During the Brussels lockdown in November 2015. Demotix/Arie Asona. All rights reserved.
For more than a decade, European states have pointed fingers at America for sacrificing its freedoms in the fight against terror: the Patriot Act, waterboarding and Guantanamo cited as prime examples of measures incompatible with Europe’s self-understanding. But since the November Paris attacks the gloves have come off, and Europeans are scrambling down from the moral high ground from which they previously judged American counter-terrorism measures.
A three-month state of emergency in France, a lock down in Brussels, Europe’s capital, a new directive that criminalizes foreign fighters and their enablers, and tougher anti-terrorism laws on the way in many countries all signal a marked shift in the European agenda, in comparison to the incremental measures of previous years.
There can be little doubt that terrorism poses a real threat. In 2014, there was a whopping 80 percent increase in terrorist deaths worldwide, and while most deaths occurred outside Europe, 2015 has been the bloodiest year since the Madrid bombings in 2004.
The particular threat from foreign fighters who return to Europe with combat experience from (most often) Syria has added a particularly dangerous factor to the equation. Research shows that terrorist attacks carried out by these experienced foreign fighters are significantly more lethal than attacks committed by DIY terrorists with no training. It was therefore not surprising that at least two of the terrorists who took the lives of 89 people at the Bataclan had previously spent time in Syria.
With thousands of Europeans having left to fight jihad in Syria, and tens of thousands of Syrian refugees (the vast majority of whom are obviously not potential terrorists) entering Europe, the security challenge is huge.
While new [security] measures are necessary, European states should be careful not to overreach.
It’s in this context that European states rushed to introduce a raft of new laws aimed at increasing security. While new measures are necessary, European states should be careful not to overreach. They should we wary of introducing the kind of measures that have the potential to fundamentally change the liberal fabric of democracy or create national traumas down the road, of the kind caused by France’s use of torture in Algeria, America’s ill-fated waterboarding practice and the U.K.’s harsh interrogation techniques during the Troubles in Northern Ireland.
The following five principles could prevent Europe from erring too far on the side of security and sacrificing fundamental freedoms in doing so.
1. Be honest
“We will not choose between safety and freedom,” said Belgian Prime Minister Charles Michel in Parliament after the Paris attacks, as he promised to crack down on hate speech and send returned jihadists to jail.
Politicians, understandably, want to retain a sense of normalcy and avoid widespread panic. But as leaders across Europe prepare to take drastic steps, they should acknowledge that these new security measures are a departure from the ordinary framework of liberal democracies. If such measures are sugar-coated and presented as ordinary pieces of legislation they risk being accepted as a matter of course rather than a necessary evil, and thus less likely to be repealed once the threat subsides.
2. Beware of scope creep
After 9/11, the European Union successfully set a number of initiatives in motion that led to the adoption of a European Arrest Warrant in 2002, which members had previously strongly resisted. But the arrest warrant, with its almost automatic extradition procedure between states, including their own citizens, was not limited to terrorism. It included a whole range of other and far less serious offenses. A Polish man, for example, spent several months in a British prison awaiting extradition to Poland where he was to serve the remainder of a prison sentence for riding a bike while drunk.
The data retention directive of 2006, which the European Court of Justice declared incompatible with fundamental rights in 2014, also owed its existence to measures proposed by the European Council after terrorist attacks in 2001, 2004 and 2005.
But the directive, which obliged EU countries to establish rules for the retention of communications traffic data (metadata) by service providers, was not limited to issues of counter-terrorism or national security, but rather “serious crime.”
Accordingly, European data retention rules often became very broad. In Hungary, they applied to cases regarding tax and custom crimes, and in Luxembourg to all crimes carrying a prison sentence of more than a year.
European states should therefore strictly limit new and tougher measures to counter-terrorism efforts, rather than use the terror threat to shift the balance between liberty and crime prevention across the board.
3. Don’t sacrifice freedom of expression
Freedom of expression is at the very heart of the struggle between liberal democracies and Islamist extremism. Fundamental Islamists have targeted bastions of free speech in Denmark, with the decade-long threat against the Danish newspaper Jyllands-Posten and the attacks against a free speech debate in Copenhagen, and in France, where terrorists justified the massacre of Charlie Hebdo’s staff by accusing the French for “dar[ing] to curse our Prophet.”
European leaders rallied around the sanctity of free speech in the aftermath of the Charlie Hebdo attack in January. Now, following the November attacks, these same leaders say they want to close radical mosques, ban hate preachers and censor the Internet. But not only is targeting non-violent extremism illiberal, it is largely symbolic and ineffective. Such an approach also gives jihadist groups’ well-oiled propaganda machines a thin veil of legitimacy. They will waste no time presenting a crackdown on Islamic free speech as an example of Western hypocrisy, where speech is free when it is used to mock Islam, but criminal when Muslims criticize the West.
Safeguarding freedom of expression and convincing enemies of liberal democracy of its supremacy over religious obscurantism can only be achieved if we adhere to a principled defense of free speech, however tempting it may be to ban the words we hate in times of crisis.
4. Adequate safeguards
While new measures will inevitably restrict fundamental freedoms, they should be equipped with safeguards such as judicial review and frequent parliamentary scrutiny. The Snowden leaks that exposed a level of mass surveillance that was partly ruled unconstitutional by a federal judge point to the dangers of limited oversight and inadequate safeguards.
One of the measures likely to be introduced in many European states may be a varying form of “control orders” aimed at minimizing the danger posed by returnee foreign fighters. Control orders could, for instance, restrict the free movement of foreign fighters, force them to wear an electronic tag and ban them from associating with other terrorist suspects.
Such a move may be necessary and has already been accepted in mafioso cases by the European Court of Human Rights. But it is also a far-reaching measure and therefore should be ordered by a judge, subjected to subsequent judicial review, limited to a narrow category of people, and only applicable if they are specifically deemed a threat to national security. National intelligence services, likely to be given more powers and resources, should also receive adequate judicial and parliamentary oversight.
5. Sunset clause
Late November, the French Parliament prolonged the state of emergency to three months. French authorities are now still authorized to carry out warrantless searches in private homes, impose house arrests and ban public gatherings among other things. The nightmare scenario would be a country, and a continent, where such measures become normal, and permanent.
Politicians should recognize that the current level of threat is likely to be temporary, and that the sometimes draconian measures they adopted will not be suitable once the threat lessens. Rather than having to rely on future majorities to amend or repeal the laws passed in a time of crisis, such laws should be subject to a sunset clause, which would see the most far-reaching elements automatically expire in, say, 5-7 years, unless adopted anew.
These five principles would allow European governments the power and flexibility to counter the real and dynamic threat terrorism poses, while still safeguarding the core fundamental freedoms that are Europe’s common heritage.
This article was originally published on Politico. Thanks go to the author and editors for allowing it to be republished here.
There is an acute and growing tension between the concern for safety and the protection of our freedoms. How do we handle this? Read more from the World Forum for Democracy partnership.