How should the state fight terrorism? That is the question addressed by Jon Boutcher’s report ‘Operation Kenova: Northern Ireland Stakeknife Legacy Investigation’. The report was precipitated by the claims that the British Army had an agent at the heart of the IRA. ‘Stakeknife’ was head of the IRA’s Internal Security Unit and was responsible for questioning, torturing and executing people the IRA suspected of being British agents. Stakeknife was himself a British agent, passing on information about the IRA – its plans, strategy and tactics – to his controllers in the British Army.

What was the British state doing employing such a person? Jon Boutcher spent nearly a decade and more than £38 million investigating the answer but what he calls his ‘interim report’ is deeply disappointing. It provides almost no details about what Stakeknife did or how his information was used. Instead, the report focuses on ‘the victims and their loved ones’, and castigates the security forces for not providing them with more information.

Agents inside terrorist organisations have to behave as terrorists do: plotting murder and mayhem

But the reason the British state employed Stakeknife, rather than prosecuting him as a terrorist involved in murder and torture, is very straightforward. It was because he was in a position to provide information that was critical to defeating the IRA.

Boutcher makes the extraordinary claim that employing Stakeknife might have led to more deaths than if he had either never been used, or he had been prosecuted. It’s impossible to understand how he comes to that conclusion. Suppose the British Army had reported Stakeknife to the police when he offered his services, and the police had arrested him. Does Boutcher seriously believe the man the IRA used to replace him would have been a kinder, gentler interrogator who would not have authorised the torture and execution of as many people as Stakeknife did? To pose that question is to answer it: the torture and executions would have gone on at the same rate, and might even have intensified as the IRA searched for more traitors. All that would have happened is that the British state would not have had the benefit of information about the IRA’s structure and tactics.

Stakeknife’s case identifies in stark form the central dilemma of the struggle against terrorism: that agents inside terrorist organisations are essential if the security forces are to acquire the information they need to defeat terrorism. But agents inside terrorist organisations, if they are to survive and provide useful information, have to behave as terrorists do: they have to be involved in plotting murder and mayhem. They have to break the law. Furthermore, unless they are given some sort of guarantee by the state that employs them that they will not be prosecuted for their crimes, they will not work as agents at all. So if the state is to have agents in terrorist organisations, it has to endorse, or at least tolerate, serious criminal-ity.

Boutcher is aware of this dilemma. He describes it clearly. Unfortunately, he has nothing sensible to say about it. He goes into great detail about how shocked he was that the British state employed agents who committed crimes and insists that it should never offer its agents immunity from prosecution. Agents should make sure that they rigidly adhere to Article 2 of the European Convention on Human Rights (ECHR), he says. This is the obligation on the state to protect the right to life of everyone. Following the recommendations of Boutcher’s report would, then, require the dismantling of all networks of agents in terrorist organisations, because agents are bound to violate Article 2.

Boutcher is not the first to identify the dilemma inherent in the state employing agents in terrorist organisations, or to propose a way of resolving it that would in fact prevent the British state from employing any effective agents. There has been a degree of double-think, and outright hypocrisy, from ministers and other senior figures since at least 1976, when Merlyn Rees, then secretary of state for Northern Ireland, announced the policy of ‘police primacy’: the conflict was not a war, he insisted, but a law enforcement operation, and all state agencies involved in that conflict should obey the law at all times.

But of course it was a war. That was why the army was in Northern Ireland. Even in 1976, Rees must have known that defeating the IRA required agents in the IRA, and that immediately required breaking the law: belonging to the IRA was a criminal offence.

Those involved in running agents in Northern Ireland frequently asked for guidance from central government setting out how they should do it. The response from Whitehall, during the Troubles, was always the same: carry on doing what you are doing – just don’t get caught. Most ministers know that there is no way to keep effective agents on the right side of the law. They just don’t want to state in public the truth that you can have compliance with the law, or you can have agents and fight terrorism effectively – but not both.

Boutcher’s emphasis in his report on victims and their families seems to be another way of evading a sensible discussion of this dilemma. They are unquestionably important, and it is true to say that they have often been neglected, and shabbily treated, by the security forces. But should consideration of the interests of the victims and their loved ones be the most important factor in the formulation of the state’s policy on terrorism? When there is a campaign of terror, the primary duty of the state’s security forces is to defeat terrorism. It is not ‘to acknowledge properly the hurt inflicted on the families of those who were murdered’. And if acknowledging properly that hurt gets in the way of effectively defeating terrorism, then it must give way, because defeating terrorism is the more important goal. Pretending that it is not leads to a litany of pious platitudes which are of no use in the formation of an effective policy for defeating terrorism.

It is certain that the British state will need agents in terrorist organisations in the future. It is silly and extremely dangerous to adopt a moral position that implies we should get rid of all such agents in order to make sure that we comply with Article 2 of the ECHR.