by Cian C. Murphy. Oxford: Hart Publishing, 2012. 258pp. Cloth: $104. ISBN: 978-1-84946-135-1.
Reviewed by David Schultz, Department of Political Science, Hamline University. Email: dschultz [at] hamline.edu .
The events of 9-11 presented western democracies with a challenge and a test. The challenge: respond to terrorism either by military or diplomatic means (such as criminal apprehension and prosecution) to address national security needs and to protect civilian populations, infrastructure, and commerce. The test: meet the terrorist and national security challenges while simultaneously respecting international law, human rights, domestic constitutionalism, rule of law, and individual rights and liberties of both citizens and non-citizens. Unfortunately, the report card on both the challenge and test reveal a mixed record, across the world, including within the European Union (EU).
Post 9-11 concerns regarding terrorism in the United States, the EU, and in other western democracies have led to the convergence of the traditionally distinct policy areas of domestic criminal justice and national security. This convergence has produced several policy and institutional conflicts that pit individual rights against homeland security, domestic law and institutions against international norms and tribunals, and criminal justice agencies against national security organizations. As David Dyzenhaus (2006) aptly describes it, situations such as the West faces in a post 9-11 environment challenge claims about the viability of the rule of law and traditional notions of constitutionalism during emergencies. Examining how the EU responded to these 9-11 challenges is the subject of EU COUNTER-TERRORISM LAW.
Cian Murphy has produced a cogent, tightly-argued book exploring how the EU has changed its policies to combat terrorism. Murphy’s thesis is simple ‒ the EU has altered traditional criminal justice goals to address terrorism, and in the process sacrificed rule of law and individual rights. More specifically, Murphy makes three critical distinctions. First, Murphy argues that one of the traditional goals of the criminal justice system is punishment. Punishment involves apprehending individuals suspected of committing crimes, subjecting them to the due process of the criminal process, and meting out punishment if found guilty. A second traditional goal of criminal justice is prevention. Here law enforcement authorities use a variety of strategies to deter or investigate crimes. These techniques involve the use of warrants and surveillance, premised upon individual or particularized suspicion. For both punishment and prevention, Murphy contends that the government only targets individuals whom it has evidence to believe have or are about to commit a crime. [*523]
But the critical change in criminal justice and terrorism policy that occurred in the EU after 9-11 was to adopt a pre-emption strategy. By pre-emption Murphy means a strategy that involves a greater degree of intervention than used by prevention, but without concrete evidence of harm. Because of the degree of risk and harm to individuals from terrorism, and also because of the difficulty and risk of simply targeting suspicious individuals, the state is justified in developing more prophylactic tactics to combat it. This involves a more wide-spread surveillance of individuals, shifting of meta-data, freezing of assets, and other tactics, often in the absence of particularized suspicion. It is a strategy that is more than simply “Rounding up the usual suspects”; it is one instead where everyone is a suspect and therefore in the interests of national security the government is justified in taking extensive action to root out terrorism.
Chapter one offers an overview of the EU’s legal response to terrorism. Originally based on the authority stemming from the Third Pillar on policing and judicial matters, the 21 September, 2001 action plan, as well as its revisions is the principle document outlining the EU’s response to terror. It outlines ways it and its member countries should prevent, protect, pursue, and respond to terrorism. Chapter one also discusses the Council of Europe’s 2001 Convention on the Prevention of Terrorism. The goal of this chapter is to articulate how European institutions generally sought more cooperation and enhanced authority to address terrorism, often times at the behest of or in cooperation with the United States and other nations.
Yet such an approach to national security and criminal justice takes liberties with rule of law. Chapter II seeks to define rule of law within the EU context. Noting that abuses of rights generically are indicted as violations of rule of law, Murphy provides more detail by offering a review of the law structuring the EU. This review describes the legal structure of the EU, walking the reader though the 1992 Maastrict Treaty and other relevant treaties constituting it. This chapter also provides a good overview of the basic institutions of the EU, a review of the different legislative instruments (directives, regulations, and frameworks), and a discussion of the relationship between state law and these EU instruments. Chapter two describes also the role of the European Convention on Human Rights and the European Court on Human Rights in protecting basic liberties and privacy, and an excellent review of the interface between them and the EU, its Charter of Fundamental Rights, and its judicial institutions. By the end of chapter two Murphy has set out the basic framework of the book ‒ describing in general the EU legal response to terrorism and the supposed institutions and processes in place to maintain respect for rule of law and individual rights.
Part two of the book provides five detailed chapters describing specifically what the EU has enacted or policies it has developed, evaluating them in light of how well they respect rule of law. Chapter three looks at definitions of terrorism, chapter four money-laundering, chapter five asset freezing, chapter six, data surveillance, and [*524] chapter seven the issuing of EU-wide arrest and search warrants. In each of these chapters Murphy details specific policies that have been adopted. The chapters also examine relevant court decisions, interaction between the EU, individual states, and other state or trans-national actors or institutions. In all five of these areas Murphy reaches the conclusion that the EU has moved from punishment and prevention of terrorism to a pre-emptive strategy. To support that claim, Murphy points out the relaxation of rules regarding the examining of (meta)-data, the generally lax definition of what terrorism is, and the failure to recognize political persecution or fighting for rights as exception to EU warrants.
The book concludes by contending that the EU has moved from “individual surveillance to mass suspicion” (p.179). The current EU policies, in addition to failing to respect rule of law, are also criticized as ineffective. For example, it takes very little money to engage in terrorism of some types and therefore the few assets frozen seem to have had no real effect. Or the mass searching of metadata reveals nothing for 99%+ of what it examined. Real terrorists have figured out ways around the rules, while average individuals are subjected to intrusions on their rights.
The overall strength of EU COUNTER-TERRORISM LAW is in the describing of the antinomies between rule of law and terrorism and in describing the shift that occurred in the EU toward pre-emption. The second strength is in describing how the EU is not so innocent in terms of how it has confronted terrorism. Edward Snowden’s leaks of US surveillance of Europeans has driven a significant amount of criticism among Europeans. Yet the EU has often cooperated, sometimes as the result of US pressure, sometimes on its own, to enhance its anti-terrorist activities. Finally, the book gives real definition and clarification to how 9-11 did change EU policy on terrorism, unfortunately often at the expense of rule of law.
Dyzenhaus, David. 2006. THE CONSTITUTION OF LAW: LEGALITY IN A TIME OF EMERGENCY. New York: Cambridge University Press.
Copyright 2013 by the Author, David Schultz.