Authors: Didier Bigo, Sergio Carrera, Elspeth Guild and Valsamis Mitsilegas
Series: CEPS Commentary
The Brussels terrorist attacks of 22 March 2016 provoked widespread political condemnation and public outrage. The events have brought to the fore past discussions regarding the limits of member states’ counterterrorism policies and the extent to which the EU could play a role in shaping more effective responses to these acts of violence.
The days following the attacks witnessed a storm of blame shifting among different national authorities. This resulted from claims by Turkish and Dutch authorities that they had intelligence on some of the attackers that had been transmitted to the Belgian authorities. Apart from the ongoing controversies in Belgian national politics over responsibility for reported failings and lapses by government authorities and security services, the attacks have opened up a wider debate about how to improve and facilitate more information sharing among EU member states.
This Commentary argues that the fact that the attackers were allegedly ‘known’ by some authorities suggests that more information sharing would do little as a response to events like those that took place in Brussels. This was also the case with the Paris events, in both January and November 2015, which proved that from the perspective of crime fighting, ‘more intelligence’ is not an efficient law enforcement tool for countering terrorism and crime.
What is needed is better instead of more information sharing. The challenge is not so much that information is not shared within the EU or with third countries, or that focus is needed on ways to enable ‘more’ data sharing in the EU. Instead, priority should be given to assessing the reasons why that ‘information’ was not used by the relevant national authorities, to ensuring better targeted and more accountable information exchange, and to boosting EU operational cooperation and joint (cross-border) investigations.
The politics of ‘more data’ as the solution were re-confirmed by the Joint Statement issued by the member state ministries of justice and home affairs following the Brussels attacks. Among other initiatives, the Joint Statement calls for improvements in the collecting, checking and connecting of information in the field of counterterrorism. It reiterates the need to adopt the EU Passenger Name Record (PNR) Directive “as a matter of urgency”, and to find ways to secure and obtain more quickly and effectively “digital evidence”.
However, more data is not a panacea. Studies have shown that the intelligence shared by national law enforcement authorities is often not used because it may lack proper procedural guarantees to ensure that it is not the fruit of a poisonous tree, i.e. sourced from unlawful investigations, searches and seizures. Nor does intelligence meet the requirements for it to be considered ‘evidence’ before a court of law in criminal proceedings.
Moreover, more information does not always make the work of law enforcement authorities easier or more effective. Large volumes of data cannot identify potential terrorist plots, yet greatly increase the possibility of false positives and negatives.
The actual dilemma is therefore in finding and devising more effective ways to ensure a better and more targeted information exchange that meets the EU’s rule of law standards, which chiefly include respect of the fundamental rights of the defence and fair trial. If nothing else, the Brussels attacks have illustrated the difficulties of guaranteeing that the large volumes of predictive information and ‘intelligence’ gathered and shared among state authorities are useful for law enforcement practitioners on the ground. Can this information be trusted as evidence and therefore be used to incriminate a particular suspect before an independent judge? Is that ‘information’ compatible with the EU rule of law standards applicable in criminal justice proceedings?
The EU could play a more active role in facilitating better information sharing. This should be preceded by a higher degree of supranational accountability and rule-of-law evaluation tools concerning what is already there, what works and what does not. A key obstacle to ensuring ‘more EU added value’ in the field of counterterrorism policies has been the limits of EU legal competence in questions related to ‘national security’ and the activities of intelligence services.
Member state representatives have often used the national security doctrine as a way to prevent ‘more EU’ in counterterrorism. Examples of this could be seen in the aftermath of the 2013 Snowden revelations of large-scale surveillance and member states’ cooperation with the US National Security Agency programme, and their complicity in the US-led CIA extraordinary renditions programme. In both cases, the national security doctrine has prevented proper supranational scrutiny of EU member states’ actions and a meaningful discussion of whether existing Union policies are fit for purpose.
It is true that the EU Treaties tell us that “national security remains the sole responsibility of each member state” (Art. 4.2, Treaty on the European Union). This provision has been interpreted as referring to the activities of intelligence services. Despite its increasingly popular use by national governments, the actual meaning of ‘national security’ is far from evident and consensual. Research has demonstrated that this notion varies greatly from one state to another. The concept has blocked effective accountability by courts and parliaments of what national governments and their intelligence services have done in countering terrorism domestically and in cooperation with third countries.
That notwithstanding, ‘national security’ has not prevented the EU from developing, for more than the last two decades, a whole series of large-scale databases. Among them are the Schengen Information System II (SIS II), a centralised EU database used in particular to refuse entry to or subject individuals to specific checks at the EU’s external borders. Another one, arising from the Prüm Decision, is a decentralised system for the exchange of information for preventing and investigating criminal offences. These systems have been accompanied by the set-up of EU home affairs agencies (such as Europol, the EU’s law enforcement agency and Eurojust, the EU’s Judicial Cooperation Unit) with ever-expanding competences over counterterrorism-related policies. Very little is known about the effectiveness, proportionality or added value of this EU counterterrorism architecture, its tools or actors.
So, what should be the way forward in response to terrorist attacks like those witnessed in Brussels? Many would perhaps agree that the necessary response would entail ‘more EU’; yet precisely what kind of more EU should this be?
Some voices have called for a proper parliamentary inquiry on the Paris and Brussels events. This is a welcome and interesting proposal. It should be followed up and coupled with a joint parliamentary committee that would discuss the results of the inquiries by the European Parliament and national parliaments to be concluded before the end of the year.
An independent and scientifically based evaluation of existing EU legal instruments, information sharing tools and agencies should take place alongside such an inquiry. It could focus on ways to improve and further develop cross-border operational cooperation among national authorities, such as through the Joint Investigation Teams (JITs) coordinated by Eurojust and Europol. Recent research has produced evidence on the need for the JITs model for cross-border operational cooperation to be further developed. This should be done by bringing JITs closer to the EU’s rule of law and common legal standards on criminal investigations.
The current competences and role of Europol, along with its newly established European Counter Terrorism Centre (ECTC), should be subject to special scrutiny and greater democratic accountability, including activities involving classified information. Grand ideas, such as setting up an EU intelligence agency, would fall short of addressing the legal, political and practical challenges outlined in this Commentary, and might even have the effect of exacerbating them.
The usefulness and shortcomings characterising existing EU databases for information exchange call for an in-depth examination and review. For the current EU tools for information sharing to be legitimate, and before new ones like the controversial ‘smart borders’ are further considered, the national security doctrine cannot be used to prevent them from being accompanied by greater guarantees of the EU rule of law, fundamental rights standards and democratic scrutiny of the actions of EU agencies and member states.
The quest for better information sharing should concentrate on ways to improve the use and added value of existing EU databases in relation to controlling the acquisition and possession of firearms and explosives, and the national implementation of existing EU rules in these domains. Criminal justice and police investigations need evidence that is useable, i.e. ‘admissible’, before an independent judge. By contrast, information qualifying as ‘intelligence’ encompasses all information, regardless of the quality or reliability of the sources. Intelligence faces significant obstacles for it to be admissible before a court, as there are no proper way to ensure that it is not tainted, as in the above-mentioned case of the US-led extraordinary rendition and unlawful detention programme.
The development of EU policies emphasising the increased exchange of intelligence could furthermore entail profound challenges to the EU with respect to ensuring that foreign intelligence that is tainted or unlawful is not used or processed by EU member states and European agencies. Therefore, EU policy should call for better information so as to improve the exchange of data qualified as ‘evidence’ in criminal proceedings and which could lawfully be used to incriminate suspects.
European cooperation in the field of counterterrorism must take place within the remits of European scrutiny in order for counterterrorism policies to be efficient. This is the only way to build trust in the EU as regards cross-border and international cooperation in counterterrorism.
Proper and high-level guarantees concerning the quality of information, its soundness and compliance with fundamental rights should be provided by all EU member states in cross-border cooperation. Better information exchange and robust checks against EU rule of law standards must go hand in hand – one cannot exist without the other for the Union to facilitate common responses to terrorism. More EU accountability for member states and their national security policies should also be the approach for ensuring legitimate public policy responses. Otherwise, EU measures will continue to fail in both countering terrorism and in ensuring respect for the rule of law and fundamental rights.
CEPS Commentaries offer concise, policy-oriented insights into topical issues in European affairs. The views expressed are attributable only to the authors in a personal capacity and not to any institution with which they are associated.
Didier Bigo is Director of the Centre d’Etudes sur les Conflits, Liberté et Sécurité (CCLS) and Professor at Sciences-Po Paris and King’s College London. Sergio Carrera is Senior Research Fellow and Head of the Justice and Home Affairs section at CEPS and Associate Professor at the University of Maastricht (the Netherlands). Elspeth Guild is Associate Senior Research Fellow at CEPS and Jean Monnet Professor ad personam at Queen Mary, University of London as well as at the Radboud University Nijmegen. Valsamis Mitsilegas is Head of the Department of Law and Professor of European Criminal Law at Queen Mary, University of London.