Europe and the War on Liberty

Today, European leaders meet to wave through a raft of measures purported to fight terrorism. The public story is that the bombings in Spain have galvanised EU member states into wider and deeper cooperation to prevent and detect terrorism. The reality is that many of the measures to be agreed have little directly to do with fighting terrorism, and much to do with increasing police powers and budgets.

Update Thanks to Maurice Wessling for the correction that the ‘anti-terrorism co-ordinator’ is actually Gijs de Vries, and not Klaas de Vries. Reuters had a mix-up between the two and I followed along. Gijs de Vries’ biog is here in dutch. He was secretary (under-minister) of the Interior from 1998 to 2002, an MEP from 1984 to 1998, and the Dutch representative in the EU Convention negotiations. Maurice reckons de Vries’ appointment still signals a lack of seriousness in co-ordinating European intelligence agencies, saying ‘he has little experience in counter-terrorism and he will have no powers to force any policy. His task will be to write a report. So the name ‘counter-terrorism tsar’ is way over the top.”

Thanks to Statewatch, the public has access to the proposals being discussed today and tomorrow by the Europe’s leaders. Most of them were already agreed at last week’s emergency meeting of European justice ministers. As a quick refresher for anyone who’s a little hazy about how the EU works, the institutions are imagined to exist in three pillars. The First Pillar is the internal market, and decisions are taken through a complicated system of checks and balance between the Commission, the Council of Ministers, and the European Parliament. The Second Pillar is the Common Foreign and Security Policy and is dominated by the Council of Ministers, i.e. the foreign ministers of the member states.

The Third Pillar is where decisions on justice and home affairs (JHA)issues are taken. As countries tend to be quite sticky about their sovereignty on foreign policy and justice, these two areas have been slower to integrate. JHA policy is driven by the member states, with the Commission acting more as secretariat than an executive, and the Parliament has only nominal oversight. As a (not entirely) unintended consequence, the Third Pillar operates effectively in secrecy. Measures to be agreed are usually released to journalists only on the day the decision is made, there is no proper consultation process, and the only parties to discussion and decisions are the benificiary agencies of the decisions made.

The JHA Council of Ministers is the ultimate in echo chambers; a place where unpopular justice ministers can gather with their brethern to agree on often draconian measures that are then presented to national parliaments as a fait accompli. Unless, of course, some party pooper uses their veto. Third Pillar issues cut to the heart of state sovereignty because they are at the hard edge of differences about the role of citizens and the state. And these are the very issues that state representatives decide in secret, horse-trading with their European counterparts and flogging our liberties to the lowest bidder.

Today, the European Council (of heads of government) will discuss 57 proposals that range from mandatory retention of all citizens’ communications data, to compulsory biometric identifiers, Europe-wide criminal databases, money-laundering, cross-border pursuit, identification of terrorist organisations, creation of a European Border Agency, European “security co-ordinator”, and compulsory collection of passenger name records.

It is a long, long list with little new on it. Statewatch’s analysis says almost half of the measures have little or nothing to do with tackling terrorism. I’d make a slightly more conservative estimate myself – allowing for the fact that money-laundering or other criminal activities can be linked to terrorist groups – but the whiff of naked opportunism is certainly in the air. Mandatory traffic data retention, for example, has been floating around at the JHA Council for almost 3 years now. The UK first introduced it secretly at the Council in the summer of 2001, proclaiming publicly that it hadn’t, and within weeks of 9/11 introduced the measure in national anti-terrorism legislation. Two weeks after 9/11, President Bush wrote to the European Commission asking it to introduce mandatory data retention, even though it is mass surveillance and probably contravenes the European Convention on Human Rights. (How would Americans feel if Romano Prodi bullied them to change, say, the 5th amendment of the Constititution?) The proposal for a Council measure seemed to have died a death in the last year or so, with member states going their own ways, but post-Madrid it’s back on the agenda and likely to be shoved through by 2005.

But, it’s fair to argue that a terrorist attack gives new clarity and urgency and makes the unthinkable thinkable. It should sharpen our focus (or that of our leaders who make far-reaching decisions without the benefit of parliamentary oversight), and help us zone in on the essential policies to prevent and investigate terrorism. Or so you’d think. Unfortunately, mixed in with essential measures to share terrorist information through Europol, we also find proposals to include biometrics on all European passports, or fast-track implementation of the European Arrest Warrant. And measures like mass surveillance using the internet and mobile phones or tracking all citizens’ travel all the time are not restricted to fighting terrorism, but extend to the furtherance of any whim of any law enforcement agency in any European country. Let me be clear, measures that have marginal effects on fighting terrorism should not be rushed through, nor should they be automatically extended to general crime-fighting capability.

If our leaders were serious about fighting terrorism, they’d be doing just that. But they’re not. In the pork-barrel push to shove through every interior ministry’s pet project, we don’t see a laser-sharp focus on the essentials to fight terrorism. What we get instead are fluffy and high-minded statements from prime ministers too removed from the detail to even give a damn, and rafts of extraneous measures, scattergun proposals, sweeping and unaccounted for powers, and the collection of terabytes of information with no way to analyse it to actually help us prosecute the war on terror.

And where co-ordination is really needed – between the national intelligence agencies – the best our leaders can offer us is window-dressing. There won’t be any European intelligence agency (fair enough), but we really, really need to knock heads of national intelligence agencies together, tell them to grow up and get over their little rivalries and turf wars, and start sharing enough analysis and information to warn us about actual terrorist threats. Instead, we get the appointment of a “security co-ordinator” who won’t have the clout to do very much. We know nothing yet about the institutional and legal status of the security co-ordinator. But the person likely to get the job, Klaas de Vries, was Dutch Interior Minister from 2000 – 2002 and is neither hawkish nor experienced enough to make things happen.* Somehow, I don’t see the British, French and German intelligence agencies taking orders from him.

So, in response to Madrid, I see the following;

– rafts of proposals that don’t bear directly on terrorism but do increase the powers of law enforcement agencies.
– accompanied by reams of ministerial waffle that liberty needs to balanced (i.e. annihilated) by security
– unaccompanied by any sense of focus or proportion in the measures
– unaccompanied by a good faith effort to restrict extra police powers to investigating terrorists, not common or garden crime suspects, or tax evaders, or public health risks, or pretty much anyone any government agency might have any interest in, any time
– institutional inertia when it comes to improving the performance of intelligence agencies
– the casting of terrorism as primarily a law enforcement problem whose solution is more power for law enforcement agencies
– constant insistence on the ‘rule of law’, which can’t mean very much when the law can be changed on the whim of an interior minister and his 14 closest friends

Which perhaps sounds a little bitter. But consider how much is at stake here. Measures that don’t bear directly on terrorism aren’t just pointless or opportunistic, they hurt us too. They divert time and resources away from fighting terrorism, and may even create a false sense of security as citizens mistakenly believe the ‘trade off’ of their human rights must have been worthwhile. Secondly, we know from experience in the UK that extraordinary measures against terrorism are renewed, and renewed, and ultimately folded into general criminal justice law.

So, at a time when Americans are learning about opportunistic and unrelated measures taken in the wake of 9/11 that exploit that tragedy and divert resources and attention from really fighting terrorism, Europeans should take a long, hard look at what is being proposed, by whom, and what bearing it will have on preventing and investigating terrorist acts.

*Thanks to Maurice Wessling of Bits of Freedom for his analysis via EDRI. De Vries’ personal website is www.klaasdevries.nl for those who speak dutch.