Facebook messages between Lisa Smith and known jihadists in Syria and Australia will be admitted as evidence into the former soldier's trial on charges of membership of Isis and funding terrorism, the Special Criminal Court has ruled.
Ms Smith’s lawyers had asked the court to refuse to admit the messages, saying the use of private conversations that are stored indefinitely by Facebook is a breach of privacy rights. They also argued that the material, which was initially discovered by the US Federal Bureau of Investigation (FBI), was gathered without any consideration of Ms Smith’s rights and shared with gardaí without any protocols as to how the material should be shared.
Mr Justice Tony Hunt, who delivered the judgment of the three-judge, non-jury court, rejected all arguments made by Ms Smith's lawyers. He said it is now customary in criminal trials for the accused to invoke the right to privacy under the Constitution to render their third-party conversations as inadmissible. He added: "The difficulty for individuals relying on this right is that it is far from absolute and its exercise is balanced against whatever other constitutional rights and values arise in the context."
In a criminal trial, he said, the privacy right must be balanced against society’s right to have “proper and effective investigation, detection and prosecution of serious crime”. He said that complaints about Facebook retaining data for long periods do not mean that the court must exclude such evidence when gathered by gardaí.
He said the obligation on gardaí is to gather all potentially relevant evidence, adding: “In our view this does not involve debating whether a third party is or is not in breach of some contractual or statutory obligation pertaining to the potential evidence.”
Trespass
Investigations into serious crime, the judge said, require trespass on the rights of citizens. He added: “This is simply part of the social contract that applies in a democratic society.”
Ms Smith (40) from Dundalk, Co Louth, has pleaded not guilty to membership of an unlawful terrorist group, Islamic State, between October 28th, 2015 and December 1st, 2019. She has also pleaded not guilty to financing terrorism by sending €800 in assistance, via a Western Union money transfer, to a named man on May 6th, 2015.
The judge said that Ms Smith’s conversations were not “surreptitiously or unfairly recorded” but were recorded due to her decision to use Facebook. She must, the court said, “have been taken to have consented in some way to retention and use of her data by Facebook, which is well known to be the quid pro quo for ostensibly free use of the messaging facility.” There was no State involvement in the decision to retain Ms Smith’s conversations and, in all the circumstances, Justice Hunt said any infringement on the accused’s privacy right “falls well short of outweighing the competing rights of the People to adduce otherwise relevant and admissible material in this trial.”
The judge also rejected the defence’s claims that two warrants used by gardaí to gather the messages from Facebook headquarters in Dublin were flawed. Mr Justice Hunt said the information supplied by gardaí to the judges provided a rational basis for the warrants to be issued and did not contain any inaccuracy which would cause them to be invalidated.
The evidence received by gardaí from the FBI, Justice Hunt said, is permissible under legislation providing for mutual assistance between international police forces.
Research
The court has also on Tuesday heard from Dr Florence Gaub, an expert on the Middle East who is a director with the European Institute for Security Studies. She told prosecution counsel Sean Gillane SC that she researches military actors in the region, focusing on Iraq, Syria, Lebanon and Libya.
Ms Smith’s lawyers are objecting to Dr Gaub’s evidence.
Dr Gaub told Mr Gillane about the history of the conflict in Syria, beginning in 2011 with the "Arab spring" uprisings and leading to the emergence of Isis in Iraq, a group that later spread to Syria. In January 2014 Isis took over the city of Raqqa in Syria and nominated it as the capital of a new "proto-state" called Islamic State or the Caliphate. Abu Bakr al-Baghdadi became the leader of Isis in 2014, she said, and called on all Muslims to travel to Syria or make "hijrah". Baghdadi said it was obligatory for Muslims to travel if they could and it was clear, Dr Gaub said, that he wanted people to travel not just for military purposes but also to build a state.
Isis believed in the apocalypse, Dr Gaub said, and looked to a number of signs that the end times were coming. People making hijrah, or breaking with their tribes, was prophesied by Mohammed as a sign of the end time, as was the raising of the black flag – one of the symbols of Isis.
People making hijrah was so important to Isis that it created structures so that when people arrived they would be taken care of with salaries, housing and food, Dr Gaub said. They would get preferential treatment over others already in the caliphate.
Western women, she said, were particularly important because they “showed the success story of Isis in attracting people from a different country and culture”. Western women were also encouraged to be active on social media and were “more exposed and more important than Arab women” to Isis.
Propaganda voices
In the early days of the caliphate, women had no strategic role in military campaigns or in fighting on the front lines, but they played a role in recruiting, fundraising and as propaganda voices on social media, the witness said. At times they were also employed as “moral police”, enforcing dress codes and behaviour rules for women. As Isis came under pressure following the fall of Raqqa in 2016, she said women were deployed in more aggressive roles. In the very end days of Islamic State, she said, women were given weapons to fight.
She described Isis as a totalitarian organisation which is “highly intolerant of anybody who does not share its point of view”.
It uses “very brutal” violence, including beheadings, drownings, stonings, crucifixions and burning to “inflict terror in anybody who is watching”.
She added: “It sees the world in two camps; you are in or you are not in. And if you are not in, violence against you is permissible.” It expresses this view, Dr Gaub said, through its propaganda channels including a magazine called Dabiq. Dabiq, she said, gets its name from a town in northern Syria where it is prophesied in Islam that the apocalypse will come following a battle there.
Through its propaganda, Dr Gaub said Isis had attracted a high number of converts, especially among women. Isis recruiters, she said, are very skilled at recognising people’s grievances and would tell their targets that the grievance would be remedied by joining the Islamic State. Often they would leverage a source of depression such as a breakup, divorce, job loss or the death of a parent. Isis would offer the person a sense of belonging, meaning or community, she said.
Often people were recruited online, which Dr Gaub said is faster than face-to-face radicalisation and happens in larger numbers. Once they were convinced to travel to Syria, they would be cut off from friends and family and would be easier to indoctrinate.
Isis recruiters would also tell people how to travel to Syria undetected and would urge people not to tell family and friends or to share their beliefs with anyone.
Dr Gaub said the “doomsday” scenario presented by Isis may seem strange but is present in a lot of cults. She said: “It creates an in-group versus out-group, the group that knows and the group that doesn’t. It creates a strong sense of cohesion, belonging and meaning. If you know when it all ends and what it all means, you are an elite compared to everyone else. That is what Isis did.”
Dr Gaub will be cross-examined by defence counsel Michael O’Higgins SC on Thursday.