Instrumentalization of Madrid so as to construct a more authoritarian EU super state was predictable, but here's the juice from Statewatch based on proposals 'provided to them'; biometrics, Schengen Information System reinforcement, the whole caboodle. Is there a Foucault anywhere in the house.....?

“Scoreboard” on Post-Madrid Counter-Terrorism Plans

Statewatch

Summary

1. The tragedy in Madrid on 11 March 2004 requires a response from the
EU to review and reinforce counter-terrorist measures. An analysis of the
57 proposals on the table at the EU Summit on 25-26 March in Brussels
shows that 30 of these are relevant to this need.

2. However, the analysis also shows that 27 of the proposals have little
or nothing to do with tackling terrorism – they deal with crime in general
and surveillance.

3. A number of the proposals would introduce the wholesale surveillance
of everyone in Europe and could potentially be used for social and
political control:

a) through logging all telecommunications (e-mails, phone-calls, mobilecalls,
faxes and internet usage;
b) tracking all air travel in and out and within the EU (effectively an EU
version of the USA’s controversial PNR, CAPPS II and US-VISIT plans);

c) the fingerprinting of nearly everyone in the EU by the introduction of
biometric passports and ID cards for citizens and the same for resident
third country nationals.

4. The dreadful loss of life and injuries in Madrid requires a response
that will unite the people of Europe rather than divide them.
If in defending democracy measures are introduced that fundamentally
undermine civil liberties and peoples’ right to privacy, it has to be asked
what are we defending?

Tony Bunyan, Statewatch editor, comments:

“Under the guise of tackling terrorism the EU is planning to bring in a
swathe of measures to do with crime and the surveillance of the whole
population. After the dreadful loss of life and injuries in Madrid we
need a response that unites Europe rather than divides it”

Commentary

The EU summit on 25-26 March 2004 will agree upon a set of counterterrorism
measures following the appalling events in Madrid on 11 March. On
the basis of a European Commission Action Plan on terrorism (MEMO/04/66,
dated 18 March 2004) and the latest draft of an EU Declaration on
combating terrorism prepared for the summit (7468/4/04 REV 4, 22 March
2004) there are at least 57 specific measures on the table. This report, the
Statewatch “scoreboard” on post-Madrid counter-terrorism plans, is a
systematic review of the justification, content and legitimacy of these
measures (the concept of a “scoreboard” is borrowed from the European
Commission’s bi-annual “scoreboard on the development of the Area of
security, freedom and justice”).

We have grouped the proposals in five categories and given each measure
one or two scores out of 5. The first score is a measure of the relevance of
the proposals to countering terrorism. This scoring system reflects our
serious concern that time and resources spent on issues not sufficiently
related to terrorism are time and resources that could be better spent
making the EU more secure from terrorism if the action were more
focussed. A high score demonstrates proposals relevant and limited to
counter-terrorism, implying legitimacy. Those proposals that are
“severable” - allowing the EU Council to go ahead and adopt special rules to
deal with the terrorist threat without applying those rules (at least for now
or in the same way) to other crimes - get a medium score. Measures entirely
unrelated to terrorism score “0”.

The second score is a measure of our concern that data protection, human
rights law, and frameworks for regulation and accountability are being
ignored by EU governments. We have given a score only where the terrorism
relevance is high to reflect our concern for civil liberties and the desirability
of the measures in their current or suggested form (a low score here
demonstrates serious concern).

Thus, a measure with two high scores, may be deemed both proportionate
and consistent with standards for the protection of human rights and civil
liberties.

A full list of the measures is provided after this summary of our concerns.
The 34pp Statewatch scoreboard, providing detailed analysis of each
proposal, is on: http://www.statewatch.org/news/2004/mar/swscoreboa rd.pdf

Proposals not limited to combating terrorism
Of the 57 proposals under consideration that we were able to identify,
almost half bear little or no relation tackling terrorist attacks like the those
in Spain - 27/57 score 2 or lower out of 5 on our relevance scale. Rather,
these proposals concern existing EU mechanisms or initiatives on general
matters relating to police, judicial cooperation or immigration control. It is
hard to avoid the conclusion that the EU plans on the table are trying to
exploit the recent tragedy to push through controversial and unwarranted
measures.

The plans also call on the member states to expedite agreement on a
number of complex measures on the implementation of the principle of
“mutual recognition” in EU judicial cooperation on matters. None are
limited to terrorism and are only theoretically relevant if one member state
refuses to cooperate with another. Given the unequivocal commitment from
all member states to cooperate fully in the investigation and prosecution of
terrorist offences, the premise that these measures must be swiftly to
agreed to counter-terrorism is misguided. It is also unacceptable in the light
of the hurried and flawed agreement on the European Arrest Warrant and
the absence of harmonised procedural safeguards for suspects and
defendants as promised in the EU’s mutual recognition programme. The
harmonisation of EU criminal law is a delicate and complex process that
must not be rushed on the basis of a false pretext.

Disproportionate surveillance powers

The proposals on the surveillance of telecommunications through the
mandatory retention of all traffic data, on the surveillance of movement
through the construction of files on air passengers and on the use of
biometrics in travel documents would place the majority of people in the EU
under surveillance. It will also mean most people have to give their
fingerprints for inclusion in one of several potentially linked EU databases.
This will be of marginal use in preventing the terrorist attacks we are told
are inevitable. The fact that Spain has compulsory national identity cards
made no difference on 11 March.

No-one is disputing the need for targeted and sustained surveillance of
certain individuals or groups. These proposals would instead give intrusive
powers to a range of law enforcement agencies for “general” purposes.
Moreover, as the drafters of the EU plans clearly recognise, as long as they
cooperate effectively EU police forces and judicial authorities have today
sufficient powers to place known and suspected “al-Qaeda” terrorists
anywhere in the EU under systematic and sustained surveillance.

The wholesale and mandatory surveillance that is proposed is entirely
incompatible with the “balance” sought by the rule of law and Article 8 of
the European Convention of Human Rights to respect the individual right to
privacy on the one hand and the legitimate need for state agencies to
conduct intrusive surveillance in specified and sanctioned circumstances on
the other.

The Irish Justice Minister has called these concerns “naïve”, suggesting that
it is a “false dichotomy” to claim these measures will undermine civil
liberties. In doing so, the Irish presidency is seeking to create its own false
dichotomy by suggesting the only alternatives are “surveillance on
everyone” or “surveillance on no-one”.

The EU is exceeding its mandate

Taken together, the EU “Homeland Security” and surveillance proposals
exceed the degree of intrusion deemed proportionate in the “war on terror”
by any single EU member-state and, for that matter, the United States.

Endorsement of these proposals would therefore see the EU exceeding its
mandate and powers.

Human intelligence is the key to effective counter-terrorism. It is not
produced by surveillance of the entire population, electronic fishing
expeditions or a misguided belief in the superiority of technology. The EU
should concentrate its efforts on the crucial task of removing the cultural
and political barriers to European police and intelligence cooperation and
the effective implementation of existing measures in solidarity with the
Spanish people.

In exceeding its mandate in such an authoritarian manner and disregarding
fundamental rights, the EU risks alienating the population of Europe and
undermining the important role of improving security for all.
Solidarity clause and “operational cooperation”

The implementation of the solidarity clause in the draft EU constitutional
treaty genuinely reflects the people of Europe’s solidarity with the people
of Spain. The victims and the authorities should be afforded every
assistance in coping with the atrocities and apprehending the perpetrators.

We are concerned, however, that the solidarity clause may be used to bring
in to early effect Article 162 of the draft EU constitutional treaty. This
would create the permanent committee in the EU to oversee all operational
matters relating to EU “internal security” policy. “Internal security” is a
much wider remit than justice and home affairs as it includes not just
policing, immigration and judicial cooperation but extends to customs, the
role of the military inside the EU and the maintenance of public order.

There are already questions as to whether the proposed degree of
regulation and accountability of this body is sufficient and it should not be
created in advance of the provisions on the draft treaty to improve
democratic control and judicial supervision.
The EU has already agreed upon a host of operational bodies, databases and
cooperation mechanisms, none of which are limited in scope to terrorism.

Any objective assessment suggests that as long as they are used effectively
national police forces and judicial authorities, assisted by EU bodies, have
today sufficient powers to undertake joint actions to improve security and
investigate, arrest and prosecute suspected terrorists anywhere in the EU.
Justice and home affairs policy has been about developing such measures
for more than a decade - the two and a half years since 11 September has
already seen them reviewed at length and extended where necessary.

Qualified majority voting on EU terrorist lists

The procedure for deciding who is to be included on the “terrorist lists” is
arbitrary and unaccountable. This has allowed the EU to criminalise certain
groups and individuals on ideological and political grounds rather than any
objective security threat to the EU.

It is unacceptable that these lists are agreed by “written procedure” and on
occasions without debate (they have simply been faxed round to the fifteen
foreign ministries and adopted if there are no objections). There is thus a
complete lack of political accountability over how the list is drafted, the
grounds for inclusion, which officials in which member states are proposing
amendments and why and the extent of consultations, if any. The failure to
require as much as a preliminary investigation demonstrating a connection
to terrorism before individuals or organisations can be included on the list
or have their assets frozen and the failure to provide adequate mechanisms
for appeal or judicial review is a spectacular breach of the fundamental
rights of those affected.

The proposal to allow amendments to this list by qualified majority voting in
the EU Council would exacerbate these problems and further politicise
rather than rationalise the decision-making process.

An unbalanced and undemocratic plan

The second scoring system we have used, where measures are limited or
powers restricted to terrorism, highlights serious concerns in two thirds of
the proposals over compliance with EU human rights or data protection law
or frameworks for regulation and accountability (18 out of the 27 measures
scored two or less out of five).

Development of the EU’s counter-terrorism policy, like all its decisionmaking,
should be open and democratic process involving European and
national parliaments and the people of Europe. Quite the opposite has been
the case to date.

Agreement upon sweeping law enforcement powers at the EU level is easier
than ensuring effective cooperation between national police, security and
intelligence agencies in Europe.
The EU would be showing the victims of 11 March the ultimate disrespect by
using the solidarity and support it claims in the name of the people of
Europe to undermine civil liberties and democratic standards.

Ben Hayes, Steve Peers and Tony Bunyan, 23 March 2004
The 57 measures on the table

For full analysis of proposals and explanation our scoring , see:
“Statewatch scoreboard on EU counter-terrorism plans”
http://www.statewatch.org/news/2004/mar/swscoreboa rd.pdf
Counterterrorism relevance || Respect for civil liberties &
democratic
standards ||
1. Appointment of an EU “security coordinator” 4 2

2. The creation of an EU intelligence agency 4 2

3. Creation of a European Registry for issued travel documents
[possibly limited to lost or stolen documents]
1

4. Agreement on Guidelines for Common Approach to the Fight Against
Terrorism
5 2

5. Declaration of solidarity 5 2

6. Creation of a database of persons, groups and entities subject to
restrictive measures or criminal proceedings for terrorist offences
5 2

7. The lists of terrorist Organisations to become operational and
reactive on a “real time” basis
5 2

8. European information policy for law enforcement purposes 1

9. Commission & Member States should monitor all legislative
machinery so as to have it subject to “ex ante” terrorism proofing
5 1

10. EU-wide criminalisation of stolen mobile communications
equipment
2

11. Directorates General JAI and RELEX should be in charge of better
internal coordination of all aspects of the institution’s activities that
touch upon terrorism
5 2

12. Legislation on cross-border hot Pursuit 2

13. European Programme for the protection of witnesses 4 3

14. Exchange of personal information (DNA, fingerprints and visa data) 4 2

15. Database of forensic material 2

16. Enhance the efficiency and effectiveness of the EU's mechanisms
for the freezing of terrorist assets
5 2

17.Improve cooperation and exchange of information on terrorist
financing
5 3

18. Legislative proposal for the creation of a network for exchange of
information on terrorist financing
4 2

19. Regulation and transparency of legal entities, including charities
and alternative remittance systems
4 2

20. Electronic database of all targeted persons and entities 4 0

21. Exchanges of information on convictions 5 4

22. Creation of a European Register of convictions and
disqualifications
2

23. Mandatory systems for identifying and investigating bank accounts 2

24. Improve mechanisms for cooperation between police and security
services and intelligence services between Member States
4 3

25. Revise and review action plan on terrorism 4 1

26. Strengthen role of Europol 5 3

27. Ratification of three protocols amending the Europol Convention 2

28. Strengthen role of Task Force of EU Police Chiefs 4 1

29. Strengthen role of Eurojust (possibly including extended powers
over national authorities)
4 4

30. Supply of all relevant information on terrorist cases to Europol and
Eurojust
5 4

31. European Arrest Warrant 1

32. Framework Decision on the fight against terrorism 5 3

33. Framework Decision on money laundering, the identification, 1
tracing, freezing, seizing and confiscation of instrumentalities and the
proceeds of crime

34. Framework Decision on joint investigation teams 3

35. Framework Decision on the execution in the European Union of
orders freezing property or evidence
1

36. The 2000 EU Convention on Mutual Assistance in Criminal Matters
and its 2001 Protocol
1

37. Ensure greater security of firearms, explosives, bomb-making
equipment, and the technologies used in terrorist attacks
5

38. New functions for the Schengen Information System (SIS) 2

39. Development of SIS II 1

40. Development of Visa Information System 2

41. Comprehensive and interoperable European Information Systems 0

42. National law enforcement agencies access to SIS, VIS and Eurodac 0

43. Draft Framework Decision on the confiscation of crime-related
proceeds, instrumentalities and property
1

44. Draft Framework Decision on attacks against information systems 1

45. Draft Framework Decision on Mutual recognition of Confiscation
Orders
1

46. Draft Framework Decision on the European Evidence Warrant 0

47. Draft Regulation on creation of European Border Agency 1

48. Use of travellers’ data for border and aviation security and other
law enforcement purposes
1

49. Proposals on inclusion of biometrics in all EU passports and visas 1

50. EU-wide mandatory retention of communications 0

51. Customs controls on cash movements at the external frontier &
agreement on Draft Strategy for Customs Cooperation
1

52. EC and MS ratification of Protocol to UN Organised Crime
Convention on trafficking of illegal firearms
2

53. Draft Council Directive on compensation for victims of crime 5 5

54. Agreement on draft UN Convention on Terrorism 5 2

55. Anti-terrorism clauses in agreements with third countries to be
followed up with technical assistance; sanctions for non-cooperating
countries
5 2

56. Co-operation with the United Nations Counter Terrorism
Committee (CTC) and other relevant international and regional
organisations
5 2

57. Cooperation with US and Partners 4 1

List of EU proposals with little or no relevance to terrorism – primarily
concerned with law enforcement and surveillance

3. Creation of a European Registry for issued travel documents [possibly limited to lost or stolen
documents]

8. European information policy for law enforcement purposes

10. EU-wide criminalisation of stolen mobile communications equipment

12. Legislation on cross-border hot Pursuit

15. Database of forensic material

22. Creation of a European Register of convictions and disqualifications

23. Mandatory systems for identifying and investigating bank accounts

27. Ratification of three protocols amending the Europol Convention

31. European Arrest Warrant

33. Framework Decision on money laundering, the identification,
tracing, freezing, seizing and confiscation of instrumentalities and the
proceeds of crime

35. Framework Decision on the execution in the European Union of orders freezing property or
evidence

36. The 2000 EU Convention on Mutual Assistance in Criminal Matters and its 2001 Protocol

38. New functions for the Schengen Information System (SIS)

39. Development of SIS II

40. Development of Visa Information System

41. Comprehensive and interoperable European Information Systems

42. National law enforcement agencies access to SIS, VIS and Eurodac

43. Draft Framework Decision on the confiscation of crime-related proceeds, instrumentalities and
property

44. Draft Framework Decision on attacks against information systems

45. Draft Framework Decision on Mutual recognition of Confiscation Orders

46. Draft Framework Decision on the European Evidence Warrant

47. Draft Regulation on creation of European Border Agency

48. Use of travellers’ data for border and aviation security and other law enforcement purposes

49. Proposals on inclusion of biometrics in all EU passports and visas

50. EU-wide mandatory retention of communications

51. Customs controls on cash movements at the external frontier & agreement on Draft Strategy
for Customs Cooperation

52. EC and MS ratification of Protocol to UN Organised Crime
Convention on trafficking of illegal firearms
EU counter-terrorism proposals raising concerns over civil liberties and
democratic stands

2. The creation of an EU intelligence agency

4. Agreement on Guidelines for Common Approach to the Fight Against Terrorism

5. Declaration of solidarity

6. Creation of a database of persons, groups and entities subject to restrictive measures or
criminal proceedings for terrorist offences

7. The lists of terrorist Organisations to become operational and reactive on a “real time” basis

9. Commission & Member States should monitor all legislative machinery so as to have it subject
to “ex ante” terrorism proofing

11. Directorates General JAI and RELEX should be in charge of better internal coordination of all
aspects of the institution’s activities that touch upon terrorism

14. Exchange of personal information (DNA, fingerprints and visa data)

16. Enhance the efficiency and effectiveness of the EU's mechanisms for the freezing of terrorist
assets

18. Legislative proposal for the creation of a network for exchange of information on terrorist
financing

19. Regulation and transparency of legal entities, including charities and alternative remittance
systems

25. Revise and review action plan on terrorism

28. Strengthen role of Task Force of EU Police Chiefs

54. Agreement on draft UN Convention on Terrorism

55. Anti-terrorism clauses in agreements with third countries to be followed up with technical
assistance; sanctions for non-cooperating countries

56. Co-operation with the United Nations Counter Terrorism Committee (CTC) and other relevant
international and regional organisations

57. Cooperation with US and Partners"