the bedrocks of British policing. This is
nothing new, and no-one was more aware of this than Colin Cramphorn. He
completely understood the need to recognise, indeed acknowledge the politics of any
situation, but at the same time to remain resolutely independent. My point is that this
implacable independence is more important than ever when we are dealing with
terrorism. The subject is inevitably linked to politics at every level – local, national
and international. As police officers our role must be to acknowledge the sensitivities
that this brings with it, but not allow it to govern our operational decision making.

The allegation that the police have lost their political impartiality is easy to make,
and profound in its impact. As I said a few moments ago, the trust that exists
between police and public is critical to all we do, and is absolutely vital in counter
terrorism. It fundamentally affects the level of support, and of course intelligence that
we receive from communities. My plea therefore, is that before anyone makes the
allegation that the police are not acting or speaking with political impartiality, they
think carefully about the potential impact of their words.

The current terrorist threat is of such a scale and intractability that we must not
only defeat the men (for it is predominantly men) who plot and carry out appalling
acts of violence. We must also find a way of defeating the ideas that drive them. The
corrosive ideologies that are used to justify terrorism must be confronted. The fact is
that there are, in the United Kingdom, many young men who are vulnerable to being
drawn into extremism and violence. The influence of the so called preachers of hate
and their fellow travellers is pernicious. Of all the things I have seen over the past few
years, one of the most worrying has been the speed and apparent ease with which
young men can be turned into suicidal terrorists, prepared to kill themselves and
hundreds of others - indoctrinated to believe that there are no such things as
innocent victims.

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

We must find a way to address this, and one of the things I think we need to
work harder at is diversion – how to turn people away from the extremists. I can think
of a case, and it is not unique, where worried

parents came to the police, concerned that their teenage son was falling prey to
the influence of extremists. Now if parents come to us and say they are worried about
their children getting involved in drugs, for instance, there are ways of dealing with
the problem without the youngster becoming criminalised. There are rehabilitation
and diversion schemes. There is not enough of this in the field of radicalisation and
extremism. I have discussed this with colleagues, both in law enforcement and in
government, in Muslim countries, and they are surprised that we do not do more to
counter the extremists. To support Imams who can, with authority, denounce the
twisted version of Islam put forward by the extremists. We must find a way of
undermining the ideology that drives extremism. But obviously this is not something
that can come from the police service alone. It needs wider commitment and support
if it is to be credible and effective.

I hope a theme that emerges from my remarks tonight, is the absolute need for
public understanding and support for our counter terrorist policies. And I don’t just
mean police efforts here, but the whole cross-Government effort. Public
understanding is an area where, collectively, I think we have much to do. I have
already mentioned the breakdown in trust that affects the public’s willingness to
accept intelligence assessments.

But if the public are sceptical about intelligence, what other sources of
information do they have? There are more than 100 people awaiting trial in terrorism
cases in the UK. That should, one would think, be the source of a wealth of
information, cleansed through the integrity of the criminal justice system, publicly
tested through the process of cross-examination, and validated or otherwise by the
verdict of the jury. Well, so far terrorist trials have not been as informative as we
might wish, for a number of reasons. First, it is taking anything up to two years, and
in some cases more, for cases to reach the courts. During that time little can be said
about what the investigation has uncovered. Then there is the issue of evidence that
emerges in one case potentially prejudicing jurors in another. Because of the fact that
terrorist cells and networks are inevitably linked, this has meant that over the past 5
years I can hardly remember a time when there were not Court Orders in place
restricting what could be published about terrorist cases. It was three years before
we could tell the public what we found in the Finsbury Park Mosque. For well over a
year the public did not know that Kamel Bourgass had been convicted of murdering
DC Stephen Oake. And there are other examples – but as if to illustrate my point, I
can’t tell you about them.

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

I understand why we need to protect juries from prejudicial material, but I
wonder, in the era of global communications, whether it is sensible for us to pretend
that potential jurors will not have access to the internet. Last summer the New York
Times published a very full account of the airlines plot on their website, but the article
was blocked to UK users of the internet, with ‘legal reasons’ being cited. Even I, with
my feeble IT literacy, was able to find the piece within a couple of minutes.
understand the difficulties in all this, but I just wonder if we could be bolder and, dare
I say it, trust juries to distinguish the prejudicial from the probative. That is why, last
summer, in respect of the so called airline plot I went further than ever before, in
setting out at least some of the evidence that we will eventually produce at the trial. I
felt it was important for the public to understand that the allegations were supported
by tangible evidence, that the plot was real. Is it not important for government,
business, community leaders and the wider public to be able to consider, in an
informed way, what the impact of such an attack would be if it had actually happened?
Should we not be considering the political and economic consequences, or the
potentially devastating impact on community cohesion? Apart from anything else, I
honestly believe that the public are entitled to know why airport security is becoming
ever more intrusive and inconvenient. I have to say I was relieved last autumn when,
following Dhiren Barot’s plea of guilty, reporting restrictions were lifted and the public
were able to be told what he had been planning. This was an important step forward
and I applaud the media organisations that took a robust stance in successfully
challenging the restrictions.

The relationship between the police and the media could be the subject of an
entire lecture in itself, but tonight I would like to focus on two particular issues. First,
the media strategy we developed in response to the attacks in London in July 2005
and secondly, the impact of leaks.

To start with July 2005. I remember back in 1993, I was Lord Condon’s staff
officer when the Bishopsgate Bomb exploded. In an aside he said to me something
that I have never forgotten, and that in fact has stood me in good stead ever since.
He said something along the lines of “Peter, the reporting of this will unfold like this.
Day One will be ‘Gawd blimey it’s the Blitz!’. Day Two will be ‘What happened and
who did it?’ and Day Three will be ‘Who’s to blame?’.” With slight variations, this has
been proved to be pretty accurate time and again. July 2005 was no exception.
Immediately after the attack, my uniformed colleagues took the lead in describing the
search and rescue efforts. Describing to the public the enormity of what had
happened and looking to reassure them that everything that could possibly be done,
was being done. This phase passed quite quickly as the investigation firstly revealed
that these had been suicide attacks, and secondly took us towards Leeds.

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

One of the first things to do was to speak to Colin Cramphorn. He was now
facing one of the most difficult challenges with which any Chief Constable could be
confronted. The implications of the emerging truth that the first suicide bombers to
attack and commit mass murder in the UK came from communities in his Force area
were immense. I can tell you that when the time came for me to pick up the phone
and discuss how we were going to handle this, I was mightily relieved that it was
Colin at the other end. We were immediately able to agree that any media work on
issues of community reassurance and local contact were unequivocally his
responsibility as the Chief Constable. He suggested that he and his colleagues would
not comment on the investigation and what it was revealing he would leave that to
me. This was a bold suggestion, because by then my officers from the Met were in
West Yorkshire in large numbers, examining the bomb factory, executing search
warrants, interviewing potential witnesses. The world’s media were in West Yorkshire
in strength, and there was an insatiable thirst for information about the investigation.
But Colin was immediately able to see the long term value of this division of
responsibility in avoiding mixed messages, and retaining the essential links between
local police and the communities they serve. It is a model we have used on many
other occasions, and it has stood the test of time.

What it also meant was that for better or worse I became the ‘face of the
investigation.’ As an investigator, I saw my role as explaining to the public what had
happened. Not speculating, but describing the facts as I knew them, but only when
we knew them to provable standards. It was important for the public to have a
consistently reliable, and one hopes reassuring, source of reliable information. There
was of course a mass of speculation, with strap lines carrying all sorts of bizarre
rumours and theories. I set a rule that we would not respond to speculation, unless
there was an overriding public interest in doing so. I believed that our strategy should
be driven by the needs of the investigation, and not by the wishes of the media. That
we would not make public appeals unless the investigation demanded it, and we
would not release visual material unless it supported the investigation to do so. Thus
it is that we have hundreds, if not thousands of images from CCTV systems and
elsewhere that we have not released.

Sticking to the rule that we would only release information when we knew for an
absolute certainty that it was true to evidential standards did carry with it some
problems as it meant that at times the media were ahead of us in releasing
information. I think that was a price worth paying, in order to retain our credibility as a
source of accurate information. But this takes me on to a subject that gives me great
concern, and it is that of leaks.

The simple fact is that it is incredibly difficult to keep information confidential.
The circle of knowledge, even on the most sensitive of operations, inevitably

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

becomes wider than one would wish, particularly when those operations are
protracted for the reasons I explained earlier. But let me make it absolutely clear
what I am talking about. I am not referring to the normal day to day discourse that
occurs between journalists and their contacts. What I am talking about is the
deliberate leaking of highly sensitive operational intelligence, often classified, and the
unauthorised release of which can be a criminal offence. I make no allegations about
the source of leaks or about individual cases. What is clear is that there are a
number, a small number I am sure, of misguided individuals who betray confidences.
Perhaps they look to curry favour with certain journalists, or to squeeze out some
short term presentational advantage – I do not know what motivates them. The
people who do this either do not know or do not care what damage they do. If they do
know, then they are beneath contempt. If they do not know, then let me tell them.
They compromise investigations. They reveal sources of life saving intelligence. In
the worst cases they put lives at risk. I wonder if they simply do not care.

The recent investigation in Birmingham into an allegation that a British
serviceman had been targeted by a terrorist network is but one example of this. On
the morning of the arrests, almost before the detainees had arrived at the police
stations to which they were being taken for questioning, it was clear that key details
of the investigation and the evidence had been leaked. This damaged the interview
strategy of the investigators, and undoubtedly raised community tensions. I have no
idea where the leaks came from, but whoever was responsible should be thoroughly
ashamed of themselves. There are many other examples that I shall not itemise, for
fear of giving credence to those very leaks.

So, to take stock and attempt to summarise where we are nearly six years after
the attacks of September 2001. From a police perspective, and I emphasise that this
is from a police perspective – what has been achieved and what remains to be done?

Well, the process of investigation has certainly improved our knowledge of the
threat we face. At the strategic level we can be in no doubt that the threat is deadly,
enduring and to a significant extent targeted at the United Kingdom. Within the
country we have people who are sympathetic to the terrorist cause, and prepared to
carry out attacks against their fellow citizens. Working closely with the Security
Service, a number of attacks have been prevented, and over 100 people are now
waiting trial on terrorist related charges. Nevertheless, we suffered the appalling
attacks of July 2005, and the only sensible assumption is that we shall be attacked
again.

This is a depressing prospect, but is no more than a realistic assessment of the
complexity of the threat we face. We are not looking at discrete terrorist cells that can
be investigated, isolated and dismantled. We are seeing networks within networks,

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Peter Clarke: Learning From Experience – Counter Terrorism in the UK since 9/11

connections within connections, and links between individuals that cross local,
national and international boundaries.

In response to this, British policing has changed its approach to terrorist
investigation, and built both capacity and capability in the regions. This is a huge step
forward. But there is still much to do. We need to redouble our efforts in working with
the various Muslim communities. Last week’s Gallup Poll showing that Muslims in
London had higher levels of confidence in the police than the wider population was
reassuring, and confirms what we all know and have been saying for years – that the
vast majority of Muslims totally reject extremism and violence. But we must not be
complacent. The extremists have a momentum that must be stopped.

On the international stage, the levels of co-operation are unprecedented, and
some of our most important operations have depended upon multi-national cooperation in agreeing the timing of arrests in different jurisdictions, and the like. An
interesting and important task for the future will be to clarify the appropriate roles for
bilateral and multilateral linkages.

Perhaps most importantly, I honestly believe that the safety of the British public
will be secured as much by improving their understanding of the challenges we face,
as by any individual policy initiative or piece of legislation. We must build, and where
necessary rebuild, trust. We must certainly be resolute, as our opponents will exploit
any weakness. Indeed their strategy is built around exploiting what they perceive to
be the vulnerabilities of free societies. Colin Cramphorn was a master at
understanding the complexities of policing, and never more so than in the field of
counter terrorism where he had so much experience and foresight. Above all, Colin
was someone who was prepared to learn from experience. I would therefore like to
thank the Policy Exchange for giving me the opportunity to dedicate this lecture to the
memory of Colin Cramphorn.

15

Wife Beating

Alan Milburn was first married to to Dr. Barbara O'Toole who was an MEP until she lost her seat in June 2004. They had very strong and differing views on men beating up their wives.

Alan feels strongly about Freedom of Speech ... on his website he says ..."Freedom of Speech is vital to British society. So I understand why some might be concerned about the right to say things with which others disagree passionately. I support that right and regard it as a fundamental part of a free society. Let’s be clear - criticising, causing offence, even ridiculing, is not the same as stirring up hatred. " he goes on to say The law should only care about those who cross the clear boundary between passionate debate and vicious prejudice.

So now you know -passion can descend to viciousness - take care.