hydrarchist writes
"The
War on Freedom and Democracy"
An Analysis of the Effects
on Civil Liberties and
Democratic Culture in the EU
by Tony Bunyan
The "war
on terrorism" has turned into an ongoing "war on freedom
and democracy" which is now setting new norms - where accountability,
scrutiny and human rights protections are luxuries to be curtailed
or discarded in defence of "democracy".
Introduction
Has
the world changed after 11 September 2001? The answer is surely
yes, but not in the way that Bush (and his allies) mean. We have
seen a "sea change" of great magnitude as we enter
a second era of Western imperialism or rather a new version of
US imperialism - unlike the Cold War period the USA is no longer
dependent on "allies" or "coalitions" (though
these are useful to legitimate their actions).
But there is another difference
between the Cold War era and the new one.
We now have a political system
at the national and EU levels which not only lacks content and
accountability, but more importantly lacks a belief in the liberal
democratic system itself. Government ministers and officials
state that the EU is "democratic" (as is every EU Member
State) and this together with "freedom" is what the
"war on terrorism" is all about. But their actions
speak a different language and have done for some time.
It can be argued that the high
point of in the development liberal-democracy was during the
Cold War.(1) During this period liberal-democracy
had to have some substance, some tangible reality in opposition
to Soviet-style communism. With the fall of the Berlin Wall in
1989 it was not just the USSR that disappeared but with it too
the content of liberal democracy's political culture.
The end of the Cold War was a
"victory" for capitalism over the command economy but
it was a triumph for economics rather than politics. There was
no guarantee that liberal democracy as we had known it would
survive. At a seminar on the third world and "liberal democracy"
at Wilton Park (a UK government sponsored think tank) in 1996
the recorded conclusion stated:
"Democracy must not
be confused with capitalism. The former is a political system
while the latter is an economic system. Although many capitalist
countries are democracies, capitalism can exist without democracy"(2)
Principles gave way to pragmatism,
the retention of power became the primary aim of western political
parties.
Of course EU ministers and officials
will simply argue: what is the problem? All the member states
of the EU are democracies and all are signed up to the European
Convention on Human Rights (ECHR) - our freedoms and rights are
therefore safe.
A democracy, or rather a liberal
democratic political culture, is not simply about elections every
four or five years and a worthy court in Strasbourg which is
able to deal with some of the worst excesses. Rather a healthy
democratic political culture is one that is diverse, informed,
discursive, pluralistic, multicultural, and tolerant of peoples
and their ideas.
It is also a culture that has
a sense of history which informs the present and guides the future.
It is a culture that is not limited
by parliamentarianism but rather one that encourages all elements
in civil society.(3)
Nor is it a culture where most
research is funded by and for the state. It is rather a culture
where critical views are encouraged not marginalised.
The state of the "European"
democratic culture, is even weaker than that at the national
level. There is: i) a lack of informed scrutiny by parliaments
and civil society of new measures introduced; ii) there are no
mechanisms in place to monitor the practices (implementation)
that flow from new measures; iii) there is no real freedom of
information; iv) no real involvement of independent civil society
(by which I mean groups not funded by the institutions); and
finally, v) a quiescent, compliant, media.
The most critical area of EU
activity, the one that most affects peoples' liberties, is the
field of EU justice and home affairs, the so-called "area
of freedom, security and justice". Its origins lie in the
"Trevi" period. The Trevi acquis, 1976-1993,
was incorporated into the Maastricht acquis,(4)
1993-1999. The Trevi and Maastricht acquis, together
with the Schengen acquis (1985-1999), were bequeathed
to the Amsterdam period acquis.(5)
These acquis are comprised
of over 700 measures, some binding (eg: Conventions and Joint
Actions) some intergovernmental (eg: Recommendations, Conclusions).
The full acquis, as determined by the EU, has to be
adopted and implemented by applicant countries in toto
- they are not allowed to make any changes whatsoever.(6)
What characterises this whole
swathe of measures, and resulting practices, is that there was
virtually no meaningful parliamentary scrutiny, let alone the
chance for civil society to have any say or influence.
Even now, under the Amsterdam
Treaty, national parliamentary scrutiny reserves (where they
exist) are routinely noted then ignored by the governments. The
European Parliament is "consulted" on Title IV TEC
immigration and asylum issues and on Title VI TEU police and
legal cooperation - but its views too are routinely ignored.
From well before 11 September
there was evidence in the EU that democratic standards were slipping
on issues like civil liberties, data protection, scrutiny and
accountability, legal protections and the rights of refugees
and asylum-seekers fleeing from poverty and oppression.
We have, in effect, an
EU "democracy" built on sand. A democracy which has
little meaningful legitimacy. Thus there was in place a democratic
culture which was very poorly placed to resist the kind of attacks
on liberties and rights we are now witnessing.
Post 11 September there has been
at the EU level (as well as the national level) an avalanche
of:
- new measures
- new practices
- new databases
- new ad hoc unaccountable groups
most of which have little to
do with countering terrorism but rather concern:
- crime in general;
- the targeting of refugees, asylum-seekers, the resident migrant
population and protests and protestors;
- the creation of a "US-EU axis" for cooperation on
border controls, immigration, extradition and other legal cooperation.
Let us look at a few examples.
The EU definition
of terrorism
Two
new measures were rushed through the EU (Council and European
Parliament) and national parliamentary scrutiny before Christmas
2001.(7) These were the Framework Decision
on combating terrorism and the Framework Decision on a European
arrest warrant.
The Framework Decision on combating
terrorism was drafted by the European Commission and its publication
was immediately criticised because it overtly referred to its
potential use against "urban violence" in the Explanatory
Memorandum and the Commission's website said measures were intended
to counter "radicals committing violence".
At the time, in late September,
it was very hard to make any criticism but we and others
did. There was literally a six week period when no-one in Brussels,
including the European Parliament, would listen. Then the reaction
from many groups in civil society began to produce some effect.
However, we also knew that events in Gothenburg and Genoa (where
protestors had been shot by police and one killed) were still
fresh in the minds of Ministers and officials. Whatever the eventual
wording we knew that the majority of EU governments viewed protests
at least as "quasi-terrorist".
In the end a Statement (which
has no legal status or effect) was attached to the Framework
Decision seeking to distinguish between "terrorists"
and the right to demonstrate in democracies. But the wording
of the measure remained ambiguous.
Article 1 defined "Terrorist
offences" and says that each EU Member State must ensure
that the term covers:
"the following list of
intentional acts which, given their nature and context, may seriously
damage a country or an international organisation, as defined
as offences under national law, where committed with the aim
of:
"(i) seriously intimidating
a population, or
(ii) unduly compelling a Government or international organisation
to perform or abstain from performing any act, or
(iii) seriously destabilising or destroying the fundamental political,
constitutional, economic or social structures of a country or
an international organisation"
It then lists a number of offences,
many of which are obvious (eg: murder). However, under Article
1.iii.e. these offences include:
"causing extensive destruction
of a Government building or public facility, a transport system,
an infrastructure facility, including an information system,
a fixed platform located on a continental shelf, a public place
or private property likely to endanger human life or result in
major economic loss"
There are millions and millions
of people who, quite rightly, want governments and/or international
organisations (eg: NATO, WTO etc) to "perform or abstain"
from many acts. If this "aim" is furthered by demonstrations/protests
which result - for whatever reason - in, for example, extensive
damage to private property resulting in a major economic loss
then these people become "terrorists" through the effect
of their actions.
Perhaps as telling as the formal
decision was the refusal of the majority of EU governments to
explicitly remove any potential use of the Decision against those
exercising their democratic rights. Equally contradictory was
a refusal (though mentioned in the "Statement") to
exclude liberation struggles fighting against repressive and
authoritarian regimes (many of which are supported by Western
governments). On the other hand, "actions by the armed forces
of a State in the exercise of their official duties are not governed
by this Framework Decision".
This was complemented by further
decisions taken by "written procedure" (ie: proposals
are circulated and agreed if no Member State objects) on 27 December
2001 (the day after Boxing Day). The measures, in part, implemented
the UN Security Council resolution 1373 and extended the definition
of terrorism to include "active or passive" support
for terrorist organisations and introduced the principle that
security services should vet all asylum applications.
European arrest
warrant
Another
"emergency" measure that went through all the legislative
stages in weeks was the Framework Decision on the European arrest
warrant. This does away with almost all of the checks and balances
of the existing extradition procedure. For a list of 32 offences
there will now be no legal test in the requested state. The requesting
state simply has to say that a person is wanted for one of the
listed offences and this person can be arrested - their homes
searched and property seized - and deported to stand trial. There
is no habeas corpus, no appeal, no rights for the suspect.(8)
Exchanging "information"
on terrorists or protestors?
The
Framework Decision on combating terrorism is binding and has
to be incorporated into national law across the EU (and the applicant
countries). However its contradictory ideology contaminates other
measures too. For example, the Recommendation proposed by the
Spanish Presidency, adopted without debate by Justice and Home
Affairs Ministers on 13 June 2002, for the "introduction
of a standard form for exchanging information on terrorists".
The Recommendation says the information to be exchanged should
concern "individuals with a criminal record in connection
with terrorism as defined in the Framework Decision on combating
terrorism". The meaning of a "criminal record"
can vary from state to state and could simply cover, for example,
people arrested for sitting down non-violently in the road.
The suspicion is that the definition
of "terrorism" is being widened by the measure is reinforced
by Recommendation 1 which says the purpose is to prevent:
"activities carried
out by terrorist organisations to achieve their criminal aims
at large international events"
and Recommendation 4 which speaks
of:
"organised groups run
by terrorist organisations for the purpose of achieving their
own destabilisation and propaganda aims"
The rationale is plainly ludicrous.
There have been no terrorist attacks on EU Summits or international
meeting held in the EU. No members of al-Qaeda or any other terrorist
group have ever been seen handing out leaflets at such meetings
to "propagandise" their aims.
The absurdity is well illustrated
by the reply of a UK Home Office Minister to the House of Lords
Select Committee on the European Union. The Minister wrote:
"this initiative is
essentially about ensuring that those hosting large international
events within the EU are informed that known terrorists with
a police record intend travelling to the event in question with
the intent of furthering their aims"
Does this mean that there are
dozens, if not hundreds, of known terrorists
wandering around the EU who have not been arrested, charged,
convicted and imprisoned?
Clearly not. The intent was not
to deal with suspected terrorists, who are tracked by the internal
security agencies and special anti-terrorist squads. Rather it
is to counter protests and protestors. As set out in the first
draft of the measure (but amended later), it is to deal with:
"incidents caused by
violent radical groups with terrorist links.. and where appropriate,
prosecuting violent urban youthful radicalism increasingly used
by terrorist organisations to achieve their criminal aims, at
summits and other events arranged by various Community and international
organisations"
The Spanish Presidency proposal
started out as a Framework Decision but ended as an intergovernmental
"Recommendation" - which did not have to be submitted
for scrutiny to national or European parliaments.
The exchange of information,
through the secure EU internal security agencies BDL (Bureau
de Liaison) e-mail network, is likely to be extensively
used by Spain, Portugal, Italy, France and Germany to target
protest groups.
That such a measure could pass
through the EU, without proper parliamentary scrutiny, is worrying
in itself. Its adoption confirms fears that the definition of
terrorism has been broadened. Moreover, it adds to the measures
already in place to counter protests: i) the JHA Conclusions
of 13 July 2001 putting in place surveillance of protest groups;
ii) the plan to create a new database on the Schengen Information
System (SIS) on protestors; iii) the plan agreed to bring together
para-military police units (eg: carabineri, CRS, Tactical Support
Groups - UK) for EU Summits and international meetings.
The surveillance
of telecommunications
The
paucity of the political culture has left the door open to other
powerful influences, especially for state official and agencies
and international fora.
A classic case is the long-standing
demand of the EU's law enforcement agencies (police, customs,
immigration and internal security) for the retention of telecommunications
data and their access to it. The saga began in the summer of
1993 when the FBI called a meeting at its headquarters in Quantico
and invited a number of EU countries. The International Law Enforcement
Seminar (ILETS) was set up to continue the discussion and this
in turn fed into G8 sub-group discussion on the issue. In effect
the same, small, group of officials from each country moved between
different fora to get their views across - ILETS, G8, EU Working
Party on police cooperation.
The discussions led to an EU-FBI
"plan" to get through "Requirements" to be
laid on communications providers to give access to data on production
on an "interception order" and to allow for "real-time"
interception (possibly across a number of countries). The FBI
got a new law through in October 1994 and the EU rushed virtually
the same "Requirements" through on 17 January 1995
(by "written procedure").
This was just stage one. In 1998
the EU agencies and the FBI wanted to update the "Requirements"
to cover mobile phones and internet usage but there was a huge
public outcry when the document was leaked and the issue was
put on "hold".(9)
The "Requirements"
however only dealt with specific judicial or administrative orders
concerning an individual or a group (in the UK a warrant signed
by the Home Secretary, in other EU countries usually by a court
order) suspected of a specific offence. They
did not authorise the surveillance of historical data.
When the European Commission
proposed in July 2000 uncontroversial changes to the 1997 EC
Directive on privacy in telecommunications the law enforcement
agencies saw their chance. What blocked their access to historical
data was the 1997 Directive which said that traffic data (covering
phones, mobiles, e-mails, faxes and internet usage) could only
be retained for billing purposes (ie: to help the customer) after
which it has to be erased. This was usually after 3-7 days.
The European Commission, the
European Parliament, the EU Data Protection Commissioner, the
EU's Article 29 Working Party on data protection and a host of
civil society groups were opposed to changes which would render
the 1997 Directive meaningless. But on 20 September the EU Justice
and Home Affairs Minister Council adopted a series of measures
in response to 11 September. These included access to telecommunications
data by law enforcement agencies for the purpose of "criminal
investigations" (not simply terrorism). In December 2001
the European Commission caved-in and then in May the two largest
parties in the European Parliament (the PPE, conservatives and
PSE, Socialist) also changed their minds and backed the Council's
position.
Gone was the privacy protection
that traffic data had to be erased and in came a provision allowing
EU member states to adopt laws at national level requiring the
retention of traffic data. The hard-won right to privacy in telecommunications
was rendered meaningless and the potential surveillance of the
whole population of Europe is now on the agenda.
Apologists for the changes argued
that the new provisions were non-binding and it was up to each
member state to adopt laws at a national level. Yet even while
the measures was being debated EU governments were drafting a
binding Framework Decision on the retention of data.
They also argue that protections
were built in by an express reference to the European Convention
on Human Rights - but reference to the ECHR provides no additional
protection as all EU Directives are automatically subject
to the ECHR.
This is an example of
how the post 11 September ideology has made it much easier to
introduce measures governments (and officials) have wanted for
a long time.
The EU state and
the creation of unaccountable groups
Post
11 September saw an extraordinary growth in the creation of unaccountable
groups of officials and agencies.
The Police Chiefs Operational
Task Force (PCOTF) emerged from the Tampere Summit in October
1999 but its legal and constitutional status has never been resolved.
It was intended to concentrate on "three or four top priority
organised crime problems" but after 11 September was given
a series of operational roles covering: intelligence and information
exchange; cooperation between national anti-terrorist units,
security at airports, border management planning and operations
and the coordination of para-military police units for EU Summits
and international meetings.
When Statewatch applied
for access to minutes of their meetings we were told that the
PCOTF did not come under the Council of the European Union and
therefore the documents could not be supplied.
Security and intelligence chiefs
from across the EU now hold regular meetings. There are no details
of their meetings, nor any lines of scrutiny or accountability.
The Spanish Presidency of the
Council pushed through a Recommendation allowing the creation
of ad hoc multinational teams of police and internal
security agents (ie: Spain-France-Italy). These teams are explicitly
not intended to track down, arrest and charge suspected terrorists
- this is the job of the joint investigation teams to be created
under a Protocol to the Mutual Assistance Convention. It appears
these "teams" to "gather and exchange information"
may well follow the infamous precedent set by undercover units
in Northern Ireland and Spain.
What we are witnessing too is
the next stage in the development of the European state, in particular
of coercive "hard" state functions, agencies and practices.(10) The growth of the state in the EU can
be traced from the Trevi era (1976-1993) when policymaking (and
practical cooperation) was ad hoc, intergovernmental
and non-binding through to the Maastricht era (1993-1999) when
the previous informal arrangements were formalised and made permanent
especially at the policymaking level. The Schengen Information
System (SIS) went online in March 1995 and Europol operational
in June 1999, but with these two exceptions it is during the
current Amsterdam era (1999 and ongoing) that a whole series
of agencies, databases and ad hoc groups have emerged as the
internal security matrix of the EU.
Scrutiny of new EU measures by
national and the European Parliament is simply consultative and
their views, when they are asked, are routinely ignored. As to
the control and accountability of these new agencies there is
literally no mechanism in place in any parliament.
The activities of agencies and
the exercise of their unaccountable powers are growing by leaps
and bounds. Within years, if not months, the exchange of data
on individuals "suspected" of offences (however minor),
or "suspected" of being an "illegal" migrants,
a visa overstayer, a "suspected" protest "troublemaker
or a request for interception of an individuals organisations'
telecommunications or a request (under the European arrest warrant)
for a individual to be arrested, their person and home searched
and items seized and held in detention prior to extradition to
another EU state will become commonplace. Of course, exceptional
abuses of power will end up in the courts or the European Court
of Human Rights but most will not. We are entering a period when
"self-regulation" (by the agencies of themselves) becomes
the norm.
The emerging EU state
is indeed different to the national state, not just because it
exercises cross-border powers, but rather because even traditional,
and often ineffective, liberal democratic means of control, scrutiny
and accountability of state agencies and practices are not in
place nor is there any political will to introduce them.
The US-EU Bush
letter
When
we look back at this period one of the most significant documents
will be the letter from Bush to the EU dated 16 October 2001.
This presented a series of 47 demands for EU-US cooperation against
"terrorism" - many did not concern "terrorism"
but rather crime and immigration.
They included the exchange of
telecommunications data, the direct exchange of personal data
with Europol, the establishment of common border control policies
including data on asylum-seekers and a new category of "inadmissibles"
to be refused entry by the US and the EU.(11)
Since 16 October there have been
dozens of meetings between EU and US officials in both continents
and US (and Canadian) officials are sitting in on numerous EU
working party meetings on immigration and asylum, standard forms
for reporting, transit plans (whereby the US deports people to
Asia and Africa via EU airports). border management, Europol,
policing, cybercrime and drugs.
Despite the widely reported differences
between the EU and the USA on how to prosecute the "war
on terrorism" at the international level we are seeing in
practice an entirely new level of EU-US cooperation on internal
security. This represents a partial shift from informal transgovernmentalism
(meetings in secret international fora) to the formalisation
of cooperation between the EU and the USA.(12)
We are witnessing the creation of a "northern axis"
with a common internal security policy. The USA is, in effect,
the 16th member of the EU.(13)
Targets of the new
ideology
The emerging ideology utterly blurs the distinction
between terrorism and resistance to oppression and political
dissent, between resistance/liberation struggles against authoritarian
and undemocratic regimes and plain terrorist groups and between
self defence by protestors against attack, or self defence by
migrants of their local communities against racist and police
incursions. Moreover, this new "anti-terrorist" ideology
has quickly permeated not just the language but concrete proposals
from the EU.
Translated into practice we can
see the first two groups targets of the new internal security
strategy of the EU state: protests and protestors (see above)
and refugees and asylum-seekers, visitors on visas plus resident,
settled, third country nationals. All are potential terrorists
or "supporters" of terrorism, whether "actively
or passively".
This means their international
movements have to be recorded (whether via the new visa database
or as air passengers). Asylum applications have to be vetted
by the security agencies to check for any connection with alleged
terrorists. Selected groups of third country nationals have been
targeted, checked and "profiled".
Under the guise of combating
terrorism the rights of resident third country nationals are
to be weakened. Whereas the original draft EU proposal on the
rights of third country nationals in the EU said that a criminal
offence would not be grounds for removing residence rights, now
this has changed so that a criminal (not terrorist) offence can
led to the deportation of whole families.
Thus the logic of the "terrorism"
ideology brings with it a new form of institutionalised racism
in the EU. A racism based on a move from multiculturalism (communities
of many races coexisting) to monoculturalism (white, Western,
values now have to be adopted by migrants through so-called "integration"
measures) and where:
"European anti-terrorist
laws, adopted post 11 September, are breeding a culture of suspicions
against Muslims and people of Middle-Eastern appearance, who
are increasingly treated in the same way as were `enemy aliens'
during the first and second world wars"(14)
Just a temporary aberration?
I have just described a few of the dozens of new
measures introduced post 11 September. It can be asked whether
all the measures are entirely new or were in the pipeline anyway
- the answer is that some were, some were not, but most not in
the form in which they have emerged.
Are these developments simply
temporary? Will the demonisation of protestors, refugees and
asylum-seekers and others come to an end and the old tolerance
and democratic values, however imperfect, re-assert themselves?
Is what is happening simply like a big stone dropped into a pond
and the large ripples get smaller and smaller and finally it
is smooth again - everything is back to normal.
The answer is no. Something much
bigger is happening.
Sivanandan, Director of the Institute
of Race Relations, says:
"Globalisation has set
up a monolithic economic system; September 11 threatens to engender
a monolithic political culture. Together, they spell the end
of civil society"
He is absolutely right, we are
seeing a "sea change" - the forging of a new global
hegemony similar but quite different to that of the Cold War
era.
The EU is not immune from this
new ideology but rather is helping to shape it. EU governments
have colluded in the outrageous bombing and aftermath in Afghanistan
and may do likewise in Iraq in time.
The "legitimacy", the
tone, of the new ideology may differ between the EU and the US
but its effect is the same. In each the fight against "terrorism"
and the consequential re-drawing of the boundaries between the
demands for security and the preservation of civil liberties
and peoples' rights is presented, reported on, and largely accepted
as defending the common interest, the common good, the interests
of all.
It is also important to situate
the new ideology in the EU's political landscape because there
is a dreadful conjuncture between new repressive measures post
11 September and the rise of racist and fascist political parties
across Europe.(15)
There was a time when there were
12 social democratic governments as against three from the right
but that time is long gone. Now nine are from the right or extreme-right
and six from the centre to so-called centre-left (UK, Germany,
Sweden, Finland, Belgium and Greece). Not only has the EU as
a whole moved to the right but, in reaction to the rise of racist
parties in electoral politics, the social democrats have demonstrably
shifted to the right too on immigration, migrants rights and
monoculturalism. The racists (and fascists),
