War on Terror – the ripple effect

by Maria on July 10, 2003

Much is made of the damage to US civil liberties of Ashcroft, Poindexter et al’s new crusade against the enemy within. But, as Henry and I discovered at CFP 2003, few people Stateside have really grasped the deep and permanent damage the war on terror is doing to European human rights and civil liberties. This isn’t simply a case of the US pushing unpalatable policies on its hapless allies (though there’s plenty of that going about), but is a more complicated situation in which the law enforcement / Justice and home affairs crowd have used the US war on terror to ram through retrograde measures that no civilised democracy should tolerate.

The war on terror is being used as a means to unpick, thread by thread, the European privacy protection regime. In two key issues in the last 18 months – communications data and airline passenger data – the Bush Administration has pushed the EU either to gut its privacy protections or simply to flout them. And Justice / Interior ministries throughout the EU member states have been beside themselves with happiness at the prospect of hoovering up terabytes of information about European citizens on the pretext of fighting terrorism.

On communications data, President Bush wrote to the President of the European Commission in October 2001 asking that the protections against the widescale retention of citizens’ data in a draft Directive on communications privacy simply be removed. The European Council of Ministers pushed hard to get Bush’s request implemented, and eventually the European Parliament rolled over. Since then, the Council of Justice and Home Affairs ministers has been manouevring to introduce mandatory retention of traffic data by communications providers (i.e., information on who you’ve called, which websites you’ve surfed to etc). It secretly surveyed member states last summer about their own retention practices. My favourite respnse was from Ireland who answered the question «Have you received any reports from your law enforcement authorities that have indicated an obstruction of their work due to the non-existence of appropriate legal instruments concerning traffic data retention?” with a simple “No.” The Irish Dept. of Justice had just introduced a secret, temporary measure to require telcoms providers to retain their customers’ data for 3 years, the longest period in Europe.

Within six weeks of the September 11 attacks, the UK introduced within a piece of omnibus legislation that covered immigration and asylum, electronic surveillance, disease control, etc. In effect, the bill Anti-Terrorism, Crime and Security Act 2001 was a patchwork quilt of the nastiest measures the Home Office had failed to get through Parliament in previous criminal justice and immigration bills. It was railroaded through Labour’s supine majority in the House of Commons, and only the few brave souls in the House of Lords who threatened to hold it up until after Christmas managed to wrangle some concessions out of a Home Secretary who was completely dismissive of“airy fairy” civil liberties concerns. (I don’t mind saying this episode entirely changed my views about the merits of the House of Lords, but that’s another day’s blog.) This Act introduced mandatory data retention, though it described it as voluntary; the Home Office is still wrangling with industry players on how to implement it. By requiring all citizens’ data to be kept all of the time, and giving access to third parties for reasons that have nothing to do with fighting terrorism or even serious crime, data retention is a disproportionate measure that probably contravenes Article 8 of the European Convention on Human Rights. But until case law determines more precisely the concept of proportionality in this context, some will continue to argue that keeping everyone’s data ‘just in case’, is a proportionate response to terror.

Whether through a single harmonising European instrument, or through piecemeal legislation by EU member states, Bush’s request for mandatory communications data retention in Europe will probably be met within the next year or so. And not simply because the Bush Administration intervened in internal European policy making, but because the powerful domestic law enforcement and security lobbies saw their chance to seize the upper hand, and grabbed it.

Airline passenger data is a slightly different story. Informal agreements between the European Commission and the US government give the US access to EU citizens’ personal data, and force airlines to act in a way that is clearly unlawful. This sorry story deserves a post in itself; suffice to say that earlier this year, the US threatened to stop planes flying from Europe if European airlines did not open their passenger databases to a myriad of unspecified US government agencies and allow those agencies to retain that data for up to 7 years. Just this week, the Swiss data protection commissioner’s annual report directly criticised the US War on Terror for forcing airlines to break Swiss law by handing over passengers’ personal data to US law enforcement without consent or limit. It is galling that these anti-terrorism measures are being eagerly used by some governments to push a radically anti-immigration agenda. I blogged a while back about the Spanish government’s efforts to goldplate access measures to passenger data and push them through the secretive and undemocratic Council of Justice and Home Affairs Ministers.

Two questions. How would the US public react if the EU was seen to involve itself so forcefully in US questions of fundamental rights? And why are the European governments that most strongly supported the US in its war in Iraq – the UK, Spain and Italy – making the most of the war on terror to tip the balance in favour of law enforcement and against privacy and assorted human rights?



SageOne 07.10.03 at 4:55 pm

Very thought provolking. Good post.


Doug 07.10.03 at 7:54 pm

My natural contrariness impels me to speak up, even if I think Maria is probably on the side of the angels on this one.

The problems that the JHA folks are dealing with are real. Al-Qaeda & co are quite happy to kill Europeans as the opportunity arises (Djerba, the French engineers in Karachi, quite possibly the Sahara tourists, and the foiled plot to bomb the Strasbourg Christmas market). So we are all in this together – or if we are not, then the Europeans are willing to have their security at the cost of the Americans’. That would not be an edifying spectacle, and it would give the lie to much EU rhetoric about its moral role in the world.

Given, then, that there is a common problem best solved together, and given also that terrorists have chosen to locate in places where law enforcement is slack, sympathetic bystanders can be found and barriers to prosecution are high (Atta & co hit the trifecta in Hamburg), what is to be done?

That’s the most important question, quite apart from who’s grabbing whose power. Is the European approach of September 10th likely to end with a smoking hole in some capital? Are gaps in European law, or communication among law enforcement agencies endangering citizens’ lives?


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aelph 07.10.03 at 10:30 pm

From the draft EU Constitution:

Article II-8: Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of
the person concerned or some other legitimate basis laid down by law. Everyone has the right
of access to data which has been collected concerning him or her, and the right to have it

If that stays in, I would think that the US would have a real problem trying to push Europe on these issues.


Maria 07.11.03 at 5:00 pm

Tks all.

Doug, I’ve no problem with the principle that we need to be doing everything we can to prevent further attacks, and a more co-ordinated approach to policing and intelligence is part of that. What I do object to, and in the strongest terms, is the naked opportunism on the part of some Justice/Interior ministries that have used the situation to introduce draconian measures with no bearing at all on fighting terrorism or even serious crime. David Blunkett got into hot water last year (though not half hot enough) when his department introduced regulations saying individuals’ traffic data (the records of who they talk to, where they go, what they read on the web, etc.) would be available to every half-baked quasi-government agency in the UK, including the Postal Commission and even parish councils. Also, Italian and Spanish governments have been using September 11th to push a radical anti-immigration and asylum seeker agenda that has nothing to do with terrorism, but simply rides along on peoples’ fears.

Immediately after September 11, many governments had a carte blanche to introduce anti-terrorism measures. As far as the citizenry was concerned, they didn’t mind foregoing a little liberty/privacy if further attacks could be averted. False premise. If there is a distinct trade off here, it is not to be found in much of the legislation I’ve seen. So, citizens are losing out in two ways; many of the measures introduced won’t fight terrorism, but just create a possibly false sense of security. And in the meantime, some crucial freedoms have been lost.

Aelph, I wish I had your faith. The Constitution (still just a draft) does include a watered down version of the detailed data protection rules already existing in two EU Directives. But as our existing laws didn’t protect us, I don’t see how this Constitution will either.


Reihan M Salam 07.14.03 at 5:39 pm

It’s worth noting that, as Jeffrey Rosen has observed, the damage to civil liberties has been far worse in Europe than America in part because Europe has no equivalent to America’s libertarian right. The following is from Rosen’s article published in the Washington Post on 9/15/02:

In the course of researching the state of liberty and security after 9/11, I’ve been especially struck by how restrained America’s legal response appears when contrasted with that of our European allies. Although they weren’t directly attacked, the countries of the European Union passed anti-terrorism measures during the past year that are far more sweeping than anything adopted in the United States. In October, France expanded the powers of the police to search private property without a warrant. Germany has engaged in religious profiling of suspected terrorists, a practice that was upheld in a court challenge. In Britain, which has become a kind of privacy dystopia, Parliament passed a sweeping anti-terrorism law in December that authorizes a central government authority to record and store all communications data generated by e-mail, Internet browsing or other electronic communications, and to make the data available to law enforcement without a court order. In May, the European Union authorized all of its members to pass similar laws requiring data retention.

The Bush administration has tried to emulate its European allies by expanding executive authority in similarly dramatic ways. It asserted that the president may designate citizens or aliens as enemy combatants and detain them indefinitely without judicial review. It claimed that the president may deport certain aliens based on secret hearings whose existence is withheld from the pressand the public. And it attempted to blur the legal lines that separate domestic law enforcement from foreign intelligence gathering, transforming the FBI into the equivalent of Britain’s domestic security intelligence agency, MI5.

What distinguished America from Europe, however, is how quickly all three of these extreme positions met with opposition from the other two branches of government.

[The article continues.]


Con Tendem 07.14.03 at 10:11 pm

I agree with the statement that

What I do object to, and in the strongest terms, is the naked opportunism on the part of some Justice/Interior ministries that have used the situation to introduce draconian measures with no bearing at all on fighting terrorism or even serious crime.

What makes it worse is that this is not some kind of inspired opportunism where the agencies really, always and forever, wanted to get this information because it would truly make a difference in their work and did so as soon as there was a political opening. No. Instead this is the kind of knee-jerk legislation that lazy and badly-run agencies push on the populace because they do not know how to really solve the problem and hope that somehow new powers will help them.

A good example is a recent arrest of an allegged Real IRA bombmaker in Israel, found there working on creating more sophisticated explosive devices, doubtless to help keep the truce going. Political aspects aside — he was duly listed in an airline manifest under a false name. Had he chosen to fly to the US — he would have and noone would have stopped an outstanding british citizen his documents proclaimed him to be. Supposedly intelligence sources lost track of him some time ago and where getting anxious as to his whereabouts. How exactly any of the proposed and accepted pricavy-invading legislation helping with this? It cannot because it is limited and poorly thought-out.

This still leaves the matter of how can European and other airlines break their national laws and provide certain data to US Law Enforcement open.


John & Mike 09.11.03 at 2:29 am

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