A Critical Systems Explanation for the Racial Effect of US and UK Counter-terror Stop, Search and Surveillance Powers

Abstract

Abstract The racially disproportionate impact of counter-terrorism stop, search and surveillance powers, in the US and UK, has been widely borne out in statistical data, individual experiences and official reports. Such uneven police use of the powers failed to yield any discernible benefit in terms of safeguarding the population against the threat of terrorist attack and has instead been linked to the alienation of minority communities from law enforcement in both countries. Rather than seeing this outcome as a consequence of individual prejudice, this thesis uses a jurisprudential framework combining critical race theory and social systems theory to argue that, as a result of subsystem operational behaviours and obstructed inter-subsystem communications, what were intended as racially neutral, security-enhancing law enforcement tools were ineffective and racially uneven in deployment. Through the case study of the stop, search and surveillance powers, within section 44 of the Terrorism Act 2000, in the UK, and sections 214 and 215 of the USA Patriot Act, in the US, this thesis describes the normal modes of subsystem operation, created by each subsystem and seen as necessary to uphold the rule of law and the legitimacy of that subsystem. This analysis also demonstrates that within the law-making, policing and judicial subsystems the risk, in terms of jeopardising the legitimacy and efficacy of subsystem operation and output, of departing from these ideal subsystem programmes, was recognised. Despite such an understanding, in their response to the national security threat arising form international terrorist activities each subsystem departed from its normal operational standards, whilst maintaining a confidence that other subsystems could withstand the pressures arising from these contextual circumstances and adhere to its normal modes of operation. This thesis also analyses the communications within and between the three subsystems to demonstrate how each misunderstood the communications of other subsystems because each interpreted these communications in accordance with its own, system-specific modes of understanding. These subsystem behaviours resulted in gaps in the oversight of the statutory powers and left them without stringent safeguards to protect against their misuse. Finally, this thesis draws together the findings relating to the causes and consequences of each subsystem’s operational programme and offers recommendations for reform by which each of the subsystems in both the US and UK may be able to safeguard against the recurrence of such deleterious law-making, policing and judicial adjudication in the face of each new threat to national security