Democracy against Security: the debates about Counter Terrorism in the European Parliament, September 2001-June 2003

The counterterrorism policies elaborated in the EU countries in the aftermath of 11 September 2001 are characterised by the wish to strengthen the international co-operation networks among the law enforcement agencies, the intelligence services and the judges, and by the introduction of several exceptional measures, adopted on a temporary or even permanent basis.

Relying on the assumption that some guarantees offered by the law with regard to civil rights and liberties are not compatible with an efficient fight against the new terrorist threat, exceptional rules are presented nowadays as absolutely necessary for the protection of the European populations. Yet, the diffusion of this model of governance all over the EU countries has provoked numerous expressions of criticisms within both their political world and their civil societies.

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

The debates before 11 September 2001

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

The persistence of the phenomenon in several EU countries (namely Spain, France, and Greece), its resurgence in Italy, as well as its evolution in the international context pushed, however, the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs to prepare a report on the role of the European Union in combating terrorism in order to promote the creation of a common area of freedom, security, and justice. This report (A5-0273/2001) written by Mr Watson and presented to the European deputies in the perspective of the adoption of a relevant recommendation during the sitting of 5 September 2001, calls on the Council of Ministers to establish common minimal laws and penalties, to abolish formal extradition procedures, to apply the principle of mutual recognition of criminal judgments and to establish a European search and arrest warrant in the fight against terrorism. The Watson report gave rise to several reactions amidst the European deputies and allows us, on the one hand, to examine the positions held before the terrorist attacks of 11 September 2001 with regard to the adoption of emergency rules in the name of the fight against terrorism and, on the other hand, to compare them with the ones expressed in the aftermath of 11 September.

One of the major features of the debate on terrorism prior to 11 September 2001 is the fact that, though some European deputies tackle the issue of the dangers the counterterrorist measures might imply for civil rights and freedoms in the Member States, the debate does not focus on it as if this threat remained still hypothetical and could not inspire any deep worries. The relative lack of attention accorded to this issue is clearly demonstrated by the fact that it is addressed by only four speakers out of twenty-four (16.6%). The content analysis uncovered two main positions: the denial of any infringement of civil rights and liberties due to the proposed counterterrorism policy and the warning against the future breach of human rights. It should be stressed that nobody pronounced any arguments in favour of the adoption of emergency rules.

The denial of any infringement of civil rights and liberties

This position is adopted by the rapporteur of the aforementioned report and by one member of the PPE-DE. According to it, the harder counterterrorism measures to be adopted should be accepted not only because they are considered absolutely necessary in the fight against terrorism, but also because they cannot jeopardize human rights. Therefore, the rapporteur defends the new counterterrorism policy by completely dissociating its allegedly correct conception from any probably erroneous implementation. Taking thus for granted the well-foundation of his proposal, he does not see any possible contradiction between its provisions and the protection of civil rights and liberties insofar as its implementation does not violate the rule of law. Consequently, he specifies that his report «opposes the introduction of exceptional laws and procedures» for «such measures [...] deprive governments of moral superiority and can descend into instances of State-sponsored terrorism. Herein lies a potential danger to democracy» [3].

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

The warning against the breach of human rights

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

The debates after 11 September 2001

The sittings of the immediate aftermath of 11 September

Unsurprisingly, the 11 September 2001 terrorist attacks marked a major turning point in the debates of the European Parliament on combating terrorism for they triggered off many discourses legitimating or discrediting the adoption of emergency rules on that matter.

Nevertheless, the emotion provoked by these attacks was so strong that the first two sittings, which took place in the immediate aftermath of 11 September [8], are characterised by a wide consensus on the need to strengthen the repression of terrorist acts through the reinforcement of the international cooperation in the field of gathering and processing information, and the harmonisation of judicial and legal systems. Furthermore, in both sessions the debate does not correspond to any specific proposals. Consequently, the emergency rules issue remained marginal and was tackled only by a small minority of speakers, i.e. seven out of fifty-seven (12.2%). The content analysis uncovered three main positions: the defence of the emergency rules thesis, the expression of a twofold concern and the defence of the human rights thesis.

The defence of the emergency rules thesis

The arguments advanced in the defence of the emergency rules thesis are both direct and indirect. In the first case, they associate the terrorist threat with two allegedly relevant phenomena, i.e. immigration and free electronic communication, while, in the second one, they attribute the growth of the threat to a structural weakness of the previous legal framework. These arguments are advanced by two independent deputies, one member of the UEN and one member of the PPE-DE.

From a quantitative point of view, the most important of the aforementioned arguments is the one establishing a continuum of threats following the idea that there is a close connection between terrorism and immigration. Taking for granted that «people living on the fringes of the law are entering our countries» [9], the strengthening of the border controls is presented as an absolute necessity («Europe is going to have to understand that security must take priority over abolishing controls at borders and elsewhere» [10]) that can even imply the suspension of the free movement at the internal borders of the Schengen area («we call upon the European Union to think again about whether it needs to establish effective border controls, even suspending Schengen temporarily» [11]). Relying on the assumption that the nexus terrorism-immigration represents a major threat to the internal security of the EU countries, this discourse reaches its peak when it goes beyond the border controls and includes indistinctly all foreigners living on the EU territory. The Council is thus called to «undertake an immediate examination of all the texts, particularly those which relate to the movement of people, from a security point of view rather than the perspective of the systematic abolition of checks» and it is specified that this approach should not concern only the forthcoming provisions but should also imply «a systematic revision of the texts that have already been adopted, in the light of the need for the security and protection of our people, which is now a priority» [12]. Henceforth, the suspicion is hanging over all foreigners, regardless of their legal status, and can easily be extended towards the asylum seekers : «if necessary, [we must] abolish all the provisions that may be used to establish and develop terrorist networks in our countries, whether they relate, for instance, to Community transit, border controls, family reunification or application for refugee status» [13].

This direct call for the adoption of exceptional rules with regard to the migrants goes together with the wish to establish an efficient control of the users of the web, the freedom of which has already been the object of many criticisms, both in the EU and the USA, as it has been associated with the development of several criminal phenomena (paedophilia, racism, etc.). The terrorist threat being, by far, more dangerous than the ones engendered by the aforementioned criminal behaviours, it is believed that its spectrum will curb the resistance of the civil society and the hesitation of the decision makers. Consequently, there is a «call for regulation of the use of the Internet, for rules to be established at last, for [...] the lack of rules governing the use of the Internet make it easy for terrorism to gain support and operate at international level» [14].

These arguments pleading directly for the adoption of emergency rules are backed up by the assumption that the terrorist threat would have been less important if the previous legal framework had been less concerned with the protection of human rights. This protection is therefore presented as opposed to the protection of the security of the EU countries. Following this idea, such an antinomy between two different collective values should not lead to any disorder for it is implicitly admitted that the human rights value is hierarchically inferior to the security one. Consequently, it can be stated that: «such arrangements [the Europol agreement with the USA on the exchange of data] have previously foundered on our making our data protection provisions into the measure of all things. Our protection of data has therefore been of more use to the terrorists than it has to their victims» [15].

The twofold concern

This position, which is expressed by the President-in-Office of the Council and the aforementioned rapporteur, is quite close to the one adopted by the defenders of the emergency thesis insofar as it relies on the assumption that the human rights value is opposed to the security one. An excessive protection of the one will thus inevitably provoke the weakening of the protection allowed to the other, and vice versa. But, at the same time, it remains different from the defence of the emergency rules position for it does not proceed to any hierarchical classification. The human rights value is believed to be equal to the security one. The current political problem consists simply in inventing a new legal framework liable to respect this equilibrium. It is not surprising then that this discourse uses frequently the term ‘balance’, which, on the one hand, illustrates this ideal of social equilibrium and, on the other hand, is closely linked to the very idea of justice. Therefore, it is generally asserted that «we must guard against upsetting the delicate balance between the needs of security and the civil liberties» [16], while, when it comes to specific questions, it is stressed that the EU authorities must «ensure that a suitable balance is struck between the protection of privacy and the needs of the investigative authorities» [17].

The defence of the human rights thesis

This position, which is solely adopted by one independent deputy, is limited to the reminding that, in our open societies, the fight against all forms of criminal behaviour should not go beyond the limits of the law and should not cause any breach of the civil rights and liberties of the populations living on the EU territory. It is therefore pointed out that «the tools used [in this fight] should be the tools of justice, that is, not by suspending the rule of law or suppressing liberties, but on the contrary, by maintaining them» [18].

The sittings from 28 November 2001 onwards

The attention allowed to the emergency rules thesis starts growing on and after the sitting of 28 November 2001, i.e. when the deputies began debating about the Watson Report (A5-0397/2001) and the Gebhardt Report (A5-0398/2001), on behalf of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, dealing respectively with the Commission proposals for a Council framework decision on combating terrorism and on the European arrest warrant, and with the draft Council decision setting up Eurojust. The issue is tackled by fifty-three speakers out of ninety-three (56.9%). Most of them made their speech in the sittings of 28 November 2001, 6 February 2002 and 23 October 2002 [19]. The content analysis has uncovered four main positions: the defence of the emergency rules thesis, the denial of any infringement of civil rights and liberties, the twofold concern and the defence of the human rights thesis.

The defence of the emergency rules thesis

The line of attack of the defenders of the emergency rules thesis remains quite similar to the one adopted during the previous sittings, insofar as they use both indirect and direct arguments. But, while the indirect arguments attribute always the rise in insecurity to the weakness of the previous legal framework, the direct ones go beyond the simple association of terrorism with immigration. On the one hand, they seek to justify the adoption of emergency rules in the name of the protection of the internal security and, on the other hand, they seek to discredit the defenders of the human rights thesis. These arguments are advanced by three members of the PPE-DE, two members of the UEN and one independent deputy. They are also used once by the representative of the Commission. If we add these findings to the ones uncovered during the two previous sittings, it comes out that the defence of the emergency rules thesis has been adopted in general by four members of the PPE-DE, three members of the UEN and three independent deputies. It has been also adopted once by the representative of the Commission. Yet, if we take into consideration the number of deputies within each political group, it comes out that the NI and the UEN are overrepresented.

The establishment of a close link between terrorism and immigration is always present («we need to strengthen control at the European Union’s external borders if we want to combat the menace of terrorism effectively» [20]) but it occupies a less important place than in the previous sittings. Henceforth, the attention is drawn to the measures proposed by the aforementioned reports and to the mapping of what should be the future EU counterterrorism policy.

At a first place, the request for strengthening the counterterrorism law relies on the assumption that democratic regimes are attractive to terrorists due precisely to their liberal political system. Democratic openness and tolerance are identified with permissiveness. It is thus asserted that «due to its liberality and its tradition of welcoming political exiles, Europe has become a place of refuge for numerous radical and terrorist groups [...] These extremists take advantage of the facilities made available to them by the democratic systems, organise themselves, find funding, recruit new members and plot attacks against targets on our continent and throughout the world» [21]. Therefore, if democratic societies wish to prevent terrorists from using «the free and open society with its facilities to quietly prepare terrorist acts which they commit elsewhere» [22], they must introduce new, harder counterterrorism measures, the efficiency of which might even imply the adoption of emergency rules.

The need to adopt such rules is all the more urgent as the aforementioned structural weakness of democratic regimes is reinforced by the fact that democratic legal frameworks are allegedly overprotecting civil rights and freedoms at the expense of security. Since democratic societies are not believed to be structurally adapted to the security requirements arisen by such a situation, emergency rules are presented as a socially vital measure, which must be introduced in the name of the efficient protection of the internal security of the EU countries and of the rest of the world. One of the most common ways to illustrate such a necessity is the use of medical metaphors. It is not surprising then that terrorism is compared to a disease growing within social bodies («the evil seed of violent terrorism is sown in the very growth cell of the social organism» [23]) for such a metaphor includes, as an immediate consequence, the recourse to an appropriate medical treatment. Like all medical treatments, emergency measures are unpleasant but strictly necessary for the well-being of the EU societies. It can be therefore asserted that though «none of us likes the restrictions and controls that hit all of us and limit everyone’s rights to freedom [...] we have to accept them because we do not know where, and precisely who, the enemy is» [24]. This view is also shared by the representative of the Commission, who, admitting implicitly that democratic systems are unable to ensure an efficient protection of their internal security, proceeds to a hierarchical classification of values and states that «what is currently at stake in the fight against terrorism is not only the protection of our principles, it is, first and foremost, the protection of our fellow citizens» [25].

Following this point of view, all persons opposed to the introduction of such measures should be denounced for endangering the security of the EU populations. The defenders of the human rights thesis are thus discredited according to two main schemes, related respectively to political and moral arguments. On the one hand, their discredit relies on the tautological use of the term democracy. The very fact that security measures are adopted by democratic governments functions as a shield against all undemocratic drift and, by the same token, guarantees their moral superiority: «there are still those who seek to apologise for the terrorists and try to establish some sort of moral equivalency between terrorist acts and, for example, the actions of the security forces of the democracies engaged in counter-terrorism» [26]. The introduction of the moral element in the discourse has the advantage of displacing the debate towards an abstract meta-political state that cannot be subject to any rational instruments of control. From this point of view, the moral element offers a much safer line of attack than the political one for it cannot be rejected through the mentioning of objective, quantifiable facts. Judgements and evaluations of what is moral or not are highly subjective and, as such, remain always equal at the discursive level. At the same time, the introduction of this moral element subordinates the law to moral concerns and considers that the protection offered by the current legal systems should vary following the moral qualities of the persons to whom they are applied. Individuals are thus divided into morally superior and inferior ones. They are no more supposed to be equal before the law for they are perceived as moral persons rather than subjects of the rule. As the morally inferior should not be entitled to the same guarantees offered by the law to the morally superior, it is stated that the future Council framework decision «is very skewed and contains [...] excessive concern with the rights of terrorists and extremists and those that support them» [27]. The establishment of this unequal legal treatment of individuals is further reinforced by another morally orientated argument, related to the victims and to the sense of justice : «I also wish to condemn those voices that have been raised, which are much more concerned about safeguarding the rights and freedoms of terrorists than with remembering the harm, the suffering and the despair that these people inflict on their victims, not to mention the sense of injustice and impotence engendered by such acts» [28]. According to this reasoning, since terrorists are morally inferior to all other individuals and especially to their victims, the protection of their rights and freedoms is opposed to the very sense of justice. Furthermore, such a protection is politically undesirable for it can even jeopardize the stability of democratic regimes insofar as it can call into question the law abiding citizens’ trust in democratic political and legal institutions.

Consequently, not only emergency rules are presented as strictly necessary in order to protect the internal security of the EU countries and of the rest of the world but also they are turned into one of the major conditions of the very survival of all democratic systems put under the terrorist threat. As their justification cannot rely directly on legal grounds, their adoption and implementation require the subordination of the law to moral concerns [29]. The defenders of this thesis are aware of the fact that the normative principle of equality before the law depends on a moral rule, according to which the requirement that persons should be taken into account is «not dictated by the value of equality itself but by the individual moral worth of each person» [30]. Therefore, the calling into question of the equality before the law of some persons requires the denial of their moral worth; inversely, the denial of this moral worth is the only way to obtain the breach of the equality before the law. The emergence of moral tellers at this stage plays a crucial role for this denial cannot be applied by judges unless the legislator has precisely asked advice from some moral experts in order to formulate new, more appropriate moral rules [31]. If we consider now that the «rights under the civil law displace the bare exercise of power universally» [32], it is obvious that the denial of these rights to the members of some morally defined subgroups implies a new positioning of state power, i.e. a new definition of the relationships between state and individuals. This redefinition of state power cannot, on its turn, be achieved unless it excludes some subgroups from the subjects of the rule category in order to deny their entitlement to the legal protection of their civil rights and freedoms [33].

It should be pointed out here that the establishment of this division between morally superior and inferior individuals is facilitated by a more widely accepted division between culturally superior and inferior individuals. During the debates that took place in the immediate aftermath of 11 September 2001, the terrorist attacks are constantly qualified by the members of all political parties as «barbaric» attacks on the «civilised world» [34]. Of course, we could suppose that the term «barbaric» is used in order to designate the fierce and brutal character of the attacks. But, its frequent opposition to the term «civilised world» suggests that «barbaric» is mainly used in its initial meaning, which designates uncivilised foreigners [35]. The establishment of this view relies on a hierarchical classification of civilisations following two principles: the civilised world is synonymous with the Western world, and all non-Western countries are culturally inferior insofar as they do not share the same democratic ideals. As these democratic ideals include some major moral principles, related namely to the human rights issue, this alleged cultural superiority can easily imply a moral one, discrediting thus completely the political and philosophical system these terrorists rely on and facilitating their aforementioned transformation into morally inferior persons [36].

The denial of any infringement of civil rights and liberties

This position has been adopted three times by the representative of the Commission and once by the rapporteur Watson and the representative of the Council. It has been also adopted by one member of the PPE-DE, one member of the PSE, one member of the UEN and one member of the Greens/ALE. These findings show clearly that the main defender of this position has been the representative of the Commission. The supporters of this thesis seek to defend the proposed EU counterterrorism policy and structure their arguments around three main axes: the promotion of the European integration, the concern for the protection of human rights, and the protection of some specific civil rights and freedoms.

In the first case, it is sought to legitimate the resolution by showing that its provisions reinforce the European integration process insofar as they continue and develop previous EU political decisions. It is thus pointed out that «the definition of terrorism is entirely in line with the 1977 Council of Europe Convention» [37], while the proposed measures constitute «a giant step forward in complying with the Tampere agreements and in creating a European area of freedom, security and justice» [38], «a huge step forward in European integration» [39].

As the human rights issue has underlain the whole construction of the EU space and has constituted one of its core features, it is taken for granted that the presently proposed measures cannot possibly break this legal tradition and imply an infringement of civil rights and liberties. Consequently, the debate does not focus on the measures themselves but on the importance of the human rights issue within the EU. What is suggested is that there is no point in discussing the democratic character of measures that, by definition, cannot be undemocratic since they have been elaborated by the representatives of the EU institutions, who have always sought to comply with the human rights and the rule of the law. It is therefore asseverated that «our actions must be seen in the context of our unswerving support for democracy, human rights and the rule of law» [40], that «the resolution requires the creation of conditions to combat terrorism within the context of absolute respect for the law and human rights» [41], and that «our response to terrorism is based on the determination [to undertake an international cooperation] with full respect for our democratic principles, with a view to enhance both the protection of fundamental freedoms and the rule of law» [42]. The refuting of the criticisms formulated against the resolution relies thus on the constant reminding of the importance allowed, on a permanent basis, to the human rights issue: «the measures that have been taken at European level and in the Member States concerning the fight against terrorism have been adopted with a strict respect for the rule of law and the characteristics of an open society. Nobody can criticise the measures [...] as being emergency or exceptional rules. They are fully integrated into our common legal framework.» [43]. Therefore, since these measures comply with the human rights prerequisites, while strengthening the fight against terrorism, they are presented as strictly necessary for the protection of democratic systems: «it needs to be made very clear that none of these measures makes the slightest reduction in the civil liberties of European citizens. The opposite is the case, we are giving the judicial system instruments to enable it to better protect everyone’s freedom» [44].

Even when this abstract discourse seeks to soothe down the fears expressed by some deputies with regard to the infringement of some specific civil rights and freedoms, the arguments used remain attached to the aforementioned tautological scheme. The refuting of these criticisms does not rely on an analysis in depth of the proposed measures. It is solely structured around the expression of a sheer political will («we must not deny legitimate political expression of grievances» [45]) and merely points out that «the framework decision is without prejudice to the exercising of human rights, in particular, the right of association, expression and demonstration» [46] and that the resolution cannot apply to «legitimate action, for example in the context of the activities of unions and anti-globalisation movements» nor to «acts of violence committed incidentally in the context of certain demonstrations» [47].

The twofold concern

This thesis seems to epitomize at best the position held by the representatives of the EU institutions as it has been adopted four times by the representative of the Commission and three times by the representative of the Council. As a matter of fact, it is the most frequently adopted position by both the Council and the Commission. Apart from the representatives of the EU institutions, it is defended solely by the rapporteur Watson (once) and by two members of the PSE. The arguments underlying this thesis are now far more developed than the ones used in the debates that took place in the immediate aftermath of 11 September. We can discern three main points: the theoretical presentation of the dilemma, the weakness of the democratic systems against the terrorist threat and the need to balance opposed social interests.

The aforementioned pattern of the twofold concern, i.e. the conflict between two equally important social values [48], is presented here in a most explicit way, through the use of the term dilemma. The introduction of this term, which refers to the choice between two equally balanced alternatives, thrusts aside the question of the conflict itself. Henceforth, the debate focuses on the solution to be found, not on the veracity, on the existence of the problem. It is thus possible to state that the terrorist threat arouses «a fundamentally political dilemma: is it acceptable to restrict our freedom in order to protect ourselves against terrorism? Are our efforts to protect our freedom and safety resulting in the creation of a Big Brother society? Where do we draw the line?» [49]. The tackling of the issue through such rhetoric questions fulfils two distinct functions. On the one hand, it allows the defenders of this thesis to show that the possible sacrifice of human rights results from a thorough consideration of the whole matter. Therefore, it cannot take any disquieting dimensions and, most of all, it should not be considered a sign of an undemocratic attitude: «the only way to make terrorism absolutely impossible is by a sort of global Orwellianism, which would itself provoke from liberals, like the President-in-Office and myself, the sort of assault others might regard as terrorist. We have a real paradox here» [50]. On the other hand, the answers given to such rhetoric questions can offer new legitimating bases, making reference to indisputable intellectual personalities. It is therefore possible to state that «Karl Popper gave us some guidance when he said: ‘If we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them’» [51]. It should be stressed however that this kind of theoretical reference is nothing more than a typical example of misusing de-contextualised abstracts for it is structured around an apparent similitude between two essentially different contexts. The use in the present counterterrorism context of Popper’s ideas, which were referring to the need to protect democratic systems against the totalitarian threat, attributes a more general range to Popper’s thought and allows the insinuation that he was actually accepting (or that he could have surely accepted) the idea of some limited restrictions of civil rights and liberties in the name of the efficient protection of the security of democratic societies.

When it becomes legitimated in that way, the idea of restricting liberties imposes itself as the sole evident solution to the alleged conflict, following the general legal pattern that whenever the law protects two or more opposed values one of them must be sacrificed or redefined so that it becomes subordinated to the other [52]. As the existence of this conflict is taken for granted, the debate focuses solely on its origin. Following the conceptual scheme that we have observed before, it is asserted that the conflict arises from the structural incapacity of open societies to defend themselves against security threats. Consequently, the measures to be adopted will «demonstrate that democracy is not weak when it comes to fighting organised crime or terrorism» [53]. Democracy is still associated with freedom but, henceforth, freedom is associated with responsibility, as if its full exercise in a context of growing insecurity were a sign of weakness, of irresponsibility jeopardizing the very existence of democracy. Therefore, it is stated that we must «respect the rule of law and the fundamental freedoms of the citizens, but, at the same time, we know that with freedom comes the responsibility to resolutely combat crime and terrorism, and we will therefore combat crime and terrorism resolutely» [54]. This coupling of freedom with a positive term (responsibility) rather than a negative one (restriction) lessens even more the undemocratic character of the proposed measures and presents them as positive factors of the growing process of democratic societies and not as negative factors of a regressing democratic process.

As we have remarked before, one of the key notions of this thesis is the notion of balance. The frequent use of this term fulfils two different functions. On the one hand, it suggests that the measures in question should not be attributed to undemocratic intentions for they are just a necessary democratic response to new security problems, the emergence of which requires the redefinition of political priorities through the establishment of a new balance between opposed collective values and interests. It is thus stated that «the draft document adopts a balanced approach that respects both the legitimate interests and fundamental rights of Europe’s citizens and the need for the effective coordination of investigations and prosecutions» [55], that «terrorists should not have the freedom to repeat the atrocious crimes that they have committed, but, at the same time, we need to ensure that the fundamental freedoms which we all hold dear are also respected» [56], and that «the anti-terrorist legislation [...] is designed to strike a balance in which we, on the one hand, respond to terrorist crimes but, on the other hand, also promote and defend legal certainty in the process» [57]. On the other hand, the term balance is doubly reassuring. First of all, it is closely associated with justice and equity and, second, it is always perceived as the result of a conscious effort rather than that of a fortuitous act. In the present case, its use suggests that the new balance to be achieved will be the outcome of a thorough consideration, which will guarantee the absence of any exaggerated, disproportionate measures, obtaining thus the optimum result under the current circumstances. Though it is admitted that the «balance between freedom and security [is] difficult [to achieve]» [58] it is believed that the present situation requires that «the right balance [is] struck between the basic rights guaranteed in democratic societies and the need to fight terrorism» [59], so that the future EU counterterrorism policy can become «a giant step forward in complying with the Tampere agreements and in creating a European area of freedom, security and justice, [...] respecting the balance between freedom and security» [60].

The defence of the human rights thesis

Contrary to what has been observed in the debates that took place in the immediate aftermath of 11 September 2001, this thesis is adopted now by thirty speakers, becoming thus the most frequently adopted of all positions. More specifically, it is adopted seven times by six members of the GUE/NGL [61], six times by five members of the PSE [62], three times by two members of the ELDR [63], and twice by the representatives of the Council. It is also adopted by four members of the EDD, by four members of the Greens/ALE, by two members of the PPE-DE and by two independent deputies. If we take into consideration the number of deputies in each political group, the members of the GUE/NGL, the EDD, the Greens/ALE and the ELDR are overrepresented. It should be stressed that this thesis has never been adopted by the representative of the Commission.

The arguments of this thesis are structured around three main axes: the denunciation of the principle of adopting emergency rules, the jeopardizing of democracy, and the denunciation of governmental securitarian policies.

In the first case, what is being denounced is the very principle of adopting emergency rules that will restrict civil rights and liberties. At this stage, the defenders of this position analyse neither the reasons underlying the adoption of these measures, nor its impact on the EU’s open, democratic societies. It is thus stated that «in [Spain], nobody has given in to the temptation of implementing or asking for emergency measures» [64], that «Parliament has an obligation to defend [our democratic system and rights] with the same enthusiasm [as the one shown with regard to its counterterrorism policy]» [65], that «it is dubious [...] to have a special legal system within a legal system» [66], that «the best way to combat the scourge of terrorism is precisely to do so on the basis of our system of values and with the law behind us» [67], and that «it is clear what needs to be done: respect for the rule of law, protection of rights, scrutiny of the action our states take to deal with terrorism» [68]. It is specified that «in the EU, we are very aware of the fact that the combating of terrorism must not involve infringements of human rights. Just as the end must not justify the means and can never legitimise terrorism, so the end must not justify the means in our fight against terrorism» [69]. Consequently, «any measure that is taken cannot and must not call into question full respect for, assurances of, and the promotion of the fundamental and human rights that have always underpinned European construction» [70].

The denunciation of the emergency rules is justified by the threat that such a legal system may represent for democratic societies. This threat is situated at two interdependent levels related respectively to the legal structure of the delimitation of the exercise of the state power towards the people (rule of law) and to one of the major materialisations of this delimitation with regard to the people (civil rights and freedoms). In the first case, the draft resolution is considered to be «one of the most illiberal and dishonest measures ever to come out of the EU, one with potentially enormous consequences» [71] because in the name of the defence of democracy it undermines the very foundations of democratic systems, allowing thus a tremendous victory to terrorists, whose «chief target is the open society. That is why we must not, in our eagerness to combat terrorism, undermine the heart of democracy. The rule of law must never be sacrificed on the altar of our drive to act. Special rules, military tribunals and unclear reasons as to why an individual or group has found its way onto a certain list are unacceptable [...]. We must not become enemies of the open society ourselves» [72]. Consequently, «when, as we must, we combat terrorism, we must do so by employing, rather than weakening, the Rule of Law» [73]. This respect of the rule of law should go together with the respect of its corollary, i.e. civil rights and liberties. Following the idea that all arguments restricting civil rights and liberties should result from the principle of liberty itself [74], it is considered that «under no circumstances should [the fight against terrorism] serve as a pretext for gagging our fundamental rights and democratic freedoms» [75], that «we will not stamp out this scourge by restricting democratic freedoms» [76], that «the rule of law and human rights must not be undermined in the process of carrying out this important fight [...] under the shadow of 11 September, there is a risk of fundamental rights being neglected in the fight against terrorism» [77], and that «combating crime must be done in full compliance with the rule of law and not call citizens’ rights into question. [...] our fight for security cannot and must not undermine freedom [...] we cannot allow the principles of law and civic rights to become victims of this combat» [78]. What is advanced here is the integral nature of these rights that guarantee the functioning of democratic systems insofar as they remain intangible. These rights cannot become relative, their value bears no restriction; only under that absolute form can they constitute the foundation of democracy and, in consequence, can they legitimate the use of force by the public authority: «the determination to eradicate terrorism and the urgent need to set up new and effective instruments to achieve this cannot, under any circumstances, disproportionately affect individual rights, freedoms, and guarantees. It is the affirmation of the intangibility of fundamental rights that underpins a public authority’s legitimacy to use force in democracies» [79]. Consequently, «any fight that forgets these priorities [principles of law and human rights] will ultimately constitute an unjustified acceptance of barbarity and a step backwards in terms of civilisation» [80].

The third set of arguments of the defenders of the human rights thesis relies on the assumption that the adoption of emergency rules cannot possibly prevent terrorists from committing attacks on Western countries for this behaviour results from the despair of many poor, oppressed, and powerless third-world people [81] and cannot be controlled unless the EU adopts a conflict prevention policy and a development aid policy towards third world countries [82]. Therefore, the proposed adoption of an emergency legal framework shows nothing more than the political will of national governments to further strengthen the securitarian aspect of their policies implemented with regard to various social issues. It is thus stated that «the war on terror has little to do with combating terrorism and instead has as its primary objective the erosion of fundamental rights in the EU» [83] and that the Watson report is a text «which, in the name of the fight against terrorism, merely seeks to place the most basic democratic freedoms in jeopardy» [84]. The fact that the war against terrorism may serve as a pretext to reinforce securitarian governmental policies is denounced by several deputies, who consider for instance that «many European governments are using the criminal terrorist action of 11 September against the United States as an excuse to issue further legislation curbing freedoms which has nothing to do with combating terrorism [while] their objective is to curb and control growing political opposition to a world social and economic order which is unfair and inhuman» [85]. Other voices point out that «on the pretext of combating terrorism [this resolution] actually seeks to criminalise social demonstrations» [86] and that «the various European governments are in the process of developing a real arsenal to curb freedom. It is now common to draw parallels between immigrants, young people, delinquents and terrorists» [87]. As the tackling of such an alleged global threat requires henceforth the constant reinforcing of the intelligence services, it is considered that «the anti-terror legislation [...] does not, in any sense serve primarily to combat terrorist activities; above all it gives the EU greater power to conduct investigations through, for example, the Schengen Information System II and the European arrest warrant [that means] a greater intervention by the modern civil state and a weakened right of defence for the accused, whoever they may be» [88].

Conclusion

The findings of this study reveal two major trends. First, the emergency rules issue is hardly tackled before the 11 September 2001 terrorist attacks. Second, when the issue does become prominent, i.e. in the aftermath of these attacks, the defence of the emergency rules thesis comes from a very small minority within the European deputies, the majority of which has strongly defended the human rights thesis.

It is not possible, however, to find such a clear-cut position within the representatives of the EU institutions. Though the representatives of the Council have never defended the emergency rules thesis and, on the contrary, have argued in favour of the human rights thesis, their dominant position lies with the seemingly moderate but actually illiberal twofold thesis. As regards the representatives of the Commission, the predominance of the twofold position is further reinforced by the importance allowed to the denial of the infringement of civil rights and liberties. Besides, their support for the emergency rules thesis is not simply shown by the defence of this position but also by the absence of any open defence of the human rights thesis. It is therefore possible to affirm that, in most cases, the EU institutions seek to present the future adoption of emergency rules as a necessary step to be taken in order to protect the internal security of the EU countries and of the rest of the world.

Traditionally, the restriction of the democratic space that results from such a policy is associated with a brutal or gradual change of regime, passing from democracy to totalitarian or authoritarian models of governance. However, though formally plausible, this hypothesis is incompatible with the long attachment of the EU institutions to democratic values. The danger that the European area may be constructed following securitarian criteria, at the expense of democratic values, remains still potential rather than real.

On the other hand, it is difficult to attribute this insistence on an alleged opposition between security and civil rights and liberties to the ignorance of the fact that democracy cannot be dissociated from these rights and liberties. The fact that democracy is the framework in the inside of which can evolve security and not a theoretically equal to security set of values is such a common place that it is hard to consider that the aforementioned position of the EU institutions is due to a politically meaningless semantic confusion. Is it possible then to assume that this position uncovers the emergence of another model of governance? Could we further associate this model of governance with the ongoing process of formation of the European identity?

Carl Schmitt has clearly shown that the adoption of emergency rules on a more permanent basis, i.e. beyond time and space limits, constitutes the summit of the sovereign decision, through the designation of the enemy to be excluded and the subsequent creation of identity borders [89]. In that case, the possibility to exclude a subject from a legal system puts sovereignty inside and, at the same time, outside this legal system, as the power defining both the norm and the negation of the norm. If we follow Giorgio Agamben’s reasoning that the exception enables the articulation between the normative inside and the anomic, meta-legal outside [90], it is possible to assert that it is the exclusion of a subject from a legal system that gives sense to the norm and to the legal system insofar as it blurs the limits between norm and exception. This method to proceed, by suspending legal categories, allows the executive to redefine its legal system and to create new legal categories. Far from being extraordinary, emergency rules become thus part of an ordinary model of governance, are diffused into the ordinary legal system and their defence or tolerance by the EU institutions should be namely associated with an ongoing process of redefining legal subjects within the EU territory. In this respect, the fight against terrorism acquires a unifying force among all EU countries for terrorism, which establishes presently a clear division between a civilised, democratic ‘us’ and a barbaric, undemocratic ‘them’, is supposed to be the major threat for democracies from now onwards. The counterterrorism co-operation among EU countries and between them and the US is turned thus into a «loyalty test between inter-pares members, which allows everyone to be sure of its own democratic identity» [91], while the «question of democratic deficit is substituted by the answer of democratic solidarity against terrorism» [92].

The question then should not be related as to why these measures are proposed now but as to whether the excluding criteria and the exclusion effects on civil societies are accepted as such by the majority of the EU populations and are thought to be compatible with the ideal of the European integration. In other words, how far can we go in our need to create a new collective identity, liable to support the ongoing construction of a new political entity, without jeopardising what is probably for the time being the only widely shared core element of this identity, i.e. the importance allowed to human rights?

Alternatives, 2004, vol.29, August-October: 417-439

Anastassia Tsoukala is Associate Professor, Paris XI University.