Democracy against security: the debates about counterterrorism in the European parliament, September 2001-June 2003.

Author:Tsoukala, Anastassia

The counterterrorism policies elaborated in the countries of the European Union (EU) in the aftermath of September 11, 2001, have been characterized by a desire to strengthen the networks of international cooperation among law-enforcement agencies, intelligence services, and the judiciary, but also by the introduction of several exceptional measures adopted usually on a temporary although sometimes on a permanent basis. Relying on the assumption that some legal guarantees for civil rights and liberties are incompatible with an efficient fight against new terrorist threats, exceptional rules have been presented as absolutely necessary for the protection of European populations. The subsequent diffusion throughout the EU of a new model of governance expressing such exceptionalist measures has provoked considerable criticism both within established political institutions and in civil societies.

This article aims to analyze the public debate generated on this issue at the EU level. It focuses specifically on the debates in the European parliament between the main supporters of the exceptionalism thesis and their rivals. It especially seeks to highlight the primary arguments advanced to justify or to discredit this thesis. For this purpose, the article relies on a thematic content analysis of the debates of the European parliament on combating terrorism from September 2001 up to June 2003. (1) The analysis covers the debates held on that issue in the course of seven sittings (September 5, 2001; September 19, 2001; November 28, 2001; February 6, 2002; April 9, 2002; October 23, 2002; and March 12, 2003), and the extraordinary formal sitting of September 12, 2001.

The Debates Before September 11, 2001

The impact of the terrorist attacks of September 11, 2001, on EU counterterrorism policy cannot be fully understood unless we consider that, apart from the council decision of December 3, 1998, instructing Europol to deal with crimes related to terrorism, (2) the position of the European Union toward terrorism has been limited to a strictly political level. All EU institutions have constantly condemned terrorism, but the definition of a common counterterrorism policy or, at least, the definition of their role in combating terrorism had not been integrated into their political agenda.

The persistence of various forms of terrorism in several EU countries (namely, Spain, France, and Greece), its resurgence in Italy, as well as its evolution in the international context, pushed the Committee on Citizens' Freedoms and Rights, Justice, and Home Affairs to prepare a report on the role of the European Union in combating terrorism in order to promote the creation of a common area of freedom, security, and justice. This report (A5-0273/2001) written by Mr. Watson and presented to the European deputies in the perspective of the adoption of a relevant recommendation during the sitting of September 5, 2001, calls on the council of ministers to establish common minimal laws and penalties, to abolish formal extradition procedures, to apply the principle of mutual recognition of criminal judgments, and to establish a European search-and-arrest warrant in the fight against terrorism.

The Watson report gave rise to several reactions amid the European deputies and allows us, on the one hand, to examine the positions held before the 9/11 terrorist attacks with regard to the adoption of emergency rules in the name of the fight against terrorism and, on the other hand, to compare them with the ones expressed in the aftermath of 9/11.

A major feature of the debate on terrorism prior to 9/11 is that, although some European deputies tackled the issue of the dangers that counterterrorist measures might imply for civil rights and freedoms in the member states, such dangers were treated as rather hypothetical and not of pressing concern. The relative lack of attention accorded to this issue is clearly demonstrated by the fact that it was addressed by only four speakers out of twenty-four (16.6%). Content analysis uncovers two main positions: (1) denial that there would be any infringement of civil rights and liberties due to the proposed counterterrorism policy; and (2) a warning against future breach of human rights. It should be stressed that no one argued in favor of the adoption of emergency rules.

The Denial of Infringement of Civil Rights and Liberties

The position that there would not be any infringement of civil rights and liberties was adopted by the rapporteur of the Watson report and by one member of the Group of the European People's Party and European Democrats (PPE-DE). According to them, the more stringent counterterrorism measures proposed for adoption should be accepted not only because such measures are considered to be absolutely necessary in the fight against terrorism, but also because they do not jeopardize human rights.

The rapporteur defended the new counterterrorism policy by completely dissociating its allegedly necessary conception from any possible erroneous implementation. He did not see any possible contradiction between the provisions of the proposal and the protection of civil rights and liberties insofar as its implementation does not violate the rule of law. Consequently, his report "opposes the introduction of exceptional laws and procedures" because "such measures ... deprive governments of moral superiority and can descend into instances of State-sponsored terrorism. Herein lies a potential danger to democracy." (3)

This view was shared by one member of the PPE-DE, who accepted the new counterterrorism policy insofar as it does not endanger the rule of law. (4) Therefore, the fight against terrorism is identified with the "fight for freedom, for respect for human rights and for the rule of law" and it is considered that through the implementation of the new measures "justice will have more instruments for guaranteeing the fundamental freedoms that formed the basis for the construction of Europe and which have been restricted by terrorism." (5)

The Warning Against the Breach of Human Rights

Only two members of left-side parties were openly skeptical of this new policy and denounced the recurrent use of the terrorist threat in the adoption of securitarian policies that have nothing to do with combating terrorism. It is mentioned, for example, that "terrorism ... is often used as an excuse to legitimise the infringement of fundamental rights by the State." (6) This fear also underlies the speech of a Greek socialist deputy who, proposing that the Charter of Fundamental Rights "should be used as a reference point for any new initiative," insisted that "under no circumstances should increased criminal activities by terrorist groups be used as an alibi, be it at national or European level, for taking measures which are incompatible with the rule of law and democratic principles." (7)

The Debates After September 11, 2001

9/11's Immediate Aftermath

Unsurprisingly, the 9/11 terrorist attacks marked a major turning point in the debates of the European parliament on combating terrorism. They triggered many discourses legitimating or discrediting the adoption of emergency rules on that matter. Nevertheless, the emotion provoked by these attacks was so strong that the first two sittings, which took place in the immediate aftermath of September 11, (8) were characterized by a wide consensus on the need to strengthen the repression of terrorist acts through the reinforcement of international cooperation in gathering and processing information and harmonization of judicial and legal systems. In neither session did the debate correspond to specific proposals. Consequently, the emergency-rules issue remained marginal and was tackled by only a small minority of speakers (7 out of 57, or 12.2%).

Content analysis suggests three main positions: (1) defense of the emergency-rules thesis; (2) the expression of a twofold concern; and (3) defense of the human-rights thesis.

Defense-of-Emergency-Rules Thesis

The arguments advanced in defense of the emergency-rules thesis are both direct and indirect. In the first case, they associate the terrorist threat with two allegedly relevant phenomena; that is, with immigration and free electronic communication. In the second case, they attribute the growth of the threat to a structural weakness of the previous legal framework.

These arguments were advanced by two independent deputies, one a member of the Union for Europe of the Nations (UEN) and one a member of the PPE-DE.

From a quantitative point of view, the most important of the aforementioned arguments is the one establishing a continuum of threats following the idea that there is a close connection between terrorism and immigration. Taking for granted that "people living on the fringes of the law are entering our countries," (9) the strengthening of border controls is presented as an absolute necessity ("Europe is going to have to understand that security must take priority over abolishing controls at borders and elsewhere" (10)) that can even imply the suspension of free movement at the internal borders of the Schengen area ("we call upon the European Union to think again about whether it needs to establish effective border controls, even suspending Schengen temporarily" (11)).

Relying on the assumption that the terrorism-immigration nexus represents a major threat to the internal security of EU countries, this discourse reaches its peak when it goes beyond the border controls and includes all foreigners living on EU territory. The council is thus called to "undertake an immediate examination of all the texts, particularly those which relate to the movement of people, from a security point of view rather than the perspective of the systematic abolition of checks," and it is specified that this approach should concern not only the forthcoming provisions but should also imply "a systematic revision of the texts that have...

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