Fighting terrorism while protecting civil liberties

Even before the terrorist attacks of 11 September 2001, Europe was looking for more effective ways to fight terrorism. Following the attacks, the EU quickly stepped up its efforts and sought closer cooperation with the USA. However, only a few months later the US approach to this issue appeared in some eyes to be posing a threat to the rights of the individual. Members of the European Parliament thus found themselves at the forefront of efforts to strike a balance between security and civil liberties.

In the early stages of their present term of office MEPs were already concerned about the increase in terrorist activities within the EU and the inadequacies of traditional forms of judicial and police cooperation. Parliament has only a consultative role in anti-terrorism legislation but on 5 September 2001, just days before the terror attacks that shook the world, MEPs adopted a resolution containing a series of recommendations on the role of the EU in combating terrorism. They urged the Council to introduce a European arrest warrant to help fight terrorism and called for EU definitions of what constitutes terrorist acts as well as standard penalties against terrorism. Formal extradition procedures should be abolished, said Parliament, and Member States should recognise each other's rulings on terrorist offences. MEPs also called on the EU Member States to adopt standard measures on compensation for victims of terrorist crime. Many of these suggestions were included in subsequent legislation.

Freezing terrorists' assets

After 11 September 2001, the European Union moved swiftly to step up its efforts to combat terrorism. On 1 October 2001, the European Commission put forward proposals to freeze the assets of 27 individuals and organisations suspected of being involved in the attacks. Parliament had to be consulted on the proposals and it acted with great speed, approving the law only three days after it was published. MEPs did say, however, that the freezing of assets should be temporary, as the legislation was drawn up in haste and would need to be improved. They also argued that the regulation should expire at the end of 2003 and be reviewed within a year. These calls were heeded by the Council of Ministers and incorporated in the final legislation.

Growing concern about citizens' rights

In November 2001, Parliament was consulted on a new law to combat terrorism. By now, however, MEPs were alert to the wider ramifications of the issue. On the one hand, they voted in favour of making cooperation with and promotion of terrorist acts punishable by law and recommended that offences against the military be included as an aggravating circumstance. They also called for the definition of terrorism to include aircraft and ship hijackings as well as the release of dangerous chemical or biological substances.

On the other hand, Parliament also suggested alterations to the wording of the new law so as to prevent minor offences or political activism (including legitimate public and trade union protests) being classified as terrorist acts. Parliament's demands caught the ear of the Council of Ministers, which made an effort to strike a balance between combating terrorist offences effectively and guaranteeing basic rights. In the end, the Council changed the draft law substantially and reconsulted Parliament. In February 2002, MEPs gave their backing to the new, improved version of the law.

EU-US agreements on extradition and judicial co-operation

In 2003, the Council concluded two agreements with the US on extradition and judicial co-operation. Parliament objected to the lack of democratic scrutiny over these accords. Although obviously not opposed to US efforts to combat terrorism, MEPs adopted a resolution demanding that the USA should hand over evidence on individual cases to EU states. This would enable EU citizens who had committed a crime on European territory to be tried in their own country instead of being extradited to the United States. Moreover, said Parliament, the agreement should explicitly ban the extradition of individuals to the USA if they risked being condemned to death. In the event of competing extradition demands, requests from the International Criminal Court or EU Member States should take precedence over those from the US.

MEPs argued that a detailed study should be made of the possible impact of US legislation before the agreements were ratified by the Member States. Parliament also called for an inter-parliamentary committee to be set up to monitor the agreements. Lastly, MEPs urged the EU authorities to make the signing of the agreements conditional on achieving a balanced solution to the situation of European citizens held at Guantánamo Bay. MEPs regarded it as unacceptable that Europeans should be held at Guantánamo Bay without a charge being brought simply because the US believes them to be terrorists.

Growing opposition to US approach

During 2003, the American approach to fighting terrorism encountered growing criticism in Parliament. It was this year that the US demanded that European airlines hand over passenger data of a personal nature to the American authorities. The US wanted 39 categories of information on passengers on transatlantic flights, such as telephone numbers and meal preferences. The aim was to identify terrorists who were trying to enter the United States. However, handing over personal data is a violation of EU privacy laws and MEPs feared these laws might be sacrificed to the fight against terrorism. So in October 2003 Parliament overwhelmingly approved a resolution calling for personal passenger data only to be transferred to third parties if there is no discrimination against non-US passengers, if passengers give their informed consent and if appeal procedures are in place. MEPs also demanded that EU-US cooperation in the fight against terrorism be judged as to its effectiveness and respect for fundamental rights. The resolution concluded that it was "currently not possible to consider the data protection provided by the US authorities to be adequate".

In December 2003, Commissioner Bolkestein told MEPs that the US had made a number of major concessions and that Parliament's pressure had played a key role in achieving this. Clear limits had been set to the amount of data to be transferred, with a list of 34 instead of 39 categories. The US had agreed to store the data for only three and a half years rather than fifty years as it had initially wanted. The uses to which the transferred data could be put would be more narrowly defined, the legislation would be reviewed jointly with the EU authorities at least once a year and any European passengers whose complaints to the Department of Homeland Security have not been satisfactorily resolved would have the right to be represented by EU data protection authorities. However, Parliament felt that the agreement still violated European citizens' privacy rights. In April 2004, it therefore decided to ask the advice of the Court of Justice as to the compatibility of the agreement with EU data protection laws. But this request could not prevent the Council signing the agreement, which it did a month later. It is now expected that the European Parliament will ask the Court of Justice to annul the agreement.

 

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