The Constitution of EU Counter-Terrorism Law

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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.

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Mathias says

July 16, 2012

Interesting post. I ordered the book and am very much looking forward to reading it!

However, I'm not sure whether legal and political action may bring the state of exception in the US quicker to an end than in the EU.

While the 'war on terror' language isn't used anymore, US officials in the Pentagon, the State Department, the President himself and Congress have clearly embraced the 'war paradigm' to counter (international) terrorism, and there's nothing that suggests that this approach will be changed any time soon. The fairly recent adoption of the NDAA should be seen in this context as well.

In the EU on the other hand there's much more legislative opposition against the EU's counterterrorism proposals. Commissioner Reding can say that "Data Retention is here to say", but there's an important evaluation coming up which might change the scope and content of the Directive dramatically. The EP further increased substantially the privacy safeguards in the PNR-agreement, and called for a substantial evaluation of the EU's CT policies.

The EP seems to be keen to change at least some of existing CT legislation. I don't see that happening in the US, where there's not too much (positive) legislative change to be expected from Congress.

Cian Murphy says

July 16, 2012


Thank you for the response and kind words. You are right that there are many reasons to be pessimistic about the US. It is clear from, for example, Daniel Klaidman's new book, that counter-terrorism law is now an area where the divide between the Left and Right is very great and the hopes for a return to a pre-September 11 approach to counter-terrorism are gone (though I think it is also a more subtle approach than a pure 'war' paradigm).

However, at least this is happening in the open in the US - and so can be open to political contest. Insofar as I comment on politics in the book (I focus principally on the problems with the law) I argue that the EU legislation is more difficult to identify as such and that it operates in a public sphere (such as it is) that is also rather problematic (given the failure of national press to pay any real attention to these matters at EU level).

The EP is indeed banging its drums but to little effect so far. I disagree that PNR has improved much, if any, and may have become worse. Also - we are looking at an EU PNR system - for no reason other than to mirror external policy. So I am not sure that the EP is having much real effect, despite the efforts of the LIBE Committee, Sophie in 't Veld, etc. And there is evidence from other fields, such as migration, that it too is capable of rather illiberal action when it is granted 'real' power as co-legislator.

I'm not saying that I'd trade EU policies for US ones (and indeed the book is not a comparative study) but I think that counter-terrorism law is a field where the lack of an open public debate on EU law is seriously problematic - and is likely to remain so.

David Prater says

July 16, 2012

Maybe it was a typo, but the statement "that counter-terrorism law [in the U.S.] is now an area where the divide between Left and Right is very great," does not seem accurate to me (unless you are talking about the distance between the 'far-left' and the political center, Democrats and Republicans). It seems to me that there is a general consensus between the two-main political parties that the Executive has expansive powers to prosecute armed action against alleged 'terrorists' in any fashion it sees fit, especially extra-territorially. If there's indication that this is a sector in which Democrats and Republicans do NOT agree, then maybe I am missing some important distinctions. But it would seem on its face, there is little light between the two major political parties in the U.S. on the issue of counter-terrorism.

Cian Murphy says

July 17, 2012


Thanks for your thoughts. There is certainly a divide between Left (advocating Article III court trials) and Right (advocating indefinite detention and/or military tribunals) in the US. That this divide is not represented by Congressional Democrats and Republicans speaks more to the political climate than the state of the ideological spectrum I think (though admittedly it is in part indicative of both). And it is clear that there is a lot of debate even within the Obama administration - between 'idealists' at the State Department and DOJ and security-orientated thinkers at the DOD and within the President's staff itself.



Elias Davidsson says

August 29, 2012

The debates surrounding legislation and practice of counter-terrorism appears to me as ressucitating the medieval disputation about the gender of angels. The reason for my statement is that terrorism is essentially a non-issue, so much so that neither the United Nations, nor the European Union has seen fit to produce statistics on terrorist fatalities. I have, therefore, single-handedly compiled such statistics regarding the number of terror fatalities in Europe between 2001 and 2009. It appears that on the average a Europen is far more prone to be murdered by his/her spouse than by terrorists. In most European countries there has never been any fatality due to terrorism. And even in those countries, where terrorism has taken place, such as the UK and Spain, citizens are far more likely to die in road accidents than in terrorism.

Counter-terrorism has become, certainly, a profitable industry and has spawned an endless flow of learned but useless literature. But in reality, there is no evidence whatsoever that terrorism endangers Western states, their economic viability, their defense, their territorial integrity, or their social fabric.

The promotion of the terrorism myth has little to do with facts, but much to do with policy: The justification of wars and the justification of mass surveillance.