In this report, CEPS policy analysts comment on the impacts of the Madrid bombings on the fight against terrorism.
From New York to Madrid: Technology as the Ultra-Solution to the Permanent State of Fear and Emergency in the EU
The events of 11 March in Madrid have represented a significant boost for the European Union’s leaders to progress a set of existing exceptional policies and measures on security deemed to be necessary to tackle what has been commonly labelled as ‘terrorism’. In order to act as quickly as possible, the EU professionals of politics have relied on a set of measures based on a technology of surveillance and, in particular, on the use of biometrics to show that they have been doing something on these policies before the Madrid events took place. But this blinded belief in the use of technology as a way to solve political problems and fight against the abilities of clandestine organisations to enter the EU for the purpose of bombing it is rather misleading. It creates more problems and insecurity than it helps to tackle the initial problem itself.
The European Council of 25–26 March 2004 has quickly agreed on a revised plan of action, which presents a number of key strategic objectives for the EU’s anti-terrorist roadmap. The official Declaration on Combating Terrorism on 25 March 2004 constitutes a crucial, common approach for the justification and necessity – as a matter of urgency and emergency – of the further improvement and adoption (no later than June 2004) of a highly contentious package of proposals aimed at fighting everything remotely related to the current transnational political violence identified as ‘terrorism’.
It is striking to see how all these proactive measures have been presented politically as being brand new and rather ambitious, efficient developments on behalf of our security. They are, however, neither new nor particularly adequate in view of the apparent low degree of protection and guarantees of human rights, civil liberties of all EU citizens and the actual rule of law that they provide. The only real brand new policy initiatives presented by the new EU’s security plan of action have been the rather symbolic appointment of a ‘Mr Terrorism’ (a post that is going to be held by Gijs de Vries, former Deputy of Interior for the Netherlands), the declaration on the Solidarity Clause laid down in Art. 42 of the draft Treaty Establishing a Constitution for Europe, and broadening the powers of Europol.
As early as the Extraordinary European Council Meeting on 21 September 2001, in which it was first stated that “the fight against terrorism will, more than ever, be a priority objective of the European Union”, EU action on combating terrorism has materialised into a set of technical solutions and initiatives that have faced fundamental difficulties and criticisms during national implementation by some EU member states. Further, the adequacy of these tools with regard to fundamental freedoms and human rights, as well as their operational efficiency, have been openly and seriously questioned by many sectors all around Europe.
In fact, it appears that the real European political interests behind the Council scenes are to use the current momentum to effectively and comprehensively implement as soon as possible cooperation on a highly contested set of technical security measures, which had been widely criticised before the Madrid events took place. The main instruments forming part of the list of strategic objectives presented by the Declaration on Combating Terrorism of 25 March 2004, and which are also a fundamental part of the wider European security strategy project, may be summarised as follows:
- the Framework Decision on the European Arrest Warrant and surrender procedures among the member states;
- the Framework Decision on the fight against terrorism;
- the strengthening EU border controls, aviation and document security; the development of a European Borders Agency, improved customs cooperation, etc.; the incorporation of biometrics and new technologies into ID documents issued to EU citizens (passports) as well as those negatively identified as third-country nationals (requiring visas and residence permits);
- bilateral relations between the EU and the US on, among others, the issue of extradition and the transfer of Passenger Name Record (PNR) data to the US Bureau of Customs and Border Protection;
- wide access to communications traffic data;
- the creation of a European register of criminal convictions;
- efforts to maximise the capabilities of EU bodies and member states to detect, investigate and prosecute terrorists and prevent terrorist attacks; the sharing of intelligence while developing threat assessment; and
- the broadening of the powers of Europol and Eurojust, among many other security proposals.
Most these security tools are being adopted under the rubric of the ‘third pillar’ or Title VI of the Treaty on the European Union, (Arts. 29–42), Provisions of Police and Judicial Cooperation in Criminal Matters, which is based purely on an intergovernmental European cooperation and therefore does not fall within the so-called ‘Community method’. It is also well known that the existing lack of parliamentary (EU as well as national parliaments) and judicial (European Court of Justice) accountability for all of the measures adopted within this EU framework, as well as an eminent democratic deficit affects every outcome carried out within this EU field of security action.
Looking in particular at some of the concrete measures and initiatives, for instance, many concerns have been raised as to whether the system presented by the European Arrest Warrant (EAW) is or is not an improved method to replace extradition in the EU (for more information see CEPS Policy Brief No. 46). Do we gain in efficiency or is it a way for the police and national law enforcement authorities to get rid of judicial accountability? One of the main aspects for discussion is whether it truly ensures the right balance between technical and procedural efficiency and adequate protection of the suspected person’s fundamental rights and freedoms in front of a judge. Even though the EAW (whose main supporter was the Spanish government of Jose Maria Aznar) has replaced the traditional extradition procedures between the member states from 1 January 2004, there are still five EU countries that have not yet transposed it into their national legal systems, these being Germany, Italy, the Netherlands, Austria and Greece. It is worrying that at present the EU still lacks a framework for homogeneously protecting the legal certainty of procedural rights for persons suspected of, accused of, prosecuted for and sentenced in respect of criminal offences. The European Evidence Warrant (EEW) also needs to be assessed carefully from a human rights perspective, because it may lead to situations such as the Ramda affair, in which it has been recognised that the French police used methods that involved ill-treatment.
On the other hand, as far as the Framework Decision on the fight against terrorism is concerned, it is important to stress that at the EU level there is a real lack of a commonly shared definition of what ‘terrorism’ really is. The wide interpretation of ‘the threat’ is counter-productive in comparison with the narrow focus on transnational political violence coming from al-Qaeda. Consequently, resources are dispersed. Incorrect information and misguided strategies by those services in charge of responding to a specific threat raise the level of fear, which in turn could lead to a poor appreciation of the severity of the threat. The perception of ETA as the perpetrator of the bombings of 11 March was partially the result of this attitude. The current misleading link in the European arena between ‘terrorism’, organised crime and illegal immi gration needs to be tackled as a matter of urgency in order to avoid, as the Spanish situation has perfectly demonstrated, any misuse of these categories during national elections. The risk of some political parties making a ‘scapegoat’ out of certain sectors of the population could instigate even more fear, reduce social cohesion and (perversely) support clandestine transnational organisations in their recruitment efforts.
The incorporation of biometrics and new technologies into ID documents issued to EU citizens (passports) and TCNs (visas and residence permits), as well as the further expansion of databases have been equally presented at the European Summit as a fundamental part of the package of EU border controls, security of international aviation and document security. Furthermore, the future developments of a Visa Information System (VIS) and the second generation of the Schengen Information System (SIS II), which will lead to a European database on inadmissible foreigners, have also been considered as rather unquestionable policy priorities in light of the Madrid events. All of these intrusive security instruments – based on the use of new technologies as well as global profiling and the surveillance of individuals – may lead to practices that are not at all reconciled with the respect for human rights and civil liberties set at the EU level.
The Conclusions of the Thessaloniki European Council of 19–20 June 2003 represented the point of departure for “a coherent approach on biometric identifiers, which would result in a harmonized solution for documents for TCNs” and that would pursue the establishment of “a reliable link between the document issued and its holder”. This call for action was immediately taken up by the European Commission, which presented, among other instruments, two amended proposals of the already existing regulations laying down a uniform format for residence permits and visas for TCNs. Before the events in Madrid ever happened, two new initiatives dealing with these specific issues were presented. The first one is a Proposal for a Council Regulation on standards for security features and biometrics in EU citizens’ passports, which is the EU’s response to the deadline imposed by the US authorities for compliance with its Visa Waiver Programme. This Regulation will lead to a new EU passport register or European database on EU citizens, which will contain the fingerprints of passport applicants together with the relevant passport number and most probably some other relevant data needed for a proper management of the system.
The second measure, which deserves a critical assessment, is the draft Commission Decision, on adequate protection of personal data contained in the PNR of air passengers transferred to the United States’ Bureau of Customs and Border Protection. Art. 1 of the Decision states that ”the United States’ Bureau of Customs and Border Protection is considered as providing an adequate level of protection for Passenger Name Record (PNR) data transferred from the Community concerning flights to or from the US” and thus respects Art. 25 of Directive 96/45 on data protection. Nevertheless, since the very first instance in which these contentious measures were presented it has been clear that the protection of privacy would be seriously undermined. The main concerns raised, for example by the Committee on Citizens’ Freedoms and Rights of the European Parliament and the Art. 29 EU Data Protection Working Party, along with human rights organisations and academia, is the potential abuse, or rather non-proportional use, of sensitive information. The use of such information would be justified exclusively on the suspicions that a person fulfils certain characteristics, which are very well-defined and relate to a specific category of persons or ‘others’ who may represent a ‘terrorist threat’ to aviation and global s ecurity in general.
The insecurity that will be provoked by most of the new proposals that involve the use of technologies – while under the pretence of establishing a European transnational system of surveillance, monitoring and profiling of individuals – has been also raised by the European Parliament and many other human rights and civil liberties organisations (for example Statewatch), as well as by many experts on security and academia across Europe. They have wisely questioned the real effectiveness and adequacy of these pro-security measures, which will rather enhance insecurity for all. Indeed, the belief held by a large part of the public and management experts that they will find technical solutions to counter political violence through a generalised and individualised surveillance of people on the move is a dangerous illusion. This misconception is rooted in the interests of some private companies, in eschatological fears of certain professionals of politics and in the belief by modern societies that new technologies are always a good solution. There is a real threat to the freedom rationale posed by the adoption of measures intended to tackle those acts of political violence mislabelled as ‘terrorism’.
It appears that (more) security as a technology of surveillance and coercion is perceived as the only positive value/solution able to address our present problems and fears. Yet freedom and the protection of human rights are even more essential to prevent the process of ‘securitisation’ from creating more insecurity as well as feelings of fear in our modern European societies. The fight against the newly labelled ‘key global’ or ‘transnational threats’, such as ‘terrorism’ and cross-border organised crime needs to be carefully assessed in view of human rights, civil liberties and social cohesion that form an essential ingredient of our European traditions. Otherwise the situation in the EU will be like the one described by Paul Watzlawick in 1986: an ‘ultra-solution’ becomes an ultra-solution in how to fail most successfully, or as he wrote, “a solution which is more destructive than the problem itself because it reinforces the roots of the problem and adds its own specific problems”.
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