EU Counter-Terrorism Law

Pre-Emption and the Rule of Law

Cian C Murphy

• Publisher: Hart Publishing
• Year: 2012
• Print ISBN:
  9781849468732
• Edition: 1
• eBook ISBN:
  9781847319609
• Topic: Law
• Subtopic: International Law
• Index: Law

EU Counter-Terrorism Law: Pre-emption and the Rule of Law is a detailed study of EU action to combat terrorism since 11 September 2001 and the implications that action has had for the EU legal order. It critically examines EU counter-terrorism measures to ascertain how rule of law principles have been affected in the 'war on terror'. The book opens with a critical examination of the rule of law in the EU legal order. It then provides an overview of the "war on terror" before analysing five key facets of EU counter-terrorism: the common European definition of terrorism along with related offences contained in the Framework Decision on Combating Terrorism; the EU's anti-money laundering and counter-terrorist finance laws; UN and EU targeted asset-freezing sanctions; EU data retention measures such as the Data Retention Directive and the Passenger Name Records agreements; and the European Arrest Warrant and European Evidence Warrant. The book argues that EU counter-terrorism is weakening the rule of law and bypassing safeguards in favour of a system emphasising coercive control over individual autonomy. It concludes by examining the prospects for the future as the EU becomes a more powerful security actor following the Lisbon Treaty and the adoption of the Stockholm Programme.


'an impressively accurate and alarming analysis'
Ms Sophia In 't Veld MEP and Vice-Chair of the European Parliament Committee on Civil Liberties, Justice and Home Affairs


2ND Prize winner of the Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship 2013

Part I

Terrorism, Pre-Emption and
the EU Rule of Law

Introduction

September 11, Counter-Terrorism and the Rule of Law

Anything can happen, the tallest towers

Be overturned, those in high places daunted…

Ground gives. The heaven’s weight

Lifts up off Atlas like a kettle lid.

Capstones shift. Nothing resettles right.*

A DECADE HAS passed since the attacks in New York and Washington DC on 11 September 2001 claimed the lives of 2, 973 victims and 19 hijackers. The response to those events has dramatically reshaped the relationship between states and individuals across the globe and nothing has resettled right. In the United States (US) the USA PATRIOT Act has extended the power of the state to conduct surveillance of its citizens.¹ In the United Kingdom (UK) the time an individual may be detained without charge has increased from 7 to 28 days, while some individuals are placed under indefinite house arrest.² In Australia legislation has introduced new criminal offences and new powers for intelligence agencies.³ Much of the action by states and international organisations in the ‘war on terror’ has been criticised because of its effect on human rights and the rule of law.⁴ The trend in both the US and UK has been towards pre-emptive intervention that attempts to eliminate threats to national security before they arise. Building on twentieth-century ideas of risk and actuarial justice, these trends undermine traditional legal protections by shifting the target of law enforcement from acts already committed to action that may be committed in the future.⁵ The adoption of new counter-terrorism legislation around the world has given rise to several libraries’ worth of popular and scholarly literature.⁶ However, amidst this proliferation of law and literature, there has been no sustained examination of EU counter-terrorism action. For present purposes, existing literature on EU counter-terrorism action may be divided into two broad categories: non-legal and legal. First, scholars in diverse disciplines including philosophy, criminology and politics have attempted to provide an overview of post-September 11, 2001 counter-terrorism action and have criticised the practical effects of EU law and policy.⁷ Second, legal scholars have described and critiqued various discrete measures adopted by the European Union (EU), including the Framework Decision on Combating Terrorism, the European Arrest Warrant and targeted asset-freezing sanctions.⁸ The latter works tend to focus strictly on the legal developments and implications for EU law. However, to adequately understand the diffuse effects of the ‘war on terror’ on the EU legal system it is necessary to draw on both legal and non-legal literature and develop a critique of EU counter-terrorism action that is rooted in the wider academic debate.

If the ‘war on terror’ provides the contemporary backdrop for this book then the rule of law is the legal concept at its core. The rule of law is an essentially contested concept⁹ which we most often hear of when it is being flaunted by outlaws or violated by states. This is because it is a political concept which comes to the fore when it is ‘under stress’ and is most valued in places where it has been ignored in the past.¹⁰ In such circumstances, opposing ideologies may view the principle as either a luxury or an indispensible necessity. The polarisation of opinions on the meaning and usefulness of the rule of law has been visible on both sides of the Atlantic since 11 September 2001. The actions of governments across the world have been criticised for violating the principle while some of those governments have attempted to evade such criticism by claiming that the ‘rules of the game’ have changed.¹¹ While some actions by governments have appeared unlawful others seem to exploit gaps in legal protection and cannot easily be called illegal. The relationship between the war and the rule of law is therefore a complex one in which both terrorism and action taken to combat it can reshape legal principles in new and challenging ways.

I. TERRORISM AND THE RULE OF LAW

Terrorism poses several challenges to the rule of law, most notably through the action taken by states in response to it. However, the first challenge to the rule of law is posed by the act of political violence itself. For Montesquieu the rule of law exists ‘in order to avoid … constant fear created by the threats of violence and the actual cruelties of the holders of military power’.¹² On this basis, those who engage in terrorism operate contrary to the rule of law—as do all those who knowingly violate the criminal law. However, unlike most ordinary criminals, those who engage in political violence seek to fundamentally undermine the state and its legal order. While this threat can in some circumstances be real—such as the effective control the Provisional Irish Republican Army held over certain parts of Derry and Belfast in Ireland during the ‘Troubles’¹³—it seems unlikely that the modern terrorism could cause states in Europe or North America to collapse. As Lord Hoffmann defiantly declared in the Belmarsh case, ‘there is no doubt that we shall survive Al-Qaeda’.¹⁴ As such, while terrorism is a rejection of the rule of law, the real threat for liberal democracies often comes from the state’s response to the violence and not the violence itself.

The problem of response begins with the problem of definition. ‘Terrorism’ is, like the rule of law, a contested concept. Fortunately, when examining counter-terrorism, which is the state’s response to what it perceives as terrorism, it is not necessary to venture too far into the debate on the definition of terrorism itself. It is sufficient to note that states, international organisations, and especially those involved in scholarly discourse, have failed to agree a definition of that which they seek to combat.¹⁵ The principal problem is that any definition of terrorism is considered pejorative. The link between ‘terror’ and ‘political violence’ can be traced to Robespierre and the Reign of Terror in the French Revolution. Robespierre described terror as ‘nothing else than swift, severe, indomitable justice; it flows, then, from virtue’.¹⁶ However, moral claims made by Robespierre were swiftly rebutted by Edmund Burke, who referred to the Jacobins as ‘those Hell-hounds called terrorists’.¹⁷ Ever since, the idea of ‘terrorism’ has been morally loaded, giving rise to the tired adage that one man’s terrorist is another man’s freedom fighter.¹⁸ The Thatcher government in the UK offers a clear example of a state attempting to gain advantage in conflicts through the use of language in relation to political violence. In the 1980s, Irish Republican prisoners in the Maze Prison sought special status as recognition that they were not ordinary inmates but rather political internees. Prime Minister Margaret Thatcher responded that

There is no such thing as political murder, political bombing or political violence. There is only criminal murder, criminal bombing and criminal violence. We will not compromise on this. There will be no political status.¹⁹

By denying the prisoners’ claim to political status, she sought to deny the existence of a political dispute and to reduce the conflict to a simple case of a state enforcing its criminal law. While Thatcher prevailed at the time, former internees are now in government in Northern Ireland. In a similar vein, the UK Conservative Party recently issued an apology for Margaret Thatcher’s branding of Nelson Mandela as a terrorist.²⁰ Defining ‘terrorism’ by reference to the moral legitimacy of the actor’s cause is not a sound basis for law which requires general rules and equal application. A morally subjective approach to the definition of a crime would undermine the principle of legal certainty that is at the heart of the rule of law.²¹ It is for this reason that the international community has historically avoided defining terrorism per se, focusing instead on certain actions that may be carried out for political ends, such as hijacking an airplane.²² Indeed, so problematic is the term from the both legal and philosophical perspectives that some have called for it to be abandoned altogether.²³

The problem of defining terrorism is compounded by the state’s tendency to overreact to it. The case reports of the European Court of Human Rights provide a plethora of examples of states that have strayed from fundamental legal principles in their attempts to respond to the real or perceived threat of political violence.²⁴ Indeed, the very first case before the Court concerned the anticipation of a threat to the integrity of the Irish state.²⁵ Much of the Court’s law on the right to life, prohibition against torture and inhuman or degrading treatment and right to personal liberty has flowed from such cases. Rights violations by the Irish and British states in response to Republican and Loyalist violence, by the Spanish state in response to Basque separatists and by Turkey in relation to the Kurdish minority have all demonstrated the tendency of ostensibly liberal states to overreact to challenges to state authority. Violations of the European Convention on Human Rights are particularly noteworthy as the Convention contains clear limitations on rights and the facility to derogate from most rights in times of emergency.²⁶

Despite the problems for the rule of law caused by both the difficulty of definition and the tendency to overreact, perhaps the greatest challenge posed by terrorism and counter-terrorism to liberal democracies is its effect on political discourse. Most definitions of terrorism view the phenomenon as a form of violent communication.²⁷ The purpose of the violence is not merely the immediate harm caused, but the message sent by the act to the wider population and the state apparatus. Mutua notes that ‘[t]he broad and vague use of the term “terrorist” … has had a chilling effect on legitimate debate and differences on serious issues both in the academe and in popular public and political discourses’.²⁸ The fear caused by political violence polarises politics and undermines rational discussion.

This polarised discourse is most clearly demonstrated by the chimera of ‘balancing liberty and security’ or, put more bluntly, by asking whose human rights come first.²⁹ It is in the tension between what is just and what is necessary that the true problems of legal philosophy are revealed.³⁰ As terrorism damages the fragile consensus on divisive philosophical issues, it raises the question of what a just society can legitimately do in response to actions that reject that society’s very foundational values. In the aftermath of the September 11 attacks in New York and Washington DC, that question came to the fore and may well be the defining philosophical challenge of the twenty-first century so far.

II. A ‘WAR ON TERROR’

The ‘war on terror’ was declared by US President George W Bush in the aftermath of the attacks on 11 September 2001. While many states have overreacted to terrorism, the reaction of the United States following the 2001 attacks has been singular. It was not the first time in history that the phrase has been, but it may be the most significant.³¹ The declaration of has shaped legal, political and cultural debate ever since.³² Despite its initial popularity, the decision to declare war has been described as ‘a serious normative and pragmatic error’.³³ Normatively the declaration gave the status of soldiers to mere criminals, and pragmatically, it is a war that cannot be won.³⁴ In some respects the declaration could be considered a mere rhetorical flourish that was deemed a necessary response to the sheer scale of the violence.³⁵ The respected US commentator, Phillip Bobbit, has since claimed that the US is at the beginning of the ‘wars against terror’; a prophesy that threatens to cement a seemingly perpetual war in the public’s collective imagination.³⁶

The declaration of ‘war’ did have certain benefits from the Bush administration’s point of view. A war allows the US President to ‘invoke his special mystique as Commander in Chief’ and thus may provide the ‘rhetorical cover’ for acts of ‘questionable legality’.³⁷ Most pertinently, the ‘war’ has facilitated an important shift in global counter-terrorism—from a traditional criminal justice approach to one that is ‘pre-emptive’:

[T]he impact of 9/11, of the London bombings, and the continuing threat of catastrophic risk has significantly increased the pressure on governments to think and act pre-emptively. The trajectory towards anticipatory endeavour, risk assessment and intelligence gathering is accelerating.³⁸

After 11 September 2001, the Bush government developed various doctrines based on pre-empting terrorist attacks before they occur. These new doctrines are evident in both the external and internal counter-terrorism efforts of the US.³⁹ Externally, the US Security Strategy trumpeted the need for pre-emptive war:

The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.⁴⁰

Internally, the USA PATRIOT Act 2001 allowed law enforcement officers broad powers justified in terms of preventing a further attack on US soil.⁴¹ Perhaps the most me...

Table of contents

• Cover
• Title
• Copyright
• Table of Contents
• Acknowledgements
• Table of Cases
• PART I: TERRORISM, PRE-EMPTION AND THE EU RULE OF LAW
• PART II: EU COUNTER-TERRORISM ACTION
• PART III: THE FUTURE OF EU COUNTER-TERRORISM
• Epilogue: EU Counter-Terrorism in a post-‘War on Terror’ World
• Bibliography
• Index