Cian C. Murphy is a lecturer in law at King’s College London the author of EU Counter-Terrorism Law: Pre-emption & the Rule of Law.
Over the past decade counter-terrorism law has come to be understood as a distinct field of study for legal scholars. Part constitutional law, part criminal, and – increasingly – part administrative law, counter-terrorism law lacks a coherent jurisprudence but instead has as its core a common aim: the combating of ‘terrorism’. This is also true in EU law. EU counter-terrorism law is rarely identified as a field of law because its boundaries are difficult to demarcate. The EU Council Action Plan Against Terrorism is a rather unwieldy document – it contains a wide range of legal and non-legal measures – which overlaps with several other strategic fields. Yet the EU has played a significant role in counter-terrorism in Europe since the September 11 2001 attacks, and indeed counter-terrorism has shaped several fields of EU law, in particular Justice and Home Affairs. EU counter-terrorism law can be said to include the Framework Decision on Combating Terrorism and the sanctions that gave rise to both the Kadi and OMPI litigation, but also the European Arrest Warrant (which only became politically palatable after the September 11 attacks), and the wide range of controversial surveillance systems that have been precipitated by the EU’s co-operation with global counter-terrorism efforts.
If identifying EU counter-terrorism law is somewhat difficult then characterising the law is an even more troublesome task. In the United States, counter-terrorism actions since 2001 have been described as attempting to normalise the exception: establishing a seemingly permanent emergency to allow extraordinary law enforcement and security powers to be extended. Perhaps the greatest distinction between the US and EU approach to counter-terrorism can be caught through this idea of the ‘exception’. It has become de rigueur to begin any analysis of President George W. Bush’s response to the September 11 2001 attacks with the citation of Carl Schmitt’s statement that ‘sovereign is he who decides on the exception’. The attempts by the Bush administration to step ‘outside’ the legal constraints of the US Constitution, international human rights law and laws of war by declaring an ‘exception’ have been well documented.
However, no such declaration has, or could be made, by the EU. The EU has no coercive power of its own but relies on that of the Member States. Europol does not consist of jurisdiction-hopping cops as is sometimes portrayed by film or television but of intelligence officers that co-ordinate national law enforcement officers. The EU legal system is heavily reliant on the co-operation of domestic and supranational actors to ensure the enforcement of its law. As such, any attempt to ‘declare the exception’ by an EU President would be fruitless (not least because it is unclear which President would declare it). It is therefore unsurprising that, although sometimes used by Member State governments, the language of a ‘war on terror’ has been entirely absent from EU counter-terrorism discourse.
However, the absence of coercive powers and reliance on a disaggregated network of actors has not prevented the EU from having a significant impact in the field. The requirement that breaches of EU law be punished with sanctions that are ‘effective, proportionate and dissuasive’ has led to criminal law, traditionally the most coercive civilian power available to the state, being deployed to enforce a wide range of policy goals. This language can be found, for example, in anti-money laundering legislation – a field of EU law that predates the September 11 2001 attacks but which has since become folded into the field of counter-terrorist finance. Thus, instead of relying on centralised coercion, the EU has co-opted the coercive mechanisms of the Member States to great effect. While less naked in its exercise of power, coercion through EU administrative law can also be profound. Witness the drastic implications of UN and EU sanctions on the applicants in M & Others and in Mollendorf. In its Kadi II judgment the General Court echoes the statement of the UK Supreme Court that designated individuals are ‘effectively ‘prisoners’ of the State’. In addition to severe infringements on the rights of a few, EU counter-terrorism law also infringes the rights of the many – in seemingly imperceptible ways – through surveillance of data, finance and telecommunications.
Perhaps the most disturbing characteristic of EU counter-terrorism is its potential permanence. The attempt by the Bush administration to declare a state of exception provoked opposition. Successive US Supreme Court judgments undermined the efforts to place Guantanamo Bay detainees beyond the reach of the law. Popular and political opposition has led to an official policy of closing the facility entirely (albeit a policy that has not yet been brought to fruition). In the US, slowly, though perhaps not very surely, legal and political action may bring the state of exception to an end. In Europe matters are more difficult. Since many of the instruments of EU counter-terrorism law use less overt forms of control they are more difficult to oppose. The ongoing targeted sanctions saga makes clear that when the legal system is subverted for political ends courts can struggle to reassert fundamental principles. Mr Kadi remains listed – even though EU courts ruled in his favour in 2008 and 2010. Despite much public and political opposition EU data retention law is ‘here to stay’. EU counter-terrorism policies are not as militaristic as those in the US but EU counter-terrorism law is just as problematic.
Against the backdrop of Europe’s current crises the reform of EU counter-terrorism law might seem an anorak’s concern. However, the constitution of counter-terrorism law affects the constitution of law itself. Over-zealous counter-terrorism shrinks the space for discourse because law demarcates the boundaries of political action. Thus, to reimagine counter-terrorism law is to imagine not just better law, but also better politics. And a better politics is certainly needed – for the pursuit of a ‘more perfect Union’ is ongoing on both sides of the Atlantic.