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					                         MASARYK UNIVERSITY

                     FACULTY OF SOCIAL STUDIES



        Department of International Relations and European Studies




The Approach of the EU and the US to Combating Terrorism in Relation to
                             Human Rights

                             -Master Thesis-
The Approach of the EU and the US to Combating Terrorism in Relation to
                             Human Rights

                             -Master Thesis-




                     Ivana Broučková UČO 268179

              Supervised by: Mgr. Hubert Smekal M.A., Ph.D.




                               Brno 2009




                                                                          2
I hereby declare that this thesis I submit for assessment is entirely my own work and
has not been taken from the work of others save to the extent that such work has been
cited and acknowledged within the text of my work.




Date: April 28th 2009                       Signature:




                                                                                   3
Table of Contents


Introduction .................................................................................................. 7
  I. The Origins of Terrorism and 9/11 ........................................................................................................... 11
  1.1            Defining terrorism ................................................................................................................................ 11
  1.2            9/11- the day the world changed................................................................................................... 14
  1.3            Al Qaeda .................................................................................................................................................... 16
  1.4            The spill over .......................................................................................................................................... 18

II. US and counter-terrorism ................................................................. 20
  2.1 The US response to 9/11 ............................................................................................................................ 20
  2.2 Operation Enduring Freedom .................................................................................................................. 24
  2.3 Iraq ...................................................................................................................................................................... 26
      2.3.1Axis of Evil and Operation Iraqi Freedom ....................................................................... 28
  2.4 A new administration, a new era ............................................................................................................ 30

III. The European Union .......................................................................... 33
  3.1 The EU as an actor in the international arena ................................................................................... 33
  3.2 The EU response to 9/11 and subsequent developments ............................................................ 35
      3.3.1 The European Arrest Warrant ....................................................................................... 44
      3.2.3 The role of Europol ......................................................................................................... 46
      3.2.4 The role of Eurojust ........................................................................................................ 49
  3.3 The Intra-European Schism and the EU Security Strategy ........................................................... 54
  3.4 Madrid ................................................................................................................................................................ 56
  3.5 London ............................................................................................................................................................... 60
      3.5.1 EU Counter-Terrorism strategy..................................................................................... 64
  3.6 The Achilles’ heel in EU’s efforts to counter terrorism .................................................................. 67

IV. EU and US: friends, enemies or ‘frenemies’? .............................. 72
  4.1 Framing the relationship in the post 9/11 era .................................................................................. 72
  4.2 The immediate convergence ..................................................................................................................... 72
  4.3 The disengagement ....................................................................................................................................... 74



                                                                                                                                                                                 4
  4.6 Points of convergence .................................................................................................................................. 76
  4.5 Characterizing the diversity ...................................................................................................................... 79
  4.6 Thoughts for the future ............................................................................................................................... 80

V. Human rights and counter-terrorism or Human rights vs.
counter-terrorism? ................................................................................... 83
  5.1 The big picture ................................................................................................................................................ 83
      5.1.1 Assessing Damage, Urging Action ................................................................................. 86
  5.2 The War on Terror ........................................................................................................................................ 88
      5.2.1 The First revelations ...................................................................................................... 94
      5.2.2 Supreme Court interventions ........................................................................................ 97
  5.3 The US may be the crook but Europe is no saint ........................................................................... 101
      5.3.1 United Kingdom ............................................................................................................ 103
      5.3.2 Germany ........................................................................................................................ 106
      5.3.3 Spain .............................................................................................................................. 109
      5.3.4 France ............................................................................................................................ 110
  5.4 “Black sites”................................................................................................................................................... 112
  5.5 The new administration and CIA disclosures ................................................................................. 123

Conclusions .............................................................................................. 129

Abstract ..................................................................................................... 136

List of abbreviations ............................................................................. 138

Bibliography ............................................................................................ 139
  PRIMARY sources ............................................................................................................................................ 139
  SECONDARY Sources...................................................................................................................................... 149
      Books ....................................................................................................................................... 149
      Journal articles: ...................................................................................................................... 152
      Newspaper articles/ Press releases ....................................................................................... 156
      Reports .................................................................................................................................... 163
      Lectures ................................................................................................................................... 165



                                                                                                                                                                       5
6
Introduction


As this thesis was being finalized, the world was overwhelmed by the shockingly
detailed memoranda that were declassified under the new US administration. This
may well have an impact on the way people view counter-terrorist policies, since
more of than not the measures that are taken are gravely disproportionate, which in
turn has devastating effects on the protection of human rights. The main reason
behind all this is 9/11, an event that had far-reaching repercussions this on the
development of decisions in cross-cutting policy areas across the globe.
This thesis is divided into two main parts, each consisting of several sub-themes. In
2002, Robert Kagan wrote that the reason why Europe and the US have different
perceptions and different policies towards the same issue is because ‘Americans are
from Mars and Europeans are from Venus’1, an analogy which he used simply to
express that the way they approach problems and general policies are not the same
most, if not all, of the time and that there is in fact very little that these two
approaches have in common. Although I did not intend to rely on this comparison or
way of reasoning, it did provide me with an impulse to dig deeper into this issue to see
whether there might indeed be some truth to it. To this end, the first part of this thesis
will serve to provide an empirical account of the policies that the US and the EU
engaged in when confronted with terrorism, particularly after the September 11th
attacks. A separate chapter within this part will also be devoted to distinguishing the
policies or ideas that show or represent convergences on the one hand and
divergences on the other.
The second part of this thesis topic is devoted to human rights. In the process of
researching, I came across something that perhaps even increased my motivation
about dealing with this topic and that I think is worth mentioning here. Possible it was

1KAGAN, Robert. “Power and weakness: why the United States and Europe see the world differently”
Policy Review, Hoover Institution, June/July 2002.




                                                                                                   7
because of the search terms I inserted into search engines or the terms which I
focused on and limited myself to when reading articles and book chapters, that I found
an overwhelming amount of material on the relationship between counter terrorism
and human rights. But more likely, it was because this particular relationship has
become the centre of attention for many scholars but also the general public, who in
some cases experiences a great many changes in their societies since the dawn of the
new era of terrorism.
My first assumption is based on the supposition that there are substantial differences
between the EU and US approaches to terrorism. The main reason behind these
differences lies in the composition of their security frameworks. The United States,
composed of fifty states is a federal entity whereas the EU, composed of twenty seven
individual member states which retain decision making powers, is at its best a
supranational entity. To this end, I am making a sub-hypothesis where I hope to show
that part of the reason for this is that within the EU itself, the attitudes towards
terrorism are diversified and thus it is assumed that due to these differences, the EU
member states will be less reluctant to act in a unified manner. In turn, this will lead to
the cooperation between the EU and US of which a coordinated international counter-
terrorism strategy would be a result, highly unlikely (second sub-hypothesis). In
addition, the second hypothesis is presented as the statement that the balance
between combating terrorism and protecting human rights has not been found in
either the EU or the US.
In order to validate the first hypothesis as well as its two components I will, as
thoroughly as is deemed relevant, describe the immediate reactions of the US2 and EU
to the 9/11 attacks and from then on I will describe the developments of their
respective counter-terrorism frameworks. As regards the section devoted to the US
approach, apart from the immediate reaction to 9/11, most attention will be paid to
the war in Afghanistan and war Iraq which were a direct response to 9/11 in the first

2 Despite the fact that a considerably bigger part of this paper is devoted to the EU (as is already evident
from the table of contents) the US is being discussed first mainly because the attacks occurred on US
soil as well as because the US waged two major wars in response to these attacks.



                                                                                                          8
war mentioned but arguably 9/11 was only one of the causes or reasons for the war in
Iraq; more precisely said: it was the last straw. A few paragraphs will also deal with
the coming of the new president and the changes that the freshly-inaugurated Obama
administration has made or is foreseeing to make in the near future.
I will make an attempt at showing that the US acts as a unified actor whereas the EU
has neither in the past nor present been able to speak and act with ‘one voice’. This
lack of unison is both a result and a cause of the attitudes and perceptions the member
states have on terrorism and consequently their ideas on how to fight it. The Madrid
and London attacks in 2004 and 2005 respectively will be used as a type of case
studies where I will try to see whether there were fundamental changes that took
place in the aftermath of these events and whether they in any way be compared to
the reaction of the US and especially EU reactions to the 9/11 attacks.
In order to validate the second sub-hypothesis, chapter IV will be used to describe and
explain the differences as well as the similarities between the US and EU and
particular attention will be paid to the areas related to counterterrorism on which
they are able but more importantly willing to cooperate.
The substantiation of the second hypothesis requires a thorough research and critical
analysis on the EU and US counter-terrorism policies and to what extent they infringe
upon civil liberties and rights enshrined in the Universal Declaration of Human Rights.
When referring to the US policy, most evidence will be based somewhat on the Abu
Ghraib prison but for the most part on the Guantánamo base used to detain terrorist
suspects. With reference to the EU policy, among others, mention will be made of the
secret CIA prisons on European soil as well as the various measures imposed by
national policies of individual member states. In this sense, with the aim of validating
my hypothesis, it is my intention to show that the protection of human rights has been
directly affected by the fight against terrorism, in a negative way. In other words, I will
try to show that counter-terrorism and human rights cannot fully function together or
alongside each other and that one of them always has to be diminished or even




                                                                                         9
forfeited in order to achieve or fulfil the other. Unfortunately, it is the human rights
that are given second places, in almost all cases anyway.




                                                                                     10
I. The Origins of Terrorism and 9/11


In one way or another, terrorism comes up on the news, journal publications, the
radio or TV almost, if not, every day whether associated with policymaking, research
or an actual terrorist attack. Bearing this in mind, it is quite perplexing to know that a
universally agreed upon and accepted definition of this phenomenon does not exist.
Further yet, one may wonder how this is even possible, knowing that terrorism in
itself is not a new phenomenon and that in fact some international legislation directly
or indirectly associated with terrorism had been in place since as early as the 1970s.
With absolute certainty, it can be said that at least five of the world’s seven continents
have dealt with terrorism in one form or another. Why, one may ask is there so much
demand for the insight into terrorism, if as mentioned before, it is not a novel ‘trend’.
The underlying changes that have taken place and have arguably been marked by the
September 11th attacks on the World Trade Centre are the goal(s), tactics and the
approach used by terrorists.



1.1 Defining terrorism

In relation to a unitary definition on terrorism, Gus Martin clarifies the situation by
stating that ‘there is some consensus...but no unanimity on what kind of violence
constitutes an act of terrorism’3. This also applies to the realm of the United Nations,
which at the time of writing, has been in existence for fifty four years. It would be
wrong to assume that no attempts were made in this regard. Rather, on the contrary,
despite of plentiful efforts and even in the aftermath of the catastrophic attacks on
New York, Washington and Pennsylvania on September 11th 2001, a universally
accepted definition has still not been attained. One of the main obstacles is the fact
that a value-free definition seems to be impossible to find in a world of a myriad of

3MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues, London, New Delhi: SAGE
Publications, 2006. p.45




                                                                                                  11
cultures, religions and ideologies. Rather, a definition of terrorism always seems to be
value-ridden in some way or another, making it extremely difficult to receive
acceptance across different parts of the world. In this sense, it could be argued that the
notion of ‘one’s man terrorist is another man’s freedom fighter’ is more applicable
than ever. One of the many examples that could be given to support this is the fact that
when the September 11th attacks created real pressure to find common ground on this
issue within the UN, it is possible that some sort of compromise would have been
made, were it not for a group of nations spearheaded by the Organization of the
Islamic Conference, which refused to accept a definition of terrorism, which included
national liberation movements and resistance to foreign occupation4.
One of the bigger sources of disagreement has been the dilemma of whether terrorists
are always necessarily non state actors.5 By using Falk’s argument, he argues that this
has been particularly hazardous with regards to human rights in the case of the ‘war
on terror’ where Bush labelled the terrorist threat as anti-state terrorism, which led to
the decay of action against state terrorism, which in turn resulted fed the
deterioration of human rights protection.6 Worse yet is the fact that even a single
nation, albeit a very large one, like the US does not use a common definition. In 2004, a
House of Representatives Committee7 had found that ‘that practically every agency in
the United States government with a counterterrorism mission uses a different
definition of terrorism’,8 undoubtedly quite a worrying finding especially if it pertains
to such a serious and sensitive issue. The EU is not doing much better in this quest for

4 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post
9/11 world, 2nd ed. New York: Longman , 2006. p.27
and SCHORLEMER von, Sabine, “Human Rights: Substantive and Institutional Implications of the War
Against Terrorism, European Journal of International Law, vol.14, 2003, p.271
5 FREEMAN, Michael, Order, rights and threats In: WILSON, Richard Ashby (ed.), Human Rights in the

‘War on Terror’, Cambridge: Cambridge University Press, 2005. p.44

6FREEMAN, Michael, Order, rights and threats In: WILSON, Richard Ashby (ed.), Human Rights in the
‘War on Terror’. P.44

7 US House of Representatives Permanent Select Committee on Intelligence Subcommittee on
Terrorism
8 SABA, Michael, “Is ‘Terrorism’ being defined by the ‘Terrorists’?”, Arab News, 19 June 2004.

Available at: http://www.arabnews.com/?page=7&section=0&article=47019&d=19&m=6&y=2004



                                                                                                        12
a definition, despite the fact that it did adopt a common definition through the 2002
Framework decision. Upon scrutiny however, this definition (see chapter III) is not
only vague but it pertains to acts which could be classified as those comparable to a
9/11 scale of destruction and human loss.9 Generally, the definitions of terrorism in
almost any international, regional or national context are subject to ‘overbreadth’ 10,
which is, more than anything else, successful in causing damage to the protection of
fundamental rights. One of the victims of the overbreadth plague has also been the UN
Draft Comprehensive Convention, which is still pending adoption.
At the same time, it should be noted that the speculative nature of a unified definition
of terrorism and the inability to find common ground and thereafter accept it, has
played in the hands of abusive governments but simultaneously it has seriously
challenged terrorist suspects of challenging their states or the states where they have
been mistreated as a result of their alleged involvement in terrorism. In a more
negative sense as well, it has been identified as on top of the ten main factors which
are likely to encourage terrorism in the future.11
When one looks at the many definitions which have been adopted by individual states,
groups of states and/or organizations, there are a few elements that they most, if not
all, of them have in common. In his chapter ‘What is terrorism 12’, Daniel D. Novotny
discusses these elements and addresses them as four conditions which constitute a
terrorist act. The first condition relates to the actors, identified as ‘an individual or
group of individuals when they act privately, i.e. without a legitimate authority of a
recognised state’13. The second condition relates to the targets of terrorism, who are
thought to be non-combatants, a term which embraces both civilians and military

9 WEIGEND, Thomas, “The Universal terrorist: the international community grappling with a
definition”, Journal of International Criminal Justice, Vol.4, no.5, 2006, p.927
10 WEIGEND, Thomas, “The Universal terrorist: the international community grappling with a

definition”, p.928
11 SCHMID, Alex. Terrorism: “The Definitional Problem”. Presented at the War Crimes Research

Symposium: "Terrorism on Trial" at Case Westem Reserve University School of Law, 8 October 2004, p.
378
12 NOVOTNY, Daniel D., What is Terrorism? In: LINDEN van de, Edward(ed.), Focus on Terrorism, volume

8, New York: Nova Science Publishers 2007.

13   NOVOTNY, Daniel D. What is Terrorism? p. 26



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personnel not engaged in war. The third and fourth conditions concern the goals and
means of terrorism respectively. In this sense, the goal of terrorism is, as Novotny puts
it, politically relevant and it is achieved by the means of ‘fear-provoking violence’14.
The latter is highlighted in Weigend’s article, where he notes that there is a general
pattern inherent to the 21st century, where the requirement of ‘political purpose’ is
diminishing or even completely absent in many conventions and that the focus is
rather paid to the intention to intimidate or compel.15 This also extends to the use of
terror, which generally speaking likewise seems to have lost its formerly central
importance in the quests for definitions.16



1.2 9/1117- the day the world changed

There was nothing peculiar about the morning of September 11th 2001 and in the
early hours of the morning no one could have predicted what was going to happen just
a few hours later. That morning, nineteen hijackers boarded four different flights with
the intention of crashing the hijacked airplanes, their lethal instruments, into
politically and economically indispensible and fore mostly symbolic buildings. At 8.46
an American Airlines flight 11 flew into the north tower of the World Trade Centre
(WTC) in the city centre of New York. Chaos broke out but the situation escalated just
17 minutes later at 9.03, when the second hijacked plane United Airlines flight 175


14 NOVOTNY, Daniel D. What is Terrorism? p. 28
15 WEIGEND, Thomas, “The Universal terrorist: the international community grappling with a
definition”, p.928
Prominent examples here are the EU Framework Decision of 2002 and the International Convention for
the Suppression of Terrorist Bombings.
WEIGEND, Thomas, “The Universal terrorist: the international community grappling with a definition”,
p.924
16 The word ‘terror’ does not appear in: the International Convention of the Suppression of the

Financing of Terrorism, The United Nations Ad Hoc Committee on Terrorism and the United Nations
Declaration on Measures to Eliminate International Terrorism. Although it does appear in the Action
with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, SC Resolution 1566
(2004)
17 Unless otherwise indicated, the descriptions and facts related to this part of the chapter are extracted

and based on the official report produced by the 9/11 Commission, The 9/11 Commission Report, 2004
which is available at: http://govinfo.library.unt.edu/911/report/911Report.pdf



                                                                                                        14
crashed into the south tower. At this point, all American Airlines flights had been
ordered to stay on the ground, shortly followed by the same order from the United
Airlines headquarters. In the meantime, the passengers of American Airlines flight 77
were being threatened by the five-man team of hijackers who ultimately made the
plane plummet straight into the Pentagon, in Washington, at 9.37. Still yet, the fourth
hijacked plane was already airborne at this point and after having seized control of the
aircraft, in spite of passengers’ struggle, the hijackers crashed the plane into a field in
Pennsylvania at 10.03, just four minutes after the WTC south tower collapsed and
twenty-five minutes before WTC forever disappeared from New York’s symbolic
skyline. According to the 9/11 Commission report, the hijackers intended to use
United airlines 93 flight to destroy the Capitol or the White House.
The horrific events of 9/11 are known to everyone and will be engraved into history
books and people’s minds as a black day in modern history. Certainly, when the first
plane hit the WTC at 8.46, not many people could say that they knew or even
suspected that it was a terrorist attack. Nevertheless, just a few minutes later it was
clear that this could not have been an accident and that the 2,82318 people who died
on September 11th either onboard of the hijacked planes, in the WTC towers, the
Pentagon or the centre of New York immediately thereafter in fact marked the
beginning of a new terrorist era.
The confusion, chaos, shock, disbelief and most of all anger had no direction to follow
until two days later when Osama bin Laden, a name unknown to many, was identified
as the prime suspect.




18   http://www.guardian.co.uk/world/2002/aug/18/usa.terrorism, p.1



                                                                                        15
1.3 Al Qaeda


In order to explain the relevance of Osama bin Laden, one needs to go back into
history and into the year 1979 in particular, for this is when the Soviet Union invaded
Afghanistan. The invasion ‘produced a large cadre of hardened Islamic fighters19’,
known as the mujahedeen, literally meaning the ‘holy warriors 20’. The mujahedeen
may have started as a national Afghan collection of fighters in the war of resistance
against the Soviet Union, but soon enough they were joined by thousands of Muslim
volunteers, who ultimately played the important role of spreading the mujahedeen
‘jihadi ideology’21. According to Gus Martin, ‘the ideology of the modern mujahedeen
requires selfless sacrifice in defence of the faith’. This is to say that ‘accepting the title
of mujahedeen means that one must live, fight, and die in accordance with religious
teachings22’.
During the Soviet invasion which ended in February 1989, a Saudi national named
Osama bin Laden created a training camp, with the aim of uniting the ‘holy warriors’,
essentially those Muslims who held an exceptionally fundamentalist interpretation of
the Qur’an and of the Muslim faith as a whole. Bin Laden, his supporters,
acquaintances and aspiring associates did not only oppose globalization, which they
considered to be a product of the West, but they also abominated all the countries
even in the Arab region, which cooperated with the US and the West23. This thus
meant that despite Bin Laden’s Saudi origin, he sharply criticized the Saudi lax
attitude towards the Western influence on its territory and in the surrounding region,
which ultimately resulted in the loss of his Saudi citizenship24. By 1988, the camp had
turned into an organization which self-financed indoctrination and large-scale

19 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.291
20 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.205
21 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.205
22 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.205
23 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post

9/11 world. P.54

24NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post
9/11 world. P.54



                                                                                                         16
trainings, based in Sudan, known as Al Qaeda, meaning ‘the base’ in Arabic 25. From
here, bin Laden and his loyal followers planned and executed attacks against Saudi
and US interests26. As a result of pressure exerted by a group of states led by the US,
Sudan ultimately evicted the continuously growing Al Qaeda, which by then started
transforming into an extensive network of terrorists. Brigitte L. Nacos quotes Simon
Reeve to explain why Afghanistan would become bin Laden’s and consequently Al
Qaeda’s new home. In his book titled ‘The New Jackals’, Reeve explains that bin Laden
had picked Afghanistan because there he would find ‘old comrades’ whom he had
collaborated with during the Soviet invasion and many of whom had become part of
the fundamentalist Islamic militia, more notoriously known as the Taliban27. In return
for financial means, the Taliban was ready to provide Al Qaeda with a safe haven
which included training facilities and ultimately also Al Qaeda’s headquarters.
Afghanistan thus once again became the place where ‘holy warriors’ would be
recruited.
It is important to note however that Al Qaeda is not a typical hierarchically organized
organisation. In fact, it could hardly be called an organisation based on its
characteristics of a very loose formation of like-minded extremists. Another atypical
feature is that Al Qaeda is not limited to a territory. Today, we know that there is a
widespread following of Al Qaeda and allied cells, either active or dormant (sleeper
cells28) ranging from Algeria to Indonesia to France, Britain and Spain as well as the
United States and South America29. Furthermore, there is no clear vertical or ‘top-
down’ structure, rather there is a horizontal network of cells which are directly or
indirectly associated.


25 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.207
26 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post
9/11 world. P.54
27 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post

9/11 world. P.54
28 Defined as groups of terrorists who take up long-term residence in countries prior to attacks.
29 The author lists: Afghanistan, Algeria, Bosnia, Chechnya, Indonesia, Iraq, Kosovo, Lebanon, Malaysia,

Pakistan, Phillipines, Somalia, Sudan, The West Bank, Yemen, France, Spain, Britain, Germany, Israel,
United States; and the border region of Argentina, Brazil and Paraguay
MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.294



                                                                                                      17
9/11 was by far not the first ‘mission’ carried out by Al Qaeda against American
interests, albeit it was the largest to date. In 1993 it was involved in the WTC bombing
and in August 1997, the US Embassy in Nairobi, Kenya was bombed by an Al Qaeda
cell, coordinated with another attack perpetrated by yet another cell in Tanzania in
the bombing of the US Embassy in Dar es Salaam30. Another significant event which
clearly targeted US interests was the attack of the USS Cole Navy destroyer on October
12th 2000, while it was refuelling at Aden Harbour in Yemen.




1.4 The spill over

International terrorism has its roots in the 1960s, when revolutionary groups started
realizing that their activities, albeit on a much larger scale than today, had a sort of
multiplier effect on the global stage. Gus argues that in this way, these groups were
able to move the issue of terrorism into the forefront of the international agenda31.
Since then, this phenomenon has been involving into an unprecedented focus of
international relations. One of the biggest contributors to the dawn of the so called
‘New Terrorism’ has been the unprecedented wave of globalization which has swept
the world in the recent decades. With the coming of new and perpetually improved
technology, terrorists have a substantial advantage not only in planning their attacks
but also in bringing their message across to the global community 32. Along with many
other authors and experts, Brigitte L. Nacos shows that the countless and most
importantly affordable flight connections and particularly extensive satellite and news
networks as well as the Internet have made terrorism advance into an international
undertaking33. In this sense, ‘the New Terrorism represents a manifestation of the
sophistication of modern terrorists who have acquired advanced proficiency in

30 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.294
31 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.270
32 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.269
33 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post

9/11 world. P.55



                                                                                                         18
coordinating their tactics with globalized information technologies.’34 As a result of
this and other factors, the distinction between domestic and international terrorism
became all the more blurred. The distinctive features of terrorism in its international
form include the targeting of interests which have globally symbolic significance and
which thus more often than not have an impact on the global audience35. Moreover it
is a good, if not the best, example of ‘asymmetric warfare’, meaning that international
terrorism and naturally the acts that are perpetrated within its abstract framework
are unpredictable, unexpected and unconventional36. 9/11, which caused a 180˚ turn
in world politics and the security environment, fits into this description perfectly.




34 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.269
35 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.270
36 MARTIN, Gus. Understanding terrorism: Challenges, Perspectives and Issues. p.270




                                                                                        19
II. US and counter-terrorism

When the former president George W. Bush officially left office in January and when
ordinary people and especially critics looked back at the eight years of his presidency,
their vision was dominated by 9/11, Afghanistan and Iraq. Especially the latter occupy
a prioritized position on the policy agenda until today. The aim of this chapter is to
review the response of the US to the 9/11 attacks, in what resulted to be a long,
perhaps never-ending struggle to eliminate terrorism. The author is hopeful that this
chapter as well as later chapters (chapter IV and V) in particular will explain why the
Bush administration provided critics with so much ammunition.



2.1 The US response to 9/1137

The United States president at the time, George W. Bush, who was inaugurated on
January 20th 2001, found out that ‘America was under attack38’ just a little after the
second plane hit the WTC. The speech39 with which former President Bush addressed
the nation that evening gave some insight into the course of action that America
would resort to in response to the attack on their nation. To some extent, Bush’s
stance was reinforced by the United Nations Security Council Resolution 1368,
adopted on September 12th, which condemned the attacks and pledged ‘readiness to
take all necessary steps to respond to the attacks of 11 September and to combat all
forms of terrorism’ as well as it called on all states to work together to bring those in




37 The description in this chapter is more general and mainly concerns the Afghanistan and Iraq wars as
well as some mention of the incoming administration. A more detailed account is provided in chapter V,
where the most significant legislation innovations are discussed.
38 http://govinfo.library.unt.edu/911/report/911Report.pdf p.55
39 BUSH, George W. “Address to the Nation”, 11 September 2001.

Available at: http://edition.cnn.com/2001/US/09/11/bush.speech.text/




                                                                                                    20
charge of the attacks to justice.40 On September 14th, a national state of emergency
was declared.41


Nine days after the attacks, on September 20th in a speech addressed to the Joint
Session to Congress, Bush had somewhat clarified his intended policy and gave an
even deeper insight into the action that would be followed. “And we will pursue nations
that provide aid or safe haven to terrorism. Every nation, in every region, now has a
decision to make. Either you are with us, or you are with the terrorists. From this day
forward, any nation that continues to harbour or support terrorism will be regarded by
the United States as a hostile regime”42. This was also the first time that Bush declared
that "Our war on terror begins with al Qaeda, but it does not end there. It will not end
until every terrorist group of global reach has been found, stopped and defeated." 43 The
strong statement and ultimately a very sharp black and white distinction of you are
either with us or against combined with the fact that the US did not seem to welcome
some of the aid and resources that the EU and the rest of the world offered, showed
that Washington was ready to go at it alone. Bush was clear on the point of fighting a
global war against the terrorists, but who would fight the war and how it would be
fought was yet worryingly unclear.



40“Unanimously Adopting Resolution 1368 (2001), Council Calls on All States to Bring Perpetrators to
Justice”, Security Council 4370th Meeting (PM), Press Release, SC/7143, 12 September 2001.
http://www.un.org/News/Press/docs/2001/SC7143.doc.htm

41Declaration of National Emergency by Reason of Certain Terrorist Attacks, Proc. 7463 14 September
2001.
Available at: http://www.law.cornell.edu/uscode/uscode50/usc_sec_50_00001621----000-notes.html

42BUSH, George W. “Address to a Joint Session of Congress Following 9/11 Attacks”, delivered 20
September 2001.                                                       Available at:
http://www.americanrhetoric.com/speeches/gwbush911jointsessionspeech.htm


43BUSH, George W. “Address to a Joint Session of Congress Following 9/11 Attacks”,
This was the first time that a reference to the notion of ‘war on terror’ was made, however Bush did
refer to such an approach a few days earlier, with ‘crusade’ in the same sentence. This resulted in a
backlash from the Muslim community due to the negative connotation this word had on Islam.



                                                                                                        21
One of the first long-term impacts that 9/11 had was a considerable re-shuffle of the
US administration in general and its executive branch in particular. Before 9/11, the
Bush administration did not place much priority on foreign affairs and internal
security44but in the immediate aftermath; these two policy areas were quite
understandably present in every conversation in the White House, Congress and
beyond. It was there, in the two chambers of the Congress, where the idea of merging
the numerous federal agencies, which had counter-terrorism in their line of work, was
born in the fall of 2001 and was signed into law less than a month after 9/11, on
October 8th. The newly established Office of Homeland Security, which fell under the
Executive office of the President, was charged with the objectives of, as its name
suggests, ensuring the security of the US and its people as well as preventing the
occurrence of another (terrorist) attack. At least partially, these objectives were to be
met by the implementation of a strategy which the administration would develop in
the following months. Over time however, it became apparent that the scope of these
objectives was too large for a single office. Dubbed the ‘largest reorganization of the
federal government since World War II’45 and described as ‘the most comprehensive
reorganizations of the executive branch’46, it was decided and signed into law in
November 2002 that a cabinet-level Homeland Security Department was to be
created.47 The objectives of this department which simultaneously represented the
objectives of the war on terror were codified in the National Security Strategy of the
United States of America48 and the National Strategy for Combating Terrorism.49

44KNOPF, Jeffrey W. “Misapplied Lessons? 9/11 and the Iraq debate”, The Nonproliferation review, Vol.9
no.3, Fall/Winter 2002. p.54

45 A Massive Federal Makeover, Factsheet on Homeland Security, 25 November 2002.
Available at: http://edition.cnn.com/2002/US/11/20/facts.homeland/index.html
46 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post

9/11 world. P.203
47 Homeland Security Act, 25 November 2002

Available at: http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf
48 The first version of this Strategy was published in September 2002. An update of was published in

March 2006
49 National Security Strategy for Combating Terrorism, February 2003.

Available at: https://www.cia.gov/news-information/cia-the-war-on-
terrorism/Counter_Terrorism_Strategy.pdf



                                                                                                         22
‘Defeat(ing) terrorists and their organizations, Deny(ing) sponsorship, support and
sanctuary to terrorists, diminish(ing) the underlying conditions that terrorists seek to
exploit and defend(ing) US citizens and interests at home and abroad’50 are the four
main objectives, described generally in the National Strategy for Combating
Terrorism. The Bush administration reiterated its black and white neutrality-absent
policy by stating that ‘the United States will make no concessions to terrorist demands
and strike no deals with them. We make no distinction between terrorists and those
who knowingly harbour them or provide aid to them’51. The uncertainty of the whole
notion of the war on terrorism was clearly displayed by stating that ‘it will be fought
on many fronts against a particularly elusive enemy over an extended period of
time’.52 It is hard to deduce whether it was clear to the Bush administration that ‘an
extended period of time’ stretched to the date on which these pages are being written.


Almost simultaneously with the creation of passing of the Homeland Security Act and
the subsequent creation of the Office of Homeland Security, another significant bill
was being passed through Congress and signed into law on October 26th. Originally
tabled by John Ashcroft, US Attorney General at the time, the bill in question is the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act          53,   more commonly known as the USA Patriot
Act. Divided into ten titles, the Act gives detailed insight into the measures that would
be taken to track down terrorists and bring them to justice. These far-reaching and
controversial (see later chapters) measures include surveillance, blocking any and all
channels which are used to finance terrorism54, strengthening border controls,
tightening immigration and criminal laws and facilitating access to information for

50 https://www.cia.gov/news-information/cia-the-war-on-terrorism/Counter_Terrorism_Strategy.pdf,
p.15- 24
51 The National Security Strategy of the United States, September 2002. p.5

Available at: http://www.comw.org/qdr/fulltext/nss2002.pdf
52 The National Security Strategy of the United States, September 2002. p.5
53 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism (USA PATRIOT ACT) Act of 2001, 24 October 2001
Available at: http://epic.org/privacy/terrorism/hr3162.pdf
54 This measures is reinforced by the 2001 Anti-terrorist financing Act




                                                                                                    23
judicial and law enforcement authorities in particular, including improved
intelligence.

2.2 Operation Enduring Freedom

The actions which would take place in response to 9/11 had to be decided and taken
at lightning speed and it was soon apparent that the Bush administration was going to
keep its ‘promise’ of a military approach. The first target of the war on terror was
Afghanistan, for this was the 80% Taliban-run state which provided shelter and
crucial resources to Osama bin Laden and his Al Qaeda, thus being identified as ‘those
who knowingly harbour them or provide aid to them”55 The planning of the first war,
originally named Operation Infinite Justice56, within the framework of the war on
terrorism was initiated on September 12th57 and intensified after the failed attempts at
getting the Taliban or rather the complete refusal of the Taliban to hand over bin
Laden. The US Administration was armed with the Congress authorization of force as
well as the aforementioned Resolution 1368 which recognised the ‘the inherent right
of individual or collective self-defence in accordance with the Charter’. The Congress
authorization granted extensive powers to the president, stating that he may ‘use all
necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or persons, in order
to prevent any future acts of international terrorism against the United States by such
nations, organizations or persons’.58 The resolution, granting a free-pass in using

55 The author is aware that this ‘condition’ was already mentioned by Bush and/or his administration
almost immediately after 9/11, for instance in Bush’s speech on September 20 th. Nevertheless the
source is cited as the National Strategy due to the fact that it was only here that it was codified in the
approach of the US.
56 The name was changed to ‘Operation Enduring Freedom’ on September 25 th
57 “Operation Enduring Freedom- Afghanistan- Planning and Implementing”

Available at: http://www.globalsecurity.org/military/ops/enduring-freedom-plan.htm

58Section 2(a) of the AUMF Resolution dated September 18, 2001 authorising the President to use
Military Force.
Authorization for Use of Military Force (AUMF) Resolution, 18 September, 2001
Available at: http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html



                                                                                                         24
force, passed through the Senate with absolute success and did not face much
opposition in the House of Representatives.59
With the mission of overthrowing the Taliban and destroying al Qaeda, the US-led
Operation Enduring Freedom (OEF) was initiated in the early hours of October 7th,
limitedly together with the UK, the Northern Alliance60 and Pashtun anti-Taliban
forces, the latter two providing ground forces.61 During the course of the aerial
attacks, an Arab TV station aired a statement made by bin Laden, where he praised the
9/11 attacks and identified the West as hypocrites.62 One of the immediate successes
of OEF was the expression of immense military power, unmatched by anyone in the
world.63
The heavy fighting, which continually extended over several weeks, ultimately
resulted in the fall of Kabul as the capital of Taliban rule on November 13th and to the
collapse of the Taliban hold on the country as a whole by the end of November. An
interim government was set up by an agreement reached in Bonn at the beginning of
December64, whereby an International Security Assistance Force (ISAF) was called
upon to supervise the stability of the provisional government and Afghanistan. This
assistance force was officially dispatched by United Nations Security Council




59 KATZMAN, Kenneth, Afghanistan: Post-War Governance, Security, and US Policy In: LINDEN van de,
Edward,, Focus on Terrorism, New York: Nova Science Publishers Inc., 2007. p.85
60 A grouping of various ethnic and religious groups, united by their opposition of the Taliban and its

rule of Afghanistan
61 KATZMAN, Kenneth, Afghanistan: Post-War Governance, Security, and US Policy , p.85
62 “US Response, Attack on Afghanistan”, Background information

Available at: http://www.guardian.co.uk/flash/0,,567567,00.html

63 COX, Michael “American Power before and after 11 September: Dizzy with Success?, International
Affairs, Vol.78, no.2, April 2002, p.272
64 Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent

Government Institutions (“Bonn Agreement”), Bonn, 5 December 2001
Available at: http://unama.unmissions.org/Portals/UNAMA/Documents/Bonn-agreement.pdf




                                                                                                          25
Resolution 138665, under UK leadership and taken over indefinitely66 by NATO in
March 2003.
However it must be noted that US troops did not suddenly withdraw from
Afghanistan, as we now know that the fighting is far from over. It is true that the
Taliban was severely weakened but this should not be overestimated, the Taliban was
not completely destroyed as Bush may have envisioned. In March 2003 more raids
took place
Quite ironically, the choice of name for this extensive operation is quite applicable as
it is still enduring eight years later and perhaps a more appropriate name would have
been Operation Enduring War. Meanwhile the Taliban has recuperated from the
invasion and is making the efforts at peace building in Afghanistan ever more difficult.


2.3 Iraq


It is often said that 9/11 changed everything and while this may not be so easy to
prove, proving the fact that 9/11 changed a lot is slightly more feasible. One of the
many quotes and statements which support this claim is US Defence Secretary Donald
Rumsfeld’s response to those who were not particularly or at all supportive of the
war; they “are thinking back in the 20th century”67, directly underlining that the 21st
century needs to be looked at with a completely difference lens, particularly with
regards to potential or, in Iraq’s case, apparently imminent threats.
The fear that terrorists would get their hands on weapons of mass destruction (WMD)
was a concern that was not created by 9/11. Arguably the first real wakeup call came
in 1995 when the Aum Shinrikyo cult perpetrated terrorist acts using sarin gas on a


65Security Council authorizes international security force for Afghanistan; welcomes United Kingdom's
offer to be initial lead nation - Resolution 1386 (2001) adopted, Security Council 4443rd Meeting (PM),
Press Release SC/7248, 20 December 2001.
Available at: http://www.un.org/News/Press/docs/2001/sc7248.doc.htm

66   UN Secretary-General’s report A/60/224-S/2005/525, para. 68
67   KNOPF, Jeffrey W. “Misapplied Lessons? 9/11 and the Iraq debate”. P.56




                                                                                                     26
crowded subway line in Japan.68 It was this event that made the world realise the
surprising easiness of individuals getting access and obtaining chemical weapons, of
which a small amount can have devastating consequences. Perhaps even more
shocking was the fact that this was possible without state sponsorship. This certainly
became a more alarming thought in the US ,more intense than ever before, when
letters containing traces of anthrax were sent to several politicians and media figures
just days after 9/11. Nacos points out that this was a ‘chilling reminder that a far more
devastating version of bioterrorism by one individual or a small group, whether
sponsored by states or acting independently, was a real possibility’.69
The US had its share of history with Saddam Hussein’s Iraq, particularly during the
1990s in the Gulf war, when George W.H. Bush was in charge of the United States. A
decade later, his son’s administration was claiming links between Al Qaeda and
Baghdad and between their top men Osama bin Laden and Saddam Hussein in
particular. In addition, it was argued that Iraq had the capability to develop and was in
fact developing biological and chemical weapons. The equation which came out of the
alleged situation was thus Al Qaeda has links with Iraq, Al Qaeda is a terrorist network
and Iraq has WMD capability therefore Al Qaeda is or in the near future will be able to
acquire these weapons. Knopf points out that some similarities did indeed exist
between Saddam and bin Laden; they are both Arab, Muslim and have influence in the
Middle East70 but these trivial similarities are overshadowed by major differences
such as the fact that bin Laden leads a territory-less terrorist network while Saddam
leads a territory-bound state. There is also a considerable gap between the




68FLETCHER, Holly. “Aum Shinrikyo (Japan, cultists, Aleph, Aum Supreme Truth)”, Backgrounder,
Council on Foreign Relations, updated 28 May 2008.
Available at: http://www.cfr.org/publication/9238/

69 NACOS, Brigitte L., Terrorism and Counterterrorism: understanding threats and responses in the post
9/11 world. P.202
70 KNOPF, Jeffrey W. “Misapplied Lessons? 9/11 and the Iraq debate”. 56




                                                                                                         27
motivations and ideologies of these actors which thus directly results in different
methods and levels of deterrence.71
The idea and almost urge to de-seat Saddam Hussein from his chair of despotic
leadership was not a novel one within the US government. The ‘hawks’ in the
administration had long contemplated this idea and in this sense thus 9/11 provided
an avenue of opportunity.72 Though it was later found that no proof existed for any of
the allegations referring to WMD, the Bush administration was doing a good job at
pretending and using the incited fear to pursue its goals. This can be displayed, for
instance, by Bush’s statement that “you can’t distinguish between Al Qaeda and
Saddam when you talk about the war on terror”.73


2.3.1Axis of Evil and Operation Iraqi Freedom


Before discussing the military campaign taken against Iraq, it is important to note of a
crucial provision of the National Security Strategy, which is very relevant to the
developments that took shape and were realised just six months after the Strategy
was first released. The sentence ‘to forestall or prevent such hostile acts by our
adversaries, the United States will, if necessary, act pre-emptively’74 is probably the
most often cited provision of discussion about the Strategy, at the same time being the
most controversial and crystallizing the approach that the US was ready and willing to
take.
Knowing that the link between terrorists and WMD was stressed in the Strategy75 and
the fact that the issue of Iraq was ‘in the air’, it is justifiable to say that negotiations
about taking action in Iraq were present from early on. One of the decisive moments


71 KNOPF, Jeffrey W. “Misapplied Lessons? 9/11 and the Iraq debate”. 56
72 KNOPF, Jeffrey W. “Misapplied Lessons? 9/11 and the Iraq debate”. 52
73 ALTERMAN, Eric “Fear what is it good for?” Social Research, Winter 2004

http://findarticles.com/p/articles/mi_m2267/is_4_71/ai_n13807484/

74National Security Strategy 2002, p.15
75For instance: ‘the overlap between states that sponsor terror and those that pursue WMD compels us
to action’ p.15



                                                                                                 28
which revealed Bush’s intentions was the content of his speech on January 29th
200276, where he identified, the self-named ‘axis of evil’, being Iraq, North Korea and
Iran. With regards to Iraq, Bush reinforced all the claims that his administration had
been making until then and informed his audience about the weapons that Iraq had
been developing over a decade and the fact that UN inspectors were not allowed to
inspect various sites means that ‘this regime has something to hide from the civilised
world’.77 ‘I will not wait on events while dangers gather. I will not stand by as peril
draws closer and closer’ were another sign of the determination to resort to pre-
emptive action. When making reference to states which may not be so keen on this
war on terror, Bush stated ‘...make no mistake about it: If they do not act, America will’,
once again exposing the harsh unilateralist face of the Bush administration.


Bush’s speech on March 19th 2003 officially announced to the world public that
American and coalition forces had initiated the invasion of Iraq, with the aim of
disarming it.78 This action seemed all but inevitable, particularly after Bush’s address
on March 17th, when he gave Saddam Hussein and his sons a 48 hour deadline to leave
Iraq.79 In addition, it was firmly stated that upon refusal or failure to do so, Iraq will be
attacked militarily. In this speech, Bush also pointed to the failure of the Security
Council to authorize the use of force and rather relied on the fact that the Congress
had already authorized the use of force against Iraq at its 107th session in October
2002.80 Another point which Bush used to justify his decision to go to war was Iraq’s
disregard for UN Security Council Resolution 1441 of November 200281, whereby the


76 BUSH, George W. “State of the Union Address”, delivered to Congress on 29 January 2002.
Available at: http://edition.cnn.com/2002/ALLPOLITICS/01/29/bush.speech.txt/
77 BUSH, George W. “State of the Union Address” 29 January 2002.
78 BUSH, George W. “War Ultimatum speech”, delivered on 18 March 2003

Available at: http://www.guardian.co.uk/world/2003/mar/18/usa.iraq
79 BUSH, George W. “War Ultimatum speech”, 18 March 2003.
80 Authorization for Use of Military Force Against Iraq Resolution of 2002, Public Law 107-243, 107th

Congress, HJ. Res. 114, 16 October 2002
Available at: http://www.c-span.org/Content/PDF/hjres114.pdf
81 UN Security Council Resolution 1441 (2002), adopted by the Security Council at its 4644 th meeting on

8 November 2002, S/RES/1441, 2002.



                                                                                                      29
UN had decided that Iraq was in breach of its material obligations imposed on it by
numerous past Resolutions82, particularly regarding Iraq’s failure to cooperate with
the UN and International Atomic Energy Agency (IAEA). 83 This resolution therefore
offered Iraq one last chance to comply with the provisions served by the UN namely
with regard to disarmament, which would subsequently be verified by a newly-set up
inspectorate regime.84 The use of force however was never authorized.
Today, five years since the first planes started to bomb targets in Iraq, the US is still
very much present in Iraq and this will remain so for the foreseeable future. The
circumstances under which the war was waged in the first place has been criticized
within the general public as well as within political circles and this remains to be so
today, where suicide-terrorist attacks occur on almost a daily basis in Iraq.


2.4 A new administration, a new era


The inauguration of Barack Obama as the 44th President in January 2009 brought, is
bringing and will bring a substantial change to the United States and its policy. For
one, Obama is the first African-American president in the history of the United States.
More importantly and definitely with more relevance to the topic discussed in this
paper, the new president made some groundbreaking changes. Almost immediately
after stepping into the Oval office, Obama ordered the closure of Guantánamo, a place
which was associated with a policy much loathed throughout the world. Guantánamo
was to close its doors for the last time in early 2010. This was not only part of a new
policy; it was a small piece of the bigger picture which represents the new general
approach of the new president. Although arguably the biggest challenge facing Obama

Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement

82 Particularly, 661(1990) of 6 August 1990, 678 (1990) of 29 November 1990, 686 (1991) of 2 March
1991, 687 (1991) of 3 April 1991, 688 (1991) of 5 April 1991, 707 (1991) of 15August 1991, 715
(1991) of 11 October 1991, 986 (1995) of 14 April 1995, 1284 (1999) of 17 December 1999 and 1382
(2001) of 29 November 2001
83 UN Security Council Resolution 1441 (2002). point 1
84 UN Security Council Resolution 1441 (2002). point 2




                                                                                                 30
is finding an effective solution to the financial crisis, it is also clear that the new
administration is aware of the fact that some fundamental changes are needed in the
approach in the fight against terrorism and particularly in places where the US
involved is involved militarily. This can most clearly be illustrated by Obama’s
announcement of a new strategy on Afghanistan and Pakistan85 where along with
explaining that the future of Afghanistan is ‘inextricably linked’ with the future in
Pakistan, where at least according to intelligence, the latter has changed into the new
safe haven of the Al Qaeda leadership. Obama also points out that resources, for the
most part reconstructive, including a substantial increase in civilian efforts, need to be
provided to Afghanistan and Pakistan, with the acknowledgement that these
resources have been denied to them and Afghanistan in particular, as a result of the
war in Iraq. Although military force may and most likely will be applied in this region,
the focus will rather be shifted to the reconstruction of Afghanistan and in the nearest
time the ensuring of fair presidential elections in August. 17,000 soldiers have already
been dispatched to the most troublesome areas in the southern provinces and 4,000
especially to train Afghan security forces. Along with the acknowledgment that an a
quick exit is not an option as it will only lead to de-stabilization and a possibly worse
situation than pre-9/11 and Operation Enduring Freedom, Obama also notes that ‘the
end of extremism will not be solved with bullets and bombs alone’, marking a shift
from Bush’s almost completely diplomacy-absent approach. An important part of the
new administration’s strategy is to initiate a reconciliation process, a thorough
province by province course of action which will also determine the outcome of a
reclassification of the Afghan and Pakistani adversaries.86



85OBAMA, Barack. “A New Strategy for Afghanistan and Pakistan”, 27 March 2009
White House official YouTube channel
Available at: http://www.youtube.com/watch?v=0aJ23skfVO0&feature=channel_page


86BEARDEN, Milton. “Obama’s War- redefining Victory in Afghanistan and Pakistan”, Foreign Affairs, 9
April 2009. p.1
Available at: http://www.foreignaffairs.com/articles/64925/milton-bearden/obamas-war




                                                                                                   31
Lastly, but with no intention of being interpreted as being the least important, the
Obama administration also signalled an arguably major shift in its approach when it
announced that it had dropped the notion of “war on terror”, a word that more often
than not had negative connotations outside the US as well as within it and a word that
was used ‘to justify many of his (Bush’s) actions’87. For human rights groups, it was
associated with Guantánamo and for state leaders it was seen as a ‘with us or against
us’ way of thinking.88 The announcement, also symbolically made on the day of the UN
conference on the future of Afghanistan held in The Hague, marked a promising vision
for the future of US policy under the new president.




87PLEMING, Sue. “Obama team drops “war on terror” rhetoric”, Reuters, The Hague: Thomas Reuters,
30 March 2009
Available at: http://www.reuters.com/article/politicsNews/idUSTRE52T7MH20090330

88   PLEMING, Sue. “Obama team drops “war on terror” rhetoric”, p.1



                                                                                                   32
III. The European Union

3.1 The EU as an actor in the international arena

Before discussing the immediate response of the EU to the 9/11 attacks and thereafter
describing what counter terrorism in the EU context actually entails, it would be wise
to at least briefly elucidate the position of the EU in the international arena and most
importantly its ability to exert its influence. Furthermore, the extent of its ability of
conceptualizing a common security and defence policy (CESDP) within the Common
Foreign and Security Policy (CFSP) framework is of high relevance here since,
together with its Justice and Home Affairs89 (JHA) counterpart, it deals with
countering terrorism.
JHA as a policy domain was incorporated into the newly-established pillar structure as
a result of the 1993 Maastricht Treaty which simultaneously created the EU as an
entity.
Despite these considerably vast restructuring, the legal personality of the EU as a
whole was not addressed        90   and thus it remained vested solely within the EC in the
first pillar and only in its areas of competence. This in turn also meant that the JHA
pillar was not able to conclude EU-level agreements with third countries which was
understandable a substantial hindrance if not near paralysis, considering the scope of
the policy domain that the JHA covered and operated in.91
A change came in 1997 with the signing of the Amsterdam Treaty, when for the first
time


89Objectives are listed in Title VI TEU
90BRETHERON, Charlotte and VOGLER, John. The European Union as a Global Actor, London, New York:
Routledge 1999.

91MONAR, Jörg. “The EU as an International Actor in the Domain of Justice and Home Affairs, European
Foreign Affairs Review, no.9, 2004. p.395
Available at: http://www.law.ed.ac.uk/file_download/communities/44_j%20monar-
%20the%20eu%20as%20an%20international%20actor%20in%20jha.pdf




                                                                                                  33
the EU was given the capability to exert international presence or actorness in the JHA
framework. It was also by the signing of this Treaty that the EU took steps to build a
common area of freedom, security and justice, simultaneously providing it with an
external dimension.92 This development should not be confused with the building of a
European Area of Justice, Liberty and Security which was taking place in the same
period.93
At this point the 21st century was already standing on the doorstep, aptly requiring
increasing levels of international cooperation than in the past. In the context of this
thesis, it is important to emphasise that this cooperation was also becoming ever
more sensitive as a human rights and civil liberties were taken into direct account by
the JHA. Monar points out however that despite the success of having more external
capability and influence, the JHA faced a rather complex challenge. The JHA is in fact
split between the first and third pillar, where in the former under Title IV of the TEC,
the JHA has competence in asylum, immigration, border controls and judicial
cooperation in civil matters in the first pillar. In the latter, on the other hand, under
Title IV TEU, the competencies include police and judicial cooperation in criminal
matters, falling under the third pillar.94 This has repercussions on the legal basis and
decision making procedures, where the latter is intergovernmental in the third pillar
whereas the first pillar is subject to supranational decision making. Unanimity, which
is often required in the third pillar (and second pillar) before any decision is adopted
has oftentimes been the recipe for a major paralysis.
The aim of the following pages is to describe the European reaction to 9/11 and
particularly it is hoped that an insight into the EU policymaking in this area will reveal
the approach the EU is taking in countering terrorism.

92MARTENCZUK, Bernd and THIEL van, Servaas. The External Dimension of EU Justice and Home Affairs:
Evolution, Challenges and Outlook In: MARTENCZUK, Bernd and THIEL van, Servaas (eds,), Justice,
Liberty, Security. New Challenges for EU External Relations, Brussels: VUB Press, 2008. p.9

93 MARTENCZUK, Bernd and THIEL van, Servaas. The External Dimension of EU Justice and Home Affairs:
Evolution, Challenges and Outlook. P.9
94 MONAR, Jörg. “The EU as an International Actor in the Domain of Justice and Home Affairs”. p.396




                                                                                                34
3.2 The EU response to 9/11 and subsequent developments


Europe has a share of its own experience with terrorism however it is crucial to note
that each country’s traces of terrorism root from the domestic realm and thus cannot
be compared to the situation today, where international terrorism has besieged the
global frame. Most recently in modern history, the Irish Republican Army (IRA) and
Euskadi Ta Askatasuna95 (ETA) and the Fronte di Liberazione Naziunale Corsu96
(FLNC)had been the most active groups in Europe which perpetrated terrorist attacks
in the United Kingdom and the Republic of Ireland, Spain and Corsica respectively.
These countries thus had a bundle of national legislation which addressed this
grievance but talk of a joint EU policy directly dealing with terrorism was scarce. The
only such mention in this sense was made at the 1999 Tampere European Council
meeting97 where it was agreed that efforts against crime in general should be stepped
up, the word terrorism was used all but once in the outcome of this meeting.


        Joined by world leaders, politicians and ordinary people all over the world, the
members of the European Union pledged solidarity within hours of the 9/11 attacks.
This declaration of solidarity was officially documented and approved in the Special
Meeting of the General Affairs Council on September 12th. Here, the perpetrators of
the attacks were condemned as were those who helped and continue to help in
sponsoring them. Behind the EU solidarity was the will to mobilize any resources
necessary to help the US recuperate from the attack. Furthermore, a three minute
silence would be observed across the EU and beyond on September 14th, a newly
established day of mourning. The following day Javier Solana, in his capacity as High
Representative of the CFSP, further reiterated the readiness of the EU to provide
assistance to the US in bringing the perpetrators to justice, along with other more

95 Meaning “Basque Homeland and Freedom” in the Basque language
96 Meaning “Corsican Front for the National liberation” in Corsican
97 http://www.europarl.europa.eu/summits/tam_en.htm




                                                                                     35
immediate assistance such as search and rescue. Solana also made sure to state that
EU solidarity ‘goes beyond mere expressions of support and is absolute’.98
Furthermore, Solana noted that states which sponsor and/or harbour terrorists have
to be addressed with action but he was quite vigilant in adding that “at the same time,
we must recognise that they do not represent the views of the majority of the people.
They are not democracies. Indeed, in many cases they are punishing their own people as
well as threatening our interests”.99
        On September 14th, on the newly established day of mourning, a Joint
Declaration100 outlined the general steps the EU would take in the aftermath of the
9/11 attacks. These included the intensification of efforts against terrorism in judicial
as well as law enforcement spheres, the realisation of a speedy operational status of
the ESDP and the stepping up of the implementation of a ‘genuine European judicial
area.101 Den Boer argues that all this swift development showed that at least for a
while, 9/11 functioned as a ‘great equalizer’ within Europe, at least as threat
perceptions and the appropriate ways to respond were concerned.102 France in
particular proved to be quite active, for instance by renewing its commitment to


98 Statement by Javier Solana, EU High Representative for the CFSP -Terrorist Attacks in the United
States, Brussels, S0146/01, 11 September 2001.
Available at:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/declarations/91098.pdf
99 Statement by Javier Solana, EU High Representative for the CFSP - Terrorist Attacks in the United

States, Brussels, S0146/01, 11 September 2001.


100Joint Declaration by the Heads of State and Government of the EU, the President of the European
Parliament, the President of the European Commission and the High Representative for the CFSP, Brussels
14 September 2001.
Available at: http://www.delrus.ec.europa.eu/en/news_391.htm

101Joint Declaration by the Heads of State and Government of the EU, the President of the European
Parliament, the President of the European Commission and the High Representative for the CFSP, Brussels
14 September 2001.

102LEUUWEN van, Marianne. Confronting Terrorism In: LEUUWEN van, Marianne (ed.) Confronting
Terrorism: European Experiences, Threat Perceptions and Policies, Netherlands Institute for
International Relations ‘Clingendael’, The Hague, London, New York: Kluwer International Law, 2003.
p.2




                                                                                                       36
greater information sharing and a call on other members to accelerate judicial
procedures and expand police cooperation.103 In addition, leaders and ministers such
as Chirac, Schroder and Blair immediately sought cooperation by rallying support of
the leaders of countries in the Middle East as well as in China, India and Pakistan, the
latter becoming crucial in Bush’s ‘war on terror’.


        On September 20th, the Ministers of the Justice and Home Affairs (JHA) Council
gathered in Brussels to discuss and conclude the measures that should be taken in
order to combat terrorism. Particular emphasis was placed on the harnessing of
policies that were already in place at the EU level104 as well as creating and ensuring a
strong area of freedom, security and justice. In order to realise the latter, the Council
adopted measures such as judicial cooperation, cooperation between law enforcement
agencies and intelligence services, cutting off financial channels supplying and
connecting terrorists, stricter measures relating to state borders as well as reinforced
cooperation with the US.105              Under the Belgian Presidency, an extraordinary
European Council meeting was convened on September 21st with the sole purpose of
addressing the attacks that occurred just ten days earlier. The meeting produced the
watershed approval of an EU Action Plan on combating terrorism 106 and for the first
time in its history, a general anti-terrorism policy was formulated. The 64-point
Action Plan would be implemented within the framework of the CFSP. The plan


  LINDE van de, Erik et al. Quick scan of post 9/11 national counter-terrorism policymaking and
103

implementation in selected European countries, RAND Europe, May 2002. p.158
Available at: http://www.rand.org/pubs/monograph_reports/MR1590/

104 These include:
 the 1995 and 1996 Convention on extradition between the Member States
the setting up of pro-Eurojust and granting extensive competencies to Europol
the Convention on Mutual Assistance in Criminal Matters of 29 May 2000
the setting up of the EU Police Chiefs Task Force
105 Justice and Home Affairs Council Brussels, 20 September 2001

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/jha/ACF6BA.pdf

  Extraordinary European Council meeting Brussels, 21 September 2001
106

Available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/140.en.pdf
The original action plan can be found in: Council document SN 392676/01 REV 6



                                                                                                  37
reiterated the need to maintain and heighten cooperation with the US to the maximum
as well as it highlighted the need to enhance judicial and police cooperation, the
freezing of terrorist funds as well as advancing aviation security107. The contents of
the action plan were to be updated on a regular basis. The importance of data-sharing
was reiterated and a comprehensive agreement in this regard was reached.
In addition to this, the European Council urged the JHA Council to implement the
measures that were adopted at the Tampere meeting as soon and as efficiently as
possible. To this end, the JHA Council drew up the ‘Antiterrorism roadmap108’, in
which it is clearly indicated when the nineteen measures are to be implemented by
and the body which is responsible for the smooth and prompt execution. The
European Arrest Warrant (EAW), a definition for terrorism and the identification of
terrorist groups for the purpose of drawing up a common list were among the first
measures to be taken care of. The Roadmap was made available at the end of
September 2001. A political agreement, save the Italian delegation, with regard to the
list of offences attached to the EAW was reached on November 16th.109
At the beginning of October, the EU advised that all Member States freeze any and all
funds that were being made available to terrorist activities by individuals as well as
organizations110. This position was reiterated on October 8th by pledging to narrowly
cooperate with the US.111 The financial flows of the persons and organizations that
were cut off were based on the list produced by the UN 1267 Committee112. The first


  http://ec.europa.eu/justice_home/news/terrorism/documents/concl_council_21sep_en.pdf
107

  Anti-Terrorism Roadmap, Brussels 26 September 2001, SN 4019/01
108

Available at: http://www.statewatch.org/news/2001/oct/sn4019.pdf

109BOER den, Monica. The EU Counter-Terrorism Wave : Window of Opportunity or Profound Policy
Transformation? In: LEUUWEN van, Marianne (ed.) Confronting Terrorism: European Experiences,
Threat Perceptions and Policies, Netherlands Institute for International Relations ‘Clingendael’, The
Hague, London, New York: Kluwer International Law, 2003.

110 European Commission, “The EU fight against the scourge of terrorism”, updated March 2006.
Available at: http://ec.europa.eu/justice_home/fsj/terrorism/fsj_terrorism_intro_en.htm
111 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:344:0093:0096:EN:PDF
112 The Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida,

Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated
with them, Last updated: 20 April 2009



                                                                                                        38
EU file which listed terrorism-associated individuals and organization was published
as an annex to the Council Common position of 27 December 2001, which also
included the adoption of a definition of terrorism.


        Rewinding back to October, as the EU was advising Member States to ensure
that known terrorist-feeding funds are frozen, Bush’s US was ready to launch its
rapidly prepared attack on targets in Afghanistan, notoriously known and already
mentioned Operation Freedom. The campaign was not readily backed by the EU as a
whole, but rather on an individual member state basis. Tony Blair proved to be a
reliable ally when he involved vast amounts of UK resources into the operation. Other
partners and contributors113 included EU and non-EU but European countries as well
as other less self-evident countries such as Russia, Pakistan as well as the Arab
Emirates. At this point, EU support for Bush’s actions was probably at its peak.


        In December when the European Council meeting convened in Laeken, it was
quite obvious that the Antiterrorism roadmap was being followed closely. The three
major issues that were on the agenda of the meeting were the European Arrest
Warrant, the adoption of a common definition of terrorism and the ways to create a
solid area of freedom, security and justice.              The EAW, its concrete provisions,
character and process by which persons were to be extradited was finally formulated.
Significantly also and directly related to the counterterrorism policy was the
‘operational status’ granted to the European Security and Defence Policy (ESDP)
under the umbrella of the CFSP. Further yet, a decision on the establishment of the so
called Joint Investigation Teams (JITs).
This further accredited the Laeken summit with making real and tangible progress in
the area of judicial and law enforcement cooperation as well as within these

http://www.un.org/sc/committees/1267/consolist.shtml

113Department of Defence, International Contributions to the War Against Terrorism, Factsheet, 22 May
2002.
http://www.defenselink.mil/news/May2002/d20020523cu.pdf



                                                                                                   39
authorities on a national level as well as on a cross-European level. It thus made
successful attempts at harmonizing the creation of an EU counterterrorism
strategy.114


          December 2001 became all the more productive when the Council adopted a
Common Position115 on Combating Terrorism116 and a Common Position on the
application of specific measures to combat terrorism117. In its wording, the former is
almost an exact copy of Security Council Resolution 1373, among others, stipulating
that all member states are to become parties to all international agreements relating
to terrorism118, and those who are parties already, to implement the provisions as




  CROTTY, William. Democratic Development and Political Terrorism IN: CROTTY William (ed.),
114

Democratic Development and Political Terrorism
The Northeastern Series on Democratization and Political Development, Boston: Northeastern
University Press 2005.

115 A Common Position is in fact a legal act under the CFSP, as according to Article 15 of the Treaty on
the European Union. The aim is to make member states cooperate and coordinate on a more systematic
basis. They have to be adopted unanimously in the Council. They are then published in the Official
Journal and binding upon all member states who have the duty to defend and uphold them.
CFSP decision-making processes and instruments- Joint actions, common positions, adoption of
common strategies. Retrieved from:
http://europa.eu/scadplus/glossary/common_position_cfsp_en.htm
116 Council Common Position of 27 December 2001 on combating terrorism, 2001/930/CFSP, Official

Journal of the European Communities, L 344/90, 28.12.2001.
Available at:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:344:0090:0092:EN:PDF

117Council Common Position of 27 December 2001 on the application of specific measures to combat
terrorism, 2001/931/CFSP, Official Journal of the European Communities, L 344/93, 28.12.2001.
Available at:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:344:0093:0096:EN:PDF

118

         Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963
         Convention for the Suppression of Unlawful Seizure of Aircraft, 1970
         Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation , 1971
         Convention on the Prevention and Punishment of Crimes against Internationally Protected
          Persons, including Diplomatic Agents, 1973
         European Convention for the Suppression of Terrorism, 1977
         International Convention against the Taking of Hostages, 1979
         Convention on the Physical Protection of Nuclear Material, 1980



                                                                                                        40
soon as possible119. A definition of what constitutes a ‘terrorist act and a terrorist
group’ is laid down in the Common Position on the application of specific measures to
combat terrorism, together with a list of persons, groups and entities suspected of
having carried out or being involved in terrorist activities and thus for which
restrictive measures are to apply as according to SC Resolution 1373 is provided in
the annex120. The Common Position also obliges EU member states to offer each other
the widest possible extent of cooperation in ‘preventing and combating terrorist
acts’121 The provision also specifies the method that shall be employed to achieve this,
namely ‘…through police and judicial cooperation in criminal matters within the
framework of Title VI of the Treaty on European Union’


           In January 2002, Spain took over the Presidency from Belgium and arguably
partly because Spain had long-lasting domestic grievances with terrorism, it took a
firm and committed approach in the fight against terrorism on EU level. In its policy



          Protocol of the Suppression of Unlawful Acts of Violence at Airports Serving International Civil
           Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against Safety
           of Civil Aviation, 1988
          Convention for the Suppression of Unlawful Acts against the Safety of Maritime
           Navigation,1988
          Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on
           the Continental Shelf, 1988
          Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991
          International Convention for the Suppression of Terrorist Bombings, 1997
          International Convention for the Prevention and Suppression of the Financing of Terrorism,
           1999

119   Council Common Position of 27 December 2001 on combating terrorism, 2001/930/CFSP. Article 14

120 A third piece of legislation adopted on December 27th was the Regulation on specific restrictive
measures directed against certain persons and entities with a view to combating terrorism (EC No.
2580/2001), with the aim of implementing the Common Position on the application of specific
measures to combat terrorism. As GEHR, Walter. “The European Union Approach to Measures against
Terrorism” In: BENEDEK, Wolfgang and YOTOPOLOUS-MARANGOPOULOS, Alice (eds.). Anti-Terrorist
Measures and Human Rights, The Netherlands Martinus Nijhoff Publishers 2004. p.82, points out it is
remarkably peculiar but most importantly confusing that the list provided in the Regulation does not
match the list provided in the annex of the Common Position.
121 Council Common Position of 27 December 2001 on the application of specific measures to combat

terrorism, 2001/931/CFSP. Article 4




                                                                                                        41
programme ‘Más Europa’122, the fight against terrorism was the first among the six
priority areas, followed by the euro, economic and social reform, enlargement, foreign
and security policy and the future of Europe123. By publishing this document, the
Spaniards crystallized the course of action they were going to take in the next six
months, until the hand-over to the Danes. The Spanish Presidency set out its approach
to countering terrorism by stating that ‘wholehearted multilateral cooperation and
adjustment of the cooperation mechanism of international organizations, including
the European Union itself124’ was crucial. In order to achieve its goal, Spain aimed to
converge all legal systems of the European Union in order to make the possibility of a
terrorist sanctuary nil, encouraged the strengthening of new and existing legislative
instruments and placed strong emphasis on an intensified cooperation in criminal
matters.125


        The Council Framework Decision on combating terrorism126 and the Council
Framework Decision on the European arrest warrant and the surrender procedures
between Member states127, both adopted on June 13th 2002 represented a landmark in
the EU counter-terrorism policy for several reasons. The adoption of the former



122 Translation: ‘More Europe’
123 Spanish Presidency ready for take-off”, EurActiv, 18 December 2001.
http://www.euractiv.com/en/general/spanish-presidency-ready-take/article-115160
124 BOER den, Monica. The EU Counter-Terrorism Wave : Window of Opportunity or Profound Policy

Transformation?. P.190
125 LINDE van de, Erik et al. Quick scan of post 9/11 national counter-terrorism policymaking and

implementation in selected European countries. p.95
126Council Framework Decision of 13 June 2002 on combating terrorism,
2002/475/JHA, Official Journal of the European Communities L 164/3 22.6.2002
Available at:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:164:0003:0007:EN
:PDF
127Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender
procedures between Member States, 2002/584/JHA, Official Journal of the European Communities
18.7.2002, L 190/1
Available at:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:344:0090:0092:EN:PDF




                                                                                                    42
meant that a common definition on terrorism128, agreed at the Laeken Council
meeting, was finally wedged into the context of the counter-terrorist framework and
since then all Member states were required to implement and harmonise this
definition with their national legislation in order to ensure a uniform counter
terrorism strategy on the EU level. Furthermore, unitary punishment levels for
terrorist offences129 were part of the package, simultaneously ensuring that member
states would use their jurisdiction over these offences when committed by their




128Article 1
Terrorist offences and fundamental rights and principles

1. Each Member State shall take the necessary measures to ensure that the intentional acts referred to
below in points (a) to (i), as defined as offences under national law, which, given their nature or
context, may seriously damage a country or an international organisation where committed with the
aim of:

— seriously intimidating a population, or
— unduly compelling a Government or international organisation to perform or abstain from
performing any act, or
— seriously destabilising or destroying the fundamental political, constitutional, economic or social
structures of a country or an international organisation, shall be deemed to be terrorist offences:

(a) attacks upon a person’s life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage taking;
(d) causing extensive destruction to a Government or public facility, a transport system, an
infrastructure facility, including an information system, a fixed platform located on the continental
shelf, a public place or private property likely to endanger human life or result in major economic loss;
(e) seizure of aircraft, ships or other means of public or goods transport;
(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear,
biological or chemical weapons, as well as research into, and development of, biological and chemical
weapons;
(g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to
endanger human life;
(h) interfering with or disrupting the supply of water, power or any other fundamental natural
resource the effect of which is to endanger human life;
(i) threatening to commit any of the acts listed in (a) to (h).

129Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender
procedures between Member States, 2002/584/JHA. Article 5,para.2 member states are to punish the
offences that fall under the common definition more severely than ordinary crime of the same type eg.
murder or bodily harm. para.3 establishes minimum standards for a maximum punishment



                                                                                                        43
nationals or resident or on their territory.130           The adoption of the latter Framework
decision meant the official replacement of all extradition agreements by the EAW and
its provisions.


3.3.1 The European Arrest Warrant


        Like many other components of the justice, freedom and security sphere, the
initial thought of supplanting the existing bilateral extradition agreements131 was
shaped at the European Council meeting in Tampere in October 1999132. The EAW
was officially drawn up at the Extraordinary Council on September 21st, where the
European Council deemed it necessary to replace the bilateral extradition agreements
between member states, as the experience with these agreements showed the lack of
mutual trust and integration within the EU133. The EAW is inserted into the
framework of the fight against terrorism but it extends to many other criminal
activities, a fact, which supports the argument that 9/11 sped up the creation of this
tool134. Adopted in June 2002 and in force since January 2004, the EAW represents an
important break in judicial cooperation in that it is founded on the principle of mutual




130 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender
procedures between Member States, 2002/584/JHA. Article 9
131 1957 Council of Europe Convention on extradition with its two protocols of 1975 and 1978 and

several bilateral conventions as well as provisions of Title III of the Convention implementing the
Schengen Agreement which concern extradition.
132 European Council in Tampere, Presidency Conclusions, 15-16 October 1999. point 35

Available at: http://www.europarl.europa.eu/summits/tam_en.htm

133POLAK, Premysl. Uprava mezinarodni pravni pomoci v trestnich veceh v ramci Evropske Unie s
prihlednutim k ochrane jejich financnich zajmu. Spisy pravnicke fakulty Masarykovy univerzity v Brne,
rada teoreticka, svazek 266 Brno: Masarykova univerzita 2003. p.173

134Among   others: POLAK, Premysl. Uprava mezinarodni pravni pomoci v trestnich veceh v ramci
Evropske Unie s prihlednutim k ochrane jejich financnich zajmu
This argument is generally put forth by all authors who write about this topic. This further supports
what has already been mentioned earlier in this paper, namely the fact that 9/11 represented a viable
catalyst for wide range of policies in general, and within the EU in particular.



                                                                                                        44
recognition of judicial decisions rather than territorial jurisdiction 135 as was the case
prior to its adoption. Another important change is the fact that a member state’s
designated executive judicial unit executes an EAW and is accountable an identical
unit in the member state which issued the request, whereas before it used to be that
extradition requests had a slim chance of being executed due to the fact that they were
sent to national ministries, where political grounds prevailed136. The dos and don’ts of
the EAW are carefully specified in the Framework decision which also sets very
limited grounds on which a refusal of a request is eligible137. The EAW may only be
issued for the ‘purposes of conducting a criminal prosecution or executing a custodial
sentence or detention order’138 The scope of the EAW is divided into acts which may
be applied to the use of an EAW are those punishable by the issuing member state by a
minimum of 12 months sentence139 and offences which are punishable by at least a 36
months sentence140. The latter, for which 32 types of offences141 are specified, also


135SIEVERS, Julia, Too different to Trust? First Experiences with the Application of the European Arrest
Warrant In: GUILD, Elspeth and GEYER, Florian (eds.). Security versus Justice? Police and Judicial
Cooperation in the European Union, England: Ashgate Publishing Limited, 2008.

136 SIEVERS, Julia, Too different to Trust? First Experiences with the Application of the European Arrest
Warrant. p.110
137 SIEVERS, Julia, Too different to Trust? First Experiences with the Application of the European Arrest

Warrant. p.110 referring to articles 3 and 4 of the Framework Decision.
138 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender

procedures between Member States, 2002/584/JHA. Article 1
139 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender

procedures between Member States, 2002/584/JHA. Article 2.1
140 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender

procedures between Member States, 2002/584/JHA. Article 2.2
141 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender

procedures between Member States, 2002/584/JHA. Article 2.2
List of offences as of 13 June 2002:
Participation in a criminal organization, terrorism, trafficking in human beings, sexual exploitation of
children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances, illicit
trafficking in weapons, munitions and explosives, corruption, fraud, laundering of the proceeds of
crime, counterfeiting currency, computer-related crime, environmental crime, facilitation of
unauthorized entry and residence, murder, illicit trade in human organs and tissue, kidnapping, illegal
restraint and hostage-taking, racism and xenophobia, organized or armed robbery, illicit trafficking in
cultural goods, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of
administrative documents and trafficking therein, forgery of means of payment, illicit trafficking in
hormonal substances and other growth promoters, illicit trafficking in nuclear or radioactive materials,
trafficking in stolen vehicles, rape, arson, crimes within the jurisdiction of the ICC, unlawful seizure of
aircraft/ships and sabotage.



                                                                                                           45
implies that the double criminality principle is dropped.142 In this 32 offences-list,
terrorism is in second place. Among the exact limitations of the EAW proceedings are
also time limits, whereby it is stipulated the each request ‘shall be dealt with as a
matter of urgency’143. 10 and 30 days limits after arrest are given in circumstances
where the requested person agrees to his or her surrender and in all other cases,
respectively. An extension of a maximum of 30 days may be granted, upon informing
the issuing authority. In cases where none of these time limits could be adhered to, the
respective national authority must inform Eurojust (see below) and provide reasons
for the delay144.


3.2.3 The role of Europol


        The European Police Office had come into existence before the turn of the 21st
century and thus before 9/11, nevertheless it has seen significant changes especially
but not exclusively with regards to terrorism. The aim behind the creation of this
agency was the need to coordinate the cooperation of law enforcement authorities
across the EU member states as well as other countries on the European continent
through various channels.
        The organizational structure and function of Europol was encompassed in the
Maastricht Treaty145 and by 1994 it could boast its status of limited operational
activity in The Hague146. At this point, its mandate basically comprised of international
drug crimes but over time this mandate was somewhat extended to other types of
crimes amongst which were organized crime, financial crime and human trafficking. A

142 This is to say that it is no longer checked whether the offence in question is punishable in both the
requesting and the issuing state.
SIEVERS, Julia, Too different to Trust? First Experiences with the Application of the European Arrest
Warrant. p.11
143 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender

procedures between Member States, 2002/584/JHA. Article 17.1
144 Council Framework Decision of 13 June 2002 on the European Arrest warrant and the surrender

procedures between Member States, 2002/584/JHA. Article 17.7
145 Article K.3 on the ‘Establishment of a European Police Office’
146 Mathieu Deflem, Europol and the policing of International Terrorism: Counter-Terrorism in a Global

Perspective, Justice Quarterly vol.23 issue 3, 2006 p. 341



                                                                                                            46
legal personality was conferred to Europol by the Europol Convention147, signed in
July 1995 and in force since October 1998. Since 1999, Europol has been fully
operational but it must be noted that it does not have executive authority. The
Convention also expanded and clarified Europol’s mandate whereby its areas of
investigation and of competence range from drug, vehicle and human trafficking to
money-laundering and terrorism148.
        But it was not until 9/11 that things really started to move along within the EU
and understandably also within Europol. In the immediate aftermath of 9/11, a
Europol Operational Centre was established with the aim of providing a non-stop
provision and facilitation of information149. As decided by the JHA Council meeting on
September 20th, the exchange of information between member states’ intelligence and
police authorities and Europol was to be intensified. In addition, a Counter-Terrorism
Task Force, an expert counter-terrorism unit consisting of liaison officers from police
and intelligence services was set up and became fully operational in November
2001150. The objectives of this new unit were to collect analyse all relevant
information and use it for the purpose of generating a threat assessment report which
listed the possible targets, modus operandi and the costs that would be incurred on
Member states.151 Since then, the task force had produced several annual threat
assessment reports including the threats within Europe and an overview of the
counter terrorism measures which are in place within the framework of the European
Union152. The former is further divided into two dossiers; ‘Islamic Terrorism’ and
‘Dolphin’, where the latter focuses on all terrorist groups and activities which are not


147Council Act of 26 July 1995 drawing up the Convention on the establishment of a European Police Office
(Europol Convention) 26 July 1995. Available at:
http://www.europol.europa.eu/index.asp?page=legalconv
148 Annex to the Europol Convention
149 Mathieu Deflem, “Europol and the policing of International Terrorism: Counter-Terrorism in a

Global Perspective”, p.344
150 Mathieu Deflem, “Europol and the policing of International Terrorism: Counter-Terrorism in a

Global Perspective”, p.344
151 http://www.europol.europa.eu/index.asp?page=publar2001#TERRORISM
152 Mathieu Deflem, Europol and the policing of International Terrorism: Counter-Terrorism in a Global

Perspective, p.344



                                                                                                       47
included in the former.153 Assessments are also made with relation to the financial
flows which support terrorist activities.
        Understandably, the task force is not left on its own to deal with a vast of an
issue but rather there are several programs which function alongside it. One of these
is the Counter Terrorism Program, which was established with the aim of
coordinating all Europol activities concerning (counter)terrorism154. Furthermore,
Europol plays a supportive role in investigations as well as the set up and operations
of joint investigation teams, which are initiated upon the request of a member state155.
Another significant and relevant program is the Networking Program, which as its
name suggests, is tasked with establishing contacts and connections between the
experts within Europol which are involved in the programs and experts and law
enforcmenet authorities of non-EU member states.156 The Prepardness Program
operates to achieve the development of multitiered and multilateral investigation
teams in the event that a terrorist attack occurs on EU soil.


        A significant change came in April 2009, when the ministers of the JHA Council
adopted a decision which was initially proposed by the Commission in 2006. This
decision157 which is to replace the 1995 Europol Convention and its Protocols158
extends Europol’s competencies and thus makes it that much closer to becoming a
‘federal police force’.159 The crimes in Europol’s competence will be extended to the


153 Mathieu Deflem, Europol and the policing of International Terrorism: Counter-Terrorism in a Global
Perspective, p.344
154 Mathieu Deflem, Europol and the policing of International Terrorism: Counter-Terrorism in a Global

Perspective, p.345
155 Mathieu Deflem, Europol and the policing of International Terrorism: Counter-Terrorism in a Global

Perspective, p.346
156 Mathieu Deflem, Europol and the policing of International Terrorism: Counter-Terrorism in a Global

Perspective, p.346
157

http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc
=COMfinal&an_doc=2006&nu_doc=817
158Protocol to Europol Convention regarding Court of Justice, 1996; Protocol to Europol Convention on

Privileges and Immunities, 1997; First Protocol to Europol Convention, 2000; Second Protocol to
Europol Convention, 2002; Third Protocol to Europol Convention, 2003
159 http://www.statewatch.org/news/2007/jan/europol-analysis.pdf p.6




                                                                                                         48
32 crimes of the EAW and its supportive role in JITs will be extend to a role of direct
establishment and participantion of these teams, as previously upon the request of
one or more member states.160




3.2.4 The role of Eurojust


       The first ever mention of Eurojust was made at the European Council meeting
in Tampere in October 1999, where it was concluded that a permanent judicial co-
operation unit should be set up, with the aim of reinforcing the fight against serious
crime, with emphasis on organised crime, between two or more member states. This
unit, now named Eurojust, was to be an organization comprising of prosecutors,
judges, magistrates or police officers seconded from each member state, who would
be charged with facilitating cooperation between its judicial and law enforcement
authorities, as well as with the same organs in other member states, especially in
relation to criminal investigations161. A provisional judicial cooperation unit was to be
set up as a type of test-drive for Eurojust. The establishment of this provisional unit;
pro-Eurojust was sealed by the Council when it concluded its Decision of December
14th 2000162, laying down the following objectives for the new born body:

         to improve cooperation between the competent national authorities in the
          investigation and prosecution of serious crime, particularly when it is
          organized, involving two or more member states;

         to stimulate and improve the coordination, between the competent
          authorities of the Member States, of investigations and prosecutions in the
          Member States, taking into account any request emanating from a

160

http://europapoort.eerstekamer.nl/9345000/1/j9vvgy6i0ydh7th/vgbwr4k8ocw2/f=/vhjtdlqwcsf5.pd
f
161 http://www.europarl.europa.eu/summits/tam_en.htm art.46
162http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&numdoc=32

000D 0799&model=guichett&lg=en



                                                                                         49
              competent authority of a Member State and any information provided by
              any body competent by virtue of provisions adopted within the
              framework of the Treaties163;

             to improve cooperation between the competent authorities of the Member
              States, in particular by facilitating the execution of international mutual legal
              assistance and the implementation of extradition requests164


           The work of pre-Eurojust to accomplish these objectives started on March 1st
2001 and was to continue until the official document to create Eurojust as a
permanent unit was produced and thereafter adopted165. In the meantime, the cases
referred to pro-Eurojust rose up to 180 by November166.
           The discussions and negotiations to reach a unanimous support for the
conditions creating Eurojust were not particularly short and simple but, as mentioned
before and as will be mentioned on many occasions, the events of September 11th
represented a real impetus for the wave of decisions, conventions, statements and
agreements produced and reached within the EU. By the Decision of February 28th
2002 on setting up Eurojust with a view to reinforcing the fight against serious
crime167, Eurojust was formally established by the Council as an independent body
with a legal personality, based in The Hague and operational since May 2002. The
objectives to be attained remained the same but its competencies were extended in

163   European Anti-Fraud Office (OLAF), Europol, the European Judicial Network and liaison magistrates
164http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&numdoc=32

000D0799&model=guichett&lg=en Art. 2
165 http://www.eurojust.europa.eu/press_releases/annual_reports/2001/annual2001.pdf


166 European Commission, “Eurojust coordinating cross-border prosecutions at EU level”, updated
February 2005
Available at: http://ec.europa.eu/justice_home/fsj/criminal/eurojust/fsj_criminal_eurojust_en.htm
167 Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against

serious crime, 2002/187/JHA, Official Journal L 063, 06.03.2002 P. 0001 – 0013, 28 February 2002.
Available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002D0187:EN:HTML

This decision was soon amended by Decision 2003/659/JHA however the author did not deem it
necessary to mention in the main body of the text, due to the fact that these amendments only applied
to budgetary provisions.



                                                                                                            50
the aftermath of 9/11 to include terrorism as well as crimes over which Europol has
authority, alongside its ‘original’ competencies in offences such as drug trafficking,
trafficking in human beings, cybercrime and (tax)fraud. by the Council, to create
contact points in the law enforcement and judicial authorities to coordinate the fight
against terrorism. The steps to achieve ‘the widest possible assistance’168, which are
stipulated in the Common Position on the application of specific measures to combat
terrorism, can partly be achieved through the European Judicial Network 169, with
regards to the judicial cooperation component in particular170.                            The EJN, a
decentralised network of lawyers and judges with contact points throughout the EU,
works alongside Eurojust.
        On the initiative of the Spanish Presidency, a political agreement was reached
which stipulated the need to create contact points within the law enforcement and
judicial authorities in order to effectively coordinate the fight against terrorism. This
in turn resulted in the reiteration of the decision that each member state should
designate a national correspondent for terrorism171, at the 19 December 2002
European Council meeting172. Whereas the February Council meeting concluded that
such a national correspondent may be appointed and that in relation to terrorism this

168 Council Common Position of 27 December 2001 on the application of specific measures to combat
terrorism, 2001/931/CFSP. Article 4
169 Joint Action of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on

European Union, on the creation of a European Judicial Network 98/428/JHA, Official Journal L 191 ,
07.07.1998 P. 0004 – 0007.
Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31998F0428:EN:HTML
170 GEHR, Walter. “The European Union Approach to Measures against Terrorism”. P.89


171Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against
serious crime, 2002/187/JHA. Article 12


172Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for
police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position
2001/931/CFSP, Official Journal L.16, 22.1.2003

Available at:
http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdo
c=32003D0048&model=guichett article 3




                                                                                                           51
should be a high priority, the December meeting actually stated that each member
state shall appoint such a Eurojust national correspondent for terrorism. In addition,
it is clearly stated that each Member State ‘shall ensure that this correspondent [...]
has access to and can collect all relevant information concerning and resulting from
criminal proceedings conducted under the responsibility of its judicial authorities,
with regard to terrorist offences involving any of the listed persons, groups or
entities173’.
        In the months that followed, a decision was taken to reformat and ultimately
repeal this decision, with the aim of widening the scope from terrorist offences
committed by in the Annex listed persons, groups or entities to all174 the offences
defined by Framework Decision 2002/475/JHA on combating terrorism. Adopted in
September 2005, this decision175 furthermore specifies the need to designate a
specialised service which will have access to any information surrounding criminal
investigations conducted by its authorities with respect to terrorist offences176. In
turn, any and all information on all177 stages of criminal investigation and proceedings
should be made available to Eurojust.178 Lastly, it is stipulated that all requests for
mutual legal assistance particularly with respect to terrorist offences are to be dealt
with ‘as a matter of urgency and are given priority’.179 At the end of 2008, people
within as well as without Eurojust realised that it was time to review the work of
Eurojust and see where its objectives could be met with more efficiency and less time
constraints. The outcome of this was a new Framework Decision180, drawn up in July
and adopted just four month later in November 2008. The main change that would
come about once this framework decision is implemented181 is increased


173 Council Decision 2003/48/JHA of 19 December 2002. Article 3
174 Emphasis added by author
175 Council Decision 2005/671/JHA
176 Council Decision 2005/671/JHA art.2
177 Emphasis added by author.

Previously, the exchange of information did not apply to all stages of criminal proceedings.
178 Council Decision 2005/671/JHA art.3b.
179 Council Decision 2005/671/JHA art.4
180 http://register.consilium.europa.eu/pdf/en/08/st14/st14927.en08.pdf
181 At the time of writing, this framework decision is not yet fully implemented in all member states.




                                                                                                         52
competencies granted to the National members where in the end these competencies
would be autonomous182 and harmonized in order to provide for a smooth and speedy
of cases, especially in urgent matters.


        If one speaks in very simplistic terms, Eurojust and Europol are basically
counterparts except that Eurojust coordinates the efforts of judicial authorities
whereas      Europol     deals    primarily     with law        enforcement       and    intelligence
synchronization. It should thus come as no surprise that these two bodies, both
conventionally based in The Hague, closely cooperate together. The centrepiece
document in this regard is the agreement between Eurojust and Europol183 drawn up
in 2004. Very general in nature, it calls for an intensified exchange of information and
for the most efficient way of going forth in achieving their objectives i.e. the
prevention of work duplication184. The agreement also stipulates that Eurojust and
Europol may jointly set up joint investigation teams and participate in them, upon the
request of one or more member states and if their competencies so allow185.
As bodies dealing with and facilitating cross border persecutions and investigations,
Europol and Eurojust represent a strong position in the fight against terrorism given
the fact that terrorist groups operate in more than one country186. In this sense thus,
they symbolize a bridge between different judicial and law enforcement systems and a
channel through which information flows in a more straightforward fashion.




182 At the time of writing, the powers granted to the National members are not the same due to
individual member states giving different levels of authority to their respective representatives at
Eurojust.
183 http://www.europol.europa.eu/legal/agreements/Agreements/17374.pdf
184 http://www.europol.europa.eu/legal/agreements/Agreements/17374.pdf art.2
185 http://www.europol.europa.eu/legal/agreements/Agreements/17374.pdf art.6
186 Eurojust Annual Report 2007.

http://www.eurojust.europa.eu/press_releases/annual_reports/2007/Annual_Report_2007_EN.pdf
p.26




                                                                                                       53
3.3 The Intra-European Schism and the EU Security Strategy

        Attention is most often paid to the gyre that widened as a result of the war
policy against Iraq (see chapter IV), rather than the gyre that developed within the
European continent and within the EU in particular. At this point it is however
necessary to mention the crack that was generated within the EU, where member
states were essentially divided into the ‘pro-war’ and ‘anti-war’ camps. This was
reinforced by the US bracketing of the opposition camp as ‘Old Europe’, thus ‘New
Europe’ being the friendly camp accordingly.187 The main members of the former
were France and Germany, significantly also being the biggest member states, while
the pro-war stance was taken most staunchly by the UK, but also by Spain, Italy,
Portugal and the ten countries that acceded to the EU in May 2004. In this regard, the
old Europeans were not shy in their criticism of the to-be EU member states as well as
those whose accession negotiations were still underway (Romania and Bulgaria),
when they expressed their pro-US stance by joining existing member states in
endorsing a last chance to disarm warning in mid February. 188 The then French
President Chirac identified the candidate states as being ‘childish and irresponsible’.
Schroder defended his and his country’s stance in asserting that ‘the Middle East
needs a lot of peace, not a new war’.189


        Nevertheless, something good did come out of this intra-European schism. It
represented a sort of impulse to the EU that it had to be glued back together in order
for the member states to reconcile their differences and be less dependent on the US,
with which relations were not at its best. This glue was to be a genuinely European
strategy which would deal with national and transnational threats and would delegate
a cooperative distribution and use of resources. The task of compiling this


187GUPTA,  Anirhuda, “Iraq, US and Europe: emerging themes”. P.948
188 BBC News, “’New Europe’ backs EU on Iraq”, BBC News, 19 February 2003.
Available at: http://news.bbc.co.uk/2/hi/europe/2775579.stm
189 BBC News “Germany readies for closest post-war poll”, BBC News, 21 September 2002

http://news.bbc.co.uk/2/hi/europe/2273299.stm




                                                                                        54
comprehensive document was given to Javier Solana, the High Representative of the
CFSP. Entitled the European Security Strategy: A Secure Europe in a Better World 190,
the text was adopted by the European Council on December 12th 2003. Clearly
recognising the existence of entirely new threats which are ‘more diverse, less visible
and less predictable’191, such as terrorism, proliferation of WMD and the deadly
combination of terrorists getting their hands on and using these weapons, regional
conflicts and state failure; the strategy calls for more bilateral and multilateral
cooperation as well as more coherence in policy coordination and an overall increase
of institutional capacities.        In discussing the various cooperation channels, the
Strategy identifies the UN as crucial, at the same time making a point for providing it
with the capabilities necessary to maintaining its position as a global forum for
cooperation.192 It also warns that the European continent is both a base for and a
target of terrorism, thus indirectly calling for the need to fight terrorism from the
inside out. It is further stressed that the world and the threats therein have changed
dramatically since the Cold War, mainly indicating that the ‘new’ threats are not
purely military.193 This is to say that the way the EU responses to these threats must
not be purely military either, but rather a combination of different means on different
levels of cooperation. The means here represent intelligence, aspects of the law
enforcement and judicial capabilities as well as military or any other means as
appropriate. This is also closely related to the acknowledgement that the prevention
of radicalisation and the de-seeding of the roots of terrorism as well as simultaneously
diminishing derogatory issues such as organized crime and state failure are crucial in
dismantling the global tyrant.194




190 European Security Strategy: A Secure Europe in a Better World, Brussels, 12 December 2003.
Available at: http://ue.eu.int/uedocs/cmsUpload/78367.pdf.
191 European Security Strategy: A Secure Europe in a Better World p.3.
192 European Security Strategy: A Secure Europe in a Better World p.9.
193 European Security Strategy: A Secure Europe in a Better World p.7.
194 European Security Strategy: A Secure Europe in a Better World p.3-5




                                                                                                 55
3.4 Madrid

          On March 11th 2004, according to some 911 days after 9/11, a terrorist attack
occurred on European soil. It was the biggest terrorist attack in Europe since the
hijacked Pan Am flight which crashed onto Lockerbie in Scotland in 1988 and the
worst and biggest in Spain’s history. The notorious 3/11195 started, just like 9/11 and
any other day, with thousands of people making their way to work, school or
elsewhere. That morning’s classic routine changed when the first set of the chain of
bombs exploded at 7.39 in a commuter train stationed in the Atocha train station, in
the heart of Madrid. Simultaneously, a second explosion occurred on a train which
was about 500 meters away from the aforementioned station. As another train was
passing through the El Pozo station in another part of Madrid, the third set of bombs
went off at 7.41. The fourth and final explosion, at least as far as the bomb was
‘successfully’ detonated, took place at 7.42 as it passed through the Santa Eugenia
station.
          These attacks, found to have been planned in Turkey claimed 191 lives and no
less than 1,500 casualties. The Spanish government under Aznar, which was ousted by
the national elections just four days after the attack, who had been a staunch
supporter of and direct participant in Bush’s policy in Iraq despite virtually no
support from the public, immediately identified ETA as the prime suspect. Soon,
however, it became clear that the attack had been perpetrated by mainly Moroccan
and Algerian nationals, seven of whom committed mass-suicide by explosion three
weeks after the attacks during a police raid, killing a police officer; thus making the
official fatality count 192.196 The twenty eight individuals, identified as being involved

195 Unless otherwise stated. The description of the events is based on: ABERNATHY, Paul et al. Anatomy
of a Terrorist attack: an in-depth investigation into the London and Madrid Subway bombings of 2005 and
2004, Matthew B. Ridgway Centre for International Security Studies at the University of Pittsburg 2006
Available at: http://www.isn.ethz.ch/isn/DigitalLibrary/Publications/Detail/?ots591=0C54E3B3-
1E9C-BE1E-2C24-A6A8C7060233&lng=en&id=27221

196   http://news.bbc.co.uk/2/hi/europe/4899544.stm



                                                                                                    56
in the preparation and/or execution of the terrorist acts, were found to have
connections to Al Qaeda, and several of them were found to have been involved in the
2003 Casablanca bombing197.
          The reaction of the EU member states, including acceding states198, was
immediate. A solidarity clause199 was drawn up and signified the automatic
commitment to the agreement that in case a member state is struck by a terrorist act,
the fellow member states would, along with providing aid, mobilize all resources
deemed necessary to respond and in the longer term contribute to reconstruction. The
European Council convened in a special session on March 25th, where the Declaration
on Combating Terrorism200 was formulated and agreed upon. Full solidarity was
reiterated along with the stressing of the absolute necessity to fully implement as a
matter of urgency the measures201 that had been adopted since the 9/11 attacks,
giving June 2004 as the deadline202 Furthermore, the European Council called upon
the Commission and Javier Solana to concretize the way forward in implementing the



197This suicide bombing, which occurred on May 16th 2003, targeted and hit a Jewish community
centre, a Spanish restaurant and social club, a hotel and the Belgian consulate. The attack which killed
41 people is said to have been perpetrated by a North African Al-Qaeda linked cell. (information
retrieved from: http://news.bbc.co.uk/2/hi/africa/3035803.stm )

198 These ten states: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia
and Slovenia officially joined the EU in May 2004
199 This clause is in accordance with Article 42 of the Draft Constitution of Europe and is annexed to the

Declaration on Combating Terrorism of 25 March 2004
200 http://www.consilium.europa.eu/uedocs/cmsUpload/79635.pdf
201

         Framework Decision on the European Arrest Warrant
         Framework Decision on Joint Investigation Teams
         Framework Decision on Combating Terrorism
         Framework Decision on money laundering, the identification, tracing, freezing and
          confiscation of instrumentalities and the proceeds of crime
       Decision establishing Eurojust
       Decision on implementation of specific measures for police and judicial cooperation to combat
          terrorism
Deadline by which the following had to be implemented was set to December 2004: The Framework
decision on the execution of orders freezing property or evidence and the ratification of the Convention
on the Mutual Assistance in Criminal Matters, its Protocol and the three Protocols to the European
Convention
202 http://www.consilium.europa.eu/uedocs/cmsUpload/79635.pdf, point 2 and 3 respectively




                                                                                                       57
2003 Strategy characterised by a long-term involvement in addressing the terrorist
threats203.
       The Declaration went on to list the objectives which were to be incorporated
into the EU Action plan against terrorism, its updated version which was endorsed in
June, containing some 150 measures204. These objectives included the increased
involvement of the EDSP, the strengthening internal as well as external cooperation
and coordination, maximising the capabilities to protect from and respond to a
terrorist threat and/or attack, to increase border controls as well to intensify
information exchange205. With regards to the latter, the Joint Situation Centre,
operational since 1999, whose scope was extended in the aftermath of the attacks to
sharing information with other intelligence agencies, most prominently with Europol,
and to analyse all available intelligence and transform it into threat assessments.206
Traditionally, SitCen dealt with externally-looming terrorist threats but since January
2005, the SitCen analysts have combined various data including their own to provide
member states with strategic analyses of the situation within Europe.207 In addition to
this, Austria and Belgium pushed for the creation of a CIA-like agency in Europe, a
mega database of all intelligence related to terrorism collected from all member
states. This did not go down well with the French, British, German, Italian and
surprisingly enough the Spanish authorities208.            Having the biggest intelligence
resources at disposal, these countries voiced their strong opposition to providing their
acquired intelligence capabilities, which would automatically mean sharing them with
all member states209.


203 http://www.consilium.europa.eu/uedocs/cmsUpload/79635.pdf, point 3
204 http://ue.eu.int/uedocs/cmsUpload/EUplan16090.pdf
205 http://www.consilium.europa.eu/uedocs/cmsUpload/79635.pdf, point 5 b.
206 http://www.consilium.europa.eu/uedocs/cmsUpload/79635.pdf
207 KEOHANE, Daniel. One step forward, two steps back, E!Sharp, November 2005. Available at:

http://www.cer.org.uk/pdf/article_keohane_esharp_nov05.pdf p.38
208 KEOHANE, Daniel. One step forward, two steps back. p. 37 and

 KEOHANE, Daniel. The EU and counter-terrorism, Centre for European Reform, London, May 2005
Available at: http://www.cer.org.uk/pdf/wp629_terrorism_counter_keohane.pdf
p.3
209 KEOHANE, Daniel. One step forward, two steps back. P.37




                                                                                               58
        The Commission produced a communication in response to the Declaration on
Combating terrorism, with respect to expanding access of law enforcement officials to
crucial information, in particular related to terrorism210. In June, Sweden proposed a
draft Framework Decision on the simplifying the exchange of information and
intelligence between law enforcement authorities of the Member States of the E, with
the aim of making the principle of equivalent access legally binding211. After long
deliberations and clear reluctance to share data, a practice by now all too common to
the EU, the framework decision212 was adopted more than two years later in
December 2006.


        Spurred by the Madrid attacks and with the aim of achieving better
coordination and cooperation among member states, a new post of EU Counter-
Terrorism Coordinator was created, which was filled by Mr. Gijs de Vries up until
2007. However even this did not prove to be an easy task, as this idea initiated by the
Irish Presidency, was not welcomed by all the member states with enthusiasm. The
UK, for instance, did not feel that such a ‘terrorism tsar’ was needed and even the
European Commission expressed its reluctance by stating that the ‘EU often displayed
a knee-jerk reaction calling for a "Mr. This" or "Mr. That"’213


        Referring back to a point made in the March Declaration, with regards to the
ESDP; some steps had been taken to make the ESDP more involved and expand its
competences. This was achieved mainly through the Conceptual Framework on the
ESDP dimension of the fight against terrorism214, adopted in November 2004. This
document specified four main areas of action, which the ESDP would be responsible
for, namely ‘prevention, protection, response and consequence management, and

210 Document no. 10745/04.
211 http://www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/53/53.pdf
212 2006/960/JHA of 18 December 2006
213 BROWNE, Anthony and WATSON, Rory, “EU divided over proposal for new anti-terror czar”, The

Times, Brussels, 17 March 2004.
Available at: http://www.timesonline.co.uk/tol/news/world/article1047993.ece
214 http://www.consilium.europa.eu/uedocs/cmsUpload/ESDPdimension.pdf November 2004




                                                                                                 59
support to third countries in the fight against terrorism’215. To an extent, these
courses of action reflect the solidarity expressed in the aftermath of the attacks.


        In November also, within the JHA Council, EU’s justice and interior ministers
concluded long-standing negotiations with an agreement on a set of goals in the
sphere of security, freedom and justice.216 This five year plan, better known as ‘The
Hague Programme’217 addresses ten key areas security and justice cooperation, to be
implemented by 2010 and together with the European Security Strategy, it defines
‘Europe’s collective approach to security.’218Generally the provisions listed therein
stress the importance of information sharing among others on anticipated threats,
focus on the factors that contribute to fundamentalism, encourage the use of
European bodies such as Europol and Eurojust and the principle of mutual
recognition.



3.5 London

        The wave of legislative action that was spurred by the Madrid bombings was
rolling in at different speeds; though its momentum was arguably lost over the first
months of 2005. The events of July 7th 2005 injected this impetus back into the arena.
July 7th, now most commonly known as 7/7, was the day that the 3/11 scenario
occurred all over again, this time at several locations in central London219. London
was in the midst of celebrating their victory of being an Olympic-hosting city in 2012,
news that was announced just one day prior to the tragic events. Meanwhile the four

215 http://www.consilium.europa.eu/uedocs/cmsUpload/ESDPdimension.pdf, p.4
216 Daniel Keohane, The EU and counter-terrorism, p. 17
217 http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/index_en.htm
218 HOADLEY, Stephen “European and American Security Strategies: Convergent Aims, Contrasting

Means: Stephen Hoadley compares the approaches to counter-terrorism of the European Union and the
United States”, New Zealand International Review, Vol.31, issue 2, 2006. p.2

219Unless otherwise indicated, the description of the events is based on the Report of the Official
Account of the Bombings in London on 7th July 2005, London: The Stationary Office, 2006
Available at: http://www.officialdocuments.gov.uk/document/hc0506/hc10/1087/1087.pdf



                                                                                                      60
Al Qaeda-linked220 suicide bombers were preparing themselves for the attack that
would occur in the early hours of the following morning. On that fateful July day, at
8.30 the three bombers split up at the King’s Cross station 221 and each carried
explosives onto a different tube line, detonating them simultaneously shortly before 9
o’clock. At 9.47, the fourth bomber blew himself and 27 others up on a city bus, which
was unusually crowded as a consequence of the underground closures in the
aftermath of the previous bombings. Along with more than 700 casualties, 52 people
lost their lives in the attack or shortly thereafter. The attack became even more
shocking when it was found that the bombers were British Muslims, born and raised
and alas also radicalised in the UK222.
        The attacks, along with a copy-cat attempt223 just two weeks later, represented
the biggest wake up call yet, not only to the UK who was holding the EU presidency at
the time, but to the EU in general. The wake up call was the dire need to step up the
game and to realise the full implementation of the Action plan and other measures.
The UK, which took up the presidency just six days prior to the attacks, took a
prominent role in the EU response to 7/7. An Extraordinary JHA Council meeting was
convened on July 13th where it adopted the Council Declaration on the EU response to
the London Bombings.224 Here it was emphasised that the EU framework ‘for pursuing
and investigation terrorists across borders’ had to be built upon225 and strengthened,


220 Although it must be noted that this has been a very controversial issue., despite the fact that in
September, Al Qaeda’s deputy leader had claimed responsibility for the attacks. The immediate reaction
was to link up the attacks to Al Qaeda however these claims were later refuted. The above 2006 report
states that the connection to Al Qaeda is not crystal clear, although two of the suspects may have
established contacts when Pakistan and Afghanistan. Interestingly, RAI, Milan. 7/7: The London
bombings, Islam and the Iraq war, London: Pluto Press 2006
never dwells on the debate whether Al Qaeda was involved or not. In September, Al Qaeda’s deputy
leader had claimed responsibility for the attacks.
221 A major station in London’s railway as well a hub of the underground network, serving several

connections.
222 RAI, Milan. 7/7: The London bombings, Islam and the Iraq war. ch.4-7- the author describes each of

the bombers and how and where they were radicalized.
223 Four bombers, three on the underground network and one on a bus, failed to detonate their

explosives on July 21st 2005 in Central London.
224 JHA Council Declaration on the EU Response to the London Bombings, 11158/1/05 Rev.1 13 July 2005.

Available at: http://www.unhcr.org/refworld/topic,459d17822,459d17a82,42fb11894,0.html
225 JHA Council Declaration on the EU Response to the London Bombings, 13 July 2005. 11158/1/05 Rev.1




                                                                                                   61
rather than coming up with a whole new framework without fulfilling previous
obligations. In pursuance of this goal, the Council was to agree on outstanding
Framework Decisions226 as well as it would adopt Decisions such as on the exchange
of information concerning terrorist offences227. With regards to the tackling of the
financial flows towards terrorism, several decisions and directives228 and the
agreement upon and adoption of these was given a clear deadline. In addition, the
EU’s performance as a whole was to be reviewed and it was clarified to the member
states that a thorough investigation within the financial system was a crucial part in
the investigation of past and future terrorist attacks.229 In this sense, it was to be
ensured that the authorities of all member states have ‘robust powers’ to freeze
assets.230 Furthermore, the exchange of information and the overall intensification of
judicial and law enforcement cooperation was encouraged. In light of British citizens
perpetrating the attacks, at least partly, measures addressing the prevention of
radicalisation and cooperation with third countries were to be strengthened and
closely followed. Lastly, the Council also called upon member states to engage in
regular terrorist attack exercises, in order to identify their shortcomings and deal with
these231. The capabilities of each member state in emergency response would be
collected and analysed by the Counter-terrorism coordinator together with the
Commission, which would then be disseminated in order to share information about


http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/85703.pdf point 4, p.6
and
WILKINSON, Paul. International terrorism: the changing threat and the EU’s response, Chaillot paper
no.84, EU Institute for Security Studies, Paris 2005. p.32

226 Framework Decisions on the Retention of Telecommunications Data (October 2005), on the
European Evidence Warrant (December 2005), on the Exchange of information between law
enforcement authorities (December 2005) < based on: JHA Council Declaration on the EU Response to
the London Bombings.
227 http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/85703.pdf
228 Regulation on Wire Transfers (December 2005); adopting the Third Money Laundering Directive

and the Regulation on cash control by September 2005; agreeing a Code of Conduct to prevent the
misuse of charities by terrorists (December 2005).
229 http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/85703.pdf, point 4, p. 7
230 http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/jha/85703.pdf, point 4, p. 7
231 WILKINSON, Paul. International terrorism: the changing threat and the EU’s response. P.32




                                                                                                      62
the prospective potential of responding to a terrorist attack, especially on more than
one member state232.
        In September, recalling the specifics of the Hague Programme, the Commission
released a communication233 which addressed factors contributing and/or leading to
radicalization, setting out a combination of soft and hard measures to prevent
radicalisation. It identified ‘an abusive interpretation of Islam’ as the peril which ran
deep in many societies, including the European ones234. Furthermore, it warned that
this violent interpretation may effect those “European citizens, whose motivations
defy simplistic categorisation; not being socially-excluded, socio-economically
disadvantaged, unemployed or living in deprived suburbs of large cities or inner-city
housing estates, or from immigrant families”235, which was also a clear sign that
tackling radicalisation was going to be a complex, multi-faceted and long-term task.
On the basis of this communication, the Council adopted the European Union Strategy
for Combating Radicalisation and Recruitment to Terrorism236, which outlined the
actions that the EU was going to undertake:
• disrupt the activities of the networks and individuals who draw people into
terrorism;
• ensure that voices of mainstream opinion prevail over those of extremism;
• promote yet more vigorously security, justice, democracy and opportunity for all237




  WILKINSON, Paul. International terrorism: the changing threat and the EU’s response. P.33
232

  European Commission, Communication from the Commission to the European Parliament and the
233

Council concerning Terrorist recruitment- Addressing the factors contributing to violent radicalization,
COM(2005) 313 final, 21.9.2005
Available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0313:FIN:EN:PDF

  BURES, Oldřich, "EU Counterterrorism Policy after 9/11: A Paper Tiger?" Delivered at the 2007
234

Annual Meeting of the American Political Science Association, August 30 - September 2, 2007. p.22

235 European Commission, Communication from the Commission to the European Parliament and the
Council concerning Terrorist recruitment- Addressing the factors contributing to violent radicalization.
Annex.
236 http://register.consilium.europa.eu/pdf/en/05/st14/st14781-re01.en05.pdf
237 http://register.consilium.europa.eu/pdf/en/05/st14/st14781-re01.en05.pdf, p. 3




                                                                                                           63
Similarly to the Commission, the Council acknowledged that development assistance
and cooperation with third countries was an essential part of preventing and
combating violent radicalization and terrorism.238



3.5.1 EU Counter-Terrorism strategy

        Just six days later, a groundbreaking product of the EU’s strenuous efforts was
finalised and revealed at the end of November; the European Union Strategy on
Counter Terrorism.239 The UK had advocated the idea of an EU counter-terrorism
strategy ever since the 7/7 incident, arguing that the EU could absorb some provisions
from individual member states’ strategies240 and thereby streamline the abundance of
measures into a comprehensive scheme. For instance, the UK has developed the so
called CONTEST strategy241, which stands for prevention, pursuit, protection and
preparedness.242 Rather similarly, the EU strategy on Counter-terrorism, which was
adopted by the European Council on December 1st, divides the strategy into four major
objectives; to prevent, protect, pursue and respond. The Strategy was ultimately a
fusion of the ‘patchwork of decisions and mechanisms’243 which were becoming too
many to control. The first objective addresses the problem of radicalisation and
describes the steps that should be taken to tackle this problem, namely finding and
dismantling sources of recruitment and the roots of radicalism. The aforementioned
Strategy for Combating Radicalisation and Recruitment to Terrorism is incorporated
and therefore complements this objective. The aim of protection encapsulates police
and judicial cooperation, strengthened border controls and the protection of
238 BURES, Oldřich, "EU Counterterrorism Policy after 9/11: A Paper Tiger?" P.23
239 http://register.consilium.europa.eu/pdf/en/05/st14/st14469-re04.en05.pdf
240 BRADY, Hugo and KEOHANE, Daniel. Fighting Terrorism: The EU needs a strategy, not a shopping list.

CER Publications, London, October 2005
Available at: http://www.cer.org.uk/pdf/briefing_terrorism_11oct05.pdf

241 Latest version (March 2009) available at: http://security.homeoffice.gov.uk/news-
publications/publication-search/general/HO_Contest_strategy.pdf?view=Binary
242 BRADY, Hugo and KEOHANE, Daniel. Fighting Terrorism: The EU needs a strategy, not a shopping list.

P.2-3
243 COOLSAET, Rik. Radicalisation and Europe’s counter-terrorism strategy. P.1




                                                                                                    64
vulnerable infrastructure244 and is supplemented by the Hague Programme. The third
objective referred to the (cross border) prosecution of terrorists and disrupting the
financial and physical links and ultimately the networks themselves. In addition, it
repeated the call made to all member states to implement agreed European measures
as well as ratify relevant international treaties and conventions, in order to ensure
that its response is within a legal framework and is appropriate.245 The response
objective underlines the need to not only increase capabilities but to also share the
extent of these capabilities, in the spirit of solidarity. Shaped like a double-levelled
pillar house structure, these four objectives, which are to be pursued by the member
states, take up the first floor. The ground floor is represented by the ‘EU added value’
which, divided into four pillars, represents the ways which the EU would assist
member states achieve the above objectives.246 EU assistance would consist of:
‘promoting international partnership, developing collective capabilities, promoting
European cooperation and strengthening national capabilities.247 In short, the
Strategy’s goal is to achieve a two-fold extension in EU’s role, namely in ‘the
institutional networking of member states’ foreign and domestic policies’ and ‘in
coordinating the EU’s foreign and domestic policy with that of the individual member
states’.248 This clearly represented a shift from the intergovernmental to a trans-pillar
spider-web like structure.
           The implementation of the Strategy is overseen by the Permanent
Representatives Committee (COREPER) and the contents of the Strategy are subject to
a review by the European Council every six months.249 In addition, an updated Action



244 http://register.consilium.europa.eu/pdf/en/05/st14/st14469-re04.en05.pdf, p. 3
245 http://register.consilium.europa.eu/pdf/en/05/st14/st14469-re04.en05.pdf, p. 13
246 http://register.consilium.europa.eu/pdf/en/05/st14/st14469-re04.en05.pdf, p 4 and BURES,

Oldřich, "EU Counterterrorism Policy after 9/11: A Paper Tiger?" p.24
247 http://register.consilium.europa.eu/pdf/en/05/st14/st14469-re04.en05.pdf, p 4
248 BENDIEK, Annegret. EU Strategy on counter-terrorism: steps towards a coherent network policy,

Germany Institute for international and security affaires, Berlin: November 2006. p.5. Available at:
http://www.swpberlin.org/common/get_document.php?asset_id=3477

249   http://register.consilium.europa.eu/pdf/en/05/st14/st14469-re04.en05.pdf , p.17



                                                                                                       65
Plan250 was to address the four objectives given to the member states and provide
measures in more detail.251
          Most recently, legislation concerned with terrorism was tabled in 2007 and
passed in April 2008252, criminalizing three additional offences; public provocation to
commit terrorist offences, recruitment for terrorism and training for terrorism. Until
then, the latter two have been mentioned from the beginning of the EU anti-terrorist
legislation era but were never officially criminalized. The three newly criminalised
offences were encapsulated into a revised Framework Decision on combating
terrorism. Criminalisation also applies to these offences perpetrated via the internet,
which coincides with the ‘Check the web’253 initiative convened by the German
Presidency in 2007, as a response to the call of establishing ways to tackle recruitment
and radicalisation through the Internet. The initiative aims to create or otherwise
strengthen narrow cooperation between the member states in monitoring the
internet.


          The measures that were taken since 2001 had successes which are often cited
as those resulting in several arrests in Belgium, France, Germany, Italy, Spain and the
UK and also led to some disruptions of alleged terrorist plots in Denmark. On the
other hand, major failures included the December 2001 attempted attack on a flight
from Paris to Miami where the, Richard Reid, a British citizen, was able to smuggle a
shoe bomb through airport security and attempted to use it to blow up the plane once
it was airborne.
          There is a general pattern to the EU efforts in developing and intensifying
counter-terrorism policies and instruments, where these are at their peak after a

250 Version updated in February 2006 (containing 160 measures):
http://register.consilium.europa.eu/pdf/en/06/st05/st05771-re01.en06.pdf
251 BURES, Oldřich, "EU Counterterrorism Policy after 9/11: A Paper Tiger?" p.24
252 Amendment of the Framework Decision on combating terrorism and Evaluation report on the

implementation of the Framework Decision on combating terrorism, MEMO 07/448, Brussels, 6
November 2007.
Available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/448

253   8457/3/07 REV 3, annex 2 and 15443/07, 23 November 2007 p. 3



                                                                                              66
terrorist attack actually occurs, as was seen with Madrid and London. When in August
2006, another terrorist plot was foiled, where it was discovered that several flights
originating from the UK to the US were to be the targets, a political agreement was
reached on the EU level which included measures for tighter cooperation and
improvement and harmonization of air security.254 Does this trend mean that EU
needs another terrorist attack to start acting?



3.6 The Achilles’ heel in EU’s efforts to counter terrorism

        The vague definition which was set out by the 2002 Framework decision may
have been considered a success in that internally the EU managed to agree on such a
sensitive but urgent issue. Nevertheless, if one scrutinizes the definition, like for
instance Professor Thomas Weigend, and applies it strictly to the Madrid and London
bombings, it is blatantly obvious that in fact these acts do not fall under the definition.
This is particularly true with the provisions ‘may seriously damage a country or
international organisation’ with the aim of ‘seriously destabilising or destroying the
fundamental political , constitutional, economic or social structures of a country of
international organisation’255, which the London and Madrid attacks do not satisfy,
again with a general emphasis that this is a strict application of the definition. These
two examples, Weigend maintains, show that the applicability of the definition is
reduced to ‘very few instances of truly disastrous terrorism’.256


        The pillar structure, which has proven to be more of a setback than a success
was to some extent addressed by the Draft Treaty establishing a Constitution for
Europe, which was however bluntly rejected by France and The Netherlands in 2004


254ARCHICK, Kirstin U.S.-EU Cooperation Against Terrorism, CRS Report for Congress, updated 16
October 2006. p.2

2552002/684/JHA, Article 1
256WEIGEND, Thomas, “The Universal terrorist: the international community grappling with a
definition”, p.930



                                                                                                 67
and has added to the general limitation of the EU and its actorness in the international
arena, still lacking an EU-level legal personality.
        In one of his many articles on this topic, Daniel Keohane points out the main
weaknesses of the European Union and its efforts to counter terrorism. He, like many
authors257 does not fail to acknowledge that indeed the EU has made some giant steps
since the 9/11 attacks but he also states that withstanding these changes, the real
power still lies in the national government’s hands258. Despite the existence of bodies
such as Eurojust, which arguably has been effective and will be more so in the future
partly due to the decision to strengthen it, as well as Europol, cooperation on cross
border crime overwhelmingly remains a case of bilateral interaction259. This leads to
reveal one of the major, if not the biggest, flaws of the EU; the unwillingness to share
information and to cede competence to the European institutions and bodies and also
to other states. This is underlined by a lack of trust which is especially to as sensitive
policy areas as are security and defence.


        The lack of trust can further be demonstrated by circumstances in the
aftermath of the 3/11 attacks, where several states were in total opposition to the
creation of a CIA-like intelligence network, due to their reluctance of intelligence
sharing with twenty odd other states260. For reluctance was expressed profoundly by
the German minister Otto Schily who argued that creation a new agency “would not be
useful” and that rather “we have to network the intelligence services that exist”261.
Likewise, French president Nicolas Sarkozy argues that “the creation of new
institutions will only delay improvements on the ground”. David Blunkett, British
Home Secretary topped off the criticism by advising that the focus and priority should
e on the full implementation of the anti-terrorism measures adopted in the wake of

257 For instance: COOLSAET, Rik. Radicalisation and Europe’s counter-terrorism strategy. P.11 highlights
the fact that political integration and cooperation has been boosted to levels that would not have been
predicted pre-9/11.
258 KEOHANE, Daniel. One step forward, two steps back. p. 37
259 KEOHANE, Daniel. One step forward, two steps back. p. 37
260 KEOHANE, Daniel. One step forward, two steps back. p. 38
261 http://www.eubusiness.com/European_Council/040319105747.lh3eyujy




                                                                                                      68
9/11, rather than the creation of new agencies. In reference to the European CIA
initiative, Blunkett bluntly responded “We don’t want new institutions. What I am
interested in is hard, political action”. By adding “let’s cut out the waffle and let's make
sure that whatever we do, we're practicing what we preach at home" he clearly
expressed his preference of strengthening national policies, rather than transposing
them into the EU arena.262
           There is however widespread scepticism about serious intelligence gathering
expressed by some EU officials, which they maintain is blatantly obvious from the
differing view points of member states who ‘have huge institutional objections to
countering terrorism’. Belgium, where intelligence services attaining authorization to
tap phones has been extremely difficult, if not impossible, is a case in point. Sweden
and Germany particularly require higher than average standards to freeze financial
assets in relation to terrorism and the Austrian intelligence services are certainly not
among the best."263
           A pattern seems to have developed in this sense, where national authorities
want to downsize the number of states and agencies which would be able to have an
insight into their information, plans, evidence and strategy.
The friction between member states is transposed from or to, depending on how one
looks at it, the EU agencies as well. For instance, in the 2007 report on the
implementation of the Strategy for Combating Radicalisation and Recruitment, the
European Council and Commission showed uneven implementation trend and
initiatives, which pointed to the fact that ‘cooperation remained limited to exchange of
information on a limited scale’.264
           Overall, Keohane identifies a quintessential paradox on which the EU policy in
this area is based. On the one hand, member states boast their willingness to fight
terrorism and to cooperate with each other, but at the same time they express over


262   http://www.eubusiness.com/European_Council/040319105747.lh3eyujy
263   BROWNE, Anthony and WATSON, Rory, “EU divided over proposal for new anti-terror czar”. P.1

264   15443/07, 23 November 2007 p. 2



                                                                                                   69
reluctance to withhold information and data, provide resources and give the EU
concrete powers265. Ironically these, among other considerable factors, are crucial to a
fruitful cooperation within the EU, which in turn would make it more plausible for the
EU to not only represent but most importantly act as a unitary international actor. In
another weakness-identifying article, Keohane explains why member states are
generally sceptical about giving up or sharing their powers; they see it as too big a big
risk in having a supranational body impeding in their ‘existing laws, national security
practices and relationships with third countries’266 and ultimately experiencing what
feels like losing control over decision making.
        Another flaw which has considerable impact on the smooth running of the
machinery is the fact that a body which has competence to refer member states which
fail to comply with ‘EU criminal legislation aimed at preventing terrorism’ 267 to the
ECJ, does not in fact exist. The abovementioned and plenty more flaws are connected
and directly contribute or even results in serious coherence problems within the EU.
Annegret Bendiek identifies several levels of incoherence. The horizontal level is
characterized by the incoherence between there various policies within the
framework of counter-terrorism268. Although this has been addressed and arguably
partly solved by the 2005 Counter-terrorism Strategy nevertheless the problem is
understandably much larger and deeper and thus needs a long-term remedy. The
institutional incoherence refers to the discrepancies in the cooperation between the
pillar structure, the EU bodies and the external EU framework.269 The third and last
coherence concern is found in the vertical line of cooperation between the EU and its
presently 27 member states and their individual policies.270



265KEOHANE, Daniel. One step forward, two steps back. P.38
266KEOHANE, Daniel. “The Absent Friend: EU foreign policy and counter-terrorism” EU Institute for
Security studies, Journal of Common Market Studies, Vol.46 no.1, Blackwell Publishing Ltd 2008. p.129

267 BRADY, Hugo and KEOHANE, Daniel. Fighting Terrorism: The EU needs a strategy, not a shopping list.
268 BENDIEK, Annegret. EU Strategy on counter-terrorism: steps towards a coherent network policy. p.5
269 BENDIEK, Annegret. EU Strategy on counter-terrorism: steps towards a coherent network policy. p.5
270 BENDIEK, Annegret. EU Strategy on counter-terrorism: steps towards a coherent network policy. p.5




                                                                                                    70
        Without knowing the actual competencies of the Counter-terrorism
Coordinator, one would assume that the post is influential, superior and in a way all-
encompassing as regards the counter-terrorism policy. In reality, nothing could be
further from the truth; the post is more symbolic than anything else; coordinator,
presently Mr. Gilles de Kerchove, has no space for budgetary manoeuvre, no right of
initiation and execution of EU legislation and even no weighted influence in agenda
setting271.




271BRADY, Hugo and KEOHANE, Daniel. Fighting Terrorism: The EU needs a strategy, not a shopping list.
P.2 and BENDIEK, Annegret. EU Strategy on counter-terrorism: steps towards a coherent network policy.
p.18



                                                                                                   71
IV. EU and US: friends, enemies or ‘frenemies’?


4.1 Framing the relationship in the post 9/11 era


The transatlantic relationship over the past decades and certainly since the end of the
Cold War can be characterised by at least two of the above labels, depending on the
time, place and issue one is talking about. Most recently, the EU and US have been on
opposite sides of the spectrum on several landmark issues such as the International
Criminal Court, The Kyoto Protocol on Climate Change, the Comprehensive Test Ban
Treat, the ban on anti-personnel land mines, the Biodiversity Treat, a verification
mechanism for the Biological Weapons Control Treaty, to mention a few272. These are
examples of issues that have polarized the EU and US to great extents. The fight
against terrorism is not included in this list on purpose because this is an issue which,
although deeply contentious and divisive, has not as a whole had completely
polarizing effects on the EU-US relationship.


4.2 The immediate convergence


One of the very first apparent reasons, which was a preordained component of
transatlantic cooperation, was the fact that the 9/11 attacks were planned and
prepared in Hamburg. The pledge of solidarity across Europe showed an
unprecedented wave of the will to contribute in any way to tackling those who were
responsible for the atrocious attacks. As was already mentioned, the bids for all
necessary resources were rolling in immediately and a mere 24 hours after the attacks
another event, which will surely have its place in history books, the North Atlantic
Treaty Organisation’s (NATO) expression of will to devote itself             to countering

272TUCHMAN MATHEWS, Jessica. “US and Europe: Estranged Partners”, US State Department Open
Forum Distinguished Lecture Series, 11 January 2002
Available at: http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=891&prog=zgp




                                                                                          72
terrorism. Article 5, which was, just like the motive for the creation of NATO, designed
to address a possible attack by the Soviet Union, was invoked for the first time in
NATO’s sixty year history. Despite the fact that Article 5, which represents the famous
‘an attack on one is an attack on all’ or in other words the collective security
commitment, has quite tight conditions273 to be met but the fact that it was invoked in
the first place was unparalleled. NATO’s relevance was almost silenced at the
beginning of the 1990s when the Cold War had ended and more importantly the
Soviet Union had collapsed, the latter before its disintegration being the main motive
behind the creation of NATO. Margaret Thatcher’s statement that “just because you do
not have burglars in your neighbourhood, does not mean you do not need an
insurance policy” was especially applicable in the Balkan crisis that plagued the 1990s
and beginning of the 21st century. In the aftermath of 9/11, NATO was eager to prove
its relevance and its ability to fight terrorism, shown by the fact that it was ready to
contribute to a war which was completely ‘out of area’.274 NATO officially became an
‘organization with global reach’275 and transformed into a collective security agency276
as a result of the expansion of its mandate in the Prague Summit in 2002, where
among other developments, the formation of a NATO Response Force (NRF) was
agreed upon.




273 The strictest condition in this sense is that the attack on the state has to be proven as perpetrated by
an external actor.
274 GARTNER, Heinz. “European Security and Transatlantic Relations after 9/11 and the Wars in

Afghanistan and Iraq”. Paper presented at the annual meeting of the International Studies Association,
Hilton Hawaiian Village, Honolulu, Hawaii, 5 March 2005. p.213
Available at:
http://www.allacademic.com/meta/p_mla_apa_research_citation/0/7/0/8/6/p70869_index.html
Note: The area of NATO operation is prescribed by Article 6 of the NATO Treaty
275 GARTNER, Heinz. “European Security and Transatlantic Relations after 9/11 and the Wars in

Afghanistan and Iraq”. P.214
276 HOWORTH, Jolyon. Foreign and defence policy cooperation In: PETERSON, John and POLLACK, Mark

(eds.) Europe, America, Bush. Transatlantic Relations in the twenty–first century. New York: Routledge,
2003. p.21



                                                                                                         73
4.3 The disengagement


The intense love affair which began unexpectedly in the wake of 9/11 did not last very
long and in fact it ended almost as quickly as it began. The aim of the following
paragraphs is to describe the main events and reasons which have led to intensified
transatlantic tensions in the 21st century. As it soon turned out, the US seemed to
largely ignore the resources it was offered in the immediate aftermath of 9/11. It
clearly showed its Kosovo-learned view that ‘friends were politically necessary but
militarily problematic’.277 This was ‘officially’ revealed for the first time in the
execution of Operation Enduring Freedom, where the US only used its troops, with the
exception of some UK forces. NATO’s invocation of article 5 was thus bypassed. This
was evidently not something that was necessarily welcomed nor understood by the
Europeans, leading to an era of heightened transatlantic tensions, less than a month
after an unprecedented atmosphere of solidarity.
NATO is a good example which can be used to illustrate the dissimilar EU and US ways
of doing things. The above example shows that the US was reluctant to execute its
policies with the use of organizations such as NATO, and rather as has been
mentioned several times throughout this paper, the US wanted to have full control
over its policies instead of being, in its view, subjugated by working under the aegis of
NATO or the UN. In other words, it preferred unilateralism over multilateralism and
the biggest stretch it would make in cooperation would be through the channels of
bilateralism with hand picked countries.278
           The analogy of “Americans cook the dinner and Europeans do the dishes”279
which has its origins in the 1990s chain of Yugoslav wars, seemed to be applicable this


277   COX, Michael, “American Power before and after 11 September: Dizzy with Success? P.272

  HOWORTH, Jolyon. Foreign and defence policy cooperation. p.20
278

  O’HANLON, Michael. The American way of war: the Lessons for Europe In: EVERTS, S. et al A European
279

Way of War, Centre for European Reform, May 2004.
Available at: http://www.cer.org.uk/pdf/p548_way_ofwar.pdf



                                                                                                 74
time as well and apparent from the beginning, when US spokespersons were not shy
in admitting that after the ultimate goal of hunting bin Laden down was achieved,
‘Washington had no intention of remaining long in Afghanistan to engage in nation-
building’.280 Partly as a result of this, the tension had intensified by the mid November
2001281, barely a month after 9/11; this clearly was not a good sign for the possibility
or hope of a long term coalition formation and its preservation in the future. Another
part of the reason was that it was ever clearer to the Europeans ways differed
substantially from those of the Americans.


        By the time the EU officials were applauding the adoption of the two
Framework decisions of June 2002, protesters in major European cities from Madrid
to Amsterdam to London were marching to express their opposition to the war in Iraq
when it was revealed that the US was seriously contemplating using force with the
aim of disarming Iraq. The protests went beyond the strong disapproval of the
looming war not only because these people saw the use of force as an exacerbation of
events more than anything else, not only but particularly because it was justified by
the Bush administration as being an indispensible part of the war on terror, when
really the protesters believed that the Bush administration was acting out of self-
interest and uncontrollable hunger for oil. But it was not only ordinary people who
protested. The support of official levels of government of many countries had started
breaking away even as soon as the readiness and the will of the Bush administration
to engage in pre-emptive action became apparent. It is often said that the US pre-
emptive option had turned into a ‘cardinal principle of its foreign policy’ 282 as could be
seen from the outset of Bush’s ‘axis of evil’ speech and the war that, by the end of
2003, was all but imminent. Significantly it is also often said that the transatlantic rift
that was created as result of the decision to invade Iraq before evidence was provided

http://www.cer.org.uk/pdf/p548_way_ofwar.pdf
280 HOWORTH, Jolyon. Foreign and defence policy cooperation. p.21
281 HOWORTH, Jolyon. Foreign and defence policy cooperation. p.20
282 GUPTA, Anirhuda, “Iraq, US and Europe: emerging themes”. P.948




                                                                                        75
that it did indeed possess WMD, was the widest since the end of the Cold War. The
opening of a rift of such unprecedented girth was already predicted by Jonathan
Freedland when he described the EU reactions to Bush’s axis of evil speech back in the
beginning of 2002.283 It is thus appropriate to note that Iran was a significant reason
for substantial EU-US rivalry, especially at a point when Iran was singled out as a
sponsor or terror by the US but considered a possible trade and cooperation partner
by the EU.284
        At the same time, the sharp distinction between Atlanticists and Europeanists
or between ‘New Europe’ and ‘Old Europe’ seems a little more than slightly
hypocritical, due to the fact that just because some countries did not support the war
in Iraq did not mean that they were, from then on, the biggest rivals of the US. A good
example are France and Germany, who were the leaders of the anti-war camp but at
the same time continued providing the US with airspace, ports and roads. 285 The
transatlantic rift was further reinforced by the Germany, France and Belgium-led
blockade of NATO military planning under article 5, with the intention of preventing a
possible missile attack originating from Iraq destined for Turkey. 286 This clearly
showed that Europe was ready to put its foot down in opposition to US policy instead
of being a loyal follower no matter what.287


4.6 Points of convergence


        Before dismissing the transatlantic relationship as irreparable or even subject
to no cooperation whatsoever, one has to point out the issues and policies that the EU

283FREEDLAND,   Jonathan “Patten lays into Bush’s America: Fury at president’s ‘axis of evil’ speech’, The
Guardian, 9 February 2002, p.1
284FREEDLAND, Jonathan “Patten lays into Bush’s America: Fury at president’s ‘axis of evil’ speech’, p.1
285 SICHERMAN, Harvey. “Where have all the cowboys gone?” The National Interest, Vol.76, Summer

2004. p.165

286 GARTNER, Heinz. “European Security and Transatlantic Relations after 9/11 and the Wars in
Afghanistan and Iraq”. P.213
287 GARTNER, Heinz. “European Security and Transatlantic Relations after 9/11 and the Wars in

Afghanistan and Iraq”. p214



                                                                                                       76
and US have been able to agree on in the post 9/11 era. As has already been
mentioned, the EU had stipulated the need to cooperate with the US in order to
maximise each other’s security. This was expressed in the EU-US Ministerial
Statement288 issued on September 20th 2001, where it was stipulated that the two
would focus on cooperation in a number of issue areas, such as air and sea security,
police and judicial cooperation, freezing of assets and strengthened border controls.
The first steps were taken in the transportation sector, with a focus on air and sea
transport. The US initiated Container Security Initiative (CIS)
       An agreement289 was reached between the US and Europol in December 2001,
whereby the sharing of information of strategic nature, meaning threat assessments
and analysis.290 In order to facilitate cooperation and look for ways to improve
capabilities on each side, in 2002 liaison officers were dispatched to Washington and
an FBI officer was stationed in The Hague. Likewise, there is a US liaison officer in
Eurojust in order to assist with matters of judicial nature, specifically with regards to
requests for mutual legal assistance. The EU and US have differing levels of protection
of personal data, whereby the former maintains much higher authorization threshold
levels compared to the latter. Here historical experience plays a significant role,
specifically with regards to countries that were directly confronted with communism
fascism in particular.291 Consequently, the second US-Europol agreement which would
allow the sharing of information of personal nature was not as easily reached as the
first one. Despite the obstacles and extensive debates, an agreement292 was reached in
December 2002 where the EU compromised on some provisions but voiced some
reservations on others. For instance, a specific set of data could only be used for the



288 Joint EU-U.S. Ministerial Statement on Combating Terrorism, 20 September 2001. Available at:
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/declarations/Statement%20o
n%20combating%20terrorism%20en.htm
289 http://www.europol.europa.eu/legal/agreements/Agreements/16268-2.pdf
290 BENSAHEL, Nora, The Counterterror coalitions: Cooperation with Europe, NATO and the European

Union, RAND Project Air Force, 2003, p.47
291 BENSAHEL, Nora, The Counterterror coalitions: Cooperation with Europe, NATO and the European

Union, p.48
292 http://www.europol.europa.eu/legal/agreements/Agreements/16268-1.pdf




                                                                                             77
investigation that it has been requested for.293 In this way thus, the EU was able to
retain some safeguards which would satisfy its strict legal requirements.
A particularly revolutionary agreement was reached in June 2003, whereby the EU
and US agreed to cooperate more profoundly in criminal law matters, specifically with
regards to extradition and mutual legal assistance. Other instruments included the
European agreement to the Container Security Initiative, which the US tabled in
January 2002.294 The problem which typically arose with any kind of cooperation,
including Transatlantic dialogues on border and transport security, launched in 2004,
was that the EU does not have the same security framework and has differing rules to
that of the US. For instance, as was mentioned before the US completely reorganized
its homeland security and created new departments to attempt better coordination
within its agencies. The EU however never attempted such a reorganization including
the in the national security departments of individual member states, at least not the
extent of the US. This does meant that often, the US did not have an appropriate
counterpart agency or department in the EU, which posed along with other
aforementioned issues posed further obstacles to cooperation.295 Nevertheless, some
of these obstacles were successfully overcome or avoided as can be seen in the yet
another breaking-point event; a joint declaration on combating terrorism, in 2004.
Other successful examples of cooperation include the cooperation and increased
involvement in the Financial Action Task Force (FATF) and most recently in the
conclusion of the Transfer of Passenger Name Records in 2007.296




293 BENSAHEL, Nora, The Counterterror coalitions: Cooperation with Europe, NATO and the European
Union, p.48
294
    KOSLOWSKI, Rey. Border and transportation security in the transatlantic relationship. In:NIELSEN-
DALGAARD, Anja and HAMILTON, S. Daniel. Transatlantic Homeland Security: Protecting society in the
age of catastrophic terrorism, New York: Routledge, 2006. p.94
295
    KOSLOWSKI, Rey. Border and transportation security in the transatlantic relationship. P.95




                                                                                                   78
4.5 Characterizing the diversity


Howorth points out four major divergences; Europeans wanted political solutions,
humanitarian relief, a balanced Middle East peace process and a long-term
commitment to the restoration of Afghanistan.297 The corresponding policy of the US
was however the use of military action, an exacerbation of the war on terrorism,
‘blanket support’ for Israel and whatever-it-takes hunt for bin Laden.298
A good illustration of the major differences between the EU and US approaches to
terrorism can also be derived from a comparison of their security strategies. The
biggest difference is perhaps the pre-emptive clause and unilateralism which are
absent in the EU document but very present in its US counterpart. The same goes for
the use of force which is seen as a last resort. Furthermore, the threats in the EU
strategy are more generic and the way to tackling them is through coordination,
cooperation and building partnerships.299 In this sense, the US concentrates on
military means to tackle most of the threats it recognises, while the EU sets its focus
on diplomatic, economic and judicial means with the use of military somewhere in the
background. Attention should also be paid to the EU counter-terrorism strategy,
which considers prevention of terrorism, clearly signalising that it does not view
terrorism as an isolated phenomenon and so preventing other interrelated causes is a
priority and is thus incorporated into the first pillar of the structure. This is quite
different from the US approach which unlike Europe does not prioritize dealing with
socio-economic and political root causes of terrorism,300 although admittedly this was
a little bit more present in the 2006 updated version of the US strategy. When
President Bush declared: ‘We’re fighting the enemy in Iraq and Afghanistan and across

297 HOWORTH, Jolyon. Foreign and defence policy cooperation. p.21
298 HOWORTH, Jolyon. Foreign and defence policy cooperation. p.21
299 HOADLEY, Stephen “European and American Security Strategies: Convergent Aims, Contrasting

Means: Stephen Hoadley compares the approaches to counter-terrorism of the European Union and the
United States”. P.2

300COOLSAET, Rik. Radicalisation and Europe’s counter-terrorism strategy, The Transatlantic dialogue
on Terrorism CSIS/Clingendael, 8-9 December 2005. p.2



                                                                                                   79
the world so we do not have to face them here at home’301 the Europeans reacted with
the opposite reflection: ‘we’re fighting in Iraq and Afghanistan and doing so the
number of would-be terrorists at home increases’.302




4.6 Thoughts for the future


        Considering the information that was given in the above paragraphs as well as
in the preceding chapters, it is much simpler to refute Kori Schake’s prediction303
about the future of transatlantic relations, ever more so, with the coming of Barack
Obama to power. The prediction that she had made in November 2007, when the
elections results were far from being clear and when there was no sign of Bush’s
unilateralist approach and policy faltering away, was that the fracture between the US
and Europe and the EU in particular would grow deeper as well as wider. On the one
hand, despite the Bush administration’s claims that cooperation was a priority, in
particular with regards to the reconstruction of Afghanistan and Iraq, unilateralism
seemed to almost always take precedence and the coalition building was rather
replaced by coalition destruction. Further yet, Schake asserts that the US is not likely
to abandon its policies with regard to military means, homeland security and going at
it alone and this thus leads her to conclude that it is highly unlikely that the US would
‘waste’ resources on cooperation and coordination with the EU304, perhaps less
applicably so to individual member states on a bilateralism basis which has been far


  George W. Bush, Remarks at the FBI National Academy in Quantico, Virginia: 11 July, 2005.
301

Available at: http://findarticles.com/p/articles/mi_m2889/is_28_41/ai_n15375391/?tag=content;col1

302 COOLSAET, Rik. Radicalisation and Europe’s counter-terrorism strategy. P.7
303 SCHAKE, Kori. The US elections and Europe: the coming crisis of high expectations, CER Publications,
November 2007.
Available at: http://www.cer.org.uk/pdf/e776_schake_nov07.pdf
The idea for this source and for this prediction to be included in this paper has been taken from a
previous paper, which I wrote for the course ‘Europe and Global Politics’. Needless to say, the idea here
has been rewritten and references will be included accordingly.
304 SCHAKE, Kori. The US elections and Europe: the coming crisis of high expectations. p.33




                                                                                                       80
more common than full out cooperation with the EU. On the other hand, Schake points
to the fact that the Europeans were hoping for a US adaption to the European way of
war, which of course seems quite a lunatic thought having read the information
provided above. The political atmosphere up until and including November 2007 is
quite likely to have led to Schake’s pessimistic and far-reaching conclusion that,
providing the transatlantic rift will keep on expanding like she has argued throughout
her paper, the near future may observe a ‘return to the transatlantic burden-sharing
debates of the 1970s, in which the US linked its participation in military operations to
the proportion of European contributors’.305 The bleak future predicted by Schake is
to some extent challenged by the new sense of cooperating and belonging between the
US and Europe, in most part due to the new administration. The skewing towards
constructive diplomacy and addressing crucial issues such as reconstruction of
volatile states and restart of the Middle East peace process signposts the desire and
the need to address root causes of terrorism, a policy element which the old continent
had been praising since the very beginning.306


        Similarly, the vision of Robert Kagan could, at least in part, be challenged. In
arguing why the US and Europe see the world differently307, Kagan states that ‘they
agree on little and understand one another less and less’ and more importantly for the
sake of the author’s argument here ‘this state of affairs is not transitory- the product
of one American election or one catastrophic event’308. The fact that Kagan mentions
that even the election of a new president will not budge the seemingly static situation
is particularly advantageous to my challenge of his argument. It would be naïve to say
that the coming to power of Obama can be used to completely refute this argument;
however it could be said that it is enough to cause a little earthquake to its

305 SCHAKE, Kori. The US elections and Europe: the coming crisis of high expectations. p. 33
306 I would say that this is a generally accepted by most authors. One of the many examples is: Jolyon
HOWORTH, Jolyon. Foreign and defence policy cooperation. p.20
307 KAGAN, Robert. “Power and weakness: why the United States and Europe see the world differently”
308 KAGAN, Robert. “Power and weakness: why the United States and Europe see the world differently”.

p.1




                                                                                                    81
foundations. The almost revolutionary changes which had taken place in the US in the
past three months have obviously not only been left within the US and within the
much mentioned Afghanistan and Pakistan. On the contrary, changes have also been
felt by the US allies and most relevantly here, by Europe. It is true that the former
administration did mention cooperation as a part of their national strategy; however
this international cooperation was never much endorsed. Obama’s administration
seems to have changed this trend and particularly by his team’s European tour, his
support seems to be cemented with at least some of the Europeans. Perhaps this has
also to do with the fact that, at least until now, the new administration has sky high
approval rates compared to its predecessor. The truth remains that much differences
still exist between the US and the EU and it must be given to Kagan that he is quite
right in stating that this is not a temporary situation however I would think it would
be more correct to say that things will not change overnight rather than never, as
Kagan asserts.




                                                                                   82
V. Human rights and counter-terrorism or Human rights vs.
counter-terrorism?


5.1 The big picture

        Naked, head covered with a trash bag, sitting or rather lying while tied down
on the ground in a puddle of dubious origin and being nearly attacked by dogs, while
several guards are standing in a circle laughing the whole situation off. This is not an
imagined scene from some thriller movie, rather it is a scene of which pictorial
evidence leaked and made it to televisions screens and newspapers across the globe.
The place was Abu Ghraib, the guards were US army personnel and the lone disgraced
individual was a terrorist suspect. The video footage released on April 28th 2004 along
with other materials showing such inhumane treatment represented concrete
evidence that such treatment was not exceptional but rather ordinary in Abu Ghraib
as well as in Guantánamo, as many human rights activists had feared and had tried to
protest against in their efforts to have such behaviour criminalised. It was no longer a
question of “a few bad apples” as Bush had maintained all along.
In addition and very importantly, the moment this evidence was released also marked
the moment when the general public got a broad but sufficient picture of what was
going on in these distant obsolete places. At the very least, this general public
consisted of Europeans where the awareness, not only in political circles but also in
the households of ordinary people, has become extremely high,309 resulting in
assessments of US detention ranging from bad to rampant.


        Not knowing any other information about this issue and reading the above
paragraph may make the reader believe that this caused major embarrassment to the

309PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11, Council of
Foreign Relations Working Paper, February 2009. p.13
Available at: http://www.cfr.org/content/publications/attachments/Civil_Liberties_WorkingPaper.pdf




                                                                                                 83
Bush administration and that the policy that somehow allowed these actions was
immediately dismantled. The former is absolutely true; all the denials310 that were
uttered through the lips of George W. Bush, Condoleezza Rice, Dick Cheney and many
others, were now proven to be misleading and ultimately false. The whole frenzy was,
as mentioned above, a major eye opener for anyone who was either unaware of or
simply did not believe the allegations that the administration could be involved or
even have ordered such behaviour. The initial idea that the leakage of such a crucial
document would have caused major chaos within the administration leading to a turn-
about in policy making can be scrapped311 after knowing, for instance, that both Abu
Ghraib and Guantánamo had remained up and running and more so, additional orders
and acts were signed into law, which partly contributed to more reports and
information about torturous treatment were leaked in various places within the
framework of the war on terror. With regards to the Abu Ghraib scandal it should be
noted that US top officials condemned the outrageous treatment and behaviour of the
army personnel and it instigated investigations into the treatment of detainees.
Nevertheless the investigations were extremely limited and should be seen as a way of
silencing the criticisms, since only half a dozen individuals were held accountable
while no repatriation was made to the victims and as will be seen throughout this
chapter, no real precautions were made so as to prevent such grave violations of
human rights from happening again.312 This situation begs the question: how is all this
even possible? How did the administration justify such actions in the beginning of the
whole global war on terror campaign and how did it maintain these justifications
throughout the campaign for eight long years, especially in light of strong criticisms
from the Congress as well as from Amnesty International, Human Rights Watch and


310HAJJAR,   Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era In: BULLARD Alice
(ed.), Human Rights in Crisis, Hampshire, Burlington: Ashgate Publishing Limited 2008. p.9-10
311 This is also mentioned in HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11

Era.p.18
312 Amnesty International, No Justification for Torture Campaign.

Available at: http://www.amnesty.org/en/campaigns/counter-terror-with-justice/issues/no-
justification-for-torture




                                                                                                     84
other such prominent groups? The following paragraphs will shed a light on how the
clash of human rights and the war on terror was born and how this clash further
spiralled out of control when secret CIA prisons were found and later confirmed in
2007 to be on European soil. In the final paragraphs, it is my intention to look at the
changes which are underway as this paper is being written, meaning under the Obama
administration, especially with regards to the aforementioned closure of Guantánamo
and what the fates of the illegally detained prisoners may be in the foreseeable future.


        One of the many comprehensive descriptions of how the war on terror and its
main offspring, also known as Guantánamo Bay or ‘Gitmo’ and Abu Ghraib developed
and how the administration surpassed laws and criticisms is provided by Lisa Hajjar
in the first chapter of the ‘Human Rights in Crisis’ collection. Here, she explains how in
the wake of 9/11 there tended to be a favouring of using coercive treatment to get
information out of suspected terrorists against ensuring the protection of human
rights.313 This imbalance and skewing to prefer the security side has been advocated
by for instance Stuart Taylor314, who argues that not enough has been done to
counter-terrorism and that the government needs more surveillance and investigative
authority without being limited by civil liberties. In arguing that ‘the question is not
whether we should increase governmental power to meet such dangers. The question
is how much’315, he sides with the position taken by the Bush administration that it is
better to curb civil liberties than to be a victim of another terrorist attack.
It should also be noted that rights such as the right to life, right to liberty, right to be
free from torture and other ill-treatment, the latter being enshrined in the Universal
Declaration of Human Rights (article 5) and the ICCPR (article 7) The European
Convention on Human Rights (article 3), The African Charter on Human and People’s


313 HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. p.15
314 TAYLOR, Stuart Jr. “Rights, Liberties and Security: Recalibrating the Balance after September 11”,
The Brookings Review, Vol.21, No.1, The Brookings Institution, Winter 2003.
Available at: http://www.brookings.edu/articles/2003/winter_terrorism_taylor.aspx
315 TAYLOR, Stuart Jr. “Rights, Liberties and Security: Recalibrating the Balance after September 11”.

P.31



                                                                                                         85
Rights (article 5) The American Convention on Human Rights (article 5) and other
instruments including national constitutions, are inalienable human rights and are
non-derogatory under all circumstances. Thus the treatment used in the above
mentioned locations and dozens others violated basic human rights. The rhetoric of
re-interpreting and selectively re-applying certain laws has been given a depictive
label: “a new paradigm”.316



5.1.1 Assessing Damage, Urging Action

        Perhaps even the word extensive would not serve justice to the report317 that
was released on the initiative of the International Commission of Jurists (ICJ) in
February 2009. This nearly 200 page report, which took three years to compile,
specifically focuses on the relationship between counter-terrorism and human rights,
a relationship which the panel undoubtedly sees as inherently coherent and in
quoting from the ICJ Berlin Declaration of 2004318 it asserts that ‘safeguarding
persons from terrorist acts and respecting human rights both form part of a seamless
web of protection incumbent upon the State”.319 Nevertheless, this is the position
taken by the Panel and it does not reflect the positions of numerous states, which are
encapsulated into this study. These positions represent an alarming shift in the
erosion of human rights and the framework that was created to protect them and the

316 BARRY, John, HIRSCH, Michael and ISIKOFF, Michael “The roots of Torture“, Newsweek, 24 May
2005
Available at: http://www.newsweek.com/id/105387
quoted in: HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. p.15
317 International Commission of Jurists, Assessing Damage, Urging Action: Report of the Eminent Jurists

Panel on Terrorism, Counter-terrorism and Human Rights, , Geneva: 2009.
Available at: http://www.icj.org/IMG/EJP-report.pdf
318 The Berlin Declaration: The ICJ Declaration on Upholding Human Rights and the Rule of Law in

Combating Terrorism, 6 September 2004.
Available at: http://www.icj.org/news.php3?id_article=3503&lang=en
It was in Berlin that the decision was taken to establish a panel, which would scrutinize states’ counter-
terrorism measures and assess the impact this has on the protection of human rights.
The Eminent Jurists Panel, which was convened in 2005, consists of eight jurists representing all the
world’s regions.
319 The Berlin Declaration: The ICJ Declaration on Upholding Human Rights and the Rule of Law in

Combating Terrorism. Preamble



                                                                                                       86
Panel even goes as far as stating that the state responses ‘represent perhaps one of the
most serious challenges ever posed to the integrity of a system carefully constructed
after the Second World War’.320 The report also mentions there is an increasing trend
of states actually admitting to engaging in measures such as indefinite detention
without charge, on the basis that this diversion from the rule of law can be justified by
the ‘unprecedented nature of the terrorist threat’.321 This is also in line with the
argument that ‘the very impossibility of estimating the terrorist attack has enabled
political elites to circulate decidedly fanciful claims to justify state violence’.322
Another alarming trend which deserves attention and which the Panel stresses is that
the US has set a precedent for countries which now use the US examples as a defence
for their violations of human rights in their territory. 323 This problem has also been
highlighted in reference to Russia’s and China’s treatment of the Chechen and Uighur
separatists respectively,324 among others by Mary Robinson, former UN High
Commissioner for Human Rights.325
        The report further warns that although torture is the most often cited example
of human rights violations in the post 9/11 era, it is by far not the only one, which is
something that must not be neglected. On a distressing number of occasions, the right
to a fair trial and provisions relating to this core principle have been violated.
Important also are those violations pertaining to intelligence measures which are
often unsubstantiated and are not appropriately controlled. Ordinary people, for
which being complicit in terrorism is the last thing on their mind, are equally affected


320 International Commission of Jurists, Assessing Damage, Urging Action. Foreword v.
321 International Commission of Jurists, Assessing Damage, Urging Action. P.12
322MYTHEN, Gabe and WALKLATE, Sandra, “Criminology and terrorism: which thesis? Risk society or

governmentality?” British Journal of Criminology, Vol.46, no.3, 2006. p.6
323International Commission of Jurists, Assessing Damage, Urging Action. p.65
324 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.14 This is also

discussed in further detail in SCHORLEMER von, Sabine, “Human Rights: Substantive and Institutional
Implications of the War Against Terrorism, European Journal of International Law, vol.14, 2003, p.275
325

MACINNIS, Laura. “U.S. "war on terror" eroded rights worldwide: experts”. Reuters Geneva, 16 February
2009.
Available at: http://www.reuters.com/article/topNews/idUSTRE51F36120090216




                                                                                                         87
by the restrictions on media and the freedom of expression and association. This is
most deeply felt by ethnic and religious minorities which are more often than not
targeted by new post9/11 legislation.326 This in itself is also a violation since these
rights, these benchmarks of the rule of law are to serve as protection to everyone
without discrimination of any kind and especially not on the basis of gender, ethnicity,
culture, religion or race.




5.2 The War on Terror

           Human rights violations with regards to the US in the post 9/11 era are usually
referred to in the context of anywhere but on US territory but it is important to note
that it was not only non-US citizens who had their human rights infringed upon. Falk
characterizes the USA Patriot Act as ‘the most extensive domestic impact on human
rights arising from the counter terror priority after 9/11’327, even after its alteration
and reauthorization of August 2005 was signed into law in 2006. The original 2001
version literally flew through both Houses, without any debate and practically no
public hearing, conference or committee.328 The reauthorization in 2006 required a
little more scrutiny but was enacted nevertheless. One of the most controversial
elements of the long and complex document is the hazy definition of domestic
terrorism, which according to Falk can be used as a basis to criminalize opposition to
a government policy.329 This definition is also linked to the creation of a new police
unit which, again on the basis of the activities which fall under this definition, can
arrest demonstrators at ‘special events of national significance’, who can face charges

326 International Commission of Jurists, Assessing Damage, Urging Action. P.11
327 FALK, Richard. Encroaching on the Rule of Law: Post- 9/11 Policies within the United States In: BRYSK,
Alison and SHAFIR, Gershon (eds.), National insecurity and human rights: democracies debate counter-
terrorism, Berkley: University of California Press, 2007. p.34
328 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”,

Cambridge Law Journal, Vol.67, issue 1, March 2008. p.78

329   FALK, Richard. Encroaching on the Rule of Law: Post- 9/11 Policies within the United States. P.34--35



                                                                                                          88
resulting in imprisonment of up to ten years.330 The powers granted to the
government to collect information through, among others, intercepted phone and
internet communications and the access to financial records, in specific circumstances
even without a warrant or prior notification.331 Perhaps the most contentious part of
the Act remains the power of the attorney general to detain an alien for seven days,
without charge, if it is proven that this individual poses a threat to national security.332
The controversial nature of this provision continues further, as the in cases where the
alien’s ‘removal is unlikely in the reasonably foreseeable future’ may be detained
longer, much longer in fact since all that is needed is the attorney general’s
reconfirmation of the individual’s threat to national security, subject to renewal every
six months.333


           As these policies were being developed and as they were being added rather
than subtracted, it started to be blatantly obvious to inside as well as outside viewers
that these policies have been absorbed into a ‘new normal’ in American life,334 rather
than being measurements taken as a matter of state emergency, which are to be of a
temporary nature335, specifically if the state justifies these policies on this basis.



330   FALK, Richard. Encroaching on the Rule of Law: Post- 9/11 Policies within the United States. P.35
331   FALK, Richard. Encroaching on the Rule of Law: Post- 9/11 Policies within the United States. P.35

332 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.18
333 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.18
334 DOHERTY, Fiona and PEARLSTEIN, Deborah (eds.), Assessing the New Normal: Liberty and Security

for the Post-September 11 United States, Lawyers Committee for Human Rights, 2003. i
Available at:
http://www.humanrightsfirst.org/pubs/descriptions/Assessing/AssessingtheNewNormal.pdf
335 In states of emergency, states may derogate from certain human rights, provided that they make a

formal announcement to the international community explaining the exceptional nature of the
emergency. The derogation must be of a temporary nature and the legal measures and safeguards must
be proportionate and reporting systems are to be put in place. International Commission of Jurists,
Assessing Damage, Urging Action. p.19
More information on this issue is thoroughly described in the Report of the Independent Expert on the
protection of human rights and fundamental freedoms while countering terrorism, UN document
E/CN.4/2005/103, 17 February 2005.
Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/G05/106/94/PDF/G0510694.pdf?OpenElement



                                                                                                          89
        The controversial nature of the war on terror was distinctive from the very
beginning, not only by its name which was uttered upon the declaration of war against
Al Qaeda, the Taliban and any (unknown) associates, but also by the executive
decisions which followed soon after. This is particularly in reference to the Military
Order given by Bush on November 13th 2001336, which can be identified as the order
which started to pave the way towards the erosion of human rights. This Order
specified that any ‘enemy combatants’ who violate ‘the laws of war and other
applicable laws’337 be detained and tried by a military tribunal. In addition, given the
perilous nature of the threat ‘it is not practicable to apply in military commissions
under this order the principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district courts’338. Here, one can see
and once again apply the argument made in the above paragraph about the
immeasurable extent of the threat and the abuse of this to pursue certain measures.
Important to note also is that these military commission have the authority to impose
punishment as life imprisonment and the penalty of death.339 The contentiousness of
the Order increases throughout the document, where the term ‘enemy combatant’ is
defined. Any individual who is not a US citizen and who, as decided by the President, is
designated as having ‘engaged in, aided or abetted or conspired to commit acts of
international terrorism’340 shall be considered a subject of this Order. The location of
detainment (of aliens) is identified as ‘an appropriate location…outside or within the
United States’341 but it could be argued that at this point it was already known, at least

336Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,
US White House, 13 November 2001
Available at: http://fas.org/irp/offdocs/eo/mo-111301.htm

337 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
Section 1(e)
338 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Section 1(f)
339 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Section 4(a)
340 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Section 2.1(ii)
341 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Section 3(a)



                                                                                                       90
in the tight circle around the President, that the location was going to be outside of the
United States so that provisions found in the US Constitution would not apply, in
addition to the renouncement of the applicability of the Geneva Conventions (see
below) to the detained individuals subject to this Order. The fact that neither the State
nor its leader has the right to decide who is eligible to be protected by international
legal measures342 is worth mentioning here. Considering all this and knowing what
actually went on in these ‘appropriate locations’, it is quite ironic that within the same
Order, there is a section devoted to the humane treatment of the detained
individuals343, although a sneaky provision is attached, where other treatment is in
the discretion of the Secretary of Defence. In specifically analysing the label of ‘enemy
combatant’ or ‘illegal combatant’ given to terrorist suspects, the Panel makes a very
important remark344, which makes Bush’s war on terror and its human rights
implications ever more alarming. The report reminds the reader that there is a crucial
distinction between terrorist acts perpetrated in armed conflict and those perpetrated
in peacetime. The former is governed by international humanitarian law coupled with
international human rights law, while the latter is governed by international human
rights law and domestic criminal law. This is clearly something that the Bush
administration had not acknowledged and indeed instead it fused, or as according to
the Panel ‘conflated’, these two legal paradigms. This345, the Panel asserts, has
‘potentially draconian consequences for the persons concerned but also utterly
distorts humanitarian law’s customary and treaty-based field of application’.


342International  Commission of Jurists, Assessing Damage, Urging Action. p.16
343 (b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth,
wealth, or any similar criteria;
 (c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
344 This is the most comprehensive discussion of the issue that I have found while conducting my

research. The following paragraph is based on International Commission of Jurists, Assessing Damage,
Urging Action. p.50-52
The Report goes into much deeper detail with reference to this issue but the information provided is
not directly relevant to the issue discussed in this paper.
345 Particularly designating terrorist suspects as combatants in the absence of a recognized armed

conflict.



                                                                                                       91
        The four Geneva Conventions of 1949 and their two Additional Protocols of
1977 are an important collection of rights representing a benchmark, enshrined into
the international humanitarian legal framework. A considerable number of provisions
are concerned with situations of armed conflict and specifically with the treatment of
prisoners of war (POW). It would thus make sense that, as was specified in the
abovementioned Order where it was clearly said that a state of armed conflict has
been created346 as a result of the 9/11 attacks, the persons detained would be labelled
as and given the status of POW. Nothing was further from the truth however as these
individuals were rather ‘enemy combatants’, to whom this status was denied as was
thus the third and fourth Geneva Conventions347, where the former relates to the
Treatment of Prisoners of War and the latter relates to the Protection of Civilian
Persons in Times of War. Bush even went as far as reject the obligation to let an
independent body decide on the status of certain individuals in question, as
guaranteed by the third Geneva Convention.348 In addition and as mentioned before,
the prisons in Guantánamo and Abu Ghraib and other ‘appropriate locations’ could not
be reached not only by the US Constitution but also by international human rights law
as the former applies on US territory and the latter does not apply extra-
territorially,349or at least this is what the Bush administration relied on.350 The result
of this is a ‘legal black hole’351, a label which is as grave as it sounds.



346 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
Section 1(a)
It should also be noted that the Panel affirmed, quoting the ICCPR, that the rights enshrined therein
shall also reply in armed conflict and shall complement, not detract from, international humanitarian
law.
347 One of the examples in which the US policy view was clear with regards to the inapplicability of the

Geneva Conventions to terrorist suspects is the Humane treatment of al-Qaeda and Taliban Detainees,
Directive of 7 February 2002, issued by George W. Bush
Available at: http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf

348 FORSYTHE, David P. The United States: Protecting Human Dignity in an Era of Insecurity In: BRYSK,
Alison and SHAFIR, Gershon (eds.), National insecurity and human rights: democracies debate counter-
terrorism, Berkley: University of California Press, 2007. p.39
349International Commission of Jurists, Assessing Damage, Urging Action. p.51




                                                                                                       92
           The Bush administration had in one way or another tried to circumvent the
protection bestowed upon individuals by either international humanitarian law,
human rights law or customary law or a combination of these. In some cases,
preventative measures were taken to ensure that detainees were found in a law-
absent zone, such as the ‘disappearing’ of certain persons, where the US authorities
held these persons without officially acknowledging that they were doing so.352
           One of the linchpins of the legal protection of rights framework is the
protection against torture and other inhumane treatment enshrined in the numerous
abovementioned legal instruments. Common Article 3 of the Geneva Conventions
prohibits such treatment in all circumstances at all times. The conditions which were
set out, for instance, in the November 2001 Executive Order already gave some insight
into the ‘special’ treatment that the detained individuals would receive and raised
some suspicions about interrogation methods involving torture. These suspicions
were further reinforced by the top men in the Bush administration, including Dick
Cheney and his key lawyer David Addington, Donald Rumsfeld and Legal Counsel
Alberto Gonzales who supported the use of such interrogation techniques,353which
they euphemistically labelled ‘robust treatment’354 or ‘coercive interrogation’355. This
was justified with the help of the ‘ticking bomb scenario’356, which purports that in
order to prevent future terrorist attacks and dismantle terrorist networks, harsh

350 The Panel challenges this and quotes provisions specifically relevant to this, laid down by the UN
Human Rights Committee, and supported by the European Court of Human Rights and the Inter-
American Commission on Human Rights. (p.56)
351 Coined by Lord Johan Steyn in “Guantánamo Bay: the legal black hole”, 27 th F.A. Mann Lecture, 25

November 2003 quoted in: International Commission of Jurists, Assessing Damage, Urging Action p.51
352 FORSYTHE, David P. The United States: Protecting Human Dignity in an Era of Insecurity. P.39
353FORSYTHE, David P. The United States: Protecting Human Dignity in an Era of Insecurity. p.37
354 Manfred Ertel et al., “America’s secret war: on the trial of the CIA”, Spiegel online, 12 October 2005,

p.5
355 Labelling these ‘cover names’ Orwellian euphemisms

ROBINSON, Mary. “The Rule of Law: Striking a Balance in an Era of Terrorism”, The International Rule
of Law Symposium: Plan for Action Organized by the American Bar Association and the International
Bar Association, Chicago, 16 September 2006. p.3
Available at: http://www.abanet.org/rolsymposium/docs/mary_robinson_keynote.pdf

356   FALK, Richard. Encroaching on the Rule of Law: Post- 9/11 Policies within the United States. P.22



                                                                                                          93
interrogation methods need to be employed. In other words, “(a)fter 9/11, the gloves
came off”.357



5.2.1 The First revelations

        The first revelation that the gloves have indeed come off was a Washington
Post article358 in late December 2002, right in time to be delivered as a Christmas
present to the Bush administration. The title alone was a proper eye-catcher but its
alarming contents, consisting of information gathered mainly from interviews with
former intelligence officials and the then national security officials, were the real eye-
openers. The article discussed the treatment that the inhabitants of the detention
centres in the Bagram air base in Afghanistan, Guantánamo and other facilities359 used
for the ‘storing’ of these detainees. The ‘stress and duress’ techniques described
herein include sleep deprivation, being held in awkward and painful positions for
extended period of time and being exposed to bright lights for as long as 24 hours at a
time.360 The fact that sleep deprivation may be regarded as torture has been stated by
the UN High Commissioner for Human Rights and has been endorsed by the US itself
in the State Department’s annual human rights report.361 It also stated that there is a
division between the most senior captives otherwise known as ‘high level detainees’,
who are being interrogated under US officials’ supervision in Guantánamo and
Bagram and are subject to harsh interrogation techniques. The second group are the

  PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and
357

Duress’ tactics used on terrorism suspects held in secret overseas facilities”, Washington Post, 26
December 2002. p.2
Available at: http://www.hartford-hwp.com/archives/27a/092.html

Quoting Cofer Black, the then head of the CIA Counterterrorist Center speaking to the Congress on
September 26th 2002
358 PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and

Duress’ tactics used on terrorism suspects held in secret overseas facilities”.
359 The article also mentions Diego Garcia, an island in the Indian Ocean leased from Britain.
360PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and

Duress’ tactics used on terrorism suspects held in secret overseas facilities”. p.1
361PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and

Duress’ tactics used on terrorism suspects held in secret overseas facilities”. p.3



                                                                                                      94
‘low-level captives’, who are often subject to extraordinary renditions. This is to say
that they are being handed over by the CIA to places like Egypt, Morocco, Jordan and
Syria, countries which the US itself had identified as having dense records of human
rights violations and are known to use torturous techniques during interrogations.362
These practices are defended on the grounds that those countries have ‘cultural
affinity with the captives’ and as such it is thus denied that these destinations are not
chosen on the basis of their infamously coercive interrogation techniques. 363 The fact
that legal counsel, reports and human rights groups may have access, albeit very
limited, to Guantánamo, they have no such access to other known and unknown CIA
facilities364 is also worth mentioning here and should be seen as signal which should
trigger utmost concern of the techniques used in those far away places. When this
article was going to the press, the authors themselves asserted that no direct evidence
existed which would prove that prisoners were being abused at the hands of US
officers while in US custody365 but this all changed in 2004 when the leaked Abu
Ghraib photographs showed exactly that.
        Hajjar contends that the increasing frustration of the lack of intelligence which
would lead the way to the whereabouts of bin Laden was the chief reason behind the
stepping up of interrogation methods as well as ludicrous justifications for these
methods.366 This argument is backed up by the infamous August 1 2002 memorandum
which contained the answer to a heated question: how far were the CIA agents
allowed to go during interrogation?367 The legal opinion expressed by John Yoo from
the Justice Department’s Office of Legal Counsel consisted of maintaining that

362 PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and
Duress’ tactics used on terrorism suspects held in secret overseas facilities”. P.3 and HAJJAR, Lisa.
Human Rights, Executive Powers, and Torture in the Post-9/11 Era. p.16
363 PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and

Duress’ tactics used on terrorism suspects held in secret overseas facilities”. P.3
364 PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and

Duress’ tactics used on terrorism suspects held in secret overseas facilities”. P.4
365 PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations; ‘Stress and

Duress’ tactics used on terrorism suspects held in secret overseas facilities”. P.4
366 HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.16
367 HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.16




                                                                                                        95
anything that does not cause ‘pain comparable to organ failure or death’ is not
torture.368 The absurd reasoning of this opinion resulted in the renouncement and
subsequent replacement of the memo in June 2004, nevertheless such reasoning was
out there and it was made public. It should also be noted that in this memo and
elsewhere, Yoo advocated the ‘unitary executive thesis’369, which was grounded on the
fact that as commander-in-chief the President had virtually unlimited powers, which
could surpass the Congress as well as courts. This view was also supported by high
ranking army officials.370 Once the war in Iraq started, an Iraqi Guantánamo was in the
making, alongside the one already in operation in Afghanistan. Despite the fact that
Bush claimed that the Geneva Conventions did apply to Abu Ghraib, the decision to
transpose Guantánamo tactics to Iraq or in other words ‘Gitmotize’371 it, was taken in
August 2003 again as a result of the frustration at the lack of obtained intelligence as
well as intensified fighting in those months. The head of Guantánamo, Major General
Geoffrey Miller was summoned to Abu Ghraib to advise on more effective
interrogation tactics, basically resulting in the use of unlawful tactics at least under
the Geneva Conventions.372




368   HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.16

369   HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.16

  Hajjar mentions Army Lt. Col. Diane Beaver who expressed the same view in an October 11 th 2002
370

memo HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.17

371HAJJAR,  Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. p.18 and
CARTER, Philip. “The Road to Abu Ghraib: the biggest scandal of the Bush administration began at the
top”, Washington Monthly”, November 2004.
Available at: http://www.washingtonmonthly.com/features/2004/0411.carter.html
372 CARTER, Philip. “The Road to Abu Ghraib: the biggest scandal of the Bush administration began at

the top”. P.6



                                                                                                    96
5.2.2 Supreme Court interventions

         A glimpse of hope appeared to materialise in the June 2004Hamdi v.Rumsfeld
373   and Rasul v.Rumsfeld rulings374 of the Supreme Court, in which it stipulated that
those who had been labelled ‘enemy combatants’, including those detainees in
Guantánamo, who significantly and hardly by chance were all non US citizens, had the
right to a fair trial in order to challenge this status that they were labelled with in
absence of any justification.375 An important part of the ruling was also the
recognition of jurisdiction of those courts to also hear the habeas corpus submissions
made by those who challenged their combatant status.376 The Bush administration
however retaliated almost immediately by setting up several Combat Status Review
Tribunals, where the status of the detainees would be determined by military officers.
Simultaneously, catalysed by the public outcry at the Abu Ghraib abuse photos, the
Senate was preparing an amendment, sponsored by John McCain, to the Department
of Defence appropriations bill which would give clear instructions as to the
interrogations methods that were approved and within legal scope, to be used on
detainees.377 Furthermore, it reiterated that the prohibition of torture was not


373 Yaser Hamdi is a U.S. citizen of Saudi descent who was captured in Afghanistan in 2001. He was
designated a UEC and detained for almost three years without charge. Hamdi was initially detained
at Guantánamo Bay, Cuba, and was later transferred to military jails in Virginia and South Carolina
after it became known that he was a U.S. citizen. He was released and deported to Saudi Arabia in
2004 after agreeing to renounce his U.S. citizenship and to strict travel restrictions.
PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.18
374 The Hamdi ruling referred to enemy combatants who were US citizens, the Rasul ruling referred to

enemy combatants who were non US citizens/aliens.
375 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.80

376 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.
P.80
377 “Detainee Treatment Act: Recent developments” Harvard Human Rights Journal, vol.19, Copyright by

the President and Fellows of Harvard College, Spring 2006. p.258
Available at: http://www.law.harvard.edu/students/orgs/hrj/iss19/suleman.shtml




                                                                                                   97
restricted to territory and that it was applicable anywhere, any time, under any and all
circumstances. This, as expected, did not go down well the administration, which
immediately requested the amendments to be changed to its suit and for more clauses
to be added, or else it would veto the entire bill.378 Three additional clauses were
included, addressing the legal defence that military staff could rely on in case of being
accused of abuse, a review mechanism for the detainees’ status and training for
detainee treatment for Iraqi forces.379 The result was the Detainee Treatment Act of
2005, which admittedly does deal with the limits of interrogation methods but it also
serves to strip off the courts of the jurisdiction of habeas corpus applications,
ultimately delegating the opposite of the abovementioned rulings of the Supreme
Court. With regards to the determination or possible review of detainee status, the
military would have monopoly of the decision, which could not be appealed by any
court.380 Further yet, the whole Act is subject to the superseding power of the
President as Commander in Chief, meaning that even those provisions which are
favourable to detainees, such as limits to coercive interrogation techniques can be
taken away or interpreted completely differently, dependent on the President’s
discretion,381thus making the protective or limiting measures almost futile.
        However the pulling tug of war between the administration and the Supreme
Court was not over, in fact far from it. In June 2006, in the Hamdan v. Rumsfeld case,
the majority of the Supreme Court ruled that the individuals detained within the
framework of the ‘war on terror’ are entitled to the protection granted under the
Geneva Conventions, which thus refuted the administrations claims that those
detainees did not have the status to which these protections applied.382 Notably it also
ruled that the stripping of the jurisdictions as delegated by the Detainee Treatment




378 “Detainee Treatment Act: Recent developments”. P.259
379 “Detainee Treatment Act: Recent developments”. P.259
380 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.80
381“Detainee Treatment Act: Recent developments”. p.263
382 HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.20




                                                                                                    98
Act was not retrospective383 and ruled that the rules which governed the military
commissions were invalid due to, inter alia, the inconsistency of these rules with the
Uniform Code of Military Justice (in which the Geneva Conventions are enshrined)
thus making the military commissions invalid.384 The ruling also alluded that those, by
severe treatment of detainees, violated the Geneva Conventions and could be held
accountable and prosecuted by the federal War Crimes Act of 1996.385 Guantánamo
As could be expected, the administration retaliated and did not hesitate in drafting
new legislation which would surpass the ruling. Bush introduced the Military
Commission Act (MCA), characterising it as representing the US ‘commitment to the
rule of law’.386 The Act, which was passed with some amendments in September 2006,
provides for provisions of convening military commissions to try alien unlawful
combatants.387 The discrimination between citizens and aliens thus persisted as it was
only aliens who were subject to military commissions’ trials, while citizens suspected
of terrorism (again remember that they were not held in Guantánamo) would be
subject to trials by ordinary courts in accordance with US criminal law.388 Evidence
such as statements obtained by torture would not be admissible, unless this evidence
was obtained prior to the Detainee Treatment Act and had ‘probative value’. 389 By
passing the MCA, Bush reiterated his earlier decision of stripping courts of jurisdiction
in making habeas corpus orders as well as it denied all Guantánamo detainees to
challenge the basis of their detention.390 In addition any rulings made by the military


383 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.
P.81
384 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.81
385 HAJJAR, Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era.

p.20
386 Quoting Bush when he presented the Bill to Congress.

CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”. P.81
387 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.81
388 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.81
389 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.81
390 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.30




                                                                                                 99
commissions would be final and not subject to an appeal. Bush urged the Congress to
authorize the use of ‘his’ infamous military commissions after this was explicitly
requested by the ruling. To mitigate the threat that military personnel could be held
accountable, Bush requested that the Congress pass legislation which would provide
specific rules which would fall within the legal framework. 391 It should be noted
however that the MCA basically provided immunity to those responsible for torture
and other treatment.392 In response to the argument that, minimally Common Article 3
was applicable to the detainees held in Guantánamo, Afghanistan or anywhere else,
Bush defended his up-until-then refusal to apply Common Article 3 on the grounds
that the provisions therein were ‘vague and undefined’ and thus open to a wide scope
of interpretation by domestic and foreign judges.393 In light of this, the MCA prohibited
the invocation of the Geneva Conventions as a defence or source of rights in any US
court.394
        Amnesty International criticized the passing of the MCA identifying it as
‘turning bad executive policy into bad law’.395
The final blow to the Bush draconian detainee policy was dealt by the 2008 Supreme
Court’s Boumediene v. Bush ruling, where it repeated the stipulation made in the
Hamdan ruling with regards to the rights of detainees to filing habeas corpus claims in
US federal courts in order to challenge the basis of their detention. 396 Furthermore, it
refuted the administrations long-running claims that the US Constitution did not
extend to Guantánamo and its forced-to-stay inhabitants and instead argued that the


391

http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?_r=1&pagewanted=print,
p. 13
392 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.30
393

http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?_r=1&pagewanted=print,
p. 13
394 Amnesty International, Military Commissions Act of 2006- turning bad policy into bad law. AI Index:

AMR 51/154/2006, 29 September 2006.
Available at: http://www.amnesty.org/en/library/asset/AMR51/154/2006/en/509acb93-d3eb-11dd-
8743-d305bea2b2c7/amr511542006en.pdf
395 Amnesty International, Military Commissions Act of 2006- turning bad policy into bad law. P.1
396 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.30




                                                                                                   100
kind of supreme authority and control the US government exerted there should reflect
the extent of the applicability of the constitution, thus in this sense to the full extent.397
Simply said, it ruled that the US government, considering the degree of authority it
wields in Guantánamo, ‘cannot switch the Constitution on and off’ as it pleases.398 This
was also a reiteration of Judge Sandra Day O’Connor’s statement in the Hamdi ruling,
where she asserted that the administration’s constant pursuance and justification for
detention without trial ‘serves only to condense power in a single branch of
government. We have long since made clear that a state of war is not a blank check for
the President’.399 This further confirms the argument that the contents of the policies
which the Bush administration took in the aftermath of 9/11 were subject to wide
censure from the outset. But other than content, criticisms were also expressed with
regards to the ‘broad, unchecked and largely discretionary executive power’, which
although was advocated by some top officials in the White House, is in fact a violation
of the principle of the separation of powers.400



5.3 The US may be the crook but Europe is no saint

In July 2002, the Council of Europe published Guidelines on Human Rights and the
Fight against Terrorism401, in which it delineated the approaches that should be taken

397 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.30
398 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11.
399 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Available at: http://supreme.justia.com/us/542/507/case.html

400HEYMAN, Philip B. and KAYYEM, Juliette N. Long-Term legal strategy project for Preserving Security
and Democratic Freedoms in the War on Terrorism, National Memorial Institute for the Prevention of
Terrorism, November 2004. p.9

This report discusses ten policies, which it considers as crucial in being addressed in the future national
and foreign policy in the future. Detailed but very comprehensive recommendations are made with
regard to each issue, always maintaining that check and balances be present under all conditions.
401 Guidelines on Human Rights and the Fight Against Terrorism, adopted by the Committee of Ministers

at the 804th Meeting of the Ministers’ Deputies 11 July 2002.
Available at: http://www.coe.int/T/E/Human_rights/h-inf(2002)8eng.pdf




                                                                                                      101
in responding to terrorism so as to ensure the protection of human rights. In its
preface, it summarised its position in the following way:
        ‘The temptation for governments and parliaments in countries suffering from
terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a
democratic state. But let us be clear about this: while the State has the right to employ to
the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not
use indiscriminate measures which would only undermine the fundamental values they
seek to protect. For a State to react in such a way would be to fall into the trap set by
terrorism for democracy and the rule of law’.402
The positive aspect is that the Council of Europe clearly had a different view compared
to that of the Bush administration; the question was however to what extent
European governments actually followed these principles.
        Chapter III gave a detailed account of the measures that were taken by the EU
in response to the 9/11 attacks and how these developed over time and what impact
the 3/11 and 7/7 attacks had on the EU policy making and enforced legislation. Note
must also be taken of the policies that were enacted or strengthened in individual
member states, some of which can be identified as playing a dangerous game with the
protection of civil liberties. My aim here is not to describe the non-exhaustive list of
measures that were taken or current proposals for such measures but rather I plan to
depict the trend that slowly crept up national policies, some of which did not
necessarily address terrorism exclusively but rather enforced some measures
opportunistically.403




402 Guidelines on Human Rights and the Fight Against Terrorism, adopted by the Committee of
Ministers, 11 July 2002, at the 804th Meeting of the Ministers’ Deputies, p.5
This view was reinforced in the March 2005 edition, which also had Guidelines on the protection of
victims of terrorist acts attached to it.
403 With reference to the UK, this is discussed by John Wadham in his critique of the 2001 Anti-

Terrorism, Crime and Security Act , WADHAM, John. “Terrorism”, Archbold News, 2002.




                                                                                                     102
5.3.1 United Kingdom

        One of the most cited examples is the UK. As is well-known and as has been
mentioned before, the UK has lost its sleep for many long years as a result of terrorism
which was ubiquitous in some parts of its territory. The attacks perpetrated by the
IRA however were not limited to this area and rather the UK as a whole was
considered to be under threat from within, specifically at the end of the 20 th century.
An important legislative action was taken even prior to the 9/11, when the Terrorism
Act, codifying a multitude of laws and statutes while meeting human rights
standards404 was signed into law in 2000405. Just months after the Act came into force,
9/11 reinforced the need for preventative measures to be put into place. This resulted
in the extension of the Act and a general strengthening by the Anti-Terrorism, Crime
and Security Act which was in force by 14 December 2001. 406 This new Act addresses
a myriad of issues ranging from freezing of financial sources of or for terrorists,
national immigration and asylum procedures to the extent of police powers in
obtaining information and investigation terrorist plots.407 It also provides a definition
of terrorism which however has been identified as worrying particularly with regards
to its ‘vague contours’,408 which provide too great of a scale for (mis)interpretation
and (mis)application.409 Part four of the Act, relating to immigration and asylum
procedures has been particularly successful in arousing controversy. Being very
similar to the contents of Bush Executive Order of November 2001, the UK Home
Secretary reserves the right to order on the grounds of national security, the detention


  SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”, Loyola
404

Law Review, University of Pennsylvania Law School: paper 57 Vol.50, 2004.

405 Terrorism Act 2000
406 CORNISH Paul. The United Kingdom In: HIPPEL von Karin (ed.), Europe Confronts Terrorism, New
York: Palgrave MacMillan 2005
407 CORNISH Paul. The United Kingdom. p.154 and LINDE van de, Erik et al. Quick scan of post 9/11

national counter-terrorism policymaking and implementation in selected European countries. p.120
408 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.76
409 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.

P.76



                                                                                                103
without trial of individuals who are suspected of planning to perpetrate terrorist
attacks. Detention on such grounds, which may or may not be communicated to the
detained individual, is not appealable in ordinary courts but rather in a specially
appointed commission.410 Both the fact that the measure delegates the possibility of
detainment without trial as well as the fact that these arrests have been made solely
on grounds of nationality, of which the UK government was soon accused, are in fact
serious violations of obligations enshrined in the European Convention on Human
Rights (ECHR)411which it incorporated into its law by the Human Rights Act of 1998.
Aware of this, the UK opted out of Article 5 of the ECHR, which prescribe the
prohibition of arbitrary detention. Some of the measures which were in fact praised
for being nullified in the enactment of the 2000 Act, such as indefinite detention
without trial and the criminalization of withholding information related to terrorism,
now re-emerged in the 2001 Act.412 Amnesty International dismissed the indefinite
detention of foreign nationals provision as ‘a perversion of justice’.413
        Another source of controversy was the February 2004 Blair-Blunkett proposal
of ‘pre-emptive’ trials of individuals suspected of terrorism which would in turn lower
the burden of proof needed for a criminal conviction.414 In 2006, legislation was
passed which criminalizes glorification of terrorism and indirect incitement.415 This
Chaskalson argues can be detrimental to the possibility of people to express their




410 GOLDSTONE, Richard, The Tension between Combating Terrorism and Protecting Civil Liberties In:
WILSON, Richard Ashely, Human rights in the ‘War on Terror’, p.165
411 CORNISH Paul. The United Kingdom. P.154
412 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. p.128

and

WADHAM, John. “Terrorism”. P.4
  Amnesty International, Justice perverted under the Anti-Terrorism, Crime and Security Act 2001, 11
413

December 2003
Available at: http://www.amnesty.org/en/library/asset/EUR45/029/2003/en/4fcc7ec2-d65c-11dd-
ab95-a13b602c0642/eur450292003en.html

414CORNISH Paul. The United Kingdom. p.155
415CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.
P.76



                                                                                                 104
opinions on the roots of terrorism and criticisms in particular towards anti-terrorism
measures.416
        Some hopeful signs of the opposition to derogate from human rights
obligations can be seen in the final version of the Civil Contingencies Bill, proposed in
January 2007 containing measures which would allow for far-reaching powers under
a declared state of emergency.417 These powers were curbed to an extent by the
attached amendment that powers such as the prohibition of travel and ‘other specific
activities’ were to be valid for a maximum period of 30 days and their instigation
would in any case need to be approved by both Houses and the Parliament within a 7
day period.418 In one way or another, this showed that the UK also had some
reservations about the staunch alliance with the US.
        In the wake of the 7/7 bombings, “Let no one be in doubt, the rules of the game
are changing” and “Civil-liberty arguments are no so much wrong as just made for
another age” were uttered by Blair and his home secretary John Reid respectively.419
One of the legal consequences was the criminalization of the ‘glorification’ or ‘indirect
incitement’ of terrorism and terrorism suspects can be held up to twenty eight days
without charge, which the UK government wanted to double.420 In this it was
successful as at the time of writing, this pre-charge detention period was increased to
forty two days.421 Furthermore, the Home Secretary has reserved yet another right of
discretion for those who cannot be tried for lack of evidence and who are thus subject
to ‘control orders’,422 including limited use of mobile and internet usage, curfew and



416 CHASKALSON, Arthur, “The widening gyre: counter-terrorism, human rights and the rule of law”.
P.77
417 CORNISH Paul. The United Kingdom. p.155
418 CORNISH Paul. The United Kingdom. p.156
419 The Economist, “Civil Liberties: The Freedom Paradox. Liberty has been the first victim of the war

fought in its name”, The Economist print edition, 31 August 2006.
Available at: http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=7854426
420 The Economist, “Civil Liberties: The Freedom Paradox. Liberty has been the first victim of the war

fought in its name”. p.1
421 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.11
422 The Economist, “Civil Liberties: The Freedom Paradox. Liberty has been the first victim of the war

fought in its name”. p.1



                                                                                                    105
house arrest.423 Not only does the Secretary have discretion in the imposition of these
orders but he also has the power to renew these indefinitely, each time for 12
months.424 Britain was well on its way to becoming a police state. Quite worryingly,
the UK counterterrorism strategy relies uncomfortably heavily on ‘deportation with
assurances’425 (see further).



5.3.2 Germany

           Likewise, Germans were also victims to domestic terrorism perpetrated for the
most part by the Rote Armee Fraktion (RAF). A body of national legal provisions and a
loyal trend of ratification of UN conventions on terrorism did thus exist before 9/11.
In the wake of 9/11 these national measures were rigorously extended and
particularly after it was found that four of the hijackers spent a considerable amount
of time in Germany, a fact that the German government and its agencies had no idea
about until after the terrorist attacks were perpetrated.426 The reaction of the German
government was swift and was embodied into the so called “Otto Catalogues”.427
These were ‘security packages’ introduced by Interior Minister Otto Schilly, of which
the first part was completed and accepted by the parliament in November 2001,
amended the criminal code to inter alia criminalize the creation of terrorist
organizations, including of foreign origin.428 The second package was completed a
year later in December and it was this package that sparked most controversy, even



423 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.11
424 The Economist, “Civil Liberties: The Freedom Paradox. Liberty has been the first victim of the war
fought in its name”. p.1
425 Human Rights Watch, “EU: Stand Firm Against Diplomatic Assurances”, 22 October 2008. p.4

Available at: http://www.hrw.org/en/news/2008/10/22/eu-stand-firm-against-diplomatic-
assurances

426SZYSZKOWITZ, Tessa. Germany In: HIPPEL von Karin (ed.), Europe Confronts Terrorism, New York:
Palgrave MacMillan 2005

427   SZYSZKOWITZ, Tessa. Germany. P.49
428   SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.112



                                                                                                     106
after it was substantially curbed before being accepted by the parliament.429 Along
with amending a little short of ‘one hundred regulations in seventeen different
statutes and five statutory orders’430 it amended existing legislation to allow judicial
authorities to prosecute foreign431 organisations and sympathisers of such terror
organisations in Germany.432 Generally, it gave increased powers to the security
agencies, including prevaricating bank secrecy and other otherwise confidential
information such as that retrieved from postal services, air traffic organisations and
telecommunications433, upon providing proof of terrorist activity suspicions.434
Needless to say that reasonable suspicion was no longer significant or indeed
necessary. Furthermore, powers were extended with the aim of setting up a central
database to store collected personal information such as fingerprints and religious
identity. All the data may be stored for extended periods of time, without the
concerned individual being notified.
        The lack of necessity to present proof of reasonable suspicion has sparked
controversy particularly because Germany has a long-standing tradition of ‘high and
individuated standards of proof before surveillance or investigations can be
undertaken’.435 The biggest controversy however, which may not be straightforwardly
obvious to outsiders, surrounded the near fusion of the security and police agencies,
which signalled a clear shift in the strict demarcation of these two bodies, so
‘characteristic of post-war German public law’.436


        In the aftermath of the Madrid attacks, the German Immigration Act and its
anti-terror measures in particular were expanded as of January 2005 to include



429 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.115
430 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.112
431 Emphasis added by author
432 SZYSZKOWITZ, Tessa. Germany. P.49
433 SZYSZKOWITZ, Tessa. Germany. P.49
434 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.113
435 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”, p.115
436 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.114 and

SZYSZKOWITZ, Tessa. Germany. P.49



                                                                                                107
provisions which substantially facilitate deportation.437 A deportation order can now
be issued and authorized on the ground of an “evidence-based threat prognosis”, i.e.
even in absence of an actual crime or evidence thereof.438 In addition, under the
amended Act the German authorities reserve the right to expel what it calls
“intellectual incendiaries”, meaning those individuals who ‘publicly incite hate,
violence and terrorist acts’.439
        Nevertheless, in comparison to the UK and the US in particular, the German
government did retain some checks and balances. For instance, at the beginning of
2004, ordinary courts which tried the two accused men of planning 9/11 were
eventually forced to stop the proceedings as a result of US refusal to provide the
German courts with decisive evidence, including the testimony of Ramzi bin al Shibh
who admitted to planning the attacks and even took personal credit for it.440 Due to
the fact that the courts were not granted access to this ‘potentially exculpatory
evidence’ as requested by the judge, the courts refused to convict. This was clearly a
huge amount of oil to the fire of transatlantic relations,441 of which the German-US
relations were already in a catastrophic state mainly due to the Iraq war.
Another example is the 2004 ruling of the Federal Constitutional Court, which
challenged and refuted the constitutionality of an amended 1998 law allowing
electronic surveillance,442 on the basis that this measure was a far-reaching violation
of the ‘inviolability of the home’ and that the law did not provide for the need of




437Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law, 31 May 2005.
Available at: http://www.amnesty.org/en/library/asset/IOR61/013/2005/en/ab320693-d4e3-11dd-
8a23-d58a49c0d652/ior610132005en.html

438 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. P.34
439 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU

Criminal Law. P.34
440 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.116
441 SZYSZKOWITZ, Tessa. Germany. P.54
442 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.117




                                                                                                   108
sufficient evidence to conduct such surveillance.443 In this sense, personal privacy was
thus given precedence over security interests.444



5.3.3 Spain

        Another domestic terrorism-stricken nation which did not experience the
international terrorist threat until the morning of March 11th 2004 is Spain. In the
aftermath of 9/11, Spain had outright refused to reorganize its security structure
unlike the US and to some extent Germany and the UK.445 Due to past experiences with
the ETA movement, Spain like Germany and the UK already had a comprehensive
body of rigid legislation related to terrorism. Its reaction to 9/11 can rather be seen as
the strengthening of measures to improve internal security.446 After 3/11, resources
rather than legislation were multiplied not only because legal provisions already
existed but also because of the Spain’s past experiences with authoritative rule, which
have resulted in abhorrence of excessive security measures.447 Despite the absence of
a bulk of new legislation, Amnesty International has voiced some concerns about
Spain’s Code of Criminal Procedure, particularly with regards to the lack of access to a
judge or lawyer as well as incommunicado detention of individuals suspected of
terrorist activities.448 In Spain, this type of detention can be as long as five days and
can thereafter be extended by a judge for up to thirteen days.449 The judges also have
the power to impose ‘secreto de sumario’, which entails partial or entire secrecy of


443 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”.p.117
444 SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September 11”. P.117
445 WOEHREL, Steven. Spain In: ARCHICK, Kristin et al., European Approaches to Homeland Security and

Counterterrorism, CRS Report for Congress, 24 July 2006.
Available at: http://www.fas.org/sgp/crs/homesec/RL33573.pdf

446 LINDE van de, Erik et al. Quick scan of post 9/11 national counter-terrorism policymaking and
implementation in selected European countries. P.110
447 WOEHREL, Steven. Spain. p.32
448 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU

Criminal Law. P.21
449 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU

Criminal Law. P.21



                                                                                                   109
investigation and criminal proceedings meaning denied access of information to the
suspects and their legal counsel.450 Human Rights Watch has also expressed strong
criticisms of the pre-trial detention which can last up to four years.451



5.3.4 France

        France also belongs to one of the six countries which have specific anti-
terrorist legislation and had legal safeguards also prior to 9/11 thus like the
Spaniards, the French activated already prepared plans to ensure and increase
internal security and where appropriate provide security agencies with more role
with an extended mandate.452
        However there are a few examples of amended or added legislation which
should me mentioned here. The then Minister of Interior Nicolas Sarkozy proposed
strengthened immigration policies including controversial measures such as the
preference for the entry of more well-educated immigrants453. In March 2004, a
special 96 hour custody regime was broadened to include additional offences.454
Furthermore, the law allows for a 48 hour time span in which a terrorist suspect can
be detained without access to legal counsel.455 This provision was enacted despite the
fact that already in 2003, the Council of Europe’s Committee for the Prevention of
Torture and Inhuman and Degrading Treatment criticized the French government for

450 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. P.21 and
 SUNDERLAND, Judith. “Setting an example? Counter-Terrorism Measures in Spain”, Human Rights
Watch, 26 January 2005
Available at: http://www.hrw.org/en/node/11860/section/1
451 SUNDERLAND, Judith. “Setting an example? Counter-Terrorism Measures in Spain”. p.4
452LINDE van de, Erik et al. Quick scan of post 9/11 national counter-terrorism policymaking and

implementation in selected European countries. p.56
453 GALLIS, Paul. France In: ARCHICK, Kristin et al., European Approaches to Homeland Security and

Counterterrorism, CRS Report for Congress, 24 July 2006.
Available at: http://www.fas.org/sgp/crs/homesec/RL33573.pdf

454 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. P.21
455 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU

Criminal Law. P.21



                                                                                                   110
allowing incommunicado detention, which was 36 hours at the time.456 The banning of
the headscarves in education and employment has hit French Muslims hard and a
public outcry has been heard on several occasions as to the danger of targeting a
population on the basis of its religion which in the end will only contribute to
radicalisation. Another contributing factor is the fact that detention measures have
narrowly targeted Muslim and North African minorities.457


        As to the issue of Guantánamo, it should be noted that in general, the EU had
adverse views on the dubious distant army base and the policy which encircled it.
Despite the fact that Bush did allow the International Committee of the Red Cross
(ICRC) to inspect Guantánamo and treatment of the prisoners there for the first time
in January 2002 and thereafter pledged that it would take the Committee’s
recommendations into account, the Europeans remained sceptical. Among other
factors, this cynicism rooted out of the US reluctance to grant POW status to the
detainees and instead using the term ‘unlawful combatants’, which the Europeans and
many international jurists maintained was a nonexistent category in international law
and urged that the detainees be given either a POW or a criminal status,458 nothing
more and certainly nothing less. Furthermore, after Bush announced the use of
military commissions to try the detainees held at Guantánamo, the UK government for
instance expressed its delusions about the fairness and legitimacy of these tribunals
and as a consequence requested that the British nationals involuntarily residing in
Guantánamo be returned to the UK to be tried there.459 Significantly also, the House of




456 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. P.21
457 PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.11
458 KARON, Tony. “Why Guantanamo has Europe hopping mad”, Time, 24 January 2002

Available at: http://www.time.com/time/world/article/0,8599,197210,00.html

  BBC. “Blair plea to Bush on Guantanamo”, 26 June 2004.
459

Available at: http://news.bbc.co.uk/2/hi/uk_news/politics/3841731.stm




                                                                                                   111
Lords have made it clear that evidence obtained by torture would not be considered
admissible in court.460


5.4 “Black sites”


        As could be expected from the information gathered in the pages of this paper,
the European reaction to the US treatment of ‘enemy combatants’ coupled with the
fact that these individuals were denied any and all legal protection and that the US
took a ‘no crime without law’461 approach, was not a positive one. When the
Washington Post article462 revealing that “black sites”463 existed on European soil
somewhere in Eastern Europe, appeared in November 2005 the European public was
outraged.464 Legislative investigations were launched on the initiatives of the Council
of Europe, the watchdog of human rights in the EU. Through investigations led by
Human Rights Watch, it was soon suggested that these locations did indeed exist in
Romania and Poland465 and they had been set up four years ago as part of the prison
network set out by the CIA, alongside sites in Thailand, Uzbekistan and the most often




  A v. Secretary of State for the Home Department (2005)
460

Available at: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm
SHAH, Sangeeta, “The UK’s Anti-Terror Legislation and the House of Lords: The Battle Continues”,
Human Rights Law Review, Vol.6, issue 2, Oxford University Press, 2006.

461HAJJAR,   Lisa. Human Rights, Executive Powers, and Torture in the Post-9/11 Era. P.16

462

PRIEST, Dana. “CIA holds terror suspects in secret prisons: Debate is growing within agency about
legality and morality of overseas system set up after 9/11”, Washington Post, 2 November 2005
Available at:
http://www.washingtonpost.com/wpdyn/content/article/2005/11/01/AR2005110101644.html

463 This is the name used in classified White House paper and reports, when referring to these secret
locations
464FORSYTHE, David P. The United States: Protecting Human Dignity in an Era of Insecurity. p.48
465 Human Rights Watch, Human Rights Watch Statement on U.S. Secret Detention Facilities in Europe, 6

November 2005.
Available at: http://www.hrw.org/en/news/2005/11/06/human-rights-watch-statement-us-secret-
detention-facilities-europe



                                                                                                    112
mentioned Cuba, Afghanistan and Iraq.466 On the other hand, it is hardly imaginable
that nobody knew about the transfer of detainees from and to the alleged European
secret facilities, considering that European airports and/or US military bases in
Europe were used in the process.467 The denials of Spanish, British and other
European governments of any knowledge of such transfers and even of the existence
of such sites were strong.468 In addition, Forsythe asserts that certain European
countries, also being EU member states, including Britain and Sweden engaged in
extraordinary renditions and that it is most probable that some European
governments also provided information and even contributed to the ill treatment of
prisoners during interrogations.469
        The investigations in Europe were conducted under the auspices of the
Parliament as well as the Council of Europe. The latter acted immediately in initiating
its own investigation with regards to this matter and indeed it was the work of the
appointed Swiss lawyer Dick Marty as special investigator, which provided some
insight into the CIA operations in Europe. In his first landmark report of June 2006470,
Marty provided evidence which showed that certain European countries were in fact
complicit in the illegal renditions of detainees. He categorized countries according to
their ‘roles’ in the CIA flights.471 For instance, ‘stop over’ points included Greece, Czech
Republic and Italy, ‘staging’ points included Germany, Turkey, Cyprus and Spain, ‘one-
off pick up points’ were found to be in Sweden and Macedonia and examples of
‘detainee transfer/ drop-off points’ included Egypt, Guantánamo, Iraq and indeed

466

PRIEST, Dana. “CIA holds terror suspects in secret prisons: Debate is growing within agency about
legality and morality of overseas system set up after 9/11”. P.1

467 http://www.spiegel.de/international/world/0,1518,487325,00.html
468 FORSYTHE, David P. The United States: Protecting Human Dignity in an Era of Insecurity. p.48
469 FORSYTHE, David P. The United States: Protecting Human Dignity in an Era of Insecurity. P.48
470 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states, Doc. 10957, 12 June 2006
http://assembly.coe.int//Main.asp?link=http://assembly.coe.int/Documents/WorkingDocs/doc06/ed
oc10957.htm?link=/Documents/WorkingDocs/Doc06/EDOC10957.htm

471Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states. p.13



                                                                                                    113
Romania and Poland. With regard to the latter two in particular, Marty concluded that
there was insufficient evidence to establish that ‘black sites’ existed there and thus to
indeed confirm the allegations of their existence. Nevertheless, some evidence was
there as Marty thoroughly describes the flights that landed and took off from these
two locations.472 He summarized his position by stating that ‘(e)ven if proof, in the
classical meaning of the term, is not as yet available, a number of coherent and
converging elements indicate that such secret detention centres did indeed exist in
Europe’473. In his conclusions, Marty lists fourteen countries as part of the ‘global
spider web’ which have been found to be actively or passively complicit in the CIA-
organized renditions, including the names of the suspects.474 From these fourteen,
Marty identifies a number of countries who did more than allowing or as some say not
obstructing to CIA flights for the reasons of rendition, for instance Sweden ‘handed
over’ two suspects to the CIA directly, both of whom were transferred and tortured in
Egypt.475 Another well cited case is that of Khaled el-Masri, a German citizen of
Lebanese decent, who was kidnapped in Skopje and was later transferred to
Afghanistan, where he was subject to torture in incommunicado detention.476After
months of interrogations, he was released and dropped off in a remote area in Albania.


472 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states. p.14
473 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states. p.8
474 These are: Sweden, Bosnia-Herzegovina, UK, Italy, The former Yugoslav Republic of Macedonia,

Germany, Turkey, Poland, Romania, Cyprus, Spain, Ireland, Portugal and Greece
Committee on Legal Affairs and Human Rights, ‘Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states’, p.66
475 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states. p.36                                 and
http://www.spiegel.de/international/world/0,1518,487325,00.html
476 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states. p.24 and
Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. and
PRIEST, Dana. “Wrongful imprisonment: Anatomy of a CIA Mistake. German citizen released after
months in rendition”, Washington Post, 4 December 2005.
Available at:
http://www.washingtonpost.com/wpdyn/content/article/2005/12/03/AR2005120301476.html




                                                                                                     114
        The reactions477 to Marty’s report were various but they all had one thing in
common: denial. Ranging from “(t)hese accusations are slanderous... (t)hey are not
based on any facts”, authored by Polish Prime Minister Kazimierz Marcinkiewicz and
“(i)f someone uses words like 'I believe that', that person has the obligation to prove is
statements. We cannot play like that with rumours that can undermine a country's
credibility”, said by Romania’s deputy chief of the senate’s defence commission Norica
Nicolai, to British former Europe minister and MP Denis MacShane’s characterisation
of Marty’s report as having “more holes than Swiss cheese”.478


        Meanwhile in the Parliament, discussions as to how these investigations should
be conducted arose with reference to whether to set up a committee of inquiry or a
temporary committee. The latter has no investigative powers and cannot oblige
member states to come to hearings that may be conducted in the process of the
enquiry, whereas the former has authority to investigate alleged breaches of
Community law.479 On January 18th 2006, the Temporary Committee on the Alleged
use of European countries by the CIA for the transportation and illegal detention of
prisoners480 was formally established with the aim of investigating whether CIA
actions in Europe involved the use of torture or other degrading treatment, whether
the methods employed constituted a violation of European fundamental rights,
whether European citizens were among the victims and whether or not member
states were actually involved in these practices.481 In the process of probing into this
extensive issue, the committee was to engage in narrow cooperation with the Council
of Europe. The interim draft report which was released in April 2006 and thereafter


477BBC. “Countries react to collusion charges”, 17 June 2006.
Available at:
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/5055824.stm

478 REYNOLDS, Paul. “Rendition report adds to terror debate”. P.2
479 European Parliament, ‘CIA activities in Europe: summary of the European Parliament inquiry’ 7
March 2007, p.1
480 http://www.europarl.eu.int/comparl/tempcom/tdip/default_en.htm
481 European Parliament, ‘CIA activities in Europe: summary of the European Parliament inquiry’ 7

March 2007, p.1



                                                                                                    115
finalized in 2006 and finally adopted in 2007 suggests that “at least 1245 flights
operated by the CIA flew into European airspace or stopped over at European airports
between the end of 2001 and the end of 2005”.482 In addition, it is also stated that
European countries483 turned a ‘blind eye’ to these circumstances and thus indirectly
allowed CIA operations which resulted in the rendition of terrorist suspects to abusive
regimes.484 The report also asserts that in most of the rendition cases the committee
investigated, ‘incommunicado detention and torture’ were standard. 485 Nevertheless
and similarly to Marty’s report, the investigations did not provide sufficient evidence
which would prove that there is or was a ‘black site’ on Polish territory. What the
committee did conclude however was an alarming lack of cooperation provided by the
member states when these investigations were being conducted, particularly with
regards to Austria, Italy, Poland, the UK and Portugal.486


        Marty’s near-certainty, albeit not supported with sufficient evidence, changed
into absolute certainty when he proceeded with his investigation and released his
second report487 for the Council of Europe in June 2007. Here, Marty stated that he
had enough evidence to state that secret CIA prisons did indeed exist on Polish and
Romanian territory488 and that the extraordinary renditions which involved
abductions on European territory amounted to ‘massive and systematic violations of

482 European Parliament, Report on the alleged use of European countries by the CIA for the
transportation and illegal detention of prisoners, 30 January 2007, p.11
483 The states that were in some way involved in the illegal rendition were: Germany, Sweden, Spain,

Ireland, Greece, Cyprus, Denmark, Belgium, Turkey, the Former Yugoslav Republic of Macedonia,
Bosnia, Kosovo and Romania.
484 European Parliament, ‘CIA activities in Europe: summary of the European Parliament inquiry’ 7

March 2007, p.3
485 European Parliament, ‘CIA activities in Europe: summary of the European Parliament inquiry’ 7

March 2007, p.3
486 European Parliament, ‘CIA activities in Europe: summary of the European Parliament inquiry’ 7

March 2007, p.4
487 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states: second report explanatory memorandum, 7 June
2007.
Available at: http://assembly.coe.int/CommitteeDocs/2007/EMarty_20070608_NoEmbargo.pdf

488Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states: second report p.4



                                                                                                    116
human rights’.489 Further yet, the Polish facility or ‘setup’ as Marty calls it, was used
for detainees of the highest level and thus of the highest importance or value, whereas
Romania was destined for the low level detainees.490 In one way or another thus, the
presence of high value detainees in Europe meant that the old continent had a
Guantánamo of its own, even if it was only temporary.
        Marty singles out countries which had intentionally obstructed in the
investigation and the ‘search for truth’ whereby they steadily refused to release
information, saying that the documents had the ‘state secret’ stamp on it. 491 The
countries which are criticized the most are Germany and Italy, and the former
Yugoslav Republic of Macedonia to an extent. In the line of collusion, it is also stated
that the Romanian and Polish presidents and the tight circle of high officials around
them were in fact aware of the presence of black sites on their territory and in fact
they were directly involved in the negotiations and subsequent agreements of CIA
operations. In this sense, Marty is not hesitant about listing the names of Polish and
Romanian high-officials who should be held accountable.492 Marty is also not soft on
criticizing the fact that non-US citizens were actively discriminated against
particularly with regards to the renditions and in his opinion, such covert
discrimination is nothing less than ‘”legal apartheid”, where human rights and legal
protections are applied to detainees in lesser or greater measure on an entirely
discriminatory basis.’493 Conveniently or inconveniently, depending on who you ask,



489Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states: second report. p.5 and
ROSENBACH, Marcel and GOETZ, John, ‘“Massive and systematic violations” of human rights: New
report cites proof of CIA black sites’, Spiegel online¸8 June 2007
Available at: http://www.spiegel.de/international/world/0,1518,487325,00.html

490 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states: second report. p.24
491 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states: second report. p.3
492 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states: second report. p. 35 (Poland) and p.45 (Romania)
493 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states: second report. p.69 and



                                                                                                    117
the report was released on the around the same time that the first ever trial on the CIA
methods had commenced in Milan.494 The case at hand was the abduction of Abu
Omar, a perfect and most typical example of extraordinary rendition, in Milan in
2003.Upon abduction Omar was flown from Italy through Germany to Egypt his
country of origin, where he was interrogated by torturous techniques and was
detained under inhumane conditions.495 The involvement of a Carabinieri agent in the
abduction is confirmed by Marty in his first report.496 In 2008, Human Rights Watch
re-requested that the alleged kidnappers be extradited from the US to be charged in
Italy, including twenty six CIA agents.497
        In January 2005, Amnesty International had informed and had formally
requested the Dutch authorities to halt the transfer of a Syrian national who was being
deported from the US to Syria through the Netherlands. The Dutch authorities kept
their hands behind their backs and it was later reported that this individual was


ROSENBACH, Marcel and GOETZ, John, ‘“Massive and systematic violations” of human rights: New
report cites proof of CIA black sites’, Spiegel online¸8 June 2007
Available at: http://www.spiegel.de/international/world/0,1518,487325,00.html

  “Rada Evropy: Veznice CIA v Evrope jsou fakt”, Aktualne.cz, 8 June 2007.
494

Available at: http://aktualne.centrum.cz/zahranici/clanek.phtml?id=442683

495 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state
transfers involving Council of Europe member states. p.38
 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. P.36 and Human Rights Watch, Black Hole: the fate of Muslims rendered to Egypt, 9 May
2005.
Available at: http://www.hrw.org/en/reports/2005/05/09/black-hole-0
Also see PRIEST, Dana. “Italy knew about the plan to grab suspect: CIA officials cite briefing in 2003”,
Washington Post, 30 June 2005.
Available at: http://www.washingtonpost.com/wp-
dyn/content/article/2005/06/29/AR2005062902971_pf.html
This article provides detailed evidence of the extent of Italy’s involvement in the rendition of Abu Omar.
496 Committee on Legal Affairs and Human Rights, Alleged secret detention and unlawful inter-state

transfers involving Council of Europe member states . p.38.
497 It should be noted that Italian authorities did indeed request the extradition of the kidnappers from

the US as early as 2005 but the changing political atmosphere in Italy had slowed down the process,
also partly because of the fear of hurting US-Italian relations.
Human Rights Watch, “US/Italy: Italian Court Challenges CIA Rendition Programme. Rome should seek
extradition of 26 Americans in Cleric’s Abduction”, 15 April 2008.
Available at: http://www.hrw.org/en/news/2008/04/15/usitaly-italian-court-challenges-cia-
rendition-program
In 2007, Germany had also issued arrest warrants for thirteen CIA agents in the El Masri case.



                                                                                                     118
arrested upon arrival in Syria and held incommunicado for weeks. 498 Although it could
be said that the Netherlands was not actually arranging the transfer, it nevertheless
looked the other way despite strong proof that this individual could face torture.
The information provided by Marty has, among other things, undermined the US in its
allegations that it did not endorse the use of torture. This position has been
articulated by Condoleezza Rice December 2005 at least partly as a reaction to the
allegations made by Washington Post and Human Rights Watch, where she stated that
the US does not ‘permit, tolerate, or condone torture under any circumstances’ and
that used the opportunity to accentuate that the US ‘respected -- and will continue to
respect – the sovereignty of other countries’ and ‘does not transport, and has not
transported, detainees from one country to another for the purpose of interrogation
using torture.’499 In addition this was reflected in Bush’s speech of September 6th
2006, where he stated that interrogations were essential for the safety of the
American people but at the same time he guaranteed that the stepped up
interrogation methods used on Abu Zubaydah a senior terrorist leader, “were designed
to be safe, to comply with our laws, our Constitution and our treaty obligations. The
Department of Justice reviewed the authorized methods extensively, and determined
them to be lawful”500. Similarly to Rice’s statement, he added “I want to be absolutely
clear with our people and the world. The United States does not torture. It's against our
laws, and it's against our values. I have not authorized it, and I will not authorize it.”501
It was significantly also in this speech that Bush ultimately admitted the existence of
the much talked about secret prisons although he never disclosed the exact locations,
apparently because this would play into the hands of the terrorists. Bush also
announced the transfer of fourteen high-value detainees from unspecified CIA


498 Amnesty International EU Office. Human Rights dissolving at the borders? Counter-terrorism and EU
Criminal Law. P.34-35
499 REYNOLDS, Paul. “Rendition report adds to terror debate”. P.2
500 BUSH, George W. “Speech on Terrorism”, delivered on 6 September 2006.

Available at:
http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?_r=1&pagewanted=print.
p.4
501 BUSH, George W. “Speech on Terrorism”. P.8




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locations to Guantánamo.502 This thus meant that the CIA program would be
suspended but could be re-started if more high-value terrorists were captured.
Overall, Bush determined the secret detention policy legal when he said that “this
program has been subject to multiple legal reviews by the Department of Justice and CIA
lawyers; they’ve determined it complied with our laws”503. This was in stark contrast to
the Committee Against Torture and the Human Rights Committee which identified,
not only the treatment inside the secret detentions as illegal but they stipulated that
the policy as a whole was a breach of the US’ obligations under international law.504
It is worth mentioning here that Amnesty International published a report even
before Marty, which gave a detailed account of the rendition procedures that the US
was conducting,505which thus further undermined the abovementioned claims made
by the then President and State of Secretary.
        All in all, these reports represent an important contribution to the terrorism
versus liberty debate and they add to the inescapability of governments to be held
accountable for failing to protect fundamental human rights. Furthermore it showed
that despite the fact that the US was the protagonist and the real “outsourcer”506 of
torture, more than a couple of European states were involved at different levels and
thus were equally in violation of their obligations.




502 BUSH, George W. “Speech on Terrorism”. P.10
503 BUSH, George W. “Speech on Terrorism”. P.8
504 Amnesty International, Military Commissions Act of 2006- turning bad policy into bad law. P.2
505 Amnesty International, USA: Below the radar- secret flights to torture and ‘disappearance’, 5 April

2006.
Available at: http://www.amnesty.org/en/library/asset/AMR51/051/2006/en/3edf2253-d447-11dd-
8743-d305bea2b2c7/amr510512006en.html

506REYNOLDS, Paul. “Rendition report adds to terror debate”, 24 January 2006
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/4644124.stm



                                                                                                   120
        Guantánamo is one issue but another is the policy of extraordinary renditions
and expulsions to countries with almost famous torture records. This is a good time to
bring up the notion of ‘diplomatic assurances’, which in this regard are guarantees,
provided by governments that torture and other violations of human rights will not
take place. The UK seems to be a prominent advocate of the acceptance of this policy
in national security deportations and renditions, a policy which essentially consists of
empty and more importantly unenforceable promises and is being followed by other
EU members including Denmark and Italy and the non-EU Switzerland.507 The UK lead
has been so strong in fact that the Human Rights Watch had compiled a report508
documenting the UK efforts, while urging other EU member states not to follow suit.
November 2007 is one of the examples when the UK desperately tried to put this issue
on the agenda of the JHA Council meeting, hopeful in making it part of an EU-wide
policy.509 The JHA refused to even table the proposal, signalling the widespread
opposition to such an unreliable policy. In February 2008, a statement made by the
Directorate General for External Affairs, which warned that diplomatic assurances
‘undermine the global ban on torture and efforts to eradicate such abuse’510, may have
seriously downplayed the realisation of UK efforts; at least one may hope so.


        In this regard, it would be appropriate to take note of an article published by
The Economist on February 5th 2009511, where it discusses the freshly handed down
ruling (February 4th) with regards to the fate of evidence showing treatment identified
as torture, as alleged by Byniam Mohamed. A UK citizen with Ethiopian origin,
Mohamed saw the walls of detention facilities in Pakistan, Morocco, and Afghanistan


507 Other countries include Russia, Turkmenistan and Kyrgyzstan
508 Human Rights Watch, Not the way forward: UK’s dangerous reliance on diplomatic assurances, 22
October 2008.
Available at: http://www.hrw.org/en/reports/2008/10/22/not-way-forward
509 Human Rights Watch, “EU: Stand Firm Against Diplomatic Assurances”. P.2
510 Human Rights Watch, “EU: Stand Firm Against Diplomatic Assurances”. P.2
511 The Economist, “Torture and the law- that curious relationship”, The Economist print edition, 5

February 2009.
Available at: http://www.economist.com/world/britain/displaystory.cfm?story_id=13062575




                                                                                                      121
before being released from Guantánamo in 2008 and returned to the UK, where he
claimed that MI5, the British secret service, was involved in his interrogations. The
Court ruled that this evidence was not subject to publication, on the grounds that this
would impede UK relations with the US particularly with regards to sharing of vital
intelligence.512 This threat of action was apparently already made in 2008 according
to UK foreign secretary David Miliband although after the Court made its decision, he
denied that the US made this threat directly. Whatever the facts of this situation may
be, it is clear that even in the last days of the Bush administration, the US was still the
giant who even had power to influence court decisions thousands of miles away, at
least as claimed in the article.
           Nevertheless, an evolving shift is due to be mentioned in the context of judicial
authorities and their approaches to violation of rights in relation to post9/11
measures. For instance, when Sir Ken Macdonald, former Director of Public
Prosecutions was leaving office, he deeply criticized the ‘Big Brother state’ that the UK
was becoming. In the past, in a highly critical speech513 in January 2007, he warned
that ‘an abandonment of fair trial prosecutions in the face of terrorism would represent
an abject surrender to nihilism. It would represent defeat.’514 He further argued that ‘a
response to terrorism which is based only on fear and suspicion…has no room for the
rule of law. Indeed it encourages the opposite’.515 One very good and recent example
that there action is being taken against unconstitutional measures is the European
Court of Human Rights judgment in the case of A. and Others v. the United Kingdom516,
where it was ruled that their detention as a result of them being suspected of
involvement terrorist activities under a statutory scheme of high security which
provided for an indefinite detention non-nationals, was indeed a violation of their


512   The Economist, “Torture and the law- that curious relationship”. P.1

513 MACDONALD, Ken, “Security and Rights”, Speech to the Criminal Bar Association on 23 January
2007.
Available at: http://www.cps.gov.uk/news/articles/security_rights/
514 MACDONALD, Ken, “Security and Rights”, p.5
515MACDONALD, Ken, “Security and Rights”,.10
516 Application number: 3455/05




                                                                                                  122
right to liberty and security, right to have lawfulness of detention decided by a court
and the right to be compensated as a result of unlawful imprisonment.517 Despite the
fact that their allegations of being tortured while detained in the high security prison
were dismissed, this ruling symbolizes a promising path, in accountability of far-
reaching measures used inappropriately, even if it is just the tip of the iceberg.


5.5 The new administration and CIA disclosures


        The wounds caused by the transatlantic rift that was further deepened by the
revelation of CIA secret prisons in Europe may have started to heal with the incoming
administration. As was already mentioned, one of the very first moves that the new
president made was to take steps to close down Guantánamo. Another tool of the war
on terror that was dismantled in this wave of change was the prohibition of secret
detainment centres operated by the CIA as well as the nullification of any and every
legal order relating to interrogations as well as the justifications that were given in
this regard by lawyers in the Bush administration.518 Further yet, at the time of
writing, the newspapers are filled with debates about the four secret Justice of
Department authored and CIA addressed memos which reveal ‘excruciatingly
detailed’519 interrogation procedures520, declassified in mid-April. The memos, of
which the release was requested by the outspoken civil rights group American Civil
Liberties Union (ACLU), include descriptions, inter alia, of water-boarding tactics



  Article 5(1), 5(4) and 5(5) respectively of the European Convention on Human Rights
517

  PRIEST, Dana. “Bush’s ‘War on Terror’ comes to a sudden end”, Washington Post, 23 January 2009.
518

Available at: http://www.washingtonpost.com/wp-
dyn/content/article/2009/01/22/AR2009012203929_pf.html

519SHANE, Scott. “Torture versus War”. P.1
520A detailed account of the procedures, or at least a selection of them, has been provided by the ICRC
upon their inspection of Guantánamo in October 6 th-11th 2006 with specific focus on the ‘high value
detainees’.
ICRC Report on the treatment of fourteen “high value detainees” in CIA custody, February 2007.
Available at: http://88.80.13.160.nyud.net/leak/icrc-report-2007.pdf




                                                                                                     123
which were used as many as 266 times on two top Al Qaeda members521, one of which
is a self-confessed mastermind planner of 9/11.
        Obama’s decisions to dismantle Bush’s tools of the war on terror had been
welcomed for the most part but significant hiccups should not be ignored. Specifically
the ‘taking over’ of former Guantánamo detainees has not impressed many European
countries, to which Obama made a formal request at the beginning of April. It is true
that many European as well as other governments had taken back their nationals but
approximately 240 detainees still remained held at the military base when Bush was
leaving the Oval office. In the immediate reaction to the intended closure of
Guantánamo and Obama’s call on EU states to prosecute the sixty detainees to prevent
torturous treatment or even the death penalty522, which they were likely to face upon
their return to their home countries, the Netherlands for instance has refused to assist
the US in this issue even before Obama’s inauguration. Though it should be noted that
some dissenting opinions were heard or rather read in the NRC Handelsblad which
reminded the Netherlands that since it had supported the Bush administration in its
dirty war, it should now also help the new administration with the cleaning up of the
‘very dirty legacy’ left behind by its predecessor.523 The Dutch refusal was also
critisized by numerous human rights advocates who had argued that The Netherlands
has shown a disappoint attitude and response to Obama’s attempts at retying
transnational threads.524        Certainly, other member states who had consistently
criticized the whole idea of Guantánamo should make a contribution to the


521 This memo was dated 30 May 2005
CNN, “Memo: Two al Qaeda leaders water-boarded 266 times”, Washington, 20 April 2009.
Available at: http://edition.cnn.com/2009/POLITICS/04/20/cia.waterboarding/
522 The Economist, “Guantanamo: Promises to keep”, The Economist print edition, January 2009.

Available at: http://www.economist.com/world/europe/displaystory.cfm?story_id=13031321

523NRC Handelsblad, “…en de rest van de wereld”, 21 January 2009.
Available at:
http://weblogs3.nrc.nl/commentaar/2009/01/21/en-rest-van-de-wereld/

524 “Dutch refusal to take Guantánamo detainees criticized “, NRC Handelsblad, 23 January 2009
http://www.nrc.nl/international/article2127982.ece/Dutch_refusal_to_take_Guantánamo_detainees_cr
iticised



                                                                                                124
termination of a policy they so much despised, at least according to Human Rights
Watch.525 Czech Republic does not necessarily share this view. One insider view,
although not necessarily reflecting the Czech policy is expressed by journalist Tomáš
Němeček in his “Guantánamo: No thanks” article.526 Basing his main argument on the
fact that an increased number of the detainees that have been released in the past
have once again resorted to the holy war against the US and its allies, he reminds the
reader that these are not just ordinary prisoners. He also criticized the UK, who as the
loudest voices among the opponents of the existence of Guantánamo has agreed to
take less than a dozen of its nationals back, deeming it a necessary enough
contribution to this end.
           At the same time, quite some controversy has arisen due the long standing
reluctance of the US to accept any of these detainees and prosecute them in US courts,
particularly with regards to Chinese Uighurs who had been cleared for release 527 but
nevertheless kept in Guantánamo because no European or any other country offered
to take them in.528 I must come back to Němeček’s article here and quote an
interesting statement which he uses to support his argument, but which can also be
used to support the argument that the US should clean up the mess it created in the
first place. ‘Perhaps like the signs in American porcelain shops: you break it, you buy
it’, says Němeček.529



  Human Rights Watch, “US/EU: Help Close Guantanamo by accepting some detainees” Human Rights
525

Watch, 3 April 2009.
Available at: http://www.hrw.org/en/news/2009/04/03/useu-help-close-guantanamo-accepting-
some-detainees

  NEMECEK, Tomáš. “Guantánamo: ne, dík” Hospodářské noviny, 28 January 2009.
526

Available at: http://hn.ihned.cz/c1-33495100-Guantánamo-ne-dik

527 The first successful habeas claims as per the Boumediene opinion.
PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11. p.11
528 Human Rights Watch, “US/EU: Help Close Guantanamo by accepting some detainees” Human Rights

Watch, 3 April 2009.
Available at: http://www.hrw.org/en/news/2009/04/03/useu-help-close-guantanamo-accepting-
some-detainees

529   Němeček, Tomáš, “Guantánamo: Ne, dik”, p.1



                                                                                            125
        Upon releasing the memos which caused more than enough havoc, and
perhaps rightly so because they added to the ultimate proof that the Bush
administration had lied about prisoner treatment all along and that indeed the
warnings given by Amnesty International, Human Rights Watch and other groups and
individuals were all spot on. Obama has been firm in pointing out that the US “must
reject the false choice between [our] security and [our] ideals”.530
        Perhaps quite unexpectedly, despite the fact that Obama denounced the
interrogation methods as “unworthy of the United States”531, he also stated that the
CIA officials who were directly involved in the interrogations, including where torture
was used, would not be subject to prosecution, provided that they followed legal
orders given by the Department of Justice.532 This provoked criticism from human
rights groups many of the world’s governments as well as Obama’s supporters within
the United States. The former had claimed that this decision is a clear violation of the
international obligations the US has signed onto, specifically the bringing to justice of
any and all individuals responsible for the failure to comply with the protection of
fundamental rights.533 In its criticism, Amnesty International reminded that ‘there is
no such thing as torture perpetrated in “good faith” or “reasonable” circumstances’.
The latter, being people in the government normally supportive of Obama, have
argued that the president ‘can not simply wipe the slate clean; that his call for
"reflection, not retribution", amounts to a whitewash’.534 Human rights groups and the


530SHANE, Scott. “Torture versus War”, The New York Times/ International Herald Tribune, Washington,
18 April 2009.
Available at:
http://www.nytimes.com/2009/04/19/weekinreview/19shane.html?_r=1&ref=politics&pagewanted=
print

531 SHANE, Scott. “Torture versus War”. P.2
532 BBC. “Obama exempts CIA ‘torture’ staff”, 17 April 2009.
Available at: http://news.bbc.co.uk/2/hi/americas/8003537.stm
533 Amnesty International. “Impunity for CIA officials is incompatible with USA’s international

obligations”, Amnesty International, 17 April 2009.
Available at: http://www.amnesty.org/en/news-and-updates/obama-accused-quotcondoning-
torturequot-20090417
534 COOMARASAMY, James. “Interrogation ‘morass’ for Obama”, BBC News Washington, 21 April 2009.

Available at: http://news.bbc.co.uk/2/hi/americas/8009418.stm



                                                                                                126
UN have praised the release of the memos but they highly criticized Obama’s decision
on the grounds that real change would only come about if politicians, CIA officials and
other involved personnel were held accountable for their actions.                     Amnesty
International had characterized Obama’s decision as a “get-out-of-jail free card” for
those who were involved in torture.535


       Furthermore, the new administration is confronted with yet another dilemma
as there are discrepancies in the memos and the testimonies given ex-CIA officials.
This is thus a strong clue that not all information was disclosed in the testimonies and
this in turn ‘raises legitimate questions about whether interrogators may have
overstepped legal guidelines’.536 However how this is going to be dealt with is yet
troublingly hazy. Officials from the preceding administration had criticized Obama for
threatening national security as these memos gave insight into information which has
until recently been classified for a reason. Furthermore, the ex-CIA chief maintained
that the memos would incite more hatred from Al Qaeda and would strengthen it.537
The release of the memos themselves were characterized as one sided from advocates
of coercive interrogation methods from the time of the Bush administration such as
Dick Cheney, who argued that memos and other documents which show that methods
such as water boarding were successful in obtaining crucial information. This was also
backed by Michal Hayden and Michael Mukasey, head of the CIA and the Attorney
General respectively, during Bush’s reign.
       Obama’s decisions are clearly steps in the right direction but the closure of
Guantánamo and even the de-classification of the interrogation memos are not a
panacea for this extensive problem, particularly with regards to the impunity of CIA


  MACASKILL, Ewen. “Bush officials defend physical abuse described in memos released by Obama”,
535

The Guardian, Washington: 17 April 2009.
Available at: http://www.guardian.co.uk/world/2009/apr/17/bush-torture-memos-obama-mukasey

  COOMARASAMY, James. “Interrogation ‘morass’ for Obama”. P.2
536

  CNN. “In CIA visit, Obama defends interrogation memo release”, 20 April 2009.
537

Available at: http://edition.cnn.com/2009/POLITICS/04/20/obama.cia/index.html




                                                                                            127
officials. The Guantánamo shut down is not a matter of a clear-cut policy and many
complex deeply-thought through decisions, which need to have lasting results, await
the three months old administration in its future. The release of the memos may have
satisfied many but the issue is clearly far from over and more questions are likely to
arise regarding the use of torture in other cases, the persons who should be held
accountable and the assurance that there is zero possibility that this will happen in
the future.




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Conclusions
“Human rights law makes ample provision for strong counter-terrorist action, even in
the most exceptional circumstances. But compromising human rights cannot serve the
struggle against terrorism. On the contrary, it facilitates achievement of the terrorist’s
objective — by ceding to him the moral high ground, and provoking tension, hatred and
mistrust of government among precisely those parts of the population where he is most
likely to find recruits” Kofi Annan, 10 March 2005538

           The 9/11 attacks have undoubtedly caused a major shift in politics on the
global, regional, national and even ‘street’ level. This disastrous attack was not
however an ‘exclusive’ event, not only in the sense that it was not a one-time-hit but
mainly because it has been responsible for an unprecedented level of proliferation of
legislation addressing the terrorist threat. This should not particularly be seen as a
positive development, since many of these legal measures have in several cases
aggravated the situation. Not only do these restrictive measures extend their hands
into our daily lives, our private daily lives I should add, but they also tend to
exacerbate in places where radicalisation is prone to yield.                   It used to be that
radicalisation prospered only in economically and politically disparate places,
however this is now beginning to change as well as can be exemplified by terrorist
attacks which are perpetrated by ordinary young men and women who are or at least
seem to be perfectly integrated into a society and are generally enjoying an adequate
standard of living. The fact that the post-9/11 measures, not only in the US but
everywhere in the world, tend to target and marginalize Muslim populations only
makes the situation worse; a recipe for disaster. This perhaps has graver
consequences in the EU where the Muslim population is approximately sixteen
million, being manifold more than in the US. This is one of the many reasons why the
EU and US diverge in their approaches to terrorism. Other reasons are inextricably


538   http://summit.clubmadrid.org/keynotes/a-global-strategy-for-fighting-terrorism.html



                                                                                             129
linked to cultural, historical and political experiences and traditions which have
directed the discourses of the Europeans and the Americans for many decades.
       The first assumption I made was related exactly to this paradigm of differences.
The information provided shows that the security frameworks of the US and EU are
built differently, not least because the former is federal and the latter is supranational.
The role of threat perceptions also plays an important role in architecting responses
to terrorism, as has been shown by the military approach of the US compared with the
more diplomatic approach of the EU. Perhaps this cannot wholly explain the lack of
transatlantic cooperation but the different approaches at least partly explain the
causes of the tensions between the new and old continents. The Americans are since
9/11 convinced that terrorism is global, period. The US strategy is thus based on the
conviction that this threat has to be fought externally, as has been shown by its
manoeuvres in Afghanistan and Iraq and now creeping up to Pakistan, where Al Qaeda
has been building its safe haven. On the other hand, the countries of the European
Union are more worried about the internal threat, which was no longer in their
backyard but rather in their house. The Madrid and London bombings and several
foiled plots have served as proof that Europe is both a target and a shelter or base for
terrorists and the planning and execution of their activities. As a consequence, the EU
has been more focused on fighting the enemy within and trying to root terrorism out
from the inside. Furthermore, taken with some policies where the EU equally no
longer accepted the US ‘my way or no way’ policy, was that the US had come to realise
that Europe was no longer standing by to run and kiss its feet every time there was a
problem to deal with.
       The EU has particularly since its inception by the Maastricht Treaty in 1993
been consistently enforcing measures which increase the freedom of movement of
goods, services and people to levels that could have not been predicted thirty years
ago when Europe was divided by the Berlin Wall and Communist rule. Despite these
unprecedented developments however it is clear that it is exactly these freedoms that




                                                                                       130
have played in the hands of terrorists, while the cohesion of law enforcement agencies
across member states has not been blended enough to address terrorism affectively.
At the same time, the decision-making of the EU has often reached endemically
piecemeal pace. Differences between criminal law and procedure, the labour of
division and authority of police and judicial agencies as well as their relationships
with prosecution offices are substantial and they continue to be so despite of agencies
such as Europol and Eurojust.
The paradox is that the EU is calling on greater cooperation while EU member states
do not want to give up sovereignty on sensitive issues such as defence and security
but this is also true in circumstances when it seems that the EU’s powers are impeding
into spheres and policies such as norm-setting.


       A US-Europol agreement which extended to personal data sharing was
eventually reached but it took some serious convincing and assuring from the US side.
The EU showed that it would maintain its high threshold on the protection of personal
data and clearly showed that it was not going to give this tradition up. The same can
be said for EU’s aversion and wholesome absence of capital punishment in the EU
member states. Capital punishment does exist in the US, albeit not in all states.
Nevertheless, within the framework of the Bush doctrine, it was expressed on several
occasions that people charged of perpetrating terrorist attacks could face the death
penalty. This is something that the EU would not accept under any circumstances,
which was evident in its cautiousness in agreeing on the Mutual legal assistance and
extradition instruments. These are the few of the many reasons that the EU and US
would not be able to agree on a common counter-terrorism strategy. The agreement
on a common definition alone would be problematic, let alone dozens pages of
strategy. Compromises, at time very extensive ones, would have to be made but who is
to say if the EU or the US should cave in to the other’s demands.




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       Having to limit the amount of individual liquids to a maximum of 100ml when
travelling by plane is not a violation of any right, rather it is a precautionary measure
which was taken in the aftermath of the 2006 foiled terrorist plot which, if successful,
had the potential of being more disastrous than 9/11. It may be a source of annoyance
but it certainly is not an invasive violation of any sort. Having phones tapped and
communications data stored with or without prior knowledge, being held under
surveillance, having the freedom of speech curtailed, being detained without trial and
even in absence of a charge, being interrogated in inhumane conditions and being
marginalised on the basis of religion, nationality and ethnicity, on the other hand are
grave violations of fundamental human rights, some of which are considered
inalienable under all circumstances.


       With regards to the issue of human rights, my assumption was that when it
comes to deciding between human rights and security, the latter almost always wins
and is given unchecked leeway for most of the time. The grave error and perhaps one
of the very reasons why the protection of human rights is not being upheld is because
decision makers are convinced that there is a decision to make, when on the contrary I
have argued throughout this paper that this is not the case. A very fine line represents
the balance of protecting human rights and counterterrorism policies. The above
pages and especially the paragraphs which detail the kind of methods states resorted
to, to abduct and detain terrorist suspects have quite clearly shown that this balance
has been tipped into very deep waters. One may indeed wonder if such a balance even
existed in the wake of 9/11 and the era that followed. It could almost be said that with
the collapse of the Twin towers, the protection of human rights collapsed in order to
build security. In his 9/11 speech Bush claimed that “America was targeted for attack
because we are the brightest beacon for freedom and opportunity in the world. And no
one will keep the light from shining”. At that time, Bush enjoyed extremely high levels
of popularity among the American public, united by outrage and water-tight
patriotism. In his second inaugural speech in 2005, Bush reasserted that “We (the US)




                                                                                     132
will persistently clarify the choice before every ruler and every nation: The moral choice
between oppression, which is always wrong, and freedom, which is eternally right” and
“there is no justice without freedom, and there can be no human rights without human
liberty”.539 This time however, he did not have as much backing of people, not only
people around the world but the Americans themselves. Disillusioned by the
devastating never-ending war in Iraq as well as the recently leaked evidence that the
US was in fact behaving in ways that directly contradicted Bush’s praised US role of
value setter and guarantor, people started to realise that the war on terror was an
extremely dangerous doctrine.
        The use of torture and other actions which persistently violate human rights
has undermined the US not only as being the self-named superior defender of
fundamental freedoms and values but also as an entity with real and effective soft
power. After all, it can hardly expect that other countries will feel obliged to view the
US as a norm-setter. In this sense, the prediction that ‘unchecked US power, shorn of
legitimacy and disentangled from post-war norms and institutions of the international
order, will usher in a more hostile international system, making it far harder to
achieve American interests’540 has become a self-fulfilling prophecy. In this sense, I
allow myself to include a borrowed phrase; ‘you cannot be half-Wilsonian’,541 meaning
you cannot delegate values, rights, ideas and policies unilaterally, or in other words
without engaging in a dialogue through multilateral institutions which provide forums
for cooperation, coordination and negotiation. I would add that any source of human
rights and other values must first be strongly
        As was mentioned earlier, these human rights-derogating policies are used as
propaganda in the realms of Al Qaeda and other groups’ operatives and as a
justification that the West is waging a war against Islam and what it stands for. The

539 George W. Bush, Second Inaugural Address, delivered on 20 January 2005
http://www.npr.org/templates/story/story.php?storyId=4460172
540 Quoted in: JOHNSTONE, Ian. “US-Un relations after Iraq: the end of the world (order) as we know it?”

European Journal of International Law, Vol.15, no.4, 2004. p.836
John Ikenberry made this prediction in his Foreign Affairs article (September/October 2002) “America’s
Imperial Ambition”.
541 JOHNSTONE, Ian “US-Un relations after Iraq: the end of the world (order) as we know it?” p. 838




                                                                                                   133
measures thus have several adverse effects. Firstly, do not only serve to create
distrust among the domestic public, but more importantly and secondly they serve as
a catalyst of radicalisation in distant places, where governments may not be able to
prevent this from happening. The suicide bombers who perpetrated the London
attacks were UK bred citizens and even there and then, their radicalisation was not
prevented. It is thus justified to be sceptical about the prevention of radicalisation
elsewhere in the world. Thirdly, they have not been nearly as effective as their
initiators may have thought, hoped or expected and a majority of people will not
accept Dick Cheney’s argument that just because techniques like water-boarding did
bring about some results in intelligence spheres, they can be justified.
       The aforementioned ‘overbreadth’ characterization is very depictive in the
consequences that a broad definition condensed with vagueness can have on legal
systems. The examples of US as well as EU legislation has shown that, at times,
measures and sanctions were imposed which were disproportionate to the impact of
international terrorism and frequently resulted in excessively intrusive methods of
handling the situation, including arbitrary detention, excessive procedural measures
and ‘coercive interrogations’, to use Bush’s Orwellian euphuism.
       Ken MacDonald does not represent the whole world, not even a generic
approach in the UK but nevertheless I think it is worth mentioning that judicial
authorities are not always in favour of measures taken by the executive branch,
especially when they are in clear violation not only of the inalienable but human rights
in general.
       There is a dire need for a reconciliation of human rights and security and an
exclusion of those policies which propagate that this is an either-or combination. The
policies which are now in place cannot be erased but they can be withdrawn and
accountability should be sought after.
The US image been stained to the extent it is no longer as easy to get away with
imposing rules and values on others, while not complying with them or even profusely
violating them itself. Whether Obama can repair this much damaged image, which has




                                                                                    134
been characterised as ‘abysmal’542 in the Middle East is yet to be seen but one thing is
for sure: it will be a long way to go.
        The lines that are inserted at the beginning of this conclusion are thoughts,
which were expressed at the launch of a UN Global Strategy to counter terrorism. In
very few words, they summarise the risk that many governments have taken in the
past seven years, with the objective of increasing security. More often than not
however, human rights were subjugated to measures which in the end did not
increase security anyway; on the contrary, they may have decreased it and created a
loss on both fronts. Terrorism has resulted in divisions not only among nations but
also among people. If we refer to the divide et impera strategy then, the terrorist are
the biggest winners.




542The Pew Global Attitudes Project, “Global Unease with Major World Powers,” June 27, 2007, p.3
http://pewglobal.org/reports/pdf/256.pdf



                                                                                                   135
Abstract

The aim of this thesis is two-fold. The first part is focused on the counter-terrorism
policies which have been enacted or otherwise have been revived in the European
Union and the United States in the aftermath of the September 11th 2001 attacks. This
information is then used to achieve the second aim of this thesis which is the
relationship between counter-terrorist legislation and human rights. While in the first
part, most attention is paid to the proliferation of legislation in the EU, the second part
is devoted to the US since it is this country which has taken a more prominent role in
the human rights debate; in the negative sense. Guantanamo, a symbol of human
rights violations has existed for a surprisingly long period of time. But this is not to
say that there were not serious objections not only from human rights groups but also
from world’s governments, many of which European, and even officials and the
legislative branch in the US itself. This begs the question how, despite the deep
criticisms and thwarting transnational cooperation, the Bush administration has been
able to sustain its policy for so long. In an attempt to answer this question, a detailed
account of the development of the Bush doctrine is provided for. This, again is not to
say, that the US has been the only human rights violator in relation to counter-
terrorist legislation. Quite on the contrary, the controversial report compiled by Dick
Marty, the so called ‘Marty report’ has in fact made serious allegations and even
purportedly provided proof that a number of EU member states have been complicit
in CIA extraordinary renditions, a policy that has become yet another symbol of the
‘war on terror’. The report remains a source of contention but nevertheless receives
substantial attention.
The incoming Obama administration and the highlights of its policies related to
counter-terrorism and everything around it in the past three months will be
discussed, also so as to reflect on the future of, inter alia, transatlantic cooperation
which has been hindered, many times as a result of the Bush administration. In this
sense, some remarks are made towards the US role and image of a free nation, which




                                                                                       136
has been seriously stained in the past few years, and whether there is a chance of a
recovery.


Keywords: Al Qaeda, terrorism, Iraq, war on terror, George W. Bush, EU, Guantanamo,
Human rights, “black sites”, torture, security, imbalance, radicalisation




                                                                                137
List of abbreviations

11 September 2001 attacks- 9/11
11 March 2004 attacks- 3/11
7 July 2005 attacks- 7/7
American Civil Liberties Union- ACLU
Central Intelligence Agency- CIA
Common Foreign and Security Policy- CFSP
European Union- EU
Financial Action Task Force- FATF
Joint Investigation Team- JIT
Justice and Home Affairs- JHA
Prisoner of War- POW
Security Council- SC
Temporary Committee on the alleged use of European countries by the CIA for the
transport and illegal detention of prisoners- TDIP
United Nations- UN
United States (of America) - US




                                                                           138
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                                                                                     153
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                                                                                    154
KEOHANE, Daniel. The EU and counter-terrorism, Centre for European Reform,
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KNOPF, Jeffrey W. “Misapplied Lessons? 9/11 and the Iraq debate”, The
Nonproliferation review, Vol.9 no.3, Fall/Winter 2002.


MONAR, Jörg. “The EU as an International Actor in the Domain of Justice and Home
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Available at: http://www.law.ed.ac.uk/file_download/communities/44_j%20monar-
%20the%20eu%20as%20an%20international%20actor%20in%20jha.pdf


MYTHEN, Gabe and WALKLATE, Sandra, “Criminology and terrorism: which thesis?
Risk society or governmentality?” British Journal of Criminology, Vol.46, no.3, 2006.


O’HANLON, Michael. The American way of war: the Lessons for Europe In: EVERTS, S. et
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PRIETO, Daniel B. War About Terror: Civil Liberties and National Security after 9/11,
Council of Foreign Relations Working Paper, February 2009.
Available at:
http://www.cfr.org/content/publications/attachments/Civil_Liberties_WorkingPaper
.pdf


SCHAKE, Kori. The US elections and Europe: the coming crisis of high expectations, CER
Publications, November 2007.
Available at: http://www.cer.org.uk/pdf/e776_schake_nov07.pdf




                                                                                    155
SCHEPPELE, Kim Lane. “Other People’s Patriot Acts: Europe’s Response to September
11”, Loyola Law Review, University of Pennsylvania Law School: paper 57 Vol.50,
2004.


SHAH, Sangeeta, “The UK’s Anti-Terror Legislation and the House of Lords: The Battle
Continues”, Human Rights Law Review, Vol.6, issue 2, Oxford University Press, 2006.


SICHERMAN, Harvey. “Where have all the cowboys gone?” The National Interest,
Vol.76, Summer 2004.


TAYLOR, Stuart Jr. “Rights, Liberties and Security: Recalibrating the Balance after
September 11”, The Brookings Review, Vol.21, No.1, The Brookings Institution, Winter
2003.
Available at: http://www.brookings.edu/articles/2003/winter_terrorism_taylor.aspx


WADHAM, John. “Terrorism”, Archbold News, 2002


WILKINSON, Paul. International terrorism: the changing threat and the EU’s response,
Chaillot paper no.84, EU Institute for Security Studies, Paris 2005


WOEHREL, Steven. Spain In: ARCHICK, Kristin et al., European Approaches to
Homeland Security and Counterterrorism, CRS Report for Congress, 24 July 2006.
Available at: http://www.fas.org/sgp/crs/homesec/RL33573.pdf




Newspaper articles/ Press releases




                                                                                      156
Amnesty International. “Impunity for CIA officials is incompatible with USA’s
international obligations”, Amnesty International, 17 April 2009.
Available at: http://www.amnesty.org/en/news-and-updates/obama-accused-
quotcondoning-torturequot-20090417


BARRY, John, HIRSCH, Michael and ISIKOFF, Michael “The roots of Torture“,
Newsweek, 24 May 2005
Available at: http://www.newsweek.com/id/105387


BBC. “Blair plea to Bush on Guantanamo”, 26 June 2004.
Available at: http://news.bbc.co.uk/2/hi/uk_news/politics/3841731.stm


BBC. “Countries react to collusion charges”, 17 June 2006.
Available at:
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/5
055824.stm


BBC. “Germany readies for closest post-war poll”, 21 September 2002
http://news.bbc.co.uk/2/hi/europe/2273299.stm



BBC. “’New Europe’ backs EU on Iraq”, 19 February 2003.
Available at: http://news.bbc.co.uk/2/hi/europe/2775579.stm


BBC. “Obama exempts CIA ‘torture’ staff”, 17 April 2009.
Available at: http://news.bbc.co.uk/2/hi/americas/8003537.stm


BROWNE, Anthony and WATSON, Rory, “EU divided over proposal for new anti-terror
czar”, The Times, Brussels, 17 March 2004.
Available at: http://www.timesonline.co.uk/tol/news/world/article1047993.ece




                                                                                157
CARTER, Philip. “The Road to Abu Ghraib: the biggest scandal of the Bush
administration began at the top”, Washington Monthly”, November 2004.
Available at: http://www.washingtonmonthly.com/features/2004/0411.carter.html


CNN. “In CIA visit, Obama defends interrogation memo release”, 20 April 2009.
Available at: http://edition.cnn.com/2009/POLITICS/04/20/obama.cia/index.html
CNN, “Memo: Two al Qaeda leaders water-boarded 266 times”, Washington, 20 April
2009.
Available at: http://edition.cnn.com/2009/POLITICS/04/20/cia.waterboarding/


COOMARASAMY, James. “Interrogation ‘morass’ for Obama”, BBC News Washington,
21 April 2009.
Available at: http://news.bbc.co.uk/2/hi/americas/8009418.stm
ERTEL, Manfred et al. “America’s secret war: on the trail of the CIA”, Spiegel online, 12
October 2005.
Available at: http://www.spiegel.de/international/spiegel/0,1518,389789,00.html




FREEDLAND, Jonathan. “Patten lays into Bush’s America: Fury at president’s ‘axis of
evil’ speech’, The Guardian, 9 February 2002.
Available at: http://www.guardian.co.uk/world/2002/feb/09/politics.september11


Human Rights Watch, Human Rights Watch Statement on U.S. Secret Detention
Facilities in Europe, 6 November 2005.
Available at: http://www.hrw.org/en/news/2005/11/06/human-rights-watch-
statement-us-secret-detention-facilities-europe




                                                                                      158
Human Rights Watch, “US/EU: Help Close Guantanamo by accepting some detainees”
Human Rights Watch, 3 April 2009.
Available at: http://www.hrw.org/en/news/2009/04/03/useu-help-close-
guantanamo-accepting-some-detainees


Human Rights Watch, “US/Italy: Italian Court Challenges CIA Rendition Programme.
Rome should seek extradition of 26 Americans in Cleric’s Abduction”, 15 April 2008.
Available at: http://www.hrw.org/en/news/2008/04/15/usitaly-italian-court-
challenges-cia-rendition-program


KARON, Tony. “Why Guantanamo has Europe hopping mad”, Time, 24 January 2002
Available at: http://www.time.com/time/world/article/0,8599,197210,00.html
Human Rights Watch, “EU: Stand Firm Against Diplomatic Assurances”, 22 October
2008
Available at: http://www.hrw.org/en/news/2008/10/22/eu-stand-firm-against-
diplomatic-assurances


MACASKILL, Ewen. “Bush officials defend physical abuse described in memos released
by Obama”, The Guardian, Washington: 17 April 2009.
Available at: http://www.guardian.co.uk/world/2009/apr/17/bush-torture-memos-
obama-mukasey


MACINNIS, Laura. “U.S. "war on terror" eroded rights worldwide: experts”. Reuters
Geneva, 16 February 2009.
Available at: http://www.reuters.com/article/topNews/idUSTRE51F36120090216


NEMECEK, Tomáš. “Guantánamo: ne, dík” Hospodářské noviny, 28 January 2009.
Available at: http://hn.ihned.cz/c1-33495100-Guantánamo-ne-dik




                                                                                    159
NRC Handelsblad, “…en de rest van de wereld”, 21 January 2009.
Available at:
http://weblogs3.nrc.nl/commentaar/2009/01/21/en-rest-van-de-wereld/


“Our rights are priceless in the relentless struggle against terrorism says Sir Ken
MacDonald”, The Crown Prosecution Office press release, 20 October 2008.
Available at: http://www.cps.gov.uk/news/press_releases/163_08/


PLEMING, Sue. “Obama team drops “war on terror” rhetoric”, Reuters, The Hague:
Thomas Reuters, 30 March 2009
Available at:
http://www.reuters.com/article/politicsNews/idUSTRE52T7MH20090330


PRIEST, Dana and GELLMAN, Barton, “US Decries Abuse but Defends Interrogations;
‘Stress and Duress’ tactics used on terrorism suspects held in secret overseas
facilities”, Washington Post, 26 December 2002.
Available at: http://www.hartford-hwp.com/archives/27a/092.html


PRIEST, Dana. “CIA holds terror suspects in secret prisons: Debate is growing within
agency about legality and morality of overseas system set up after 9/11”, Washington
Post, 2 November 2005
Available at:
http://www.washingtonpost.com/wpdyn/content/article/2005/11/01/AR2005110
101644.html


PRIEST, Dana. “Wrongful imprisonment: Anatomy of a CIA Mistake. German citizen
released after months in rendition”, Washington Post, 4 December 2005.




                                                                                      160
Available at:
http://www.washingtonpost.com/wpdyn/content/article/2005/12/03/AR2005120
301476.html


PRIEST, Dana. “Bush’s ‘War on Terror’ comes to a sudden end”, Washington Post, 23
January 2009.
Available at:
http://www.washingtonpost.com/wpdyn/content/article/2009/01/22/AR2009012203929_pf.html



PRIEST, Dana. “Italy knew about the plan to grab suspect: CIA officials cite briefing in
2003”, Washington Post, 30 June 2005.
Available at: http://www.washingtonpost.com/wp-
dyn/content/article/2005/06/29/AR2005062902971_pf.html


“Rada Evropy: Veznice CIA v Evrope jsou fakt”, Aktualne.cz, 8 June 2007.
Available at: http://aktualne.centrum.cz/zahranici/clanek.phtml?id=442683


REYNOLDS, Paul. “Rendition report adds to terror debate”, 24 January 2006
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/4
644124.stm


ROSENBACH, Marcel and GOETZ, John, ‘“Massive and systematic violations” of human
rights: New report cites proof of CIA black sites’, Spiegel online¸8 June 2007
Available at: http://www.spiegel.de/international/world/0,1518,487325,00.html


SABA, Michael, “Is ‘Terrorism’ being defined by the ‘Terrorists’?”, Arab News, 19 June
2004. Available at:
http://www.arabnews.com/?page=7&section=0&article=47019&d=19&m=6&y=200
4




                                                                                      161
SHANE, Scott. “Torture versus War”, The New York Times/ International Herald
Tribune, Washington, 18 April 2009.
Available at:
http://www.nytimes.com/2009/04/19/weekinreview/19shane.html?_r=1&ref=politi
cs&pagewanted=print


“Spanish Presidency ready for take-off”, EurActiv, 18 December 2001.
http://www.euractiv.com/en/general/spanish-presidency-ready-take/article-
115160




The Economist, “Civil Liberties: The Freedom Paradox. Liberty has been the first
victim of the war fought in its name”, The Economist print edition, 31 August 2006.
Available at:
http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=7854426


The Economist, “Guantanamo: Promises to keep”, The Economist print edition, January
2009.
Available at:
http://www.economist.com/world/europe/displaystory.cfm?story_id=13031321


The Economist, “Torture and the law- that curious relationship”, The Economist print
edition, 5 February 2009.
Available at:
http://www.economist.com/world/britain/displaystory.cfm?story_id=13062575




                                                                                      162
Reports


ABERNATHY, Paul et al. Anatomy of a Terrorist attack: an in-depth investigation into
the London and Madrid Subway bombings of 2005 and 2004, Matthew B. Ridgway
Centre for International Security Studies at the University of Pittsburg 2006
Available at:
http://www.isn.ethz.ch/isn/DigitalLibrary/Publications/Detail/?ots591=0C54E3B3-
1E9C-BE1E-2C24-A6A8C7060233&lng=en&id=27221


Amnesty International, Military Commissions Act of 2006- turning bad policy into bad
law, AI Index: AMR 51/154/2006, 29 September 2006.
Available at:
http://www.amnesty.org/en/library/asset/AMR51/154/2006/en/509acb93-d3eb-
11dd-8743-d305bea2b2c7/amr511542006en.pdf




Amnesty International, Justice perverted under the Anti-Terrorism, Crime and Security
Act 2001, 11 December 2003
Available at:
http://www.amnesty.org/en/library/asset/EUR45/029/2003/en/4fcc7ec2-d65c-
11dd-ab95-a13b602c0642/eur450292003en.html


Amnesty International EU Office. Human Rights dissolving at the borders? Counter-
terrorism and EU Criminal Law, 31 May 2005.
Available at:
http://www.amnesty.org/en/library/asset/IOR61/013/2005/en/ab320693-d4e3-
11dd-8a23-d58a49c0d652/ior610132005en.html


Amnesty International, USA: Below the radar- secret flights to torture and
‘disappearance’, 5 April 2006.



                                                                                    163
Available at:
http://www.amnesty.org/en/library/asset/AMR51/051/2006/en/3edf2253-d447-
11dd-8743-d305bea2b2c7/amr510512006en.html


DOHERTY, Fiona and PEARLSTEIN, Deborah (eds.), Assessing the New Normal: Liberty
and Security for the Post-September 11 United States, Lawyers Committee for Human
Rights, 2003
Available at:
http://www.humanrightsfirst.org/pubs/descriptions/Assessing/AssessingtheNewNo
rmal.pdf


HEYMAN, Philip B. and KAYYEM, Juliette N. Long-Term legal strategy project for
Preserving Security and Democratic Freedoms in the War on Terrorism, National
Memorial Institute for the Prevention of Terrorism, November 2004




Human Rights Watch, Black Hole: the fate of Muslims rendered to Egypt, 9 May 2005.
Available at: http://www.hrw.org/en/reports/2005/05/09/black-hole-0


Human Rights Watch, Not the way forward: UK’s dangerous reliance on diplomatic
assurances, 22 October 2008.
Available at: http://www.hrw.org/en/reports/2008/10/22/not-way-forward


ICRC Report on the treatment of fourteen “high value detainees” in CIA custody,
February 2007.
Available at: http://88.80.13.160.nyud.net/leak/icrc-report-2007.pdf




                                                                                  164
International Commission of Jurists, Assessing Damage, Urging Action: Report of the
Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, , Geneva:
2009.
Available at: http://www.icj.org/IMG/EJP-report.pdf


LINDE van de, Erik et al. Quick scan of post 9/11 national counter-terrorism
policymaking and implementation in selected European countries, RAND Europe, May
2002.
Available at: http://www.rand.org/pubs/monograph_reports/MR1590/


Report of the Independent Expert on the protection of human rights and fundamental
freedoms while countering terrorism, UN document E/CN.4/2005/103, 17 February
2005.
Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/G05/106/94/PDF/G0510694.pdf?Open
Element


SUNDERLAND, Judith. “Setting an example? Counter-Terrorism Measures in Spain”,
Human Rights Watch, 26 January 2005
Available at: http://www.hrw.org/en/node/11860/section/1




Lectures


BURES, Oldřich, "EU Counterterrorism Policy after 9/11: A Paper Tiger?" Delivered at
the 2007 Annual Meeting of the American Political Science Association, August 30 -
September 2, 2007




                                                                                     165
GARTNER, Heinz. “European Security and Transatlantic Relations after 9/11 and the
Wars in Afghanistan and Iraq”, Paper presented at the annual meeting of the
International Studies Association, Hilton Hawaiian Village, Honolulu, Hawaii, 5 March
2005.
Available at:
http://www.allacademic.com/meta/p_mla_apa_research_citation/0/7/0/8/6/p7086
9_index.html


MACDONALD, Ken, “Security and Rights”, Speech to the Criminal Bar Association on
23 January 2007.
Available at: http://www.cps.gov.uk/news/articles/security_rights/


ROBINSON, Mary. “The Rule of Law: Striking a Balance in an Era of Terrorism”, The
International Rule of Law Symposium: Plan for Action Organized by the American Bar
Association and the International Bar Association, Chicago, 16 September 2006.
Available at:
http://www.abanet.org/rolsymposium/docs/mary_robinson_keynote.pdf




SCHMID, Alex. “Terrorism, the Definitional Problem”, Presented at the War Crimes
Research Symposium: "Terrorism on Trial" at Case Western Reserve University School
of Law, sponsored by the Frederick K. Cox International Law Center, 8 October 2004.


TUCHMAN MATHEWS, Jessica. “US and Europe: Estranged Partners”, US State
Department Open Forum Distinguished Lecture Series, 11 January 2002
Available at:
http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=891&prog
=zgp




                                                                                    166
Other


Amnesty International, No Justification for Torture Campaign.
Available at: http://www.amnesty.org/en/campaigns/counter-terror-with-
justice/issues/no-justification-for-torture


EUROPA Glossary, “Common Position (CFSP)”.
Available at: http://europa.eu/scadplus/glossary/common_position_cfsp_en.htm


European Commission, “Eurojust coordinating cross-border prosecutions at EU level”,
updated February 2005
Available at: http://ec.europa.eu/justice_home/fsj/criminal/eurojust/fsj_criminal_eurojust_en.htm



European Commission, “The EU fight against the scourge of terrorism”, updated
March 2006.
Available at:
http://ec.europa.eu/justice_home/fsj/terrorism/fsj_terrorism_intro_en.htm


FLETCHER, Holly. “Aum Shinrikyo (Japan, cultists, Aleph, Aum Supreme Truth)”,
Backgrounder, Council on Foreign Relations, updated 28 May 2008.
Available at: http://www.cfr.org/publication/9238/


“Operation Enduring Freedom- Afghanistan- Planning and Implementing”
Available at: http://www.globalsecurity.org/military/ops/enduring-freedom-
plan.htm




                                                                                                    167
“US Response, Attack on Afghanistan”, Background information
http://www.guardian.co.uk/flash/0,,567567,00.html




                                                               168

				
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