Introduction
One of the duties of the state is to pursue a policy of terrorism prevention, while ensuring the continuity of ordinary life that citizens led before a terrorist attack. Terrorism resonates directly with a society as the resulting emotions are built on fear. Governments in many countries are constantly asking themselves whether the benefits of implementing security policies outweigh their costs. Moreover, governments face the challenge of striking a balance between general public security and its efficiency, whilst simultaneously maintaining standards of democracy, e.g. freedom of speech. Therefore, an important dilemma which a liberal-democratic government faces is whether to sacrifice some democratic freedoms in order to improve the sense of security, or to accept some degree of risk in the name of maintaining civil liberties.Reference Kostakopoulou 1 The government needs to find the way to provide security to citizens and not violate their civil liberties.
Transnational threats often determine a state’s domestic policy, every country seeking tailor-made legal solutions to implement its security policy. The dilemma of whether guaranteeing safety at the cost of limiting people’s freedom does not constitute a greater threat (from a social point of view) than the danger of a terrorist attack itself should be addressed by both law and political philosophy. The Constitution of the Republic of Poland (founded on 2 April 1997) stipulates that the state is primarily responsible for ensuring the security of its citizens. However, activities undertaken by the state need to be understandable, transparent and effective. The following article proposes that the analysed law affects not only terrorists, but also other groups of people. Two values – freedom and security – confront each other. Is it feasible to maintain a balance between them? Activities connected with guaranteeing security touch upon citizens’ privacy. However, it seems that the word ‘privacy’ should be replaced by ‘freedom’, the scope of which is much wider. While ‘privacy’ refers to the choice not to publicly disclose one’s own data, habits and behaviours, ‘freedom’ denotes making choices from all available options. Such ‘freedom’ also includes the opportunity not to make information about oneself public. The law of 10 June 2016 on anti-terrorist operations in Poland will serve as our example in discussing these issues. 2
European Union Security Policy
After the Cold War, the European Union gradually became a major international player with regard to European security.Reference Matlary 3 EU policy largely consists of trying to broaden the European security community, as well as expanding the politically and economically stable areas. To do so, the EU adopted the European Security Strategy in 2003, the Information Management Strategy in 2009, and the Internal Security Strategy in 2010.Reference Ivancea and Baltes 4 Despite these efforts, various challenges connected with Islamic terrorism, migration and border security remain. 5
The EU seeks to simultaneously pursue its goals of protecting Europeans and spreading such values as democracy, the rule of law and human rights by supporting reforms in neighbouring regions. Such a policy is often perceived as a remedy for contemporary threats such as failed states, terrorism and poverty. The threat of terrorism, visa policies, drug trafficking, organised crime, and border controls have become a part of the EU’s security policy in its external relations with other political entities.Reference Rouet 6
As the traditional distinction between domestic and international security has become blurred, European leaders emphasise the need to develop a comprehensive approach to security in the European Union. However, since the EU operates in an increasingly complex and demanding environment, the question arises whether the European Union is able to provide a unified response to the existing problems?
Recently, security policy has become the main axis around which media coverage, as well as political identities revolve. As critical, suspicious, and even harsh attitudes towards refugees and the stigmatisation of Muslim minorities bring political benefits, political leaders, reacting to social emotions and pressure, distance themselves from previously held beliefs and values.Reference Górka 7
The changes concerning security, both at state and society levels are happening relatively fast. Transnational threats such as terrorism, cybercrime, human and drug trafficking, and also migration not only pose new challenges for national and international security forces but also put pressure on political authorities in many countries. The terrorist attacks that took place in Paris in 2015 and in Brussels in 2016, as well as the ongoing refugee crisis in the Mediterranean region, have highlighted the political problems within the European Union. Economic tensions between native Europeans facing economic difficulties and immigrants lead to conflict escalation. This poses a challenge in the field of security policy.Reference Ciorciari and Ch. Weiss 8 Understanding the security policy in the above-mentioned aspects is increasingly important for the effective functioning of the police.
Reasons for the Introduction of the Anti-terrorist Law in Poland
Globalisation and the opening of the borders created a new reality. Terrorism, which was once known only from television coverage about the Middle East and Africa, today affects Western Europe.Reference Olsen 9 The attacks in Paris in November 2015 and in Brussels in March 2016 raise the question of whether both the state and transnational structures should react in a decisive manner. Prevention is also crucial. Citizens need to be educated so that they are able to recognise and appropriately respond to threats. Still, the state should be able to react and be able to prevent terrorist threats before they even occur. But does the authority granted to intelligence services in this regard not interfere too much with human rights? Does the latest Anti-Terrorist Law (henceforth: ‘Law’) in Poland – just like its American counterpart, the Patriot Act of 2001 – fully respond to these problems? Certainly, legal regulations are not a remedy for all the problematic issues.Reference Banks and Tauber 10
The solution to the dilemma seems to be the scenario in which relevant authorities have sufficient power which is adequately controlled.
It is worth considering what the purpose of the anti-terrorist law is. The state must provide its citizens with security. The preparations for the NATO summit from 8 to 9 July 2016 in Warsaw and the World Youth Days from 26 to 31 July 2016 in Krakow provided the necessary context for the implementation of the Law on anti-terrorist operations. The growing terrorist threats in the Western European countries had a significant impact on the preparation of the said Law. But is it not true that the state rushed excessively while drafting this law? It is perhaps inadequate to talk about haste when terrorist attacks are taking place in Europe and when the so-called Islamic State has announced explicitly that it is transferring its fighters to Europe. These arguments are characteristic of strong supporters of legal solutions. These supporters also emphasise that waiting for potentially more democratic solutions is not an option.Reference Byman 11
The haste that accompanied the implementation of the Law in Poland created concerns in its practical dimension. Testing the legislation was quite impossible in such a short period of time, i.e. from the commencement of the legislative procedure to implementing it. The Law still requires a lot of work concerning regulations and orders, preparation of the response procedures and testing these procedures. Therefore, it can be assumed that they will probably be ad hoc procedures. Individual security institutions will have to develop appropriate rules and procedures at the time of the threat. Supporters of the Law argue that such a solution will give appropriate authorities a possibility to respond in a more flexible manner. It needs to be borne in mind that such legal instruments hastily adopted just before a major event create concerns. It is impossible to make use of the Law in such a short time, without secondary legislation, and without experience that is gained while the Law comes into force.
Selected Goals and Tasks of the Anti-terrorist law
The aim of the anti-terrorist law of 2016 in Poland is to reduce the risk of a terrorist attack. Similar to other European legal acts, the Polish Law aims to address the issue of a terrorist threat. According to the government website, the basic objectives of the anti-terrorist law is to increase the efficiency of the Polish anti-terrorist system and, above all, to increase the security of the citizens. These objectives are to be achieved through better coordination of operations and clarification of the cooperation rules. The new rules are also intended to accelerate the decision-making process in the event of an attack.
Article 4. 1. Organs of public administration, owners and holders of facilities, installations, and equipment of public administration infrastructure, as well as critical infrastructure, cooperate with the organs, services and institutions competent in issues of security and crisis management when performing anti-terrorist activities.
2. The entities referred to in Paragraph 1 are to, without delay, convey to the Head of ABW [the Internal Security Agency] the information they possess about the terrorist threats to the infrastructure of public administration or the critical infrastructure, including threats to the functioning of the system and the energy, water and sewage, heating, telecommunication and IT grids, which are important from the point of view of the security of the state. 12
As can be assumed, the analysed Law is a response to an increased number of terrorist threats around the world. So far, there has been no anti-terrorist law in Poland that put all the procedures together. The question is whether they all have been incorporated and whether they are transparent.
Based on solutions adapted in the US or other European countries, the Polish legislator tried to implement procedures that are convenient for the functioning of relevant services, but not necessarily effective in the fight against terrorism. Within the context of terrorist attacks in France and in Belgium, it is important that the relevant services in these countries possessed knowledge of possible dangers, but they failed to exchange that knowledge. Therefore, the key problem to solve is the exchange of information. There is a need to establish an intelligence centre to which all data will flow, and from which these data will be forwarded to appropriate departments.Reference Carter and Carter 13 With respect to the 9/11 attacks in the US, the inability to exchange information between departments was extremely harmful.Reference Zegart 14
Nowadays, however, many services have to coordinate their own activities with activities undertaken by other services, and it needs to be borne in mind that these services compete with each other. There is also a dispute concerning who should transfer information to whom. Codification or legal regulation of the activities carried out by different services aims, among other things, to divide competences and determine the scope of the said activities. It should also indicate which services are to lead while cooperating with other services.
Article 3. 1. The Head of Internal Security Agency (ABW), henceforth referred to as ‘Head of ABW’, is responsible for the prevention of events of a terrorist nature.
Article 5. 1. In order to perform the tasks referred to in Article 3 Paragraph 1 hereof, the Head of ABW coordinates the analytical and information Activities undertaken by the special services referred to in Article 11 of the Act of 24 May 2002 on the Internal Security Agency and the Intelligence Agency, as well as the exchange of information transferred by the Police, Border Guard, Government Protection Bureau, State Fire Department, Customs Service, General Inspector of Financial Information, General Inspector of Revenue Control, Military Gendarmerie and the Government Security Centre, regarding threats of a terrorist nature, as well as data about the persons referred to in Art 6 Paragraph 1, by collecting, processing and analyzing these data.
Article 8. 1. In order to perform the tasks referred in Art 3 Paragraph 1, the Head of ABW coordinates:
(1) the surveillance and intelligence activities undertaken by the special services referred to in Art 11 of the Act of 24 May 2002 on the Agency of Internal Security and the Intelligence Agency, as well as by the Police, Border Guard, General Inspector of Treasury Control, the Military Gendarmerie, and
(2) the activities performed by customs officers of observing and recording, with the use of technical means, the image of events in public spaces and the audio accompanying these events. 15
The Polish anti-terrorist law of 2016 improves coordination and unequivocally declares who is responsible for various Polish special services, thereby simplifying the system. The Law, however, also increases the powers of the services, particularly of Counterintelligence (Internal Security Agency – in Polish: ABW). Obviously, most experts tend to agree that the Internal Security Agency must be effective in the fight against terrorism; still, the said law defines terrorism broadly.
The Law is largely directed at foreign nationals. Similar solutions concerning foreigners are currently binding in French legislation. The French legislation stipulates that there is a possibility of issuing an administrative decision to ban entry into French territory. It is a tested solution that allows expulsion of a foreigner who poses a security threat to the state and relates to individuals involved in organised crime on a regular basis, and whose presence in the country may lead to a terrorist attack.
Doubts
During the public debate that took place in the public space, many institutions, such as Amnesty International Poland, the Ombudsman, the Panoptykon Foundation, the Helsinki Foundation for Human Rights, the Inspector General for Personal Data, and the Polish Chamber of Information Technology and Telecommunications, presented their point of view on the matter. In most cases these opinions were critical; therefore, it is worth considering whether such a law is actually needed.
The issue that raises a lot of controversy is the lack of effective supervision by an independent body, i.e. a court whose role in this respect, accepted in democratic countries, seems to be the best solution. While discussing counter-terrorism regulations, it is also worth considering which civil liberties are most at risk. The public perception of the anti-terrorist law is quite problematic since the society has begun to feel uncertain and insecure, and it has some objections to the legal provisions that limit civil liberties to a great extent. Whenever a new regulation is being implemented, the question arises of whether new laws to fight terrorism are needed which at the same time further restrict civil liberties.
Many provisions of the anti-terrorist law increase the powers of the services in order to combat terrorism. However, there is neither justification for such an increase of powers nor explanations as to what it is needed or necessary for. It appears that if we strive for greater security, where the services have more effective tools and possess lots of data, it will, unfortunately, be done at the expense of some civil liberties.
It needs to be borne in mind that the right to liberty and the right to security are inseparable. They do not ‘compete’ with each other. However, they require some hierarchy. What would the right to liberty mean, if it is not guaranteed by the state? The right to liberty is often used by those who know how to utilise it, or by people or organisations that undermine the existing legal and political order. Summing up, ‘political correctness’ as well as misunderstood notions of freedom unfortunately lead to a situation in which the services have their hands tied. This situation is then used by those who question the powers and activities undertaken by the services in the name of complete freedom and liberty.Reference Donohue 16
Who is a Terrorist?
The Law also introduces the concept of an ‘event of a terrorist nature’. Has this concept been really defined? Pursuant to the said Law, a terrorist refers not only to a person wearing a ‘shahid belt’. It may be a citizen who, by her or his action, compels the authorities to take specific action. In accordance with the Law, the services are granted all powers for the purpose of preventing terrorist offences. Offences refer to activities punishable by imprisonment for a maximum of three years.
An ‘event of a terrorist nature’ is an event which, pursuant to the law, is related to a crime of a terrorist nature, and hence this phenomenon should also be defined as a crime. A terrorist offence is a violation of criminal law which meets two criteria: the first refers to the sanctions specified in the Law (in accordance with the law it is supposed to be the maximum sentence – at least five years; previously three years was proposed), and the second refers to committing the crime – and it is the key aspect – in order to compel public authorities to take or refrain from certain actions.
In practice, this may mean that such a formulation may refer to solicitation to bribery and corruption, the aim of which is to force the public authority to take certain actions. Thus, if selected activities are categorised as terrorist offences, new measures such as temporary detention, wiretapping without a court order, or collecting personal data may be permissible.
The anti-terrorist law of 2016 is the foundational document, to which an annex – a Regulation of the Minister – was appended. 17 The annex constitutes a kind of catalogue, which enumerates the incidents of a terrorist nature, i.e. situations that can intuitively be perceived as situations that may pose a threat under certain circumstances, and which must be prevented.
The catalogue includes, for example, a visit to the imam in prison facilities (not any other cleric, but an imam specifically) or information about establishing an Islamic university in Poland. Incidents of a terrorist nature can also include finding passports upon a person being checked on border controls that do not belong to that person. The catalogue refers not only to documents, but also to the possession of pictures. However, every other person in Poland carries a photograph of a wife, a husband, a child in their wallet, and this is often a passport photograph. The possibility that these provisions should be interpreted literally, then, gave rise to criticism. The provisions are not clear and pure enumeration of incidents does not work. In Europe, defining crimes by enumeration is no longer practised. Moreover, such a catalogue can never be up-to-date because terrorist organisations change tactics and strategies. Should we, therefore, suspect bad faith on the part of the legislators? Or have the legislators simply tried to make their own work easier with this annex?
Foreigners
Many objections have been raised with regard to the fact that for the anti-terrorist law there exist only two categories of people: a Polish citizen and a foreigner, the latter not distinguishing between third country nationals and EU country nationals. In relation to foreigners, the Law provides the possibility of taking actions that go far beyond what is acceptable in a democratic state, e.g. the introduction of the so-called quasi-operational controls – a possibility of controlling the contents of correspondence as well as parcels without the consent of the court for a three-month period.
Article 9. 1. In order to recognise, prevent and combat offences of a terrorist nature, the Head of ABW may order the following covert activities to be undertaken, for a period no longer than three months, with regard to a person who is not a citizen of the Republic of Poland, and with regard to whom there is a fear of possible involvement in terrorist activities:
(1) obtaining and recording the content of conversations by technical means, including with the use of telecommunication networks;
(2) obtaining and recording the content of the image and sound of persons from premises, means of public transportation and other venues other than public spaces;
(3) obtaining and recording the content of correspondence, including correspondence kept by means of electronic communication;
(4) obtaining and recording the data contained in IT data carriers, telecommunication end devices, as well as information and tele-information systems;
(5) obtaining access and controlling the content of consignments. 18
Of course, so far some Polish legal provisions already allowed for the adoption of measures relating to operational control towards everyone, but the consent of the court was required. The new law moves away from the previous practice with regard to foreigners. It is also possible that provisions worded in this way may in fact relate to every single citizen, e.g. in the case of telephone communication control: if a Polish citizen talks to a foreigner, the Polish citizen is automatically subject to control as well.
Another problematic issue relates to collecting and processing biometric data (fingerprints and DNA) of foreigners.
Article 10. 1. Officers of ABW, Police and the Border Guard are entitled to take fingerprints or record the face image of a person who is not a citizen of the Republic of Poland in case when:
(1) there is a doubt as to the identity of this person or
(2) there is a suspicion that the border of the Republic of Poland has been crossed illegally, or there is a doubt as to the declared purpose of the person’s stay in the territory of the Republic of Poland, or
(3) there is a suspicion of an intended illegal stay in the territory of the Republic of Poland, or
(4) there is a suspicion of the person’s connection with and event of a terrorist nature, or
(5) the person may have participated in terrorist training. 19
It seems reasonable to collect and process such data in order to determine the identity of a person. Nevertheless, once collected and processed, the data will never be removed, which raises serious doubts about complying with constitutional or international legal standards. The authorisation to process foreigners’ data is the first step towards curbing human and also citizens’ rights, because one can expect that processing all citizens’ data might just be a matter of time. The most worrisome fact about the Law is that the people in question are not entitled to any measures of judicial control and do not have the possibility of verifying the legality of the used instruments, so there is actually a great risk of potential abuse.
A list of names kept by the head of the Internal Security Agency (ISA) causes controversy. In the rationale for the draft it was indicated that such a list constitutes a fundamental instrument of the agency’s activities. However, persons can appear on the list simply because they are suspected of activities of a terrorist nature. The problem is that citizens will not be entitled to learn whether their names appear on the list and to verify whether the ISA put their names on the list based on true information.
It is also important that the Law confers power to the Internal Security Agency to gather information about any person who comes to Poland and about his or her reasons for doing so. Nowadays, gathering information about immigrants arriving to Europe, even if they are already here, is very important, especially when a tragic event occurs, because it is then that a lot of questions are asked about how it happened and why. However, pursuant to the Law, it will be possible to place all non-Polish citizens (e.g. Erasmus students, presidents of companies and corporations and economic migrants) under surveillance without court approval. The services can effectively eavesdrop on anyone without obtaining a court’s consent at an early stage because they can obtain it later if they see a need for urgent action; and they can start eavesdropping regardless of citizenship without prior approval of the court. The anti-terrorist law of 2016 justifies such activities with the need for efficiency, which in reality means the need for convenience. This is particularly evident with regard to so-called ‘reasonable suspicion’: anyone who crosses certain boundaries can be eavesdropped upon by the ISA. Of course, it is impossible to put all citizens under surveillance. Still, the awareness that there is a possibility for eavesdropping also leads to an overestimation of the scope of the activities undertaken by the secret services. In addition, since the services constitute a part of a democratic state, the lack of confidence in the operational control techniques (when a situation requires it) indirectly proves the lack of confidence in the state itself.
Most attacks that have taken place so far indicate that the emergency services know exactly how to react. Nonetheless, anti-terrorist and intelligence services operate under enormous pressure from the public, and must, therefore, predict possible scenarios. Thus, they need tools not only to prevent radicalisation and recruitment to terrorist organisations, but also to gather information, analyse it and predict potential terrorist threats. Combating terrorism does not mean that the services apply operational control towards someone who, based on evidence, either will commit or has already committed a crime or carried out a terrorist attack. In such cases the anti-terrorist squads take action. Yet each terrorist attack can also be perceived as a defeat on the part of intelligence and counter-intelligence services. Therefore, the services are to provide citizens with security which relates to detecting potential terrorists before they attack.
It is easy to imagine a situation in which a person comes to Poland from a country in Western Europe and the intelligence services of that country provide information that the person in question is suspected of activities against the state and his or her reasons for arriving in Poland are unknown. What (if any) action should be undertaken? What justifies such action? In order to recognise the threat at an early stage, a variety of measures, not only operational control that involves eavesdropping, is required. It is the court that ultimately decides whether wiretapping is applied, but there have been doubts about whether the judiciary has sufficient knowledge and expertise in this matter.
Criminal responsibility for participation in terrorist training and penalties for trips abroad in order to participate in terrorist activities have been other unregulated issues in Polish law. In Poland, in order to determine whether an activity is an act of terrorism or not, article 115 paragraph 20 of the Penal Code is applied. It stipulates that a terrorist denotes a person whose intentions seriously intimidate many people; compel a public authority of the Republic of Poland or another state, or international organisation authority to take or refrain from certain activities; cause a serious disturbance in the system or the economy of the Republic of Poland, another state or an international organisation – as well as threats to commit such an act. 20 Nonetheless, when a person holds a bomb in his or her hands or even detonates it, it does not mean that he or she is a terrorist. They can do it for ransom or out of hatred towards a neighbour. In these circumstances, the lack of secondary legislation means that it is unclear when and how this mechanism should be implemented.
Another important aspect that the Law touches upon is the migration of Polish citizens to war-stricken countries. This provision is intentionally significant. Having public security in mind, authorities or services do not want citizens to leave and fight for the Islamic State. According to public information, in 2016 there were approximately 30 people of Polish origin who actively participated in the activities undertaken by the Islamic State. If these Polish citizens decided to return, it could initiate a terrorist threat. Similar phenomena have taken place in several other European countries. Most of these countries strive to suppress and marginalise the phenomenon of ‘blow back’ (the process of returning from the areas covered by military conflict). On the other hand, it makes no sense to make someone a stateless person and deprive them of their rights. Moreover, if such a person wants to return home via a third country, it will be really difficult to prevent it.
To sum up, there is no doubt that participation in a terrorist group should be punished. However, unless it is done by both intelligence and counter-intelligence services, and unless the police have the necessary experience and some already implemented mechanisms, the goal cannot be accomplished by the Law itself.
Sniper Shot
There are many other provisions that have not been stipulated so far and which may cause controversy in certain circumstances, e.g. the so-called ‘Sniper shot’. So far, the police are obliged to warn an alleged terrorist, ‘Stop or I will shoot’. Now, in a critical situation, if a bomber wears a Shahid belt and has a detonator in his or her hand, a police officer may use a sniper shot.
Article 23. 1. As part of the counter-terrorist activities, should it be necessary to counteract the direct, unlawful, and sudden attack against the life or health of a person, and when the use of a firearm in a manner inflicting the least possible damage is insufficient, and counteracting such an attack in any other manner is impossible, it is admissible, taking into account all the circumstances of the event of a terrorist nature and all possibilities of counter-terrorist activities, to use a firearm against the person committing the attack, which may result in the death or the immediate threat to this person’s life or health. Such use shall be referred to henceforth as ‘special use of a weapon’.
4. The special use of a weapon may be performed by officers of the Police, the Border Guard, Agency of Internal Security, soldiers of the Military Gendarmerie or soldiers of the Polish Armed Forces, who are members of groups performing counter-terrorist activities, henceforth referred to as the ‘counter-terrorist groups’.
5. The decision to allow for the special use of a weapon can be made and revoked by the commander of activities. The commander of activities shall, without delay, transmit the decision to the commander of the counter-terrorist group, and inform the organ designating the commander of activities of the decision made.
6. Upon receiving the decision on the admissibility of the special use of a weapon, the commander of the counter-terrorist group may issue an order of the special use of the weapon by the officers or soldiers of the counter-terrorist group, defining the target and the means of the special use of a weapon. 21
The public has repeatedly discussed the matter of engaging a sniper to eliminate a person who poses a threat to others. Under certain circumstances, police officers may on their own responsibility take a shot (when they see that human life and health are at risk). Nevertheless, the situation would be much clearer if it was regulated by law, especially when it comes to taking the terrorist’s life. Even if a policeman saved someone else’s life in this way, assuming full responsibility, there still remains the matter of a long-term process of explaining the circumstances of the situation before a controlling body, such as the prosecutor’s office. The problem with this provision is that the sniper shot can be taken even when there is a suspicion of an event of a terrorist nature. The police do not always know if the perpetrator is an ‘active shooter’ uninspired by any terrorist ideology, a family sadist, or a criminal with no ideological or political link to terrorism. So who will determine whether the incident was a terrorist one or not? Most often it is determined post factum by either the prosecution or the court.
Another problematic scenario occurs when a person is not holding a rifle aimed at a human target but is controlling a computer. For example, intelligence services report that when the enter key is pressed, the whole building will turn into rubble. Nonetheless, a policeman aiming at such a potential terrorist does not know whether the person is watching a film or whether a disaster is looming. In this particular case, the officer has to make a decision whether to shoot or not. There is no guarantee that the right choice was or will be made in such a situation. So the problem is that the group that carries out the anti-terrorist operation is not the group that gathers intelligence. Confusion and errors may result.
To conclude, the problem with the sniper shot is that intentions must be assessed even before the event takes place, and it needs to happen before the court decides what the situation really involved.
The Use of Special Forces
Another unresolved issue is the use of special forces in case of a domestic threat. The Polish special unit ‘GROM’ operates abroad; if there was a public emergency in Poland, its intervention would lead to a legal conflict. Therefore, there is a need for strong and effective security forces; however, they need to be controlled and to have clearly specified powers. The anti-terrorist law is an attempt to deal with this matter. Its provisions stipulate the use of armed forces on Polish territory. In the event of alert level 3 or 4, if police intervention is insufficient, it will be possible to get armed forces’ support much faster than today. The decision to use armed forces will be taken by the Minister of National Defence at the request of the Minister of Internal Affairs and Administration.
Article 22. 1. In case of the introduction of the third or fourth alert levels pursuant to Article 15 Paragraph 1, should the use of units and subunits of the Police turn out to be insufficient, or may turn out as insufficient, it is possible to use units and subunits of the Polish Armed Forces in support of the Police, appropriately to their specialist training, equipment and weapons in possession, as well as the current needs.
2. The deployment of the Polish Armed Forces, and in particular the start of the planning, information acquisition and cooperation with the organs of public administration, can take place upon the introduction of the third or fourth levels of alert and before the decision referred to in Paragraph 3. 22
The Law also stipulates that the army will act as military police, and the use of handguns or machine guns will be limited. Moreover, in case of public emergency, it will be possible for ‘GROM’ to intervene. Nevertheless, the involvement of armed forces based on such an indeterminate law raises some doubts. It is worth recalling the attack that took place in Mumbai at the end of November 2008. During this attack, which was a blueprint of the November attack in Paris in 2015, armed forces intervened, causing three days of havoc, with immense chaos and devastation, and with the law enforcement forces unable to control the situation.
Technology
A lot of controversy is also stirred by blocking websites, registering telephone cards and limiting the right to assembly. Polish anti-terrorist law enables the blocking of websites if they are deemed to pose a potential terrorist threat. Such websites can be used to promote ideas that might put democracy and public order in danger. The possibility of blocking websites entails forcing internet providers to create an infrastructure that will block access to certain content at the request of the state. As the terrorist threat is undoubtedly real, blocking access to such content achieves a certain goal. Yet most members of the Council for Digitisation agree that the adoption of the Law in its proposed version will create a very serious threat to the rule of law in Poland and will radically lower the standard of human rights protection. The Council also paid attention to the sale of prepaid cards, which are often used by potential terrorists or criminals. In as many as 80 countries around the world the sale of these cards is being limited. Supervision of the internet and mobile phones as well as the registration of prepaid cards create technical issues, though. Operational work is much more effective, but also more complicated, when it is based on human intelligence sources and working with them. Constant eavesdropping, on the other hand, is a lot simpler, so activities based on information gathered in this way become much easier.
Conclusion
Terrorism is not the only threat that the modern state must fight. The dilemma concerning the choice between the right to freedom and the right to security has not been resolved yet. It is the attempt to establish the boundary between these values that determines both legal regulations and public discourse. In order for the services to effectively counteract terrorist threats, there must exist proper reconnaissance and prevention tools, as well as tools to detain people who are likely to prepare an attack. The aim is to protect as large a number of citizens as possible from such threats. Hence, a scheduled sporting event or other mass gatherings can be cancelled which, in turn, might be interpreted as a restriction of civil liberties.
The anti-terrorist law constitutes a topic for further reflection on the long-time dilemma over the freedom versus security balance. The issue is particularly significant for the proper functioning of democracy. Other questions have also arisen. To what extent do contemporary security policies and regulations facilitate the operating and task fulfilment of the services? How much control do they guarantee over the services? To what extent can the services undertake activities in an uncontrolled manner? Will they have to explain their actions and ask for permission to perform certain operations? It is important that officers of the law can fulfil their duties, but the lack of control carries the risk of abuse.
There is no doubt that the Law should be formulated in such a way that all forms of abuse be prevented. The Law is unclear in a number of ways or gives too many privileges to the services, for instance with regard to surveillance. Still, in order to retain the right to freedom one needs to feel safe. If citizens are afraid to go to the cinema or the theatre, what good is there in such freedom? Combining freedom and the fight against terrorism is extremely difficult and may ultimately prove impossible.
About the Author
Marek Górka is Assistant Professor at the Faculty of Humanities, Koszalin University of Technology, Poland. His major Works include: Carnival and Media as Determinants of Modern Politics (Koszalin: Koszalin University of Technology, 2015); Mossad. Failures and Successes of Israeli Secret Services (Warsaw: Difin, 2015); Intelligence Services as Part of the Polish Security Policy (Toruń: Adam Marszałek, 2016); Interview and Counterintelligence in International Politics at the Turn of the 20th and 21st Centuries (Warsaw: Difin, 2016); PO -PiS Democracy. Competition between Civil Platform and Law and Justice in the Years 2015-2017 (Koszalin: Koszalin University of Technology, 2017) and Cyber Security for Children and Youth (Warsaw: Difin, 2017).
