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Palgrave Studies in European Union Politics

Edited by: Michelle Egan, American University, USA, Neill Nugent, Visiting Professor, Col-
lege of Europe, Bruges and Honorary Professor, University of Salford, UK, and William
Paterson OBE, University of Aston, UK.

Editorial Board: Christopher Hill, Cambridge, UK, Simon Hix, London School of Eco-
nomics, UK, Mark Pollack, Temple University, USA, Kalypso Nicolaïdis, Oxford, UK,
Morten Egeberg, University of Oslo, Norway, Amy Verdun, University of Victoria, Canada,
Claudio M. Radaelli, University of Exeter, UK, and Frank Schimmelfennig, Swiss Federal
Institute of Technology, Switzerland.
Following on the sustained success of the acclaimed European Union Series, which essen-
tially publishes research-based textbooks, Palgrave Studies in European Union Politics publishes
cutting-edge research-driven monographs.

The remit of the series is broadly defined, both in terms of subject and academic discipline.
All topics of significance concerning the nature and operation of the European Union poten-
tially fall within the scope of the series. The series is multidisciplinary to reflect the growing
importance of the EU as a political, economic and social phenomenon.

Titles include:

Oriol Costa and Knud Erik Jørgensen (editors)


THE INFLUENCE OF INTERNATIONAL INSTITUTIONS ON THE EU
When Multilateralism Hits Brussels
Falk Daviter
POLICY FRAMING IN THE EUROPEAN UNION
Renaud Dehousse (editor)
THE ‘COMMUNITY METHOD’
Obstinate or Obsolete?
Kenneth Dyson and Angelos Sepos (editors)
WHICH EUROPE?
The Politics of Differentiated Integration
Michelle Egan, Neill Nugent and William E. Paterson (editors)
RESEARCH AGENDAS IN EU STUDIES
Stalking the Elephant
Theofanis Exadaktylos and Claudio M. Radaelli (editors)
RESEARCH DESIGN IN EUROPEAN STUDIES
Establishing Causality in Europeanization
Jack Hayward and Rüdiger Wurzel (editors)
EUROPEAN DISUNION
Between Sovereignty and Solidarity
Wolfram Kaiser and Jan-Henrik Meyer (editors)
SOCIETAL ACTORS IN EUROPEAN INTEGRATION
Christian Kaunert and Sarah Léonard (editors)
EUROPEAN SECURITY, TERRORISM AND INTELLIGENCE
Tackling New Security Challenges in Europe
Christian Kaunert and Kamil Zwolski
The EU AS A GLOBAL SECURITY ACTOR
A Comprehensive Analysis beyond CFSP and JHA
Finn Laursen (editor)
DESIGNING THE EUROPEAN UNION
From Paris to Lisbon
Karl-Oskar Lindgren and Thomas Persson
PARTICIPATORY GOVERNANCE IN THE EU
Enhancing or Endangering Democracy and Efficiency?
Daniel Naurin and Helen Wallace (editors)
UNVEILING THE COUNCIL OF THE EUROPEAN UNION
Games Governments Play in Brussels
Dimitris Papadimitriou and Paul Copeland (editors)
THE EU’S LISBON STRATEGY
Evaluating Success, Understanding Failure
Emmanuelle Schon-Quinlivan
REFORMING THE EUROPEAN COMMISSION
Roger Scully and Richard Wyn Jones (editors)
EUROPE, REGIONS AND EUROPEAN REGIONALISM
Yves Tiberghien (editor)
LEADERSHIP IN GLOBAL INSTITUTION BUILDING
Minerva’s Rule
Asle Toje
AFTER THE POST-COLD WAR
The European Union as a Small Power
Liubomir K. Topaloff
POLITICAL PARTIES AND EUROSCEPTICISM
Richard G. Whitman and Stefan Wolff (editors)
THE EUROPEAN NEIGHBOURHOOD POLICY IN PERSPECTIVE
Context, Implementation and Impact
Richard G. Whitman (editor)
NORMATIVE POWER EUROPE
Empirical and Theoretical Perspectives
Sarah Wolff
THE MEDITERRANEAN DIMENSION OF THE EUROPEAN UNION’S INTERNAL SECURITY
Jan Wouters, Hans Bruyninckx, Sudeshna Basu and Simon Schunz (editors)
THE EUROPEAN UNION AND MULTILATERAL GOVERNANCE
Assessing EU Participation in United Nations Human Rights and Environmental Fora

Palgrave Studies in European Union Politics


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European Security,
Terrorism and Intelligence
Tackling New Security Challenges
in Europe

Edited by

Christian Kaunert
Senior Lecturer in International Relations and Politics, University of Dundee, UK

and

Sarah Léonard
Lecturer in Politics, University of Dundee, UK
Selection, Introduction and Editorial Matter © Christian Kaunert and
Sarah Léonard 2013
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DOI 10.1057/9781137314734
Contents

Acknowledgements vii

Notes on Contributors viii

1 Introduction – Beyond EU Counter-terrorism Cooperation:


European Security, Terrorism and Intelligence 1
Sarah Léonard and Christian Kaunert

Part I The European Union as a Security Actor


2 The European Union and International Security:
Developing a Comprehensive Approach 17
Kamil Zwolski

3 The European Union as a Comprehensive Police Actor 40


Stephen Rozée

Part II Counter-terrorism and Policing in Europe


4 Europol’s Counter-terrorism Role: A Chicken-Egg Dilemma 65
Oldrich Bures

5 Guarding EU-wide Counter-terrorism Policing: The


Struggle for Sound Parliamentary Scrutiny of Europol 96
Claudia Hillebrand

Part III Counter-terrorism and Intelligence in


Europe
6 Information-sharing and the EU Counter-terrorism Policy:
A ‘Securitisation Tool’ Approach 127
Thierry Balzacq and Sarah Léonard

7 Availability by Stealth? EU Information-sharing in


Transatlantic Perspective 143
John D. Occhipinti

v
vi Contents

8 On a ‘Continuum with Expansion’? Intelligence


Cooperation in Europe in the Early 21st Century 185
Adam D.M. Svendsen

9 Security Partnerships, Intelligence and the Recasting of


the UK Monopoly of Violence in the 21st Century 215
Carlos Ortiz

10 Conclusion – European Security, Terrorism and


Intelligence: Assessing the Path of Development 229
Alex MacKenzie and Kamil Zwolski

Index 244
Acknowledgements

This manuscript was completed while Christian Kaunert and Sarah


Léonard both held Marie Curie Intra-European Fellowships, at the
European University Institute, Florence, and Sciences Po, Paris, respec-
tively. They would like to thank these two institutions for their support,
as well as the European Commission for funding these fellowships
through the 7th European Community Framework Programme. They
also would like to thank all the colleagues who provided constructive
feedback on earlier versions of the chapters of this book.

vii
Contributors

Thierry Balzacq is Tocqueville Professor of International Relations at


the University of Namur, Belgium, and currently Visiting Research Fel-
low at the Institute for Advanced Studies in the Humanities (IASH) at the
University of Edinburgh, UK. A former Research Fellow at the Centre
for European Policy Studies (CEPS) in Brussels, he has held visiting
positions at Harvard University; the University of Wales, Aberystwyth;
Sciences Po Paris; the Ecole Nationale d’Administration; and the University
of Louvain. His research interests include critical approaches to security,
securitisation theory and IR theory.

Oldrich Bures is Head of the Department of International Relations


and European Studies and Head of the Centre for Security Studies at
Metropolitan University, Prague. His research focuses on conflict res-
olution and international security, with special emphasis on United
Nations peacekeeping operations, private military companies and the
EU counter-terrorism policy. His work has notably been published in Ter-
rorism and Political Violence, the International Studies Review, International
Peacekeeping, Global Change, Peace and Security and the Journal of Con-
temporary European Research. His most recent book is EU Counterterrorism
Policy: A Paper Tiger? (2011).

Claudia Hillebrand is Lecturer in Intelligence and Counter-Terrorism


at the Department of International Politics, Aberystwyth University.
Her main research interests include intelligence accountability and
oversight, counter-terrorism policing, international intelligence, and
police cooperation. Her PhD project was supported by a Marie Curie
Early Stage Research Fellowship of the European Commission. She has
recently completed a monograph on the democratic legitimacy of EU-
wide counter-terrorism policing and has also published on the CIA’s
‘extraordinary’ rendition campaign.

Christian Kaunert is Senior Lecturer in Politics and International


Relations at the University of Dundee, UK, and Marie Curie Research
Fellow at the Robert Schuman Centre for Advanced Studies (RSCAS),
European University Institute, Florence, Italy. He holds a PhD

viii
Notes on Contributors ix

in International Politics from the University of Wales, Aberystwyth, UK.


He has been awarded a Jean Monnet Chair in EU Justice and Home
Affairs and a Marie Curie Career Integration Grant (2012–2016). His
articles have appeared in journals such as European Security, Journal of
European Integration, Terrorism and Political Violence, Studies in Conflict and
Terrorism and the Journal of European Public Policy. His monograph enti-
tled European Internal Security: Towards Supranational Governance in the
Area of Freedom, Security and Justice was published by Manchester Uni-
versity Press in 2010. He is editor of the Journal of Contemporary European
Research (JCER), as well as a member of the executive committee of
UACES.

Sarah Léonard is Lecturer in Politics at the University of Dundee, UK,


and Marie Curie Research Fellow at the Centre for European Studies,
Sciences Po, Paris, France. She received her PhD in International Poli-
tics from the University of Wales, Aberystwyth, UK. She is also editor of
the Journal of Contemporary European Research (JCER). Her articles have
appeared in journals such as European Security, Terrorism and Political
Violence and the Journal of European Public Policy.

Alex MacKenzie is a researcher based in the Department of Politics,


School of Histories, Languages and Cultures, at the University of Liv-
erpool. He holds a PhD in Politics from the University of Salford, UK.
His research interests include the EU as a global actor, EU counter-
terrorism cooperation with third states and the role of the European
Parliament in EU security matters. His articles have appeared in journals
such as European Foreign Affairs Review, European Security and Perspectives
on European Politics and Society.

John D. Occhipinti is Professor of Political Science and Department


Chair at Canisius College in Buffalo. He earned his MA and PhD from
the University of Maryland at College Park. Dr Occhipinti has published
widely on internal security policy regarding the EU and transatlantic
relations, including ‘Parallel Paths and Productive Partners: the EU and
US on Counter-terrorism’, in F. Lemieux (ed.) Emerging Initiatives and
Contemporary Obstacles in Police Cooperation (2010), and ‘Partner or Push-
Over? EU Relations with the US on Internal Security’, in D. Hamilton
(ed.) Shoulder to Shoulder: Forging a Strategic US-EU Partnership (2010).
He has lectured for the US Foreign Service Institute, presented his
research at the State Department and briefed newly appointed American
ambassadors to the EU.
x Notes on Contributors

Carlos Ortiz is the author of Private Armed Forces and Global Security:
A Guide to the Issues and the chief editor of PrivateMilitary.org. His
research focuses on the history of private military actors, as well as the
recent evolution of the public managerial strategies encouraging their
formal use. He was awarded a doctoral degree by the University of Sussex
for this research and was a visiting research fellow at the Centre for
Global Political Economy at the same university until 2010.

Stephen Rozée is Lecturer in Politics at the University of Dundee,


where he has also recently completed his PhD. His research interests
include the European Union as a security actor with a particular focus on
policing. He also holds a Master’s degree in Global Politics from the Uni-
versity of Southampton. He has published in the Journal of Contemporary
European Research.

Adam D.M. Svendsen is an intelligence and defence strategist, edu-


cator and researcher, and an associate consultant at the Copenhagen
Institute for Future Studies (CIFS), Denmark. He has a PhD in Pol-
itics and International Studies from the University of Warwick, UK.
As well as contributing to various private sector projects as a research
analyst and strategic intelligence consultant, he has trained at various
European defence and emergency planning colleges and has authored
several publications, including the books Intelligence Cooperation and the
War on Terror: Anglo-American Security Relations after 9/11 (2010) and
Understanding the Globalization of Intelligence (2012).

Kamil Zwolski is Lecturer in Global Politics and Policy at the Univer-


sity of Southampton. He holds a PhD in Politics from the University of
Salford, UK. He is also involved in the activities of the C2G2 – Centre for
Citizenship, Globalization and Governance. His research interests con-
cern the changing nature of regional and global security cooperation.
In particular, he has published on the role of the European Union in
international security in journals such as European Security, Cooperation
and Conflict and the Journal of European Public Policy.
1
Introduction – Beyond EU
Counter-terrorism Cooperation:
European Security, Terrorism and
Intelligence
Sarah Léonard and Christian Kaunert

In March 2012, three French soldiers and four Jewish members of the
public were killed in a series of gun attacks in the Midi-Pyrénées region
of France. The perpetrator of these terrorist attacks, Mohamed Merah,
was eventually killed during an armed siege. The official investiga-
tion revealed that he had become radicalised while in prison and had
also travelled to Afghanistan and Pakistan (BBC News, 2012a). How-
ever, Islamist terrorism is not the only type of terrorism with which
European countries have to contend. On 22 July 2011, Anders Breivik
set off a car bomb in Oslo, which resulted in eight deaths. He subse-
quently carried out a mass shooting at a Labour Party youth camp on
the island of Utøya, killing another 69 people, mostly teenagers. During
his trial, he described his actions as ‘preventive attacks to defend the
indigenous Norwegian people’ and accused the ruling Labour Party of
turning Norway into what he called a ‘multiculturalist hell’ by allowing
too many Muslim immigrants to enter the country (Guardian, 2012).
Thus, and although some signs of ‘counter-terrorism fatigue’ are visi-
ble in Europe according to the European Union (EU) Counter-Terrorism
Coordinator (Council of the European Union, 2009, p. 2), the threat
of terrorist attacks in European countries can be viewed as significant,
diverse and fast evolving, as notably confirmed by the annual EU Ter-
rorism Situation and Trend Reports compiled by Europol (see Europol,
2011) and the regular updates and discussion papers relating to the EU
Counter-Terrorism Strategy issued by the Counter-terrorism Coordina-
tor (see Council of the European Union, 2011a–c, 2012). Against this

1
2 Introduction

backdrop, this book mainly focuses on the development of EU coop-


eration against terrorism, highlighting both its achievements and the
challenges that it has encountered. In addition, as further explained
later in this chapter, it locates the evolution of the EU counter-terrorism
policy in its broader context. It considers both the debates on the EU
as an international security actor and the policy developments in the
related policy areas of policing and intelligence, which partly overlap
with counter-terrorism – hence, the title of this book, European Security,
Terrorism and Intelligence.

Europe and the terrorist threat

Before proceeding further, it is important to specify the definition of


terrorism that underpins this book. As evidenced by the protracted
debates on the subject at the United Nations, there is no universally
agreed definition of terrorism among governments (Whittaker, 2007).
Neither is there any academic agreement in this respect, as notably evi-
denced by the rise of a ‘critical terrorism studies research agenda’ and
the debates on the concept of ‘state terrorism’ (Jackson et al., 2009,
2011a,b; Jackson and Sinclair, 2012). This is arguably not surprising,
as defining terrorism is an inherently political process – the same per-
son may be seen as a terrorist or a freedom fighter depending on one’s
political viewpoint (Hoffman, 2006). With these caveats in mind, the
present book is based on the common definition of terrorism that was
adopted by the EU in its Council Framework Decision of 13 June 2002
on combating terrorism (2002/475/JHA). This definition has both an
objective and a subjective dimension. The objective dimension refers
to the adoption of a list of nine categories of serious criminal conduct,
such as hostage-taking, extortion, murder and bodily injuries. In con-
trast, the subjective dimension concerns the aim of these acts – the
specific acts that are listed are deemed to be terrorist acts when commit-
ted with a specific aim, namely (1) ‘seriously intimidating a population’,
(2) ‘unduly compelling a Government or international organisation to
perform or abstain from performing any act’ or (3) ‘seriously destabilis-
ing or destroying the fundamental political, constitutional, economic or
social structures of a country or an international organisation’ (Article 1
of the Council Framework Decision 2002/475/JHA). Related to the fact
that there is no common definition of terrorism, there are also various
ways of categorising terrorists and terrorist acts. As observed by Johnson
(1978, quoted in Schmid and Jongman, 2005, p. 40), ‘[t]here are almost
as many typologies of terrorism as there are analysts’. In their seminal
Introduction 3

study, Schmid and Jongman have identified ten categories of typologies,


including the actor-based, political orientation-based, and purpose-
based typologies (Schmid and Jongman, 1988, pp. 39–59). In its EU
Terrorism Situation and Trend Reports, Europol distinguishes between
Islamist, separatist, left-wing and anarchist, right-wing, and single-issue
terrorist acts.
For the first years of the new millennium, Al Qaeda was generally
considered by far the most dangerous terrorist threat to the EU Mem-
ber States, following the terrorist attacks in the United States (US) on
11 September 2001, in Spain on 11 March 2004 and in the United King-
dom (UK) on 7 July 2005. This is not to say that some EU Member States
were not also affected by the activities of other terrorist groups at the
same time, such as ETA in Spain and Corsican terrorist groups in France.
However, Al Qaeda was considered to be particularly dangerous because
of several of its characteristics (Hoffman, 2006). First of all, it aims to per-
petrate attacks causing mass casualties. Moreover, the aims of Al Qaeda
are generally perceived to be ultimately incorrigible. It has been pur-
suing five main aims, namely (1) to establish the Shari’a religious law
across Muslim lands in order to facilitate the arrival of the ‘Messiah’;
(2) to expel the US and ‘infidels’ from Middle East and Muslim lands;
(3) to topple Muslim regimes that ‘betray’ true Islam; (4) to lead a Jihad
(‘holy war’) against the US and its allies, including European states, and
set up a ‘World Islamic Front for Jihad’; and (5) to ultimately establish a
Pan-Islamist ‘Caliphate’ (Hoffman, 2006; Wilkinson, 2011). In addition,
Al Qaeda is structured as a large transnational movement or network,
rather than a traditional, more hierarchical organisation. In the after-
math of 9/11, it was perceived to be the most widely dispersed terrorist
movement in history, with a reported presence in more than 60 coun-
tries. While Osama bin Laden (now replaced by Ayman al Zawahiri since
bin Laden’s death in 2011) provided ideological and strategic leadership,
assisted by a ‘Shura’ (Council of Advisors), the networks of cells and
affiliated organisations have been in charge of their own terrorist opera-
tions. This has made intelligence gathering particularly challenging and
dependent on strong international cooperation.
In the last few years, the core of Al Qaeda has come under signifi-
cant military pressure, most notably from the US. Eventually, in May
2011, bin Laden was killed in a raid by US Special Forces in Pakistan
(Council of the European Union, 2011a, p. 1). This was a further blow
to what the EU Counter-terrorism Coordinator has called ‘Al Qaeda cen-
tral’ (Council of the European Union, 2009, p. 3), which had already
been significantly weakened by then. However, bin Laden’s death did
4 Introduction

not spell the end of Al Qaeda, whose affiliates notably in the Sahel
region and in Yemen have considerably grown in recent years. For this
reason, terrorism inspired by Al Qaeda still tends to be considered the
most important terrorist threat faced by Europe. This is notably because
Al Qaeda propaganda can inspire ‘self-radicalising’ individuals, who may
also have opportunities to travel to training camps in conflict areas,
as shown by the case of Mohamed Merah (BBC News, 2012b). Never-
theless, Al Qaeda does not have a monopoly on the terrorist threat in
Europe, as shown by Breivik’s attacks in summer 2011 and the contin-
ued terrorist campaigns of some ethno-nationalist groups in several EU
Member States (Europol, 2011).

The development of EU counter-terrorism cooperation

EU cooperation on counter-terrorism is a relatively recent phenomenon.


Although operational cooperation on issues of internal security, such as
terrorism, already began in the 1970s among European states within the
TREVI Group, it is only in 1993 that cooperation on terrorism was for-
mally included in the EU framework with the adoption of the Treaty
of Maastricht (Mitsilegas, 2009, p. 10). However, for a few years, EU
achievements in this policy area remained modest. It can therefore be
argued that EU counter-terrorism cooperation began in earnest in 2001,
as a direct response to the terrorist attacks in the US on 11 Septem-
ber 2001 (Zimmermann, 2006; Kaunert, 2007, 2010; Argomaniz, 2011;
Bures, 2011). As early as 21 September 2001, the European Council
met in an extraordinary session ‘in order to analyse the international
situation following the terrorist attacks in the United States and to
impart the necessary impetus to the actions of the European Union’
(European Council, 2001a, p. 1). It adopted Conclusions and a Plan of
Action, which identified the priorities for the development of the EU
counter-terrorism policy as follows: (1) enhancing police and judicial
cooperation; (2) developing international legal instruments; (3) ending
the funding of terrorism; (4) strengthening air security; and (5) coor-
dinating the EU’s global action. An EU Anti-terrorism Roadmap listing
46 measures was also adopted on 26 September 2001 (European Coun-
cil, 2001b). As a result, in the first months following 9/11, the EU
focused on enhancing police and judicial cooperation on counter-
terrorism among EU Member States, with the adoption of important
instruments such as the Framework Decision on Combating Terrorism
and the European Arrest Warrant, as well as tackling the financing of
terrorism (see Kaunert, 2007, 2010).
Introduction 5

However, policy developments gradually slowed down as the urgency


of the terrorist threat appeared to subside. This period of relative ‘inertia’
ended when the EU counter-terrorism policy received a new impetus in
the wake of the terrorist attacks in Madrid in March 2004 (Argomaniz,
2009). Those prompted the adoption of the Declaration on Combat-
ing Terrorism on 25 March 2004 (European Council, 2004), as well as
the decision to create the post of EU Counter-terrorism Coordinator.
A Revised EU Plan of Action on Combating Terrorism was also adopted
in June 2004 (Council of the European Union, 2004). It highlights
the seven ‘EU strategic objectives to combat terrorism’ that had been
endorsed by the European Council in March, namely to (1) ‘deepen the
international consensus and enhance international efforts to combat
terrorism; (2) reduce the access of terrorists to financial and economic
resources; (3) maximise the capacity within EU bodies and Member
States to detect, investigate and prosecute terrorists and to prevent ter-
rorist attacks; (4) protect the security of international transport and
ensure effective systems of border control; (5) enhance the capability
of the European Union and of Member States to deal with the conse-
quences of a terrorist attack; (6) address the factors which contribute
to support for, and recruitment into, terrorism; (7) target actions under
EU external relations towards priority Third Countries where counter-
terrorist capacity or commitment to combating terrorism needs to be
enhanced’. In addition to this Plan of Action on Combating Terror-
ism, which was to be updated every six months, the EU subsequently
adopted a Counter-Terrorism Strategy in December 2005. It is based on
four pillars: ‘prevent’, ‘protect’, ‘pursue’ and ‘respond’. ‘Prevent’ refers
to activities aiming to tackle the root causes of terrorism, while ‘pro-
tect’ concerns activities aiming to decrease the vulnerability of people
and infrastructures to terrorist attacks. ‘Pursue’ refers to the investi-
gation of terrorist activities, while ‘respond’ concerns the reaction to
terrorist attacks (Council of the European Union, 2005a). Moreover, the
EU has adopted strategies on specific aspects of its counter-terrorism
efforts, such as the EU Strategy for Combating Radicalisation and
Recruitment in 2005 (Council of the European Union, 2005b) and
the Revised Strategy on Terrorist Financing in 2008 (Council of the
European Union, 2008).
The EU’s role in countering terrorism has been the object of heated
debates in the last decade. There have been diverging assessments in the
literature as to the success of EU counter-terrorism cooperation. Some
scholars have been rather reserved in their assessment of the EU counter-
terrorism policy. In particular, Bures (2006, 2011), who has famously
6 Introduction

branded this policy a ‘paper tiger’, has argued that the EU’s activities
have only generated little added value to the activities of the Member
States (Bures, 2006, 2011). In his contribution to this volume, he devel-
ops this argument in relation to the role of Europol in counter-terrorism.
Others, such as Bossong and Coolsaet (Bossong, 2008; Coolsaet, 2010),
have argued that the development of the EU counter-terrorism pol-
icy has been haphazard and characterised by a lack of overall strategic
vision – a criticism sometimes levelled at EU internal security policies
more broadly (Kaunert et al., 2012b). In contrast, other scholars have
been more positive and have emphasised all the progress already accom-
plished since 9/11 in enhancing cooperation in this very sensitive policy
area (Mahncke and Monar, 2006; Spence, 2007; Argomaniz, 2009, 2011;
Kaunert, 2010). The very swift adoption of the European Arrest War-
rant in the aftermath of 9/11 (Kaunert, 2007) and the signing of a
range of international agreements, most notably with the US (Kaunert
and Léonard, 2011), are of particular note. Although the content of
these measures has been criticised in some respects (Ripoll Servent and
MacKenzie, 2011; Kaunert et al., 2012a), their very existence signals
that significant progress, even if it has been uneven over the years
(Argomaniz, 2009), has been accomplished in fostering cooperation on
counter-terrorism among the EU Member States. A closer examination
of the successes of the EU in this policy area, as well as the challenges
that it continues to face, is therefore in order a little more than a decade
after EU cooperation on terrorism began in earnest.

About this book

It is important to start by explaining why this book is not entitled


The European Union Counter-terrorism Policy, but rather European Security,
Terrorism and Intelligence. In addition to being the title of a seminar
series and a workshop that both editors organised with another col-
league at the University of Salford - and where earlier versions of several
chapters in this book were presented -, the choice of this title was
motivated by various factors and aims to highlight several important
points. First of all, the book does not only consider the EU in its
analysis of counter-terrorism cooperation in Europe. It complements
existing literature on this topic (see notably Coolsaet, 2010; Kaunert,
2010; Argomaniz, 2011; Bures, 2011; Bossong, 2012) by adopting a
broader approach. It does not only consider the EU, but also anal-
yses regional cooperation arrangements in Europe (see, in particular,
Svendsen’s chapter) and contrasts policy developments in the EU with
those in a key country in the fight against terrorism, namely the
Introduction 7

US (see Occhipinti’s chapter). The important role of some EU Member


States, such as the UK (see, in particular, Ortiz’s chapter) and of some
national actors, such as national parliaments (see Hillebrand’s chapter),
is also highlighted. It is argued here that analysing the development of
European cooperation on counter-terrorism by considering the role of
the EU in relation to its broader context, at both the global and national
levels, generates original and more nuanced research findings. More-
over, this book particularly focuses on two important dimensions of
counter-terrorism, namely intelligence-sharing and police cooperation.
However, it is noteworthy that cooperation on intelligence and that on
law enforcement are not only dimensions of counter-terrorism. They are
part of counter-terrorism, while, at the same time, being broader than
it. In that sense, European cooperation on counter-terrorism is both an
outcome of and a catalyst for cooperation on intelligence and on law
enforcement.
In addition, the book seeks to locate the analysis of European counter-
terrorism cooperation in the broader context of the debates on inter-
national security. It makes two specific contributions in that respect.
Firstly, the book contributes to the literature on the evolution of the
security agenda in the last decades, since terrorism is one of the main
security threats ‘on the radar screen’ of not only many European states
and the EU, as notably evidenced by the European Security Strategy
of 2003, but also many other states across the world. Its importance
nowadays provides an apt illustration of the trend of the broadening
of the security agenda, which began in the 1980s. During the Cold
War, the security agenda had been almost exclusively dominated by
military matters. As emphasised by Mutimer (1999, p. 77), ‘ “security”
was the security of the state, it was threatened by the military power
of other states and defended by the military power of the state itself’.
However, this definition has increasingly been viewed as limited and
poorly adapted to a changing international environment, especially
after the end of the Cold War, which led to the so-called ‘widening-
deepening’ debate in security studies. In this context, ‘widening’ refers
to extending security to issues other than military, whereas ‘deepen-
ing’ concerns the issue of moving the level of analysis, traditionally set
at the nation-state level, upwards (e.g. regional security, global secu-
rity) or downwards (e.g. security at the individual level) (Krause and
Williams, 1996, p. 230). As a result, other issues gradually came to
be viewed as security threats, including environmental degradation,
transnational organised crime and terrorism, while new actors became
increasingly recognised as significant actors in the realm of security,
including non-state actors, such as terrorist groups, non-governmental
8 Introduction

organisations, private military companies and international organisa-


tions such as the EU (Sheehan, 2005; Dannreuther, 2007; Dunn Cavelty
and Mauer, 2010). While this trend is global, it is particularly rele-
vant to the European context (Cottey, 2007). This is notably because
the success of European integration has played an important role in
decreasing the importance of military threats on the security agenda
in the last few decades, although they have evidently not completely
disappeared (Wæver et al., 1993). In addition, ‘non-traditional’ secu-
rity threats have received significant attention from the EU (Kaunert,
2010). In its European Security Strategy, which was adopted in 2003,
the EU identified a wide range of security threats, including disease,
poverty, terrorism, global warming, migratory movements and organ-
ised crime, alongside more traditional security threats (European Coun-
cil, 2003; see also Zwolski’s chapter in this volume). This emphasis
on ‘non-traditional’ security threats was arguably even stronger in the
2008 Report on the Implementation of the European Security Strategy
(European Council, 2008). At the same time, the EU has been at the fore-
front of international initiatives to tackle some of these non-traditional
security threats, such as terrorism and climate change. In this context,
analysing EU cooperation on terrorism also contributes to the study of
the broadening of the security agenda and of non-traditional security
threats.
Secondly, as terrorism is one of the key security threats faced by the
EU, studying the efforts of the EU to develop counter-terrorism cooper-
ation also contributes to the important political and academic debates
on the nature and success of the EU as a security actor. Traditionally, the
EU has often been considered a rather weak actor on the international
stage, especially in contrast with the US. In that sense, Hill’s early con-
ceptualisation of the EU’s Common Foreign and Security Policy (CFSP)
in terms of a ‘capability-expectations gap’ has had long-lasting effects
on the perceptions of the EU and on this academic field (Hill, 1993).
However, it is important to underline that the assessment of the EU
as ‘an economic giant, but a political dwarf’ (Fontaine, 2006) is actually
underpinned by a very specific understanding of security, which empha-
sises the importance of military power. If one adopts a broader view of
security, then the EU will appear as a significantly more important actor
on the international stage (Kaunert and Zwolski, 2013). From that view-
point, analysing the development of EU counter-terrorism cooperation
can both be informed by and contribute to the literature on EU security
actorness.
This book is structured into three main parts. Part I focuses on
the broad, but important, question of the EU as an international
Introduction 9

security actor. Chapter 2 by Zwolski underlines the necessity of broadly


conceptualising ‘security’ in order to reach a balanced assessment of
the EU’s role in international security. He argues that the role of the
EU in international security is often misunderstood, because scholars
frequently omit the EU security policies and instruments that exist
outside the framework of the Common Foreign and Security Policy
(CFSP)/Common Security and Defence Policy (CSDP) from their empiri-
cal investigation. Zwolski shows that when longer-term and structural
programmes are also considered, the EU no longer fulfils the stereo-
type of the ‘economic giant, but political dwarf’ and appears to play
a significant role on the international stage.
In Chapter 3, Rozée pursues this reflection on EU security actorness,
but with a specific focus on the policing dimension of security. He argues
that the EU has responded to changing security threats by seeking to
increase cooperation between Member States’ law enforcement agen-
cies, granting further powers to Europol and other intelligence-sharing
institutions, and by undertaking police missions beyond EU borders.
Rozée shows that, to date, there has been a tendency in the literature
to concentrate on narrow or isolated areas of policing and argues that
this has led to a significant gap regarding the broader analysis of the
EU as a comprehensive police actor. His chapter aims to define what is
meant by ‘comprehensive policing’ and to identify criteria by which the
comprehensiveness of EU-level policing may be measured. In addition
to this, an integrated actorness/police comprehensiveness framework
is developed as a tool for assessing the EU as a comprehensive police
actor.
After reflecting on the issue of the EU’s security actorness, the book
then turns to what has been a major driving force behind the devel-
opment of the EU as a security actor, namely counter-terrorism coop-
eration. In Part II of the book, two chapters focus on counter-terrorism
and policing in Europe. Chapter 4 by Bures offers a detailed and critical
analysis of Europol’s role in European counter-terrorism cooperation.
He argues that, in this policy area, Europol suffers from a ‘chicken-egg
dilemma’. On the one hand, Europol has hitherto not been granted
any supranational powers by the EU Member States and is generally not
trusted by national law enforcement and intelligence agencies, because
it does not perform any indispensable counter-terrorism functions at
the moment. On the other hand, the persisting lack of tangible ‘added
value’ in the area of counter-terrorism is primarily due to Europol’s
limited powers and the lack of trust from the national agencies. Nev-
ertheless, there could be some improvements in the future, as Bures
10 Introduction

identifies several areas where Europol could provide tangible added


value to European counter-terrorism cooperation.
Chapter 5 by Hillebrand also analyses counter-terrorism and its links
to policing. To explore this challenge with respect to EU-wide counter-
terrorism policing, this chapter focuses on the activities of Europol.
She argues that the network-like structures of counter-terrorism polic-
ing at the European level hamper proper parliamentary scrutiny and,
therefore, democratic scrutiny. The collaborative international nature
of these networks, the sensitivity of counter-terrorism information and
the (potential) cooperation of police and intelligence agencies, as well
as some of Europol’s characteristics, represent significant challenges.
After introducing Europol and its role in the field of counter-terrorism,
Hillebrand discusses the need for strong parliamentary scrutiny in this
field. She then argues that the current forms and tools of parliamen-
tary scrutiny available to both the European Parliament and national
parliaments are lacking, which is a cause for concern in such a sensitive
policy area.
With the next chapter, we then move on to Part III of this book,
which is dedicated to counter-terrorism and intelligence in Europe.
In Chapter 6, Balzacq and Léonard examine the evolution of two
of the main EU internal security databases, namely Eurodac and the
Visa Information System (VIS). Drawing upon securitisation theory
and developing the concept of ‘securitisation tools’, they show how
EU counter-terrorism cooperation has had an important impact on
information-sharing and on the development of these databases in par-
ticular. As a result, the VIS has been designed as a securitisation tool,
while Eurodac is on its way to being reconfigured as a securitisation
tool. This is because, as a result of the importance of combating terror-
ism, these tools aim to support not only the EU’s asylum and migration
policies, but also its counter-terrorism policy. The decision to grant the
law enforcement community access to the VIS means that Schengen visa
holders are cast as potential threats to the Schengen states. At the time of
writing, it appears likely that the same will apply to Eurodac and asylum
seekers in the near future, as negotiations on granting law enforcement
authorities access to Eurodac are under way.
Chapter 7 by Occhipinti analyses the prospects for enhanced
information-sharing in the EU for counter-terrorism purposes through
an enlightening comparison with the US experience. It examines the
development and implementation of the ‘availability principle’ in the
EU, before examining the factors that are likely to influence future
progress in this area, including the impact of the Lisbon Treaty. The
Introduction 11

chapter draws on insights from the ongoing experience of intelli-


gence reform in the US, especially initiatives to improve the actual
flow of counter-terrorism intelligence amid the newly reformed for-
mal structures of the US intelligence community. In doing so, the
chapter utilises an analytical framework employed by the US Direc-
tor of National Intelligence to evaluate information–sharing in the
US. This framework provides a fruitful way to examine the challenges
faced by the EU as it attempts to improve information sharing on
crime fighting and counter-terrorism among its Member States. The
chapter focuses on several initiatives that are under way at the EU
level to enhance information-sharing, including initiatives related to
Europol, the SIS, the ‘Swedish Framework Decision’ and the ‘Prüm Deci-
sions’. The chapter concludes by examining how information-sharing
has been addressed by the EU’s current ‘Stockholm Programme’, con-
siders recent developments in this regard and looks ahead to the
future.
Chapter 8, by Svendsen, also focuses on intelligence cooperation,
but takes us beyond the realm of the EU to explore the broader
European context. He argues that, during the early 21st century, we
have generally witnessed greater intelligence cooperation in Europe –
a particularly good example of what he terms the ‘regionalisation of
intelligence’. The enhanced intelligence cooperation in Europe has been
particularly focused on combating terrorism, as high-profile terrorist
attacks on European soil, in particular in Madrid in March 2004 and
in London in July 2005, have been important catalysts in its develop-
ment. Svendsen highlights that intelligence cooperation has developed
in different networks, which have partially overlapping memberships
and have grown in an uneven and rather haphazard way. Thus, over-
all, we are witnessing the development of an ever more complex web
of international intelligence liaison arrangements, which collectively
provide a form of regional intelligence coverage in Europe. One can,
therefore, conclude that intelligence cooperation in Europe is on ‘a
continuum with expansion’, although some operational limitations
remain.
Chapter 9, on counter-terrorism and intelligence, is by Ortiz. His anal-
ysis focuses on the impact of the privatisation of security and the rise
of ‘security partnerships’ in intelligence and other aspects of home-
land security. He argues that, especially since the end of the Cold
War, New Public Management reforms aiming to broaden private sec-
tor participation in spheres of government have also affected sovereign
functions relating to security and defence. Private security companies
12 Introduction

and intelligence firms have become increasingly important actors. As a


result, we have witnessed what he calls a ‘re-engineering of state intelli-
gence’. Ortiz develops this argument with specific reference to the case
of the UK, where such trends are particularly visible. Nevertheless, he
also analyses the opportunities and challenges inherent to the develop-
ment of such security partnerships in the broader EU context. Also, as
the UK is at the vanguard of a trend that is now affecting most EU Mem-
ber States and that has been accelerated by the current economic crisis,
the important lessons to be drawn from the UK case are relevant to the
other EU Member States and to EU policy development in the fields of
security and intelligence cooperation.
The concluding chapter, Chapter 10, by MacKenzie and Zwolski
reflects on the development of European security cooperation to date
and looks ahead to the future. It highlights the growing importance of
the EU in internal security matters and examines how the EU institu-
tions have carved a role for themselves in this policy field. From that
point of view, it can be argued that progress towards increased coopera-
tion over the last few years has been remarkable. However, the authors
also highlight some challenges, such as problems of policy coordination
and the lack of a strategic vision, which the EU will have to tackle in
order to fully become a significant security actor.

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Part I
The European Union as a
Security Actor
2
The European Union and
International Security: Developing
a Comprehensive Approach
Kamil Zwolski

‘Drawing on a unique range of instruments, the EU already contributes


to a more secure world. We have worked to build human security,
by reducing poverty and inequality, promoting good governance and
human rights, assisting development, and addressing the root causes of
conflict and insecurity’ (Council of the European Union, 2008a). What
constitutes security in the 21st century? The former United Nations
(UN) Secretary-General Kofi Annan states the obvious when he con-
trasts the perception of security threats of a New York investor passing
Ground Zero on a daily basis with that of a Malawian orphan who has
lost his parents to AIDS. Further, the fears of an Indonesian fisherman
who has lost his family to a tsunami are also likely to differ from the
security concerns of a villager in Darfur threatened by bombing raids
(Annan, 2005). Over the last two decades, perennial problems such as
poverty, pandemic diseases and environmental disasters, together with
more recent ones, such as climate change, have become increasingly
integrated into the international security agenda. This reflects the grow-
ing understanding of their role not only as the main causes of death in
many regions of the world but also as multipliers of more traditional,
military threats. In this context, an increasing body of scholarship has
recognised the European Union (EU) as a security actor that is well
equipped to tackle these complex security challenges, due to the multi-
dimensional (Bretherton and Vogler, 2006) or structural (Keukeleire and
MacNaughtan, 2008) character of its policies.

This chapter partially draws upon an article published in Cooperation and Conflict,
volume 47, issue 3, in 2012.

17
18 The European Union as a Security Actor

Indeed, there is a growing body of scholarship that incorporates


this broadened approach to studying EU security policy, moving
beyond traditional security problems and beyond the Common Secu-
rity and Defence Policy (CSDP). For example, Cottey, Keukeleire and
MacNaughtan and Hintermeier not only include more traditional secu-
rity threats into their empirical analysis (Cottey, 2007, pp. 192–216;
Hintermeier, 2008, pp. 666–7; Keukeleire and MacNaughtan, 2008, pp.
249–52), but also examine the EU’s role in addressing ‘new’ security
challenges, such as climate change and HIV/AIDS, more in line with
contemporary Security Studies literature (Buzan et al., 1998; Collins,
2007; Williams, 2008). There is also a significant body of scholarship
on European civilian crisis management, which approaches security in
a holistic manner (e.g. Boin et al., 2008; Boin and Ekengren, 2009).
This chapter builds on this scholarship by addressing some of the chal-
lenges identified in this literature, notably the lack of coherence in EU
action. It also broadens the geographical scope of this literature, in order
to demonstrate the EU’s security role beyond its neighbourhood and
particularly the Balkans (Møller, 2005).
Further, scholars increasingly take into account non-CSDP, security-
focused instruments and policies of the EU. For example, Kirchner
argues that states have lost monopoly on providing security and have
emerged as one type of participants in a cooperative system (Kirchner,
2006, pp. 962–3). In such a system, according to Marsh and Mackenstein
(2005, p. 15), the European Community emerged as an international
security actor, by contributing to the Western European zone of peace
and by establishing a dense network of economic and humanitarian
agreements with the rest of the world. Ekengren, through referring to
the concept of societal security1 in the EU, and linking security with dis-
aster response,2 argues that CSDP missions in Congo and Guinea-Bissau
have particularly emphasised the need in the EU to rethink the demarca-
tion lines between policy areas such as trade, aid, diplomacy and civilian
and military crisis management capabilities (Ekengren, 2011). However,
the author also identifies some challenges to this integrated approach
(Ekengren, 2011, pp. 108–10; see also Britz, 2011).
Finally, in addition to the literature on the EU as an international
security actor, a comprehensive approach to EU security policy dom-
inates the scholarship on the Area of Freedom, Security and Justice
(AFSJ). For example, Kaunert has highlighted the strong role of the
European Commission as a ‘norm entrepreneur’ in AFSJ policy-making
(Kaunert, 2009, 2010). Agencies such as Europol and Frontex are also
increasingly recognised for their role in EU security (Leonard, 2010),
including the external dimension (Germond, 2010).
The European Union and International Security 19

However, if the EU is actively broadening its view of security and


utilising a wide range of measures in responding to contemporary secu-
rity problems, why is it so difficult to systematically account for all
these measures? The scholarship adopting such an all-encompassing
stance is still in the minority, with the prevailing approach reflecting
the post-Maastricht division into economic and international security
policies, until recently embedded in the first and second pillars of
the EU (Knodt and Princen, 2003, pp. 2–3). It appears that there are
significant stumbling blocks preventing a more systematic, compre-
hensive analysis. These include (1) conceptual difficulties in delimiting
security from non-security policies; (2) significant differences in threat
perceptions across the EU; (3) the arguable lack of an overarching
strategic vision behind the range of EU short- and long-term secu-
rity measures; and (4) the problem of utilising all those measures in a
consistent manner.
The argument put forward by this chapter unfolds in the following
manner. The first section examines the importance of broadening the
approach to security while studying the role of the EU as an interna-
tional security actor. However, important challenges to adopting such
a comprehensive approach are also identified, in section two. Subse-
quently, the chapter looks at how the UN and the North-Atlantic Treaty
Organisation (NATO) have taken steps to redefine their approach to
security, in order to provide a better context for the analysis of the
EU security policy. The fourth section explores another dimension of
a comprehensive approach to studying EU security policy, namely the
importance of incorporating policies and instruments beyond the CSDP.
Yet, also in this case, important stumbling blocks have been preventing
scholars from adopting a holistic approach; these are identified in the
fifth section.

The EU and new security problems

The European Security Strategy (ESS) – a document drafted by the former


High Representative Javier Solana and approved by the European Coun-
cil in 2003 – provides for a broad understanding of security (Council
of the European Union, 2003). It not only identifies more traditional
security threats, such as weapons of mass destruction (WMDs), but also
points to global warming and poverty as the possible causes of conflict
(Biscop, 2008, pp. 8–13). These non-traditional or ‘new’ security issues
have been further elevated in the Report on the Implementation of the
ESS in 2008 (Council of the European Union, 2008a). In this document,
20 The European Union as a Security Actor

energy security and climate change are identified as global challenges


and key threats, alongside the proliferation of WMDs, organised crime
and terrorism (Council of the European Union, 2008a, pp. 3–6).
The EU’s broad approach to international security reflects the
widening (new security threats) and deepening (new referent objects of
security) of the international security agenda (Williams, 2008, pp. 7–9).
Problems previously overshadowed by the nuclear rivalry between
major powers and labelled as ‘low politics’ have become recognised
for their impact on the security of millions beyond the Western
world (Annan, 2005). This process has been facilitated by a shift
away from an exclusive focus on ‘present’ existential threats towards
a more probabilistic approach, focusing on diffuse risks (McInnes, 2008,
p. 276). Thus, Security Studies experts are not dismissing more tra-
ditional security threats. Actually, in addition to continuing to study
such threats, they are also analysing the nexus between security and
health (Elbe, 2007; McInnes, 2008), poverty (Thomas, 2008) and cli-
mate change (Barnett, 2003; De Wilde, 2008; Dalby, 2009). The so-called
‘Copenhagen School’ of security, discussed at length in the ‘Introduc-
tion’ to this book, has brought significant explanatory value to these
developments, particularly through the concept of ‘securitisation’. This
concept suggests that security is a speech-act. Thus, an issue becomes
a matter of security by virtue of pronouncing it as such, not necessar-
ily because it involves a real existential threat (Emmers, 2007; Wæver,
1995; Williams, 2003).
In its official narrative, the EU often subscribes to the concept of
human security (European Council, 2006; Council of the European
Union, 2008a, p. 10; European Commission, 2010, p. 6), institution-
alised in the UN Human Development Report of 1994 (UNDP, 1994,
pp. 22–46). Human security entails moving beyond territorial defence
and national interests to include universal concerns, such as unem-
ployment, drugs, crime, pollution and human rights violations (UNDP,
1994, p. 22). However, human security does not entail ignoring more
traditional security problems, such as terrorism. It simply points to the
obvious fact that the experience of insecurity is relative, as famously
emphasised by Kofi Annan in an influential article published in Foreign
Affairs in 2005 (Annan, 2005).
Yet, Macdonald argues that international actors do not rationally
‘choose’ any given approach to international security. Instead, ‘issues
such as history, culture and identity shape what is rational, appropriate
and possible’ (McDonald, 2002, p. 286). Consequently, ‘human secu-
rity’ frames the positions of actors for which it is relevant, instead of
actors purposefully adhering to ‘human security’ as the ‘right’ security
The European Union and International Security 21

narrative for them. If the EU’s international identity is pacific, prin-


cipled, consensus-based, network-based, open and contra-Westphalian
(Manners and Whitman, 2003, pp. 398–9), then ‘human security’
appears to fit well.
In particular, human security underpins the EU’s commitment to
link security objectives with development policy. An ongoing process
whereby the EU incorporates security considerations into its develop-
ment policy, as well as development concerns into its security strategies,
is reflected by the growing body of scholarship on the so-called ‘security-
development nexus’ in EU policy (e.g. Hadfield, 2007; Youngs, 2008;
Bagoyoko and Gibert, 2009; ; Hout, 2010). On the security end, the
aforementioned ESS and the Report on the Implementation of the ESS
draw strong links between security and development, famously argu-
ing that, indeed, security is a pre-condition for development. The EU
Programme for the Prevention of Violent Conflicts, approved by the
2001 Göteborg European Council, puts a strong emphasis on strength-
ening short- and long-term preventive instruments for the EU. This
programme served as an important basis for the Commission when
designing the new set of external assistance instruments in 2004, and
particularly when putting together the proposal for the Instrument for
Stability (IfS). The Commission noted that Community financing instru-
ments have a ‘major contribution’ to conflict prevention and to the
development of the Union as a global player (European Commission,
2004, p. 11).
On the development end, the Cotonou Partnership Agreement (CPA)
with African, Pacific and Caribbean (APC) countries of 2000 (revised in
2005 and 2010) has a significant political and even security component.
In contrast to previous agreements (Lomé and Yaoundé Conventions),
the CPA reflects an increasingly political approach of the EU to develop-
ing regions in general and to Africa in particular (Gänzle, 2009, p. 39).
The 2005 revision contains explicit references to security objectives,
such as the fight against terrorism and the non-proliferation of WMDs,
making the reduction of poverty the primary, but not exclusive, goal
of the agreement (Hadfield, 2007). This combination of development
goals and security objectives in the CPA is consistent with the EU’s
overall approach to development, codified in the European Consensus
on Development from 2006. The Consensus underlines the comple-
mentary nature of security and development objectives in the EU’s
relations with third countries, because they both contribute to ‘creating
a secure environment and breaking the vicious cycle of poverty, war,
environmental degradation and failing economic, social and political
structures’ (European Council, 2006, p. 7).
22 The European Union as a Security Actor

Regardless of the extent to which it is the EU that rationally chooses


its approach to international security, or it is ‘chosen’ based on the
EU’s particular history, identity and culture, the broad, human-focused
approach to security has important consequences for research. On the
one hand, it is important to incorporate this broader security agenda
when studying the EU as an international security actor. On the other
hand, at least two problems arise with the EU’s ‘human security’
approach; these include (a) delimiting security from non-security prob-
lems, and (b) the challenge of vertical consistency (between Member
States and the EU).

Incorporating ‘new’ security problems into the


research agenda

An obvious challenge concerns the boundaries of ‘security’ in the EU’s


international policy. One of the former advisors to Solana rightly points
out that ‘[it] is in the DNA of our organisation to define security prob-
lems broadly’.3 Yet, this presents the challenge of how to delimit the
security policies from the non-security policies of the Union. If climate
change, AIDS and poverty are included into the EU’s security agenda,
which specific policy actions can be assessed in the context of the EU’s
role as a security actor, and which ones fall merely under environmental,
health and development policies?
This seemingly trivial choice bears considerable consequences for the
analysis, because the extent to which the EU can be considered a secu-
rity actor depends largely on the definition of security (Kirchner, 2006,
p. 952; Rieker, 2009, p. 704). Thus, Biscop (2008, p. 12) argues that the
ESS should have been named a foreign policy strategy and that the label
‘security’ must be reserved for issues posing an effective threat of vio-
lence. This critique echoes a more general dilemma concerning human
security: ‘[how] to delimit the concept, and how to judge which inse-
curities to honour when conflicting concerns are at stake’ (Buzan and
Hansen, 2009, p. 204).
The European Consensus on Development exemplifies this dilemma,
emphasising the correlation between development and security and the
necessity for the EU to pursue both values in its external policy. At the
same time, the document fails to specify which objectives will be given
priority when values conflict with each other. For example, the EU
wants to prioritise ‘local ownership’ (a popular EU catchphrase), but at
the same time it wants to press authoritarian regimes for democracy
(Youngs, 2008, p. 421). This dilemma also points to another subtle
The European Union and International Security 23

distinction in the EU’s approach to security, between the strand relat-


ing to instability, conflict and insecurity in developing countries (which
are the most vulnerable to ‘new’ security problems) and the EU’s own
security concerns. While both understandings of security are amply
addressed in the ESS and other strategic documents, the second strand
remains contested and raises questions about the EU’s real intentions in
Africa and elsewhere (Youngs, 2008, p. 422).
From a normative perspective, non-governmental organisations
(NGOs) raise concerns about the increasing skewing of global aid
spending to satisfy military and security interests. Oxfam in its recent
report notes that donors increasingly focus aid on areas of their secu-
rity concern. For example, since 2002, ‘one-third of all development
aid to the 48 states labelled “fragile” by the OECD has gone to just
three countries: Iraq, Afghanistan and Pakistan’ (Oxfam, 2011, p. 2).
Although the majority of European aid remains ring-fenced for Africa,
some increases in funding have obvious security objectives, including
resources for controls against illegal migration, anti-terrorism cooper-
ation assistance and security patrol initiatives in the Mediterranean
(Youngs, 2008, p. 431).
The less obvious challenge to incorporating ‘new’ security prob-
lems into the research agenda concerns vertical consistency (between
national and EU policies) (Nuttall, 2005, p. 106). High level of verti-
cal consistency entails that Member States comply with the policies
agreed upon at the EU level. For example, the case of climate secu-
rity demonstrates that all Member States have, in principle, approved
the move towards developing the security dimension of climate change
in EU policy. Yet, this principled acceptance of the climate security
narrative by all Member States at the EU level does not preclude sig-
nificant differences at the national levels. If the international identity
of the EU is pacific, principled, consensus-based, network-based, open
and contra-Westphalian (Manners and Whitman, 2003, pp. 398–9), the
identities of Member States vary considerably. These identities, forming
particular security cultures, are shaped by factors such as (a) internal
cultural cohesion; (b) interactions with neighbours; (c) defeat and occu-
pation; (d) threat perception; (e) past martial or imperial ambitions and
traditions; and (f) impermeability and durability of national borders
(Howorth, 2007, p. 178).
Consequently, countries of Central and Eastern Europe (CEE) attribute
relatively less importance to ‘new’ security challenges, due to their dis-
tinctive historical experiences and their ongoing insecurities concerning
Russia’s foreign policy intentions. In the case of Poland, this traditional
24 The European Union as a Security Actor

view has been reinforced by the dominance of right-wing political


parties and the influence of nationalistic media outlets (Zwolski, 2009).
As a result, CEE countries, for the most part, do not play any active role
in the EU Steering Group on Climate Change and International Security.
This is how one CEE state representative explains this absence: ‘The EU,
under ‘climate security’ label, does not do anything new. Thus, it does
not really matter whether my country is part of the Steering Group,
because we basically do the same things’.4
It is not only CEE countries that often differ in their perceptions of
‘new’ security problems from older EU Member States. Following the
approval of the Joint Report on Climate Change and International Secu-
rity by the European Council in March 2008, the Council Secretariat
drafted the follow-up report with some more specific recommenda-
tions (Council of the European Union, 2008b). It was thus expected in
the Council Secretariat that it would be the December 2008 European
Council discussing these recommendations. Instead, the French Pres-
idency did not find the room for this agenda item, submitting it
instead to the December 2008 Agriculture and Fisheries Council, which
merely acknowledged the document (Council of the European Union,
2008c, p. 49).
These two roadblocks to incorporating ‘new’ security problems into
the research on the EU as an international security actor must be
acknowledged, but cannot prevent a more holistic research agenda.
Although the concept of security will remain contested, the move
towards widening and deepening its understanding is fairly well estab-
lished in Security Studies and in the practice of many states and
non-state actors. The security consequences of climate change and pan-
demic diseases have been acknowledged by the UN Security Council,
which further fosters the focus on non-state referent objects, such as
societies and individuals. The EU subscribes to this broader view of secu-
rity (including the concern with human security) and this must be taken
into account when studying the EU’s role in security policy.
Similarly, the diverging perceptions of security problems and dif-
fering accents in national security strategies will remain part of the
security landscape in the EU in the foreseeable future. However impor-
tant these differences are, they have not prevented Member States from
approving strategic documents at the EU level, which institutionalise
the broadened approach to security, acknowledging the relevance of
‘new’ security problems. Some of the most important among these are
the Joint Report on ‘Climate Change and International Security’, the
EES and the Report on the Implementation of the EES.
The European Union and International Security 25

Broadened security beyond the EU

The main focus of this chapter is to set the framework for a comprehen-
sive approach to studying the EU’s international security policy. This
includes incorporating ‘new’ security problems into the analysis, con-
sidering their growing importance on the contemporary international
security agenda. However, the empirical developments in EU policy
towards a holistic view of security do not take place in a political vac-
uum. Notably, other international organisations have also taken steps to
re-evaluate their approach and understanding of security. This section
takes a look at the UN, constituting the most important global institu-
tion, and NATO, representing a key regional organisation. Both of these
institutions were established in the early years of the Cold War, but for
very different purposes. Whereas the aim of the UN was to maintain the
principle of sovereignty through bringing states together, NATO con-
tributed to the institutionalisation of the West–East division. In spite
of these different roles, both organisations have international security
at the core of their agenda. This section briefly examines how both
organisations have taken steps to redefine their approach to security,
notably by acknowledging the importance of non-traditional security
problems. This exercise is important because the way in which the UN
and NATO define security inevitably influences the EU’s own approach,
not least because of the largely overlapping memberships in these
organisations.

The UN and international security


Preserving security was at the core of establishing the UN in June 1945.
Its main purpose is ‘[t]o maintain international peace and security’ and
‘to save succeeding generations from the scourge of war’, followed by
other objectives, such as building friendship among nations, protecting
human rights and so on. Although the main goal remains the same, the
context of maintaining security has changed dramatically with the end
of the bipolar conflict. While the ‘old’ problems of interstate disputes
have not disappeared, new problems have emerged, such as terrorism
and the proliferation of WMDs. Moreover, the approach to the concept
of ‘security’ itself has started to be questioned. This in particular came
with the 1994 ‘Human Development Report’ by the UN Development
Programme, which argues that

[the] concept of security has for too long been interpreted narrowly:
as security of territory from external aggression, or as protection of
26 The European Union as a Security Actor

national interests in foreign policy or as global security from the


threat of a nuclear holocaust. It has been related more to nation-states
than to people.
(UNDP, 1994, p. 22)

This approach, which has become known as ‘human security’, focuses


on individuals as referent objects of security, rather than states. In the
proposition by the UNDP, human security has four characteristics: (a) it
is universal, because some concerns are common to all people, for
example unemployment; (b) the components of human security are
interdependent, which means that a security problem in one part of
the world has consequences in another part; (c) it is easier and more
effective to approach human security preventively rather than to merely
respond to problems when they occur; and (d) human security is cen-
tred on people, that is, ‘how people live and breathe in a society, how
freely they exercise their many choices, how much access they have to
market and social opportunities – and whether they live in conflict or in
peace’ (UNDP, 1994, pp. 22–3).
The terrorist attacks on 11 September 2001 slightly overshadowed
other problems on the post-Cold War security agenda, but another com-
prehensive approach to security was advanced in 2004, in the report
by the UN Secretary-General’s High-level Panel on Threats, Challenges
and Change, called ‘A More Secure World: Our Shared Responsibility’
(UNSG, 2004). It was published in the midst of the ‘War on Terror’,
including the controversial war in Iraq. Taking into account this con-
text, it was thus a meaningful observation of the UN Secretary-General
in the foreword to the report:

We can no longer afford to see problems such as terrorism, or


civil wars, or extreme poverty, in isolation. Our strategies must be
comprehensive. Our institutions must overcome their narrow preoc-
cupations and learn to work across the whole range of issues, in a
concerted fashion.
(UNSG, 2004)

The report identifies six clusters of threats:

a) Economic and social threats, including poverty, infectious diseases


and environmental degradation – notably, the biggest three killers
in the developing world are maternal death around childbirth,
The European Union and International Security 27

paediatric respiratory and intestinal infections leading to death from


pulmonary failure or uncontrolled diarrhoea (Williams, 2008, p. 9).
b) Inter-state conflicts – with a number of unresolved disputes in
regions such as South Asia.
c) Internal conflicts, including civil war, genocide and other large-scale
atrocities – with the prominent examples of Rwanda and Kosovo.
d) Nuclear, radiological, chemical and biological weapons – potentially
the greatest threats to human existence.
e) Terrorism – with transnational, armed networks such as Al Qaeda and
the danger of attacks resulting in mass casualties.
f) Transnational organised crime – with drug trafficking as the single
most important source of income for criminals.

These examples indicate the efforts of some of the UN main bodies


to redefine the concept of international security after the Cold War,
and after 9/11. Similar efforts have taken place within the UN Security
Council, which held its first-ever debate on the consequences of climate
change for international security in 2007 (Zwolski and Kaunert, 2011).

NATO and its new security roles


NATO was created as a defence pact against the potential aggression
of the Soviet Union. When the Warsaw Pact dissolved, NATO’s exis-
tence was also put into question. Yet, already in 1991, the North
Atlantic Council announced that NATO was ready to adapt to the new
geopolitical environment. In the Alliance’s ‘New Strategic Concept’,
NATO members acknowledged that ‘[t]he threat of a simultaneous,
full-scale attack on all of NATO’s European fronts has effectively been
removed’ (NATO, 1991). At the same time, new security problems arose:

Risks to Allied security are less likely to result from calculated aggres-
sion against the territory of the Allies, but rather from the adverse
consequences of instabilities that may arise from the serious eco-
nomic, social and political difficulties, including ethnic rivalries and
territorial disputes.
(NATO, 1991)

This view was reinforced in the 1999 ‘Alliance’s Strategic Concept’,


which further justified NATO’s roles in the post-Cold War environment,
stressing the importance of ‘political, economic, social and environmen-
tal factors in addition to the indispensable defence dimension’ (NATO,
1999). The latest strategic document was published in 2010, confirming
28 The European Union as a Security Actor

the roles of NATO beyond its traditional defence purpose. While main-
taining the commitment to mutual defence, NATO members have also
recognised the importance of ‘cooperative security’, which means that
‘[t]he Alliance will engage actively to enhance international security,
through partnership with relevant countries and other international
organisations; by contributing actively to arms control, nonproliferation
and disarmament’ (NATO, 2010).
One of NATO’s new roles has become crisis management in the case
of major natural disasters. In 1998, the Euro-Atlantic Partnership Coun-
cil established a new body within NATO: the Euro-Atlantic Response
Coordination Centre, which mainly aims ‘to coordinate the response of
NATO and partner countries to natural or man-made disasters within
the Euro-Atlantic area’. In 2005, in response to US requests, NATO coor-
dinated help efforts for the victims of the hurricane Katrina. At that
time, 27 countries provided some form of aid; NATO was responsible for
coordinating this assistance, together with the US Federal Emergency
Management Agency. NATO also played an important role in providing
assistance for the victims of an earthquake in Pakistan in 2005, where
80,000 died. The role of the Pact was mainly to airlift the assistance,
such as tents and blankets, provided by NATO members and third coun-
tries. It also included deploying specialists, such as engineers, to assist
the reconstruction of the state facilities.
NATO’s inroads into crisis management are correlated with increas-
ing concerns over environmental security, including climate change.
In 2004, NATO joined the multi-institutional Environment and Secu-
rity Initiative (ENVSEC), contributing to projects in vulnerable regions.
This ‘environmental security’ dimension of NATO’s security agenda
was further strengthened by the NATO Security Science Forum on
Environmental Security in 2008 – a major conference that gathered
environmental security experts from across institutions. Considering
NATO’s ambition to remain relevant, the organisation will continue
its efforts to best capture empirical developments concerning evolv-
ing security dynamics. This, in turn, is likely to affect the approach to
security of other organisations with security ambitions, such as the EU.

The EU and security beyond the CSDP

The EU’s international security policy has traditionally been associ-


ated almost exclusively with the European Security and Defence Policy
(ESDP), rebranded into ‘CSDP’ in the Lisbon Treaty. The establishment
of the ESDP and the deployment of the first EU missions attracted
The European Union and International Security 29

scholarly attention, contributing to the fact that the analysis of vari-


ous aspects of the ESDP constitutes the bulk of scholarly work on the
EU’s international security policy (e.g. Duke, 2000; Deighton, 2002;
Howorth, 2007; Bailes, 2008; Menon, 2009).5 There is a good reason for
this; the speed at which the ESDP has acquired its shape and the num-
ber of operations deployed to date are remarkable and can be surprising,
even if these missions have been relatively modest (Toje, 2011, p. 51).
When evaluating the first five years of the ESDP, Javier Solana pointed to
the paradox that, while it remains difficult for Member States to coop-
erate on security and defence, cooperation in these areas has advanced
rapidly since 1999 (Solana, 2004, p. 5).
This book suggests that the CSDP cannot be equated with the
EU’s international security role as a whole; non-CSDP instruments
and policies have to be included into the analysis. In this context,
Hintermeier notes that the EU’s approach to security is based on two
liberal institutionalist principles, that is, (a) political integration, eco-
nomic interdependence and multilateral cooperation, which weaken
the anarchical system of states, and (b) the principle of democratic
peace (Hintermeier, 2008, p. 667). More specifically, the EU pursues
its security objectives through integration and enlargement, the pro-
motion of liberal values, the promotion of sustainable development,
effective multilateralism and the strengthening of international law.
These objectives are pursued by the EU through a variety of eco-
nomic, political and recently also civilian and military CSDP means
(Hintermeier, 2008, pp. 670–3). Among the measures that are both eco-
nomic and political in nature, one of the most important is the range
of external financial and technical assistance instruments that have tra-
ditionally been at the disposal of the European Commission, and have
recently been partially incorporated into the European External Action
Service (EEAS).
The most prominent of these financial instruments is the IfS, which
former Member of the European Parliament (MEP) Angelica Beer – who
was also the European Parliament’s rapporteur on the IfS – defined as an
attempt to ‘define the Grey Zone between the Council’s CFSP, ESDP and
the Commission’s development policy’, with the potential to ‘encour-
age active conflict prevention’ (Beer, 2006, p. 34). This instrument,
building on the Rapid Reaction Mechanism (RRM), allows the EU to
not only respond rapidly to crisis situations but also develop longer-
term, capacity-building projects (Zwolski, 2012). The regulation for the
IfS allocated it the budget of 2.062 billion for the years 2007–2013
(European Parliament and Council, 2006, p. 10).
30 The European Union as a Security Actor

The first component of the IfS, defined in Article 3 of the regula-


tion, concerns the provisions for assistance in response to situations
of crisis or emerging crisis, which constitutes the primary aim of the
IfS. The second component, regulated by Article 4, concerns the pro-
visions for providing assistance in the context of stable conditions for
cooperation. Only about 23 per cent of the overall IfS budget was allo-
cated for ‘Article 4’ type of projects, which may be developed in three
security areas: (a) threats to law and order, to the security and safety of
individuals, to critical infrastructure and to public health; (b) risk mitiga-
tion and preparedness relating to chemical, biological, radiological and
nuclear materials or agents; and (c) pre- and post-crisis capacity build-
ing. Of these areas, non-proliferation was given priority; this has enabled
the European Commission to continue the development of capacity-
building non-proliferation programmes, primarily in Russia, further
building on its already extensive experience in this area. The European
Community started providing Russia with non-proliferation assistance
already at the beginning of the 1990s, first through a programme called
‘Technical Assistance for the Commonwealth of Independent States’
(TACIS), and since 2007 through the Instrument for Nuclear Safety
Cooperation (INSC) and the IfS (Höhl et al., 2003; Anthony, 2004;
Müller, 2007; Zwolski, 2011).
Similarly, non-CSDP instruments and policies have to be taken into
account when investigating the EU’s response to maritime piracy off
the coast of Somalia. This response consists mainly of the CSDP’s
first naval operation EUNAVFOR ‘Atalanta’, but other (medium-to-long
term) efforts are also important. However, the cases of non-proliferation
policy, counter-piracy measures and other security policies of the EU
also indicate some obstacles hampering a research agenda which would
be truly comprehensive, including the whole range of relevant poli-
cies and instruments of the EU. The first concerns the question of the
EU’s grand strategy and the extent to which these diverging instruments
are deployed purposefully, reflecting clearly defined and codified strate-
gic objectives for the EU. The second concerns consistency between
different institutions and policies.

Incorporating non-CSDP policies into the research agenda

Biscop (2009) argues that the ESS and the Report on the Implementation
of the ESS provide only a partial strategy. These documents set guidelines
for the EU’s international conduct, underlining the preventive, holistic
and multilateral character of the EU’s action, but they do not explain
The European Union and International Security 31

what exactly the EU should do. This lack of clearly specified objectives
and priorities, according to Biscop, is particularly problematic in the
wake of the Lisbon Treaty institutional reforms, NATO’s new Strategic
Concept and the growing political role of the BRIC countries (Brazil,
Russia, India and China) (Biscop, 2009, p. 3). Howorth (2010) seconds
these concerns, arguing that ‘the EU should adopt a more calculated
strategic approach and begin at long last to think in terms of “large
goals” ’ (Howorth, 2010, p. 464). Only then, Howorth argues, can the EU
make the best use of the wide range of crisis management instruments
that it has at its disposal.
Notably, the EU is able to draw on a vast array of resources when
addressing, for example, organised crime and terrorism, including mar-
itime piracy. However, even though the EU presents its political and
economic efforts in Somalia as part of its ‘comprehensive approach’,
listing them together with EUNAVFOR ‘Atalanta’, these longer-term
measures do not serve explicitly the purpose of countering piracy.
Instead, they are largely part of the EU’s pre-programmed development
policies in Somalia, as well as its multilateral policy aiming to strengthen
the Transitional Federal Government. A ‘grand strategy’ or ‘strategic
vision’, in this case, could contribute to a clearer identification of the
set of relevant policies that the EU deploys in specific security situations.
This would prevent an impression of ‘randomness’ in the international
security policy of the EU.
The second obstacle hindering a more systematic inclusion of non-
CSDP instruments and policies into the analysis of the EU as an inter-
national security actor concerns the traditional problem of institutional
and horizontal inconsistency – a challenge closely related to the one dis-
cussed above. In Nuttall’s categorisation, horizontal consistency entails
that different EU policies are aligned and support each other (Nuttall,
2005). Institutional consistency, on the other hand, has traditionally
concerned the degree to which the Council and the Commission have
been coordinating their policies and supporting each other’s actions.
The Lisbon Treaty introduces important changes in this respect, which
are further discussed in this section.
The problem of ensuring inter-pillar consistency in the interna-
tional security policy of the EU has attracted significant scholarly
attention, and rightly so (Tietje, 1997; Missiroli, 2001, 2010; Dijkstra,
2009; Van Elsuwege, 2010; Zwolski, 2011). The growing profile of the
European Commission in international relations, particularly through
its Directorate General for External Relations (DG Relex), has coin-
cided with the increasing international role of the Council, including
32 The European Union as a Security Actor

its Secretariat. Notably, the Council Secretariat has been steadily growing
in quantitative (number of officials) and qualitative (number of policies)
terms (Hayes-Renshaw and Wallace, 2006, p. 101), thus increasing the
risk of overlapping competences between the first and second pillars of
the EU.
The Lisbon Treaty addressed this very problem, potentially making it
easier (even more intuitive) to analyse the international security pol-
icy of the EU in a holistic manner. On the personal level, it merged
the post of the High Representative with that of the Vice-President of
the European Commission, in order to ‘ensure the consistency of the
Union’s external action’ (Council of the European Union, 2008d, p. 35).
On the bureaucratic level, the Lisbon Treaty provided for the establish-
ment of the EEAS, which brings together DG Relex and the part of the
Council Secretariat that is responsible for foreign and security policy.
The EEAS, which also includes Member States’ representatives, assists
the High Representative.
These and other reforms not only provide an opportunity for a more
consistent EU international security policy, but also create a new set of
challenges. On the personal level, the new permanent President of the
European Council is entrusted with ensuring ‘the external representa-
tion of the Union on issues concerning its common foreign and security
policy’, as laid down by Article 15 of the Treaty of Lisbon. Depending
on personalities, the perception of interests and the interpretation of the
EU law, this can lead to tensions with the High Representative. On the
bureaucratic level, the EEAS consists of three different bodies with dif-
ferent institutional cultures. It will become fully effective only when
old institutional loyalties are replaced with a new ethos (Whitman,
2011, p. 12).
The under-developed strategic vision, together with the difficult task
of assuring consistency in the EU’s external action, has been to a large
extent preventing a comprehensive approach to studying the EU’s inter-
national security policy. However, regardless of the pace of the progress
in these areas, this book argues that it is important to incorporate the
analysis of all the relevant policies and instruments when assessing the
EU’s role in international security.
Of course, a more assertive strategic vision for the EU is in order, not
least to supplement the institutional reforms instigated by the Lisbon
Treaty and to make a better use of the diversity of resources in the
EU’s security apparatus. Yet, as Toje convincingly argues, the lack of ‘big
thinking’ in the EU can be better understood if the Union is conceptu-
alised as a small power. This approach can indeed serve as ‘the best path
The European Union and International Security 33

to making peace with the inconsistencies associated with the presence,


capabilities and patterns of behaviour that characterize the European
Union’ (Toje, 2011, p. 57). Finally, the abolition of the pillar structure
in the Lisbon Treaty and the institutional reforms concerning the EU’s
foreign and security policy have created conditions for improved con-
sistency in the EU’s external action. Furthermore, these reforms offer
an opportunity for further research concerning all three types of consis-
tency: between Member States and the EU, between different EU policies
and between different EU institutions.

Conclusion

This chapter has put forward two arguments. First, it has emphasised
the importance of adopting a comprehensive approach to studying the
role of the EU in international security. Traditional security threats and
the CSDP are rightly at the core of the research agenda; yet, as the con-
tributors to this volume demonstrate, the contemporary security agenda
has become complex and the EU possesses a wide range of instruments
capable of tackling these problems in the short-to-long term. These
include not only CSDP civilian and military capacities, but also reg-
ulatory measures within the framework of Justice and Home Affairs.
Only this more encompassing approach offers an opportunity to bet-
ter understand the complex nature of the EU’s role in international
security.
However, as this chapter has also demonstrated, adopting such a holis-
tic view is not a straightforward exercise. There are challenges, including
(a) difficulties in delimiting the security policies from the non-security
policies of the EU, due to the contested nature of the security con-
cept; (b) different perceptions of security among Member States, even
if there is an agreement on security strategies at the EU level; (c) the
lack of an overarching ‘grand strategy’ or a ‘strategic vision’, which
would help to make a better use of the diversity of security instru-
ments at the EU’s disposal; and (d) a connected challenge of assuring
consistency in developing and conducting the EU’s international secu-
rity policy. These challenges have been systematically addressed in this
chapter, with the caveat that, although it is conceptually and method-
ologically difficult to address EU security policy in a comprehensive
manner, this must not discourage scholars from attempting such a
holistic analysis.
Recent developments in the literature suggest that scholars increas-
ingly adopt a more encompassing view of the EU’s international security
34 The European Union as a Security Actor

role. There are a few important reasons for such a change. First, the
international security agenda continues to evolve, with scholars, experts
and policy practitioners increasingly recognising the complexity and
interconnectedness of traditional and more recent security problems.
These empirical developments have long been recognised by Secu-
rity Studies experts and cannot be ignored when assessing the role of
the EU as a security actor. Second, the EU itself continuously rede-
fines its approach to security, increasingly recognising the importance
of non-traditional security problems. This trend can be observed in
the two consecutive Security Strategy documents of 2003 and 2008.
Third, the institutional reforms introduced by the Lisbon Treaty fur-
ther symbolise a growing understanding in the EU that development
and security policies are often interlinked. For example, the establish-
ment and the composition of the EEAS indicate that the old pillar
structure has become obsolete in tackling contemporary problems on
the political and security agenda of the EU. Although policy substance
may be slower to adapt, institutional structures have been set to make
a better use of the variety of policies and instruments at the EU’s
disposal.

Notes
1. The concept of societal security was developed by the so-called ‘Copenhagen
School’ of security in the seminal book by Wæver et al. (1993) entitled Identity,
Migration and the New Security Agenda in Europe. This chapter does not aim to
engage with the broad spectrum of approaches to security as they have devel-
oped over the last 20 years. Instead, it suggests that the EU has particularly
promoted the concept of human security in its official narrative (Martin and
Kaldor, 2010). Furthermore, this chapter suggests that, although there are dif-
ferences between different security approaches, there is an almost universal
understanding among security scholars and experts that security entails more
than traditional military threats.
2. For Ekengren’s recommendations concerning the EU’s disaster response, see
his 2011 presentation before the European Parliament on ‘New Challenges for
EU Disaster Response’, http://www.societalsecurity.eu, accessed on 8 August
2011.
3. Research interview with an official from the General Secretariat of the Council
of the European Union, June 2009.
4. Research interview with an official from the Permanent Representation of one
of the CEE states in Brussels, June 2009.
5. See also the Special Issue on Irondelle, B., Bickerton, C.J. and Menon, A. (eds)
(2011) ‘Security Cooperation beyond the Nation State: The EU’s Common
Security and Defence Policy’ in Journal of Common Market Studies, volume 49,
issue 1, pp. 1–190.
The European Union and International Security 35

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3
The European Union as a
Comprehensive Police Actor
Stephen Rozée

There have been a number of informative articles written that highlight


key developments in European Union (EU)-level policing, particularly
post-9/11, as well as some thought-provoking analyses of the linkage
between the EU’s security agenda and specific police activities. Much
attention has been given to the changing role of Europol in counter-
terrorism and fighting cross-border organised crime, in terms of both its
potential significance and current shortcomings (Bures, 2008; Kaunert,
2010). Other developments in intelligence-sharing at EU level, such
as the Schengen Information System, have also received a significant
amount of analysis in the literature (Walsh, 2006; Den Boer et al., 2008).
In addition to this, authors such as Rees and Mounier have examined
the way in which EU Police Missions have been used to externalise
the EU’s internal security concerns beyond its borders (Rees, 2008;
Mounier, 2008); this is done in order to protect the EU’s ‘safe’ internal
space from the ‘unsafe’ external environment, and also to externalise
EU internal security standards and ‘best European practices’ in police
matters (Collantes Celador, 2009; Mounier, 2008). This may be viewed
as part of scholars’ increased questioning of the traditional distinction
between the ‘internal’ and ‘external’ dimensions of EU security. As mul-
tifaceted areas of EU security become increasingly interwoven, a more
comprehensive conceptualisation of security is becoming a requirement
for analysis. In the case of EU policing, scholars have focused on the
study of narrow aspects of EU policing, or, in some instances, have dis-
cussed police in terms of the ‘internal’ or ‘external’ dimensions of EU
security. There has been no in-depth study of EU policing as a whole,
which is a very significant gap in our understanding of the EU as a
security actor. There are a number of reasons why filling this gap is
important: firstly, the traditional distinction between the ‘internal’ and
‘external’ dimensions of EU security is continuing to be questioned in

40
The European Union as a Comprehensive Police Actor 41

the literature (Mounier, 2008; Rees, 2008), indicating that a unified and
interconnected approach to understanding the different elements of the
EU’s security agenda is required. Secondly, this area of study can offer
valuable insights into the role played by EU police within the wider
framework of the EU’s security agenda: this cannot be done by focusing
only on isolated areas of policing as is currently the approach of the lit-
erature. Finally, the EU’s ambitions as a comprehensive security provider
and credible global security actor have been widely discussed by scholars
(Brown and Shepherd, 2007); this area of research can offer important
insights into the role of police within these ambitions. This chapter aims
to address the gap in the literature by presenting a framework for investi-
gating the EU as a comprehensive police actor. Research based upon this
framework will be used to examine the relationship/linkage between the
EU’s police comprehensiveness and its security actorness and, by doing
so, to explore the contribution of police activities to the EU’s security
agenda.
EU-level policing may be understood as including any instance of
police functions being undertaken by or in conjunction with EU insti-
tutions and agencies. For the purpose of examining the EU as a com-
prehensive police actor, it is necessary not only to identify what is
meant by the notion of an ‘actor’, but also to explain precisely what
constitutes ‘comprehensive’ policing. Once clearly defined criteria for
these concepts have been established, they can then be integrated
into a coherent and usable framework for analysis. This chapter will
be divided into three main sections; firstly, theories of actorness will
be outlined. This will be done not only in order to clarify what
is meant by the term ‘actor’, but also to understand how actorness
may be measured and assessed. The actorness criteria selected for this
research should be clearly relatable to policing if they are to be inte-
grated into a usable framework. The second section will consider what
‘police comprehensiveness’ means, focusing particularly on police func-
tions – that is, the various roles, tasks and procedures recognised in
the literature as comprising policing as a whole. This will lead to pre-
cisely defined criteria that may be used to measure and assess police
comprehensiveness. The final section of this chapter, ‘Towards a new
theoretical framework’, will then demonstrate and justify how a the-
oretical framework may be constructed by integrating the criteria for
actorness and comprehensiveness into a matrix. This will form the basis
of a nuanced and in-depth approach to researching EU-level policing.
The goal of this framework is to investigate the relationship between
the EU’s police comprehensiveness and its security actorness, and to
42 The European Union as a Security Actor

explore the contribution of police to the EU’s security agenda. The


framework can be applied more generally than this, however, and
will also be useful for investigating police comprehensiveness in other
cases.

Theories of actorness

There has not been an extensive amount written about assessing the
EU’s status as an actor, and there is a lack of consensus regarding what it
means to be an actor in international relations (Jupille and Caporaso,
1998, p. 213). Neoliberal notions of international relations such as
those presented by Keohane and Nye suggest that there are numerous
types of actors, including governmental, intergovernmental and non-
governmental actors (Keohane and Nye, 1977). The multi-dimensional
nature of global politics was reflected further still by Rosenau, who pro-
posed that citizens, officials and leaders, as well as private actors, could
be considered ‘micro actors’, while states, transnational organisations,
leaderless publics and social movements may be seen as ‘macro actors’
(Rosenau, 1990, p. 119). Bretherton and Vogler claim that Rosenau’s
view is admirable for its inclusiveness, but further work is required in
order to understand how the actorness of the EU as a whole might
be assessed (Bretherton and Vogler, 1999, p. 20). Drawing from ideas
regarding European Community actorness presented by Sjöstedt (1977),
Bretherton and Vogler offer a scheme that aims to identify and mea-
sure components of actor capability, which they directly relate to the
EU. They offer the following set of five criteria indicating the basic
requirements for actorness:

• shared commitment to a set of overarching values and principles;


• the ability to identify policy priorities and to formulate coherent
policies;
• the ability effectively to negotiate with other actors in the interna-
tional system;
• the availability of, and capacity to utilise, policy instruments;
• domestic legitimation of decision processes, and priorities, relating
to external policy.

These criteria are useful and insightful, particularly when applied to the
EU. For the purpose of producing a framework for examining the EU as a
comprehensive police actor, however, it is Jupille and Caporaso’s criteria
for assessing the EU’s actor capacity that will be primarily focused upon
(Jupille and Caporaso, 1998). While in many ways similar to Bretherton
The European Union as a Comprehensive Police Actor 43

and Vogler’s, the scheme presented is somewhat broader and more flex-
ible, and as such may be more easily and effectively integrated with
criteria for police comprehensiveness. The four criteria that they sug-
gest – recognition, authority, autonomy and cohesion – are designed to
be ‘observable, continuously variable, and abstract from any particular
institutional form’ (p. 216). Furthermore, they state that their crite-
ria for actorness should be ‘conceptually helpful when applied to the
EU’s global political role and to be applicable more generally in assess-
ments of other entities’ capacities to act in world politics’ (Jupille and
Caporaso, 1998, p. 216). For these reasons, Jupille and Caporaso’s cri-
teria will be particularly suitable for research in terms of assessing EU
actorness, being adapted to apply to policing and being combined with
criteria for measuring police comprehensiveness. In more detail, the four
criteria for actorness are explained below.

Recognition
Recognition by others is an essential condition for actorness. According
to Jupille and Caporaso, recognition should be seen as a ‘minimum con-
dition that adds little substantive understanding of any given entity, but
simply registers it on the analytical radar’ (Jupille and Caporaso, 1998,
p. 215). There are two categories of recognition: de jure and de facto.
De jure recognition refers to diplomatic recognition under international
law or to formal membership of international organisations. Diplomatic
recognition has traditionally been considered as an aspect of sovereign
statehood, automatically given to states. This is not always the case,
however, as examples such as Kosovo, Israel and Taiwan demonstrate
that states are not always given automatic full diplomatic recognition.
Furthermore, where the line is drawn in terms of recognition is not clear.
Kosovo is not a member of any international organisation, yet is recog-
nised by more than 50 states. The EU is not sovereign, and it is not
conferred with any kind of automatic recognition; instead, diplomatic
recognition of the EU is at the discretion of third parties.
In practice, the interactions of third states with the EU may implicitly
confer de facto recognition upon it. However, Jupille and Caporaso claim
that simply producing external effects is not sufficient to fulfil the crite-
rion of recognition; it is third parties’ engagement with the EU in order to
discuss, clarify or modify such external effects that are most significant
for recognition, not the effects themselves. In other words, it is states’
direct negations with the EU that indicate the Union’s de facto recog-
nition as an actor. According to Jupille and Caporaso, the criterion of
recognition may be considered satisfied whenever a third party interacts
with the EU itself, rather than, or in addition to, EU Member States.
44 The European Union as a Security Actor

They point out that recognition should not be thought of as a ‘one-shot,


all-or-nothing criterion’; rather, increasing bilateral, regional and global
interactions with third states increases the extent to which EU activity
becomes accepted and expected, and the EU’s de facto recognition builds
accordingly. For the purpose of examining the EU as a comprehensive
police actor, recognition may be assessed by identifying international
agreements and third states’ interactions with the EU relating to EU-
level policing. Examples of this include the signing of international
agreements with Europol: many operational and strategic agreements
have been made with non-EU states and international organisations,
including Interpol and the United Nations Office on Drugs and Crime.

Authority
The authority to act externally is Jupille and Caporaso’s second fac-
tor for assessing the EU’s capacity as a global actor. In particular, this
authority refers to legal competence. Jupille and Caporaso offer several
examples of areas where the EU has been given external legal authority,
including international and association agreements, and environmental
agreements. The EU’s legal competences have expanded in many areas
during the last decade, including areas related to security and policing,
such as Europol and the European Arrest Warrant (EAW) (which allows
a court of an EU Member State to issue a judicial judgement for the
arrest and surrender of a person in another Member State). In addition
to these, EU Police Missions may also be used to provide examples of
the EU being given external legal authority to act. For instance, formal
United Nations Security Council approval of a Joint Action provided the
EU with legal competence to act in the Rule of Law Mission in Kosovo.

Autonomy
According to Jupille and Caporaso, autonomy implies distinctiveness
and, to some extent, independence from other actors, especially states.
This may be best explained in terms of two factors: institutional distinc-
tiveness and independence. Institutional distinctiveness refers to having
distinctive institutional apparatus, even if these are based in or attached
to domestic political institutions. An institution’s independence from
states should make a difference compared to what would result from an
international system comprised just of self-interested state actors. Jupille
and Caporaso claim that parts of the institutional structure of the EU
with exclusive competence to act may not necessarily be directly trans-
lated as areas of Union independence. However, autonomy need not be
absolute, as an actor may be autonomous in areas; for instance, the EU
The European Union as a Comprehensive Police Actor 45

is intended to be representative of its Member States, and yet may still


be considered autonomous from states external to the EU.
The EU’s distinctive institutional apparatus involving policing exists
at a number of levels. These may be seen as ranging from the Council of
the European Union and other relevant legislative or decision-making
institutions through to EU-level institutions that directly involve police
and judiciary activities, such as Europol and Eurojust.

Cohesion
Cohesion is not required in order to make a difference in global politics,
that is, to have ‘presence’; for instance, the EU would still make a signif-
icant difference with regards to external consequences without policy
cohesion. For this reason, Jupille and Caporaso argue that there is a dif-
ference between ‘actor’ and ‘presence’, and that to be an actor requires
a certain minimal level of cohesion. As they point out, ‘[a] random col-
lection of elements could have external effects but would not be judged
as being an actor’ (p. 219).
The concept of cohesion, as Jupille and Caporaso present it applied
to the EU, may be divided into four dimensions: value (goal) cohesion,
tactical cohesion, procedural cohesion and output cohesion. Value cohe-
sion involves similarity or compatibility of goals. Tactical cohesion, on
the other hand, is when goals are significantly different, but can be made
to fit with each other through issue linkages. Procedural cohesion refers
to issues where there is conflict, yet some consensus exists regarding
the procedures and rules to be used. The fourth dimension of cohe-
sion that Jupille and Caporaso suggest relates to public policies: more
cohesion exists when Member States form collective policies, and this
is referred to as output cohesion. Cohesion need not be considered an
all-or-nothing criterion; it is possible for an actor to demonstrate very
high levels of cohesion in some areas and less in others.
In terms of EU-level policing, these four areas of cohesion may be
explored by considering EU policy and legislation. Policy documents
regarding policing will provide indication of goals, while legislation will
be useful for identifying output cohesion: for example, legislation on the
EAW demonstrates output cohesion. EU-level police activities involving
contributions from many Member States, such as the EU Police Missions,
also provide evidence of output cohesion. Certain examples of EU police
activities, such as Police Missions and Europol, relate to several or all of
the criteria for actorness. This makes them ideal as cases for analysis.
Criteria for actorness are not absolute: they may be fulfilled in particular
areas or to degrees. For this reason, actorness may be measured both in
46 The European Union as a Security Actor

terms of quality and quantity; that is, the number of instances where
criteria for actorness are met and also the depth to which they are met.
As previously noted, Jupille and Caporaso’s approach is flexible and
can be generally applied in assessing actorness. It is already designed
with the EU in mind and may easily be adapted to focus more specif-
ically on EU policing. As they stand, however, Jupille and Caporaso’s
criteria for actorness are not adequate for assessing the EU as a compre-
hensive police actor because they cannot incorporate the dimension of
police comprehensiveness. The broad nature of Jupille and Caporaso’s
approach will need to be adapted in such a way that police comprehen-
siveness can be assessed alongside actorness in an integrated fashion.
In order to achieve this, it will be necessary to systematically examine
the functions, roles and tasks of police, and then reduce them into a
small number of clearly defined criteria that may be used to indicate
police comprehensiveness. The criteria for both actorness and police
comprehensiveness may then be combined into a single framework.
This is important, because it is by exploring not only the EU’s police
comprehensiveness and its actorness but also the relationship or link-
age between these two areas that the contribution of police to the EU’s
security agenda may be assessed.
The following section of this chapter will give an overview of police
functions and explain how criteria for police comprehensiveness may be
produced. A final section will then consider how theoretical approaches
to actorness and police comprehensiveness may be integrated into
a coherent and usable framework, and how this framework may be
applied for research.

Police functions

For the purpose of producing a theoretical framework for assessing the


EU as a comprehensive police actor, it is necessary to move towards a
complete understanding of the activities, processes and other elements
that constitute policing. In order to identify precisely what ‘compre-
hensiveness’ means in terms of police, the range of roles and tasks that
are deemed to belong to police must be clearly defined. This approach
will allow a limited number of criteria to be formulated that may be
used to assess police comprehensiveness. The first step in this process
is to examine the various functions of police, and this may be done by
considering how police functions are defined in the policing literature.
Goldstein identified a classic ‘ideal set’ of police functions, which is well
established and commonly referred to by scholars (Goldstein, 1977); it
The European Union as a Comprehensive Police Actor 47

is this set that will be used here, although many other authors’ work
will then be incorporated in order to elaborate on different aspects of
policing. According to the classic ideal set presented by Goldstein, the
functions of police are as follows:

• to prevent and control conduct widely recognised as threatening to


life and property (serious crime);
• to aid individuals who are in danger of physical harm, such as the
victims of violent attack;
• to protect constitutional guarantees, such as the right of free speech
and assembly;
• to facilitate the movement of people and vehicles;
• to assist those who cannot care for themselves: the intoxicated, the
addicted, the mentally ill, the physically disabled, the old and the
young;
• to resolve conflict, whether it be between individuals, groups of
individuals or individuals and their government;
• to identify problems that have the potential for becoming more seri-
ous problems for the individual citizen, for the police, or for the
government;
• to create and maintain a feeling of security in the community.

The following section of this chapter will elaborate on the kinds of


police tasks and activities that these functions involve, and then demon-
strate how police functions, roles and tasks may be used to formulate
criteria for police comprehensiveness.

The underlying concepts and application of police


functions

Certain analytical terms and concepts must be outlined in order to clar-


ify what police functions involve, and examples will be used to illustrate
how these functions can be applied in practice. This information will
then be linked to Goldstein’s set of police functions, which will in turn
be adapted into a smaller number of clear criteria that encompass the
range and objectives of police work.

Roles
Bittner draws attention to the ‘roles’ or essential characteristics of polic-
ing (Bittner, 1970). Roles may be thought of as conceptually ‘what police
do’, or what they are essentially supposed to achieve. In particular,
48 The European Union as a Security Actor

Bittner focuses on one central aspect: the unquestionable use of force.


He claims that the capacity to use force is the core of the police role,
and that this involves a monopoly on the legitimate use of force in
society. There are a few exceptions to this, such as a citizen’s right to
self-defence, and some restrictions, such as on the use of deadly force.
In practice, most modern police forces will be expected to act in accor-
dance with established ethical principles related to the ‘justifiable use
of force’ (Waddington, 1999, p. 187). Some examples of when police
force may be used are resistance to arrest, dangerous behaviour, protect-
ing public order (such as violence at demonstrations) and to suppress
riots. This last example demonstrates that police may sometimes oper-
ate in a paramilitary capacity, that is, operating with weaponry or tactics
that likens them to the military. Both the use of force and paramilitary
activities can be seen in EU-level policing: the deployment of European
Gendarmerie forces (who have both civil and military responsibilities)
to Haiti to assist with post-relief security efforts in 2010 provides an
example of this.
Another very central role of policing is information gathering. Nogala
(1995) claims that ‘information work’ is, in fact, the most important
aspect of police work. Conceptually, police work can be viewed as an
ongoing cycle of collecting and processing information, which Ericson
and Shearing state is used for ‘penetration, surveillance, information,
registration, knowledge, and administration’, and that all of these things
contribute to social control. Police, at least at the domestic level, are best
positioned in terms of society, experience, technology and ‘know-how’
to gather information and intelligence, and this is an intrinsic part of
their role (Ericson and Shearing, 1986, pp. 129–159).
In practice, the gathering and use of information may take a number
of forms. While processing data used for police administrative purposes
and that relating to maintaining public order and safety form signifi-
cant parts of information gathering, a large amount of police work deals
with information related to both investigating crimes and preventing
them. Examples of methods for collecting information related to crime
include use of reports by the public, witness statements, interviews,
covert surveillance, informants, forensic evidence, legal knowledge,
negotiation, inspection of documents (such as bank statements), using
the Internet and various types of registration information. In terms
of the police role, gathering information for crime investigation may
be considered part of ‘bringing offenders to justice’ and a ‘search for
the truth’ (Maguire, 2003, pp. 433–437). This kind of information and
intelligence work is central to the activities of Europol, the European
Law Enforcement Agency, which aims to improve effectiveness and
The European Union as a Comprehensive Police Actor 49

cooperation among Member States’ competent authorities in preventing


and combating terrorism, drug trafficking and other types of organised
crime.
Lastly, it is a role of police to strengthen feelings of security in soci-
ety, in particular to reduce the fear of crime among local people, as
well as promoting and achieving public safety (Hughes, 2008). Modern
policing has put an increased emphasis on this role, as fear of crime, dis-
order, anti-social behaviour and ‘quality of life’ issues have been placed
more centrally on the police agenda in both Europe and the US (Tilley,
2008b). The need to present places as safe and secure locations to live,
work and spend leisure time may increase public demand for a visible
police presence. Addressing this need is sometimes referred to as the
‘reassurance agenda’ (Maguire, 2003). Strengthening feelings of security
and confidence in the police has been an important aspect of EU police
forces’ work in the Police Missions in Kosovo and Bosnia, and these
aims have been pursued by publicising efforts to deal with corruption
and organised crime.

Policing tasks
The following sections will outline the range of tasks that police per-
form. These tasks will then be related back to Goldstein’s ideal set of
functions, and this will provide the basis for producing criteria for police
comprehensiveness.

Crime-fighting tasks
Fighting crime is one of the most central aspects of police work, and
many policing tasks in some way relate to dealing with convictable
violations of law (Loveday, 1996). Indeed, dealing with crime may
be said to be the original raison d’être of policing (Edwards, 2005).
Crime fighting involves the prevention or reduction of crime, as well
as the detection and investigation of crimes that have been committed.
Edwards suggests that crime may be seen as ranging from large-scale
crime, such as organised crime, drug trafficking, terrorism and serious
fraud, to personal crime involving individuals, such as domestic vio-
lence or murder, and minor or street crime including muggings and
vandalism (Edwards, 2005). Crime prevention and reduction concerns
those measures taken by police that are designed to stop crimes from
occurring.
There are a number of broad approaches used for the prevention or
reduction of crime. Some of these are situational – that is, tailored for
particular places and circumstances. Examples of this are community-
based programmes, such as police-led drug education programmes, or
50 The European Union as a Security Actor

‘early intervention’ programmes in schools to promote community val-


ues (Byrne and Pease, 2003). The EU Police Mission in Bosnia has
regularly employed public information campaigns that aim to promote
values in this way, and these tend to be aimed at specific areas of society.
In general, police must focus crime reduction efforts on ‘hotspots’
where criminal activities are particularly high. According to Clarke,
there are four basic methods police and society may employ to reduce
crime (Clarke, 1997). Firstly, security techniques such as locks, entry
phones or computer passwords may be used to increase the effort of
committing crime, and the means of crime, such as the availability of
weapons, may also be controlled. The second method is increasing the
risk from committing crime, which may be achieved by formal surveil-
lance, such as CCTV or patrolling police. The third way of reducing
crime is by reducing the reward. This can involve anything from remov-
ing targets (keeping cars in garages or removing their radio facia when
parked) to identifying property with serial numbers. The last method
is removing excuses for committing crime, which means clear rule-
setting; for example, campaigns designed to stimulate conscience and
awareness, such as drink-drive campaigns (Clarke, 1997). Making the
commission of a crime more difficult or less attractive is sometime called
‘target hardening’ (Edwards, 2005). Many of these techniques require
contributions from both police and the public in order to be success-
ful. In addition, Byrne and Pease argue that effectively putting these
methods into practice requires service-level agreements to strengthen
cooperation between police and local authorities (Byrne and Pease,
2003). Examples of these kinds of service-level agreements can be seen
in the EU Police Missions in Kosovo and Bosnia, where there is a high
level of cooperation among EU police forces, local police and local
authorities. EU Police Missions also employ a range of crime reduc-
tion techniques, including the promotion of security devices, increased
police presence and awareness campaigns.
Gathering information is a central element of both crime reduction
and crime investigation. There are two primary tasks involved: gen-
erating ‘knowledge’ and producing ‘evidence’. Knowledge refers to the
understandings reached by police about what crimes have been, or are
likely to be, committed, by whom, how and why. The production of
evidence means obtaining material that may be presented in court to
establish whether a criminal offence took place, and whether a suspect
is guilty of it (Maguire, 2003). An important aspect of this is the use
of ‘intelligence’: information of value and relevance derived from infor-
mants of other sources, as well as the understanding and evaluation of
that information. This is important because the analyses of intelligence
The European Union as a Comprehensive Police Actor 51

may be effectively utilised to direct the activities of law enforcement


agencies in ways that enable them to disrupt, disable or undermine crim-
inal threats (Tilley, 2008a). Since the events of 9/11, there has been a
greatly increased emphasis on ‘intelligence-led policing’ in the field of
counter-terrorism. This can be seen in instruments such as the 2004 EU
Action Plan on combating terrorism and in the 2004 Hague Programme,
which highlighted the priority given by the EU and the importance of
EU-level policing with regard to counter-terrorism efforts.
Aside from the information-gathering techniques already discussed as
part of police roles, there are numerous other ways in which crime may
be detected by police, depending on the nature and scale of the crime.
Much street-level crime is opportunistic, involving offenders roaming
until they find a chance to commit a crime (Edwards, 2005). A stan-
dard approach to detecting this sort of crime is to have police officers
patrolling streets and stopping, questioning and searching individuals
that they perceive to be ‘suspicious’. This may lead to the discovery
of recently stolen property, drugs or weapons. Other types of crime,
including more serious or large-scale crime, may require the targeting
and monitoring of particular individuals or premises (Edwards, 2005).
Detecting and dealing with matters of serious organised crime and
fraud, drug trafficking, terrorism and cybercrime often involves spe-
cialist groups of police, sometimes working at the international level.
Europol is highly active in these areas, particularly in terms of facilitat-
ing the sharing of intelligence among Member States’ law enforcement
agencies. Specialist police and specialist training for local police are used
for dealing with organised crime and drug trafficking in many of the
EU Police Missions, including those in Bosnia, Kosovo, the Democratic
Republic of the Congo and Afghanistan.
Detecting and investigating crime also leads to an area of police work
that has received much scholarly attention: the procedures and deci-
sions involved with invoking the law. According to Bittner, powers of
arrest and detention mean that police effectively have a greater freedom
in proceeding against offenders than any other public officials; police
determine the ‘outer perimeter of law enforcement’ and determine what
the business of prosecutors and judges will be (Bittner, 1970). The justice
system is designed to deal with offenders, but it can do nothing with an
individual until he or she has been classified as an offender. Here the
police have a clear role: after a crime has been committed, the police
must investigate it, gather evidence against a suspect and then prepare
a case and bring the suspect before court (Edwards, 2005). The criminal
justice system cannot operate without police supplying both suspects
52 The European Union as a Security Actor

and evidence against them. In order that they may perform these tasks,
police are granted the power to arrest, detain and question (interrogate)
suspects. This is an area in which the EU police institutions and Mem-
ber States’ law enforcement agencies cooperate: while EU institutions
such as Europol do not themselves have powers of arrest, they facilitate
the sharing of intelligence and evidence which may be used by Member
States’ police to make arrests. Additionally, the EAW is an example of
EU-level policing legislation that directly relates to powers of arrest.

Order-maintenance tasks
Order maintenance essentially refers to the non-arrest part of police
work. The aspect of order maintenance that has received by far the
most attention in academic literature is ‘policing public order’. Unlike
crime fighting, precisely what is meant by policing public order is
unclear. Waddington points out that the phrase evokes images of riot-
clad officers engaged in forceful conflict with political dissents engaged
in community disorders, but that this is usually far from the case
(Waddington, 1996, 2003). Protests and picketing are most often policed
by officers in normal uniforms, with little violence and few arrests. Fur-
thermore, eruptions of violence requiring forceful suppression by police
occur in many situations, from sports matches to street carnivals. Nor
can policing public order be defined by the deployment of officers en
masse, because such collective police action also occurs in other cir-
cumstances, such as in cases of civil disaster (Hills, 1997). Waddington
suggests that due to the ambiguity of policing public order, it is useful to
focus on certain aspects, in particular ‘contentious politics’ when they
are pursued through protest and related activity (Waddington, 2003,
p. 187). The techniques that police may use to suppress political con-
tention are varied, ranging from benign symbolic presence to aggressive
paramilitary responses to disorder. The use of visored helmets, body
armour, flame-retardant overalls, shields and batons may be seen as a
way to protect police from injury while engaged in work that is intrinsi-
cally dangerous. However, the increased use of firearms and low-lethality
weapons, such as counter-strike sprays, has contributed to accusations
that police are becoming more paramilitary (Rappart, 2003).
The police also perform order-maintenance tasks during times of
emergency, such as in cases of large-scale accidents, terrorist attacks or
natural disasters. Emergency management coordination tasks primarily
involve working alongside other emergency services, as different agen-
cies will have primary responsibility for dealing with different types of
emergencies; for example, the fire service for fire, or the rail board for
The European Union as a Comprehensive Police Actor 53

train crashes (Edwards, 2005). Few emergency situations require police


only to perform coordination tasks, as major incidents often involve at
least the possibility of criminal offences. Crowds may also be attracted,
particularly in cities, meaning that other public order tasks may be
required. The activities of European Gendarmerie Forces in Haiti in 2010
demonstrate both EU policing in a paramilitary capacity and the provi-
sion of order-maintenance support in the aftermath of a major natural
disaster.
The last area of order-maintenance tasks for police involves facilitat-
ing the movement of vehicles and people. This is largely to ensure public
safety. Traffic police usually operate in areas where there is a high vol-
ume of vehicle congestion, areas where vehicles travel at high speed or
when traffic signs and signals are not functioning. Police also observe
whether people operating vehicles are doing so in a safe manner in
accordance with the law, and those who fail to do so may face a cau-
tion, fine or arrest. At large public gatherings, police may also monitor
and facilitate the safe movement of pedestrians, while monitoring for
any criminal behaviour or outbreaks of public disorder (Edwards, 2005).
Finally, police are involved with border control, including the move-
ment of people by public or private transport between countries. These
tasks have been included in the activities of EU Police Missions, such as
the border-control assistance provided by EU police officers in Bosnia.

Service tasks
Aside from police work that is related to order maintenance, crime
or arrests, police also provide service tasks to the public. According
to Walker, the functions of police in the modern state have come to
interlock closely with other services involved in the broader project of
providing for citizens’ well-being (Walker, 2003). These services include,
for example, health, social security, environmental protection and util-
ity supply. By providing 24-hour, seven day-a-week availability as well
as legal coercion, police have the authority and presence to reinforce
such services. This is because police can be proactive players in terms of
planning and coordination in both the local and central administration
of these other services. Walker points out that ‘in this sense, policing
has both shaped and been shaped by broader framework of multi-
functional, co-ordinated regulatory activity we call government and the
general container of government power we call the state’ (Walker, 2003,
p. 113).
Police provide a number of other day-to-day services to the pub-
lic. These include providing directions, general information and advice
54 The European Union as a Security Actor

and even helping with the cleanliness of communities. Punch and


Naylor point out that after specific emergency services (fire, ambulance,
coastguard and so on) the police are often left to deal with other mat-
ters, and could be described as the only 24-hour, fully mobile, social
service (Punch and Naylor, 1973). In a study of public expectations of
police, Punch and Naylor found that many people felt that they could
contact the police when they needed help from an authoritative source,
and there was no one else available; often calls to police are made when
even the caller realises that the reasons are not strictly police business
(Edwards, 2005). Many of the EU civilian missions include the training
of indigenous police forces in performing day-to-day service tasks. Addi-
tionally, the public awareness campaigns run as part of the EU Police
Missions to Bosnia and Kosovo provide services by educating the young
and raising awareness of the range of day-to-day support that police
offer to the public.

Transnational dimensions of policing


The last area of police work that needs to be outlined here is
‘transnational policing’. Walker suggests that the term ‘transnational’
is preferable to ‘international’ (Walker, 2003). This is because not all
policing beyond the state can be reduced to cooperation between actors
whose main reference point is their state of origin; some policing
involves networks which are relatively autonomous of their states of
origin, and instead owe authority and allegiance to non-state polities or
political communities (Walker, 2003). The primary examples of this are
to be found in EU-level policing.
Cooperation at various levels between police agencies of different
states has expanded as international security concerns have increased.
The main area in which this cooperation takes place is intelligence-
sharing, which is often an important part of states’ attempts to deal with
cross-border crime such as drug trafficking or terrorism. The EU offers
a particularly far-reaching example of transnational policing, which
has developed significantly over the last few decades. Earlier examples
of EU policing include the Schengen Information System, a comput-
erised database designed to facilitate the exchange of information and
intelligence among European police agencies, as well as operational
measures such as pursuit across borders, cross-border observation and
controlled delivery of illegal substances (Den Boer, 2000). Police cooper-
ation was formally integrated into the supranational structure of the EU
in the 1992 Maastricht Treaty, which also established the legal basis for
Europol. Europol is a central organisation in a network of relationships
with national units in each EU Member State and is used to supply
The European Union as a Comprehensive Police Actor 55

national units with criminal intelligence and analysis. Additionally,


Europol receives information from the national units on issues relat-
ing to certain forms of transnational crime. The EU supports this by
introducing an integrated policy structure and by supporting legisla-
tive measures in criminal justice cooperation (Walker, 2003). By the
time Europol was fully operational, its extended remit covered all crimes
with an organised criminal structure. Another significant development
in EU-level policing was the EAW, which came into force in January
2004. It was designed to replace extradition proceedings between EU
Member States and thereby speed up, and remove obstructing political
dimensions in, the transfer of criminal suspects and fugitives.

Criteria for assessing police comprehensiveness

The following section will explain how the functions of police may
be reduced to three analytical criteria without sacrificing the details
and quality contained in the full ideal set. Firstly, each of the police
tasks that have been outlined in this chapter may be identified with
a function from the set. Each of these functions may in turn be
grouped under three broad criteria for assessing comprehensiveness:
crime fighting, order maintenance and service. Some functions may
fit more than one criterion, but the tasks within that function will
be different in each criterion’s case. This will be demonstrated and
explained in further detail below. The way in which the criteria relate
to police functions and tasks can be explained most clearly by con-
sidering each one in turn. The following is a list of police functions
grouped with each criterion and a brief summary of the tasks associated
with each based on the more detailed descriptions already given in this
chapter.

Crime fighting
Function: To prevent and control conduct widely recognised as threat-
ening to life and property (serious crime).
Tasks: This involves all police tasks related to the prevention or reduc-
tion of all types of crime; the detection and investigation of crimes
that have been committed; and the apprehension, detention and
charging of suspects.
Function: To resolve conflict, whether it be between individuals,
groups of individuals, or individuals and their government.
Tasks: Relates to crime fighting when conflicts involve illegal activity,
such as violence, threat of violence, or causing serious or dangerous
public disorder.
56 The European Union as a Security Actor

Function: To identify problems that have the potential for becoming


more serious problems for the individual citizen, for the police or
for the government.
Tasks: This involves gathering and analysing information and intel-
ligence related to what crimes have been, or are likely to be,
committed, by whom, how and why.

Order maintenance
Function: To prevent and control conduct widely recognised as threat-
ening to life and property (serious crime).
Tasks: Negotiation management and policing public order at protests
and marches, as well as other types of public gatherings such as
sports matches, carnivals and so on.
Function: To aid individuals who are in danger of physical harm, such
as the victims of violent attack.
Tasks: To coordinate and work alongside other emergency services
during times of emergency, such as when large-scale accidents,
terrorist attacks or natural disasters occur.
Function: To facilitate the movement of people and vehicles.
Tasks: To ensure public safety in areas where there is a high volume
of vehicle congestion, areas where vehicles travel at high speed,
or when traffic signs and signals are not functioning; to observe
whether people operating vehicles are doing so in a safe manner
and in accordance with the law; and to monitor and facilitate the
safe movement of pedestrians at large gatherings. This also includes
police tasks relating to border control.
Function: To assist those who cannot care for themselves: the intoxi-
cated, the addicted, the mentally ill, the physically disabled, the old
and the young.
Tasks: To detain or get help for those who may present a danger to
themselves or others, and to take appropriate subsequent action,
such as offering advice, referring an individual to a specialist or
charging an individual if the law has been broken.
Function: To resolve conflict, whether it be between individuals,
groups of individuals or individuals and their government.
Tasks: To negotiate, take actions to ‘keep the peace’ when serious con-
flict occurs between individuals and to perform negotiation man-
agement and public-order-policing tasks when conflicts between
large groups or groups and their government occur.
Function: To create and maintain a feeling of security in communities.
Tasks: In accordance with the ‘reassurance agenda’ police should
create a sense of security in society though the symbolic presence
The European Union as a Comprehensive Police Actor 57

of police, as well as making efforts to convince the public that they


are beating crime and protecting them from criminals.

Service
Functions: To aid individuals who are in danger of physical harm, such
as the victims of violent attack, and to assist those who cannot care
for themselves: the intoxicated, the addicted, the mentally ill, the
physically disabled, the old and the young.
Tasks: These tasks relate to providing for citizens’ well-being. Police
should assist those who have been physically harmed, or are in dan-
ger of harm, and coordinate with other specialists and emergency
services for the protection of citizens. Police are often expected
to provide twenty-four-hour, seven day-a-week availability to help
with citizens’ general needs. Additionally, the notion of police
assisting those who need help may also be extended to include ser-
vice tasks, such as the provision of directions, general information
and advice. Police service tasks may also include planning and coor-
dination involvement with health, social security, environmental
protection and utility supply.
Function: To protect constitutional guarantees, such as the right of free
speech and assembly.
Tasks: To advise and assist citizens planning to hold lawful public
protests, gatherings or other events.

For the purposes of this research, if police perform tasks that can be
identified as belonging to a particular function, and those tasks are
performed to a similar depth and quality as would be expected of com-
parable domestic or international police, then that function may be
considered fulfilled. Each criterion for comprehensiveness may be con-
sidered to be fully met only if all of the functions that comprise them
are fulfilled. The foundational ‘roles’ of policing may also be related to
these criteria. Police roles are very broad in nature, and as such may
be applied in some way to a large percentage of police functions and
tasks. For this reason, the extent to which police fulfil the essential roles
of policing may be judged by the extent to which they meet all three
criteria for comprehensiveness.
Police comprehensiveness is to be measured both in terms of quan-
tity, that is, the number of roles, functions and tasks that occur in
EU-level policing, and quality, that is, the depth of the function or
task that is carried out. This is because quantity alone may not be a
sufficient basis to claim that the EU is a comprehensive and credible
police actor. Rather, the criteria for police comprehensiveness must be
58 The European Union as a Security Actor

met at a similar level to that which would be expected of comparable


domestic or international police forces undertaking the functions and
tasks in question. Furthermore, the criteria for comprehensiveness are
not ‘absolute’, ‘all-or-nothing’ criteria. As with actorness, police compre-
hensiveness may be fulfilled in certain areas. For example, case studies
may indicate that EU-level policing clearly fulfils all of the functions
relating to order maintenance, but only some of those relating to crime
fighting. In this case, EU-level policing may be considered comprehen-
sive in the area of order maintenance, but partial in the area of crime
fighting. Additionally, specific police activities or examples of policing
(such as may be used for case studies when applying this framework)
would not be expected to include evidence for all three criteria for
police comprehensiveness. A study of Europol, for instance, would be
likely to provide evidence of crime fighting functions, but not of service
functions. As will be discussed later in this chapter, a number of case
studies will be required to present a meaningful analysis of the EU as a
comprehensive police actor.

Towards a new theoretical framework

In order to assess the EU as a comprehensive police actor, it is neces-


sary to produce a framework capable of measuring both actorness and
police comprehensiveness. Furthermore, the approach used should pro-
duce an assessment of the relationship between comprehensiveness and
actorness, as well as the linkage between each of the criteria to be used.
This will be achieved by combining Jupille and Caporaso’s criteria for
actorness and the criteria for police comprehensiveness presented in this
chapter into a single integrated framework.
When applying this framework to research, police comprehensiveness
should be assessed first. Once the extent to which the criteria for com-
prehensiveness are met has been established, each one must then be
measured against the criteria for actorness. This integrated approach
forms an interrelated hypothesis; this means that to provide a complete
analysis, all elements of the framework must be considered together and
in relation to each other. This approach offers several advantages: firstly,
by systematically looking at the linkage between each element of police
comprehensiveness and actorness and then considering the overall rela-
tionship between them, a highly nuanced analysis may be produced.
This will be useful for providing a detailed and insightful answer to
the question of whether the EU can be considered a comprehensive
police actor. Secondly, it offers an effective way to compare and link
The European Union as a Comprehensive Police Actor 59

case studies. The aspects of comprehensiveness and actorness that dif-


ferent areas of EU policing meet or fail to meet can be identified, and
then measured alongside each other. This will be important for produc-
ing an accurate overall assessment of the EU as a comprehensive police
actor. Finally, the broad nature of the framework lends itself to being
adaptable for this type of research. For a topic as multifaceted as EU
policing, this is advantageous because diverse aspects of policing can
be meaningfully examined and compared within the same analytical
parameters.
Case studies will be highly useful for assessing whether the criteria for
police comprehensiveness and actorness are fulfilled by EU-level polic-
ing. According to Yin, case studies often ‘contribute to our knowledge
of individual, group, organisational, social, political, and related phe-
nomena’, in addition to the fact that ‘the case study method allows
investigators to retain the holistic and meaningful characteristics of real-
life events – such as individual life cycles, organizational and managerial
processes, neighbourhood change, international relations, and the mat-
uration of industries’ (Yin, 2003, pp. 1–2). A study of EU policing,
including its activities, organisation and functional processes, is clearly
well suited to this kind of approach. Potential case studies range from
broad examples of EU-policing, such as Europol or any of the Police
Missions, through to narrower, more specific cases, such as the EAW.
However, the cases selected must be substantial enough to meaningfully
incorporate a study of recognition, authority, autonomy and cohesion.
It should also be demonstrated that the case studies chosen are repre-
sentative or indicative of EU policing as a whole in order to assure that
the findings are generalisable.

Conclusion

This chapter has identified the absence of an in-depth, systematic study


of EU-level policing as a significant gap in the literature; scholars have
tended to focus on narrow aspects of EU police activity, or on either
the internal or external dimensions. Filling this gap is vital for under-
standing the contribution of police to the EU’s security agenda, which is
important as police have increasingly become part of EU security policy-
making since 9/11. The framework presented here offers a systematic
way to approach the examination of the EU as a comprehensive police
actor. Empirical research is to be undertaken to determine in which areas
and to what extent EU-level policing incorporates the range of func-
tions, roles and tasks that constitute comprehensive policing. EU-level
60 The European Union as a Security Actor

policing must also be explored in terms of actorness; in this way, it will


be possible to examine the relationship and linkage between the EU’s
police comprehensiveness and its security actorness. This framework can
therefore offer valuable insights into the role of police in the EU’s ambi-
tions as a comprehensive security provider and a credible global security
actor.

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Part II
Counter-terrorism and Policing
in Europe
4
Europol’s Counter-terrorism Role:
A Chicken-Egg Dilemma
Oldrich Bures

The aim of this chapter is to offer a comprehensive analysis of


Europol’s fledgling role in the area of counter-terrorism. Based on offi-
cial European Union (EU) documents, internal reports and secondary
sources, I contend that most of Europol’s counter-terrorism activities
suffer from a peculiar chicken-egg dilemma. On the one hand, Europol
has hitherto not been granted any supranational powers by the EU
Member States and is not trusted by national law enforcement and
intelligence agencies because it does not perform any indispensable
counter-terrorism functions at the moment. On the other hand, the per-
sisting lack of tangible ‘value-added’ in the area of counter-terrorism is
primarily due to Europol’s limited powers and the lack of trust from the
national agencies, which prefer to utilise long-standing bilateral and/or
non-EU multilateral arrangements when it comes to information-
sharing and practical work coordination. Both bilateral and informal
multilateral arrangements, however, suffer from a number of important
weaknesses, and their frequent use by the EU Member States has already
raised intriguing questions concerning the legitimacy, accountability
and transparency of the entire EU’s counter-terrorism policy. Europol
could, therefore, potentially deliver tangible value-added in the area of
counter-terrorism in a number of important areas, provided that the
aforementioned chicken-egg dilemma is eventually resolved.
The structure of this chapter is as follows. Brief accounts of Europol’s
original mandate and its post-9/11 counter-terrorism role are offered in
the first two sections. Sections three and four review the key obstacles to
Europol’s counter-terrorism coordination efforts and counter-terrorism
intelligence-sharing, respectively. The shortcomings of informal non-EU
counter-terrorism arrangements are discussed in section five, followed
by a discussion of the possible ways for Europol to add tangible value

65
66 Counter-terrorism and Policing in Europe

in the area of counter-terrorism in section six. The concluding section


offers some thoughts on the nature and resilience of the chicken-egg
dilemma that hampers Europol’s fledgling counter-terrorism role.

Europol’s original mandate

Europol started limited operations on 3 January 1994 in the form of the


Europol Drugs Unit. Progressively, other areas of criminality were added
to Europol’s mandate, including those ‘dealing with crimes committed
or likely to be committed in the course of terrorist activities against life,
limb, personal freedom or property’ (Council of the European Union,
1999). Priority was given to crimes against persons, financial crimes
and cybercrimes, when an organised structure is involved and when the
criminal activity involves two or more Member States. In July 1995, a
Europol Convention was formally drawn up in Brussels but Europol was
unable to commence full activities until July 1999, when the Conven-
tion was finally ratified by all EU Member States. Currently, ratifications
by national parliaments are also required for all amendments to the
Convention. Ratifications by national parliaments were also required for
all subsequent amendments to the Convention, but this has changed as
of 1 January 2010 with the entry into force of a Council Decision that
has officially turned Europol into an EU agency (see below) (Council of
the European Union, 2009).
Similar to other international police organisations such as Interpol,
Europol is not an executive police force with autonomous supranational
authority to conduct its own investigations, undertake searches or arrest
suspects.1 Instead, the objectives of Europol are to improve effective-
ness of and cooperation among the national police authorities in the
EU Member States. Formally, activities of Europol include

1. facilitating the exchange of information, in accordance with national


law, between Europol liaison officers (ELOs); ELOs are seconded to
Europol by the Member States as representatives of their national
law enforcement agencies;
2. providing operational analysis in support of operations;
3. generating strategic reports (e.g. threat assessments) and crime anal-
ysis on the basis of information and intelligence supplied by the
Member States and third parties;
4. providing expertise and technical support for investigations and
operations carried out within the EU, under the supervision and the
legal responsibility of the Member States concerned;
Europol’s Counter-terrorism Role 67

5. promoting crime analysis and harmonisation of investigative tech-


niques within the Member States (Europol, 2007).

Unlike all other international police organisations, however, Europol


was not formed from the bottom-up by police professionals but was the
result of a top-down decision by the political and legislative bodies of
the EU. This has had two important repercussions on Europol’s counter-
terrorism role. On one hand, Europol is ‘characterized by a degree of
autonomy to determine specific means and objectives of its policing and
counterterrorist programs’ (Deflem, 2006, p. 340). On the other hand,
as discussed below, the top-down political decision to establish Europol
may at least partly explain the prevailing lack of will of the relevant
national law enforcement and intelligence agencies to work with and
through this EU agency.

Europol’s counter-terrorism mandate

A special counter-terrorism preparatory group composed of national


experts was created to formulate Europol’s counter-terrorism role in
1997, when the Treaty of Amsterdam extended Europol’s mandate in
this area (Rauchs and Koenig, 2001, pp. 45–46). According to a mem-
ber of this preparatory group, its work was strategic in its nature, with
the primary focus on the production of a glossary of active terror-
ist organisations based on ‘hard facts’ that could be used in courts
for prosecutorial purposes (Interview with a Europol official, Septem-
ber 2009). Before the 9/11 events, however, relevant authorities from
a number of Member States repeatedly failed to provide Europol with
operational data, despite the fact that one of Europol’s core functions is
the enhancement of European police cooperation through information
exchange. The importance of Europol in the fight against terrorism was
therefore specifically reiterated in the conclusions of the Extraordinary
European Council of 21 September 2001 and the Council’s instruction
was essentially aimed to elevating Europol to an effective information
and intelligence exchange medium.
In the aftermath of 9/11, Europol’s counter-terrorism mandate
was further expanded (see also Occhipinti’s chapter in this vol-
ume). It gained the authority to ask police forces of EU Member
States to launch investigations and to share information with the
US Federal Bureau of Investigations (FBI) and other third parties,
including Interpol, as well as police forces of non-EU states (Ratzel,
2007a). Information-sharing and other forms of cooperation were also
68 Counter-terrorism and Policing in Europe

progressively developed with other relevant EU agencies including the


European Antifraud Office (OLAF), the European Police Chiefs Task
Force and, perhaps most notably, Eurojust. In a number of cases, how-
ever, there were initially major obstacles that had to be overcome
in order for even EU agencies to cooperate with Europol due to its
strict data protection requirements and the need for a formal cooper-
ation agreement at the operational or at least strategic level. This was
acknowledged by a senior Europol official:

The issue of data protection is always our main hurdle to take but we
are aware of it and we are very happy that the data protection regime
is there because we cannot do without it. It is a safeguard for both
the EU and citizens that we are not playing or fooling around with
information.
(Interview with a Europol official, September 2009)

In the case of Europol’s cooperation with Eurojust, however, it appears


that cooperation and information-sharing were initially also hampered
by inter-agency rivalry (Bures, 2010).
Europol was also assigned to open and expand the so-called terrorist
‘analysis work files’ (AWFs), created from information and intelligence
provided by the police forces and intelligence services of the EU Mem-
ber States (Statewatch, 2004). Europol maintains two such AWFs, one
focused on Islamist fundamentalist terrorism (called ‘Hydra’) and the
other on all other terrorist groups and activities in the EU (called ‘Dol-
phin’). A December 2002 Council Decision specifically stipulated that
each Member State must ensure that at least the following intelligence
information is communicated to Europol:

(1) data which identify the person, group or entity;


(2) acts under investigation and their specific circumstances;
(3) links with other relevant cases of terrorist offences;
(4) the use of communications technologies;
(5) the threat posed by the possession of weapons of mass
destruction.
(Council of the European Union, 2003)

The Decision also provided for the appointment of specialised services


or magistrates within the police services and judicial authorities; for an
urgent priority treatment to requests for mutual assistance concerning
persons and groups included in the EU terrorist list; and for maximum
Europol’s Counter-terrorism Role 69

access by the authorities of other Member States to information on tar-


get persons and groups. In the last area, Europol’s role is unique as it
offers ‘the only EU-wide platform for multilateral exchange and analysis
of personal data in relation to organized crime and terrorism via a secure
network which is subject to strict regulations on handling of data based
on specific handling codes’ (Ratzel, 2007b, p. 113).
The emphasis on the exchange of data on terrorism was further rein-
forced in the Council Decision 2005/671/JHA, which stipulated that
there shall be one point of contact within each Member State who will
collate ‘all relevant information concerning and resulting from criminal
investigation conducted by its law enforcement authorities’ and send it
to Europol (Council of the European Union, 2005). The Decision also
provided for the setting up of joint investigation teams (JITs) to ‘con-
duct criminal investigation into terrorist offences’, although the original
legal basis for their creation was already the 2002 Council Framework
Decision on JITs. In practice, however, JITs have not become widespread
(Rijken and Vermeulen, 2006). According to Europol’s own analysis, this
is due to ‘insecurity/uncertainty about national implementation of the
2002 Framework Decision on JITs; lack of awareness of the JITs as an
investigative option; and, a lack of funding, as JITs can be expensive to
negotiate and operate’ (Europol, 2009).
The Extraordinary Council of 21 September 2001 also launched sev-
eral institutional innovations, including the installation of a 24-hour
alert counter-terrorism unit within Europol (Council of the European
Union, 2001). Later known as the Counter Terrorist Task Force (CTTF),
the unit was composed of national liaison officers from police and
intelligence services. It was supposed to collect and analyse all rele-
vant information and intelligence concerning current terrorist threats
and draft threat assessment documents for strategic decision-makers.
The unit was also requested to collaborate directly with its US counter-
parts (Den Boer et al., 2008, p. 110). In practice, however, the CTTF was
criticised for serious shortcomings in handling real-time data (Bensahel,
2003). According to a former member of the CTTF, the key problem
was that the Council Decision to establish the unit ‘came as a lighten-
ing’ at a time when there was no experience whatsoever within Europol
on which to build. National intelligence experts were for the first time
compelled to come to Europol and share information but ‘time was not
ripe for this yet in 2001’. The speed of its creation also meant that
the CTTF lacked resources as well as a ‘full and understandable man-
date’, so the operational plan had to be devised only after the unit
had started running (Interview with a Europol official, September 2009).
70 Counter-terrorism and Policing in Europe

Consequentially, when its original mandate expired in the spring of


2003, all counter-terrorism work had been taken over by the Terrorism
Unit of the Serious Crime Department (Statewatch, 2004, p. 18).
A ‘new’ CTTF was put in place in the aftermath of the Madrid terrorist
attacks but, until the end of 2004, it performed only limited operations
with limited staff. According to a member of the renewed unit, this was
because it took approximately five months to get the CTTF running in a
way that would avoid the shortcomings of its predecessor: ‘Based on the
lessons learned, we approached the national experts to find out what
they needed. We then brought these to the high-level experts meet-
ing and built up a plan before actually implementing the task force’
(Interview with a Europol official, September 2009). More precisely, the
mandate of the re-activated CTTF included the following: (1) collection
of all relevant information and intelligence concerning the current ter-
rorism threat in the EU; (2) analysis of the collected information and
undertaking operational and strategic analysis; and (3) formulation of
a threat assessment, including targets, modus operandi and security
consequences.
In practice, the production of several threat assessment reports
arguably represented the most concrete results of the ‘new’ CTTF.
In 2007, it was transferred into a more future-oriented First Response
Network (FRN), which consists of a network of more than 50 counter-
terrorism experts from all Member States. This new counter terrorism
tool is allegedly ‘the result of lessons learned from past incidents’ and
it should allow ‘for flexible support for Member States’ investigations
immediately after terrorist incidents’ (Interview with a Europol offi-
cial, September 2009). The mandate of the current Counter Terrorism
Unit, newly placed within the Department of Operations after the most
recent restructuring of Europol in January 2010, also includes areas
of racism and xenophobia; illicit trafficking of nuclear materials; and
the illicit trafficking of small weapons and ammunition. According to
an interviewed Europol official, it serves as ‘a platform for informa-
tion exchange, expertise, expert analyses and dedicated tools’ (Interview
with a Europol official, September 2009).

Obstacles to Europol’s counter-terrorism coordination


efforts

The impact of Europol’s counter-terrorism measures is difficult to assess,


not only because of the relatively recent (re-)establishment of the CTTF,
but also because there is relatively little information available:
Europol’s Counter-terrorism Role 71

Europol is very protective of the organization’s assistance in


investigative activities. [. . .] Europol’s officials are also reluctant to
provide information, even information as general as the number of
arrests that have been made on the basis of Europol support, because
the organization seeks to safeguard the integrity and autonomy of
the National Units.
(Deflem, 2006, p. 346)

Nevertheless, based on Europol’s annual reports , which contain at least


some systematic information and data, some observers have argued
that Europol has begun to play an increasingly important role in the
fight against terrorism after the 9/11 events. Jonathan Stevenson, for
example, suggested that

Europol has already proven useful as a vehicle for distributing gen-


eral information and assessments among national law-enforcement
authorities. It has also served the useful political function of enshrin-
ing pre-existing bilateral law-enforcement relationships that had
arisen in connection with transnational threats such as narcotics traf-
ficking and the ‘old’ pre-Al Qaeda terrorism. Europol also has some
potential [. . .]to help harmonize the national policies of EU Member
States on territorial security.
(Stevenson, 2003, p. 87)

According to its former director, Europol supported 40 ongoing counter-


terrorism operations in 2005 and provided ad hoc operational support to
major sport events, such as the 2006 Winter Olympics in Turin and the
FIFA World Cup 2006 in Germany (Ratzel, 2007b, p. 15).
Other observers, however, pointed out that, at the time of the Madrid
terrorist attacks, ‘most Europol-related measures [were] still in the stage
of planning’ (Vennemann, 2003) and the sceptics have warned that even
after the budgetary and staff increases,2 Europol remained too small and
minimally funded (Archick, 2002). For its part, the European press noted
that, when it came to real action, Europol looked rather marginal in a
number of events. Perhaps, most notably, it was not even given a role
in the investigation when a spate of letter bombs was sent to several
top EU officials at the end of 2003, despite the fact that its own chief
was among those targeted (Joshi, 2004). Another indication of a lack of
cooperation among Europe’s forces was revealed immediately after the
Madrid terrorist bombings, when French police officials were outraged
72 Counter-terrorism and Policing in Europe

over the fact that their Spanish counterparts refused to share informa-
tion on the types of explosives that had been used. These examples
confirm that, even in the spring of 2004, Europol continued to be more
of a coordination office than operational headquarters.
In the area of counter-terrorism, however, even coordination has
proven to be a difficult task. In part, this is because the political,
administrative and judicial framework varies from one Member State
to another, which adds further impediments to effective information-
sharing and coordination.3 Moreover, according to a report by the
European Commission, free circulation of information is hindered by
two additional obstacles:

The first is that the information tends to be compartmentalized


at both organizational and legal levels. For example, it is divided
between different ministries and services and is intended for use in
different procedures, thereby affecting the nature and sensitivity of
the information that can be handled by the services. The second
obstacle is the lack of a clear policy on information channels, result-
ing in disagreement on the choice of channel and on how to handle
sensitive and confidential information.
(European Commission, 2004)

Another obstacle Europol faces with respect to counter-terrorism is


the fact that in some EU Member States, terrorism is dealt with by
police agencies, while in others intelligence agencies are responsible
for counter-terrorism, and cooperation across intelligence and police
agencies can be difficult because they tend to be interested in differ-
ent types of information – ‘police institutions tend to be interested in
specific information about suspects in order to make an arrest, whereas
intelligence agencies are very broadly interested in general informa-
tion without prosecutorial purposes’ (Deflem, 2006, p. 351; see also
Occhipinti’s chapter in this volume). Moreover, some experts have also
argued that given their different esprit de corps, ‘security services as a
group do not think highly of police agencies and vice versa’ (Müller-
Wille, 2008, p. 57; see also Villadsen, 2000). Within the EU, both police
and intelligence cooperation is further compounded by the cultural and
linguistic diversity that exists across the EU Member States – all informa-
tion received by Europol in the area of counter-terrorism, for example,
has to be translated in 23 languages before it can be sent to participating
national agencies.
More importantly, however, it seems that some do not necessarily
welcome coordination from Brussels. Despite the fact that ‘in no sense
Europol’s Counter-terrorism Role 73

does Europol have a coordinating role comparable to the U.S. Depart-


ment of Homeland Security’ (Müller-Wille, 2008, p. 55), a recent study
by the EU Counter-terrorism Coordinator found that while all Member
States ‘deplore the failure to set up a Europol information system, which
prevents rapid and effective cooperation between them [. . .] they do not
all seem to have the same level of involvement in this project’ (Coun-
cil of the European Union, 2004). As of 2004, for example, only seven
Member States seconded the necessary intelligence analysts to the EU’s
Situation Centre, and the special working groups on counter-terrorism
that report to the Council were still based in the capitals instead of feed-
ing directly to EU security experts in Brussels (Dempsey, 2004, p. 6).
Similarly, the wrangling over which national should get the post of the
Director of Europol, which lasted for seven months after the five-year
term of the first director expired in July 2004, just a few months after the
Madrid terrorist bombings, ‘betrays the shortcomings of international
cooperation when nationalist sentiments and political concerns drive
the agenda’ (Deflem, 2006, p. 348).
Finally, it is also important to note that the police forces and intel-
ligence services of EU Member States also ‘generally view Europol with
a great deal of suspicion, believing that it infringes on their authority
and autonomy’ (Bensahel, 2003, p. 40; see also Occhipinti’s chapter in
this volume). As the former Europol’s director Jürgen Storbeck (cited
in Archick, 2002, p. 9) explained, ‘For a policeman, information about
his own case is like property. He is even reluctant to give it to his
chief or to another department, let alone giving it to the regional or
national services. For an international body like Europol, it is very dif-
ficult.’ Nevertheless, as discussed in greater detail below, representatives
of EU Member States’ police and security agencies ‘do achieve cooper-
ation in practical matters’ at meetings separate from the EU Ministers
and Europol (Deflem, 2006, p. 348). This perhaps also explains why
one national expert even expressed the view that it had been a ‘huge
mistake’ to give Europol a role in the fight against terrorism (Bossong,
2008b, p. 13).

Counter-terrorism intelligence-sharing: Europol as an


optional bonus only?

Another important area of the counter-terrorism campaign where,


according to a report by RAND, ‘the EU has not made a significant
contribution’ is intelligence-sharing (Bensahel, 2003, p. 40). The report
even explicitly pointed out that the reluctance of some Member States
to share information about terrorism with Europol has repeatedly led to
74 Counter-terrorism and Policing in Europe

situations where Europol lacked ‘a complete understanding of current


threat levels, international connections among suspected terrorists, and
the counter-terrorism efforts of its own members’ (Bensahel, 2003,
p. 40). Another report by Statewatch observed that

[s]ome Member States are clearly reluctant to share and contribute


intelligence and a Commission proposal in August 2002 [. . .] to
provide an extra  3,036,800 for Europol to fund an ‘EU Bomb
Data Network,’ a ‘Communications Network for Special Interven-
tion Units’ and an ‘Operational Control Centre’ to deal with major
terrorist incidents was rejected by the Member States in December
2002.
(Statewatch, 2004, p. 18)

The fact that intelligence-sharing between the EU Member States and


Europol has so far been extremely slow was also acknowledged in the
March 2004 European Commission action paper in response to the ter-
rorist attacks on Madrid. The Commission (2004) urged the Member
States to use Europol ‘more and better’ and stressed that they ‘should
consider it their duty to give the Europol Terrorism Task Force [. . .]
all operational information, not just limited and filtered strategic and
technical intelligence’. Perhaps most disturbingly, it also appears that
Europol has failed to transcend the traditional obstacles to intelligence-
sharing and the national law enforcement agencies themselves ‘are still
reluctant to share “high-grade”, real-time intelligence on terrorism that
can be acted on immediately’.
The persistence of nationality in international policing and intelli-
gence exchange indeed still hampers Europol’s counter-terrorism efforts.
Firstly, although numerous Council Decisions and Commission propos-
als include an obligation of EU Member States to share information,
in practical terms this duty has had little impact because it can-
not force Member States’ authorities to share more information, that
is, intelligence that was not previously disseminated (Müller-Wille,
2008, p. 67). This was also confirmed by Europol officials: ‘We know
that [national] intelligence services cannot share personal-related and
operational-related data with us because of their very strict data protec-
tion regimes and there is no use talking it over’ (Interview with a Europol
official, September 2009). In either case, information exchange with
Europol headquarters is de facto voluntary and the level of involvement
from the various National Units varies greatly from one EU Member
State to another. According to a 2008 report by the European Union
Commission of the British House of Lords,
Europol’s Counter-terrorism Role 75

The raison d’être of Europol is the exchange of information for


law enforcement purposes. It is a matter of particular concern that
four fifths of the information exchanged by national liaison officers
stationed at Europol is exchanged without actually going through
Europol, and hence without being placed on Europol’s database and
without being accessible to Member States other than those directly
involved.
(UK House of Lords, 2008)

Consequentially, although the intelligence and analysis capacities at


Europol headquarters have improved considerably since 9/11, the
volume of data that officially reaches Europol indeed remains rela-
tively sparse. This is due to several reasons, including the defence of
sovereignty in matters of ‘national security’, which is further buttressed
by a culture of secrecy and independence of national services that often
fear that confidential sources and methods of work could be compro-
mised if intelligence was widely shared. In the case of Europol, these
fears were further exacerbated by the fact that prior to 9/11, this EU
agency was considered as law enforcement support unit only, while after
9/11, it was decided at the political level that Europol will support ‘all
competent authorities, including the intelligence services, which were
not necessarily ready for this change’ (Interview with a Europol offi-
cial, September 2009). Alternatively, some analysts have suggested that
intelligence is also ‘a “currency” to obtain other valuable information
or political favours [and therefore] it is not appealing to share it on the
basis of general rules with all EU Member States’ (Bossong, 2008a, p. 19).
Others have even argued that national security services may undermine
community regimes by submitting low-quality information (Argomaniz,
2008, p. 227).
Secondly, even when they formally participate in international
organisations like Europol, European police agencies may be reluc-
tant to share information in the absence of several prerequisites,
most importantly a sense of mutual trust and a shared expecta-
tion of positive outcomes. These, however, cannot simply be cre-
ated by EU legislation and in practice there is a clear preference for
bilateral cooperation which many national agencies consider as ‘the
most workable instrument’ from an intelligence perspective (Coun-
cil of the European Union, 2004, p. 19). In 1996, for example, the
interior and justice ministers from Belgium, Luxembourg and the
Netherlands signed a memorandum of understanding on police coop-
eration. In 2004, France and Spain set up a combined counter-terrorism
76 Counter-terrorism and Policing in Europe

unit, composed of judges and policemen, to run joint operations.


The British and Irish governments, which have a long experience of
joint operations tracking IRA and loyalist terrorist groups, signed an
agreement to deepen their counter-terrorism collaboration in Febru-
ary 2005 (Keohane, 2008, p. 128). Consequentially, according to Björn
Müller-Wille, ‘Europol represents but an optional bonus, of which
the Member States can avail themselves at free will’ (Müller-Wille,
2004, p. 26).
Alternatively, an independent study ordered by the European Com-
mission in 2007 suggested that the weakness of EU intelligence
exchange may be explained by the presence of an ‘Elephant in the
Room’. While recognising that counter-terrorism intelligence-sharing
among Member States takes places along two axes – the first axis con-
sists of institutional actors, namely law enforcement, internal security,
foreign intelligence and policy makers, the second axis is geographical,
namely (1) global, (2) regional and (3) bilateral (including small-scale
multilateral) – the authors of the report claim that ‘one of the bilat-
eral players, the USA, is so significant as to represent separate class of
interaction’ (John Howell & Co., 2007, p. 36). This is due to the fact
that the US (1) has an outreach policy in counter-terrorism; (2) actively
engages EU Member States on policy formulation and implementation;
(3) provides technical assistance in the form of training and equipment;
and (4) exchanges data. As such, the US ‘is a de facto intelligence hub
to which most [Member States] are in some way connected’ and the
‘EU arrangements risk being crowded out by these relationships’ (John
Howell & Co., 2007, p. 37). The importance of bilateral links with the
US was also confirmed by a Czech counter-terrorism official, who noted
that in ‘contrast to the EU, where reaching an agreement often takes
years, with the US we can tackle even difficult issues such as visas
in a few meetings’ (Interview with a Czech counter-terrorism official,
November 2008.)
Thirdly, while formally supporting political initiatives at the EU
level, many EU Member States simultaneously participate in informal,
practitioner-led multilateral networks such as the Police Working Group
on Terrorism (PWGT)4 and the Club of Berne, often at the expense of
supporting Europol (Council of the European Union, 2004, p. 19; see
also Svendsen’s chapter in this volume). Within the informal frame-
work of Club of Berne, for example, the representatives from 27 Member
States, as well as Norway and Switzerland, have met for decades.5
In September 2001, a Counter-Terrorism Group (CTG) was founded
within the club to coordinate the work of national counter-terrorism
Europol’s Counter-terrorism Role 77

experts and to deepen practical cooperation and intelligence exchange


between security and intelligence services. Formally, there is no official
link to the EU and although CTG can and indeed does communicate
with Europol, the latter is a member neither of the Club of Bern nor
of the CTG (Bendiek, 2006, p. 21). Moreover, interviews with national
counter-terrorism experts (cited in Bossong, 2008b, p. 19) suggest that
CTG has at times intentionally maintained distance from the EU.
The interior ministers from the six biggest EU Member States (France,
Germany, Italy, Poland, Spain and the United Kingdom (UK)) also work
more closely than other EU Member States on sharing counter-terrorism
intelligence in the so-called G6 group. Established in May 2003 as G5
(Poland joined the group only in 2006) out of frustration with the
EU’s bureaucratic JHA structures, the group is allegedly working to con-
clude a series of bilateral agreements, which should eventually form
the basis of future EU-wide laws and measures (Lavenex and Wallace,
2005, p. 466). The participating Member States’ interior ministers meet
informally up to three times a year to discuss issues of internal secu-
rity including terrorism, organised crime and migration. Thus far, they
agreed to create a common database of individuals suspected of connec-
tions to terrorist organisations and established single points of contact
for information on anyone suspected of having a connection to terror-
ist organisations, and on the theft or loss of weapons and explosives.
Most recently, the group members also decided to create multilateral
police support teams in case of a serious terrorist attack and agreed to
draw up joint analyses of terrorist activity on the Internet, including by
supporting Germany’s ‘check the web’ project (Statewatch, 2006). Since
the G6 Members together combine for three quarters of the population
of the EU, it appears that for the foreseeable future, ‘the G6 countries
will drive co-operation between national intelligence services in Europe,
rather than the EU as a whole’ (Keohane, 2008, p. 128). The problem
with this self-styled G6 leadership is that most G6 meetings take place
behind closed doors and their results are often not made public in full.
Some therefore fear that G6 countries may try to dictate the direction of
the EU JHA policies over the other 19 EU Member States. A recent UK
House of Lords report, for example, criticised the ministers of the G6
for purposefully informing their colleagues from the other EU Member
States of the joint G6 proposals on immigration mere two working days
before the relevant JHA Council meeting, describing such approach as
‘both inept and discourteous’ (UK House of Lords, 2007a).
Another attempt to overcome the laborious internal decision-making
processes in the EU-27 was the Prüm Treaty (see also Occhipinti’s chapter
78 Counter-terrorism and Policing in Europe

in this volume). Signed in May 2005 by seven pro-integrationist EU


Member States (the Benelux three, Austria, France, Germany and Spain),
it was aimed to step up cross-border cooperation, particularly in combat-
ing terrorism, cross-border crime and illegal migration. The treaty also
contained a number of innovations which the EU at large was unable to
agree upon thus far, including the exchange of information on the basis
of ‘the principle of availability’ with regard to sensitive personal data
such as DNA profiles, fingerprints and vehicle registration data; com-
mon rules on aeroplane security, including guidance on deployment
of air marshals; and the ability of police forces to pursue, in extreme
cases, criminals across national borders without notification (Balzacq
et al., 2006, pp. 6–7). The Prüm Treaty signatories subsequently suc-
ceeded with their efforts to incorporate most of the Treaty provisions
into EU law but this has not been without substantial critique. Some
questioned the desirability of a small number of States attempting to
bypass the established EU procedures, others expressed concerns regard-
ing how the Treaty provisions relate to other proposals in the JHA Pillar
which are genuine EU initiatives.6 Several experts even argued that the
First Pillar provisions in the Prüm Treaty were in breach of Article 10 of
the EC Treaty, which stipulates that EU Member States ‘shall facilitate
the achievement of the Community’s tasks. They shall abstain from any
measure which could jeopardise the attainment of the objectives of this
Treaty’ (UK House of Lords, 2007b). There has also been a substantial
amount of criticism of the German EU presidency, which put forward
the initiative to transpose the Prüm Treaty into the legal framework of
the EU and drafted the relevant EU legislation using the exact word-
ing of the Prüm Treaty, while making clear that it had no intention of
allowing amendments, although neither the EU Commission nor the
remaining EU Member States were consulted in drafting of the legisla-
tion (UK House of Lords, 2007a). According to a report by the UK House
of Commons, this type of transposition into EU law ‘sets a worrying
precedent whereby a small group of Member States may reach an agree-
ment among themselves which then is presented to the wider EU almost
as a fait accompli’ (UK House of Commons, 2007).
Finally, there are also two cases of regionally based cooperation
outside of the EU framework – the Salzburg Forum (Austria, Czech
Republic, Poland, Slovakia, Slovenia) and the Baltic Sea Task Force.
Further counter-terrorism initiatives are in the process of being added
(e.g. CEWIN, which is a network of national experts on the protection
of critical infrastructure) and other networks have been strongly rein-
forced, such as the Financial Intelligence Units. The latter function in
Europol’s Counter-terrorism Role 79

close interaction with the Egmont Group, which is yet another infor-
mal multilateral group created in 1995, comprising the authorities from
the Financial Intelligence Units of 104 countries (Den Boer et al., 2008,
p. 118). The long history of these non-EU networks indicates that coop-
eration between intelligence services has always been a high priority for
the EU Member States, even though they have been hesitant to integrate
their intelligence services into an EU framework.

Shortcomings of informal counter-terrorism arrangements

In contrast to Europol and other EU’s vertical antiterrorism governance


arrangements such as Eurojust and SitCen (see also Occhipinti’s chapter
in this volume), which have been fully endorsed by the Council and
as such may be regarded as direct extensions of political and executive
power in the EU Member States, the aforementioned horizontal non-EU
counter-terrorism arrangements ‘comprise a differentiated set of mem-
bers in the form of a more networked, enhanced co-operation, allowing
the participation of non-EU actors and justifying their existence on the
basis of their non bureaucratic, professional and informational charac-
ter’ (Den Boer et al., 2008, p. 103). Because of their flexibility, relative
independence from national governments, as well as their ability to
include a broad range of participants on equal footing, it is generally
assumed that these informal policy networks ‘are more suitable for tack-
ling governance problems or achieving common goals than more hier-
archical and formal strategies’ (Den Boer et al., 2008, p. 103). Especially
among professionals, informal horizontal cooperation arrangements are
regarded as highly successful, pragmatic and flexible:

You have to go to the background and the reasons for existence of


such networks. The Club of Berne, for instance, has a really good
reason for existence and it derivative, the CTG is only dealing with
Islamist terrorism. Moreover, things that are discussed with CTG will
eventually come back to [EU’s] TWG, but by the time they are thrown
onto us [EU agencies], they will have already ripened. Having these
specific networks, or we should perhaps call them regional hubs, is
OK. There is nothing wrong with discussing matters within your own
quarters before taking them to the EU level.
(Interview with a Europol official, September 2009)

Another interviewed EU official stated that ‘the more venues for dis-
cussion and personal communication there are, the better for EU
80 Counter-terrorism and Policing in Europe

counter-terrorism policy’ (Interview with an anonymous EU official,


October 2008). According to a Czech counter-terrorism official (Inter-
view, November 2008), participation in non-EU networks was crucial
for the ‘new’ EU Member States prior to their accession in 2004. Others
have acknowledged that ‘there is a risk of cutting across EU agencies’,
but argued that none of the existing forums

has the legislative or executive competencies that the EU does, so in


the end even if some Member States get together and agree on some-
thing within G6, it is still easier for them to implement it through EU
institutions than to try to arrange coordinated bi-lateral cooperation
which other people would not invited to join.
(Interview with an anonymous EU official, October 2008)

It is, therefore, up to the representatives of other Member States

[t]o say to what extent they find it annoying that these groups exist
and seem to divide things among themselves. But from the point of
view of the actual working of the EU and its institutions, clearly if
a significant group of Member States with a significant stake in the
issue manages to come to a conclusion, in the end this should make
it easier to have an arrangement taken across the EU.
(Interview with an anonymous EU official, October 2008)

In this light, it is hardly surprising that a number of studies concerning


intelligence-sharing consider the preference of EU Member States for
bilateral and informal multilateral arrangements to be natural and warn
against hasty attempts to build supranational intelligence institutions
(Benjamin, 2005, p. 15; Müller-Wille, 2004, pp. 35–36).
Both bilateral and informal multilateral arrangements, however, suffer
from a number of weaknesses. To begin with, the informal nature of the
non-EU arrangements raises important questions concerning legitimacy,
accountability and transparency (see also Hillebrand’s contribution in
this volume). Concerning the latter, Crawford (cited in Den Boer et al.,
2008, p. 104), for example, maintains that while international law
enforcement networks are flexible and allow a sizeable professional par-
ticipation, their activities and operations are generally not transparent
because they are not embedded in a formal arrangement. Concern-
ing the former, Den Boer et al. concluded that the democratic, legal
and social legitimacy of informal and horizontal counter-terrorism net-
works is far lower than in the case of the more established, vertical
Europol’s Counter-terrorism Role 81

and formal organisations such as Europol. They also warned that the
persisting preference for informal horizontal cooperation via non-EU
counter-terrorism networks is fraud with numerous risks:

[A]gencies with a limited legitimacy turn into attractive forums for


direct but opaque operational business and as such they may under-
mine both the success and the legitimacy of better-governed agencies
such as Europol. Another risk is that relatively uncontrolled agencies
may assume responsibilities that reach further than counter-terrorism
and which spill over into the control of serious, organized crime or
even migratory movements, from the world of ‘spooks’ into the still
more transparent world of criminal investigators.
(Den Boer et al., 2008, p. 120)

Various authors have indeed already pointed out that most measures
adopted after 9/11 in the context of the Action Plan represent multi-
use legislation in relation to fighting crime, which previously failed to
gather sufficient support among publics and parliamentarians in the
EU Member States (Edwards and Meyer, 2008, p. 18; Bossong, 2008a,
p. 36). This is all the more problematic given the fact that the first EU
Counter-terrorism Action Plan had been developed very rapidly with-
out undergoing the necessary consultation process with all ratifying or
implementing actors at lower political levels. Thus, according to Raphael
Bossong, ‘policy conflict predictably arose later and undermined trust in
the EU’s counter-terrorism effort’ and it is not too surprising that several
EU Member States and different professional networks ‘did not feel too
strictly bound by the EU counter-terrorism framework, but cultivated
their own bilateral relationships or made use of other informal groups’
(Bossong, 2008a, pp. 39–40). The problem is that this only aggravated
long-standing co-ordination, competence and accountability problems
in this ‘crowded policy space’ (Bossong, 2008a, p. 40). Furthermore, due
to their highly secretive character, informal non-EU counter-terrorism
networks did not lead to greater inclusion of civil society actors as is
usually the case in policy-networks on issues such as the environment,
trade or education (Peterson and Bomberg, 1999).
From an analytical point of view, the nature of informal bi- and multi-
lateral arrangements also makes it difficult to capture any best practices.
While two (or more) Member States may have an apparently close rela-
tionship, their model of cooperation may actually be quite ineffective
(John Howell & Co., 2007, p. 36). Similarly, although the available lit-
erature provides numerous accounts mapping the proliferation of the
82 Counter-terrorism and Policing in Europe

informal non-EU networks, we do not yet know why these initiatives


continue to mushroom while old agencies are hardly ever declared
redundant. When specifically asked whether they perceive this as a prob-
lem, the vast majority of interviewed practitioners, both at the EU and
national level, replied negatively:

I cannot think of any counter-terrorism arrangement, outside or


inside the EU, which could be described as redundant. Through all
of these arrangements, channels are found to pool intelligence and
that is their main function. Moreover, as practitioners, we need plat-
forms to discuss lesson learned. So these entities have an added value
as whole. It is beauty by variety.
(Interview with a Europol official, September 2009)

Others have also noted that while not formally lacking membership,
‘we [at Europol] have 99 per cent of these arrangements on our radar
and we are somehow involved’. According to one interviewed Europol
official, this promotes awareness, which is one of the important tasks of
Europol: ‘If I meet a colleague in Germany and he asks me “How was
your weekend in Brussels?”, then I have not fulfilled my task because
a local police officer does not even know where Europol has its seat’
(Interview with a Europol official, September 2009).
Some practitioners and experts from the academia have, however,
expressed the opposite view. The Chair of the Counter-Terrorism Team
of Eurojust (Interview, September 2009), for example, acknowledged
that ‘we do not need more structures. We need to integrate existing
ones and make more intelligent use of them. There is a need for more
integrated approaches’. Similarly, Den Boer et al. (2008, p. 119) argued
that only ‘a systematic evaluation would allow us to assess whether
an (assumed) superior output legitimacy is able to compensate for the
shortcomings in terms of input legitimacy’. Unfortunately, such a com-
prehensive evaluation is beyond the scope of this chapter but the
plethora of non-EU (as well as EU) structures and mechanism involved
in the fight against terrorism clearly raises concerns about mandate and
work overlap, repetition and duplication. Most Member States, more-
over, tend to send the same experts to both EU and non-EU bodies
(e.g. to Club of Bern’s CTG and SitCen, or to PWGT and Europol), ‘thus
raising interesting questions over intelligence ownership’ (Argomaniz,
2008, p. 196).
Another important weakness lies in management and use of
bilaterally exchanged information. Firstly, because many bilateral
Europol’s Counter-terrorism Role 83

arrangements have a high personal content, ‘relationships between


individuals and teams tend to pull intelligence work in one direction
and can thus defeat a higher-level strategic push’. Secondly, ‘rivalries
between national intelligence agencies are still to be observed even
where coordination and tasking mechanisms have been put in place.
Often the pull is towards operations and away from the less glamorous
and harder but strategically important typology work’ (John Howell &
Co., 2007, p. 36). As discussed in this chapter, informal and merely
interpersonal relations also prevail at the European level, where inter-
institutional legal arrangements often ‘merely crystallize existing power
relations and long-term dynamics’ (Bigo et al., 2007, p. 29). Some prac-
titioners, however, have disputed such conclusions. According to one
Europol official, for example, the more relationships and linkages there
are, the better, regardless of their nature and/or level: ‘It is to the benefit
of the overall concept – that is combating terrorism. If it is part of capac-
ity building, brilliant, build it. If it is part of improving the resilience of
our societies, please do it!’ (Interview with a Europol official, September
2009). The same official also stated that ‘Europol should not be a replace-
ment of bilateral cooperation. We are a unilateral organization and if
Holland wants to communicate to Germany only, they are perfectly
entitled to do so.’ Another EU official (Interview, October 2008) has
nonetheless acknowledged that the existence of multiple information-
sharing venues ‘clearly creates an enormous problem of coordination’
for EU staff as ‘it is very difficult to follow what is going on in all of
these forums’.

Can Europol provide any real value-added in the area of


counter-terrorism?

Several methodological issues complicate attempts to evaluate the con-


tributions of EU’s agencies, including Europol. Firstly, everything in this
chapter is based on open, publicly accessible sources of information. The
desk research was complemented with phone and personal interviews
with relevant experts and officials, both at the EU and national levels.
Almost all officials were willing to be interviewed only on the condition
of strict confidentiality. Thus, with the exception of one brave lady who
explicitly agreed to being openly identified, the names and other infor-
mation that could be used to reveal the interviewed officials’ identity
were removed from the relevant citation notes. Secondly, the standard of
comparison clearly matters when it comes to evaluating the value-added
of any type of policy. The problem is that despite the billions spent
84 Counter-terrorism and Policing in Europe

annually on counter-terrorism, we still lack an adequate performance


evaluation baseline to figure out what ‘works’ and why. To some extent,
this is due to the methodological difficulties of finding the right proxy
indicators that would complement the readily available, yet inherently
limited quantitative criteria (such as the number of arrests, requests for
assistance or amounts of frozen terrorist money) that do not shed much
light on the actual effects of counter-terrorism measures on specific cul-
tures, groups and individuals – even the most efficient counter-terrorism
measures increasing the overall security may be problematic due to their
impact on other important values such as liberty and justice (Bigo, 2006;
Guild and Geyer, 2008).
Taking all of the aforementioned caveats and reservations into
account, the analysis of Europol’s counter-terrorism role builds on the
criteria that have been already used and tested elsewhere. Specifically,
it draws on the intelligence studies literature, according to which a
supranational EU agency adds value if (1) it produces something that
can, is or will not be produced at the national level; and (2) the
responsibility for a certain form of intelligence product is transferred
to the European level, that is, the European unit can relieve national
authorities (Müller-Wille, 2004, p. 33).
At the moment, Europol fails to meet either of the two ‘value-added’
preconditions. In contrast to the some other EU agencies (EUSC, INTDIV
and SitCen),7 the providers of intelligence to Europol are identical with
the main customers – the national intelligence agencies of the Member
States. Currently, there is also ‘no EU function that requires, let alone
depends on, intelligence support from Europol’ (Müller-Wille, 2004,
p. 31). This, in combination with the fact that no other unique respon-
sibilities have been transferred from the national level to Europol, leads
to a duplication that sets the limit for Europol’s intelligence role: ‘Sim-
ply put, whatever Europol does has to be produced at the national level
as well.’ Müller-Wille therefore argued that the incentive for EU Mem-
ber States’ national agencies to feed Europol with intelligence is rather
limited because they still carry full responsibility for producing the intel-
ligence support required for national security and, as such, cannot be
dependent on Europol:

No national service can argue that it failed to foil a terrorist plot


because Europol did not do its job accurately. Neither the govern-
ment nor the public would accept such an explanation. Therefore,
national services maintain the task of producing and providing
national law enforcement authorities with accurate and complete
Europol’s Counter-terrorism Role 85

intelligence. Hence, they cannot and will not rely on Europol’s


contribution.
(Müller-Wille, 2004, p. 56)

Since Europol’s work parallels the work of national agencies when


it comes to information analysis and merely complements the bi-
and multilateral cooperation arrangements that predate it, it is under-
standable that many national agencies perceive information-sharing via
Europol as an extra burden rather a value added. The lack of incentives
for national agencies to take on the added workload required by for-
mal EU-level cooperation was also confirmed in interviews with EU and
national officials (Interview with a Commission official, March 2009;
Interview with a Czech counter-terrorism expert, November 2008).
Nevertheless, if we take into account the abovementioned shortcom-
ings of non-EU arrangements, it is plausible to argue that Europol may
offer genuine value-added in the area of counter-terrorism in at least
three important ways:

1. by providing standardised, secured channels and specification of


forms of cooperation;
2. by capturing and disseminating best practices in the field of counter-
terrorism;
3. by providing a unique service to political EU’s decision-makers at the
strategic level by outlining long-term trends, doing typology work
and assessing the terrorist threat in general terms.

In the last area, Europol already produces an annual EU Terrorism Sit-


uation and Trend report (TESAT). To compile these reports, however,
Europol must rely on data supplied by the national police and intelli-
gence agencies because it lacks an independent intelligence gathering
capacity. As such, the data collected for TESAT relies on the Member
States’ definitions of terrorist offences and some disparities still per-
sist between the Member States, especially with regard to the crime
areas which are defined as terrorism or extremism.8 Thus, to offer
genuine support for strategic EU decision-making in the area of counter-
terrorism, Europol needs to work hard ‘at getting political support for
access to data that will enable it to work effectively and create a valuable
differentiated offering to that of the Elephant [the US]’ (John Howell &
Co., 2007, p. 36) and the national agencies of the EU Member States.
Interviews with Europol officials also indicate that while it indeed may
be difficult to trace the value-added of strategic-level initiatives, the work
86 Counter-terrorism and Policing in Europe

done at the tactical level is visible in the mid-term, and operational-level


meetings ‘must by definition deliver results’ even in the short run. The
fact that the public does not know about them may also not be seen as a
problem, because as one national official aptly stated, ‘the best counter-
terrorism police is the one that works without being noticed’ (Interview
with a Czech counter-terrorism official, November 2008). Similar state-
ments were made by Europol officials (Interviews, September 2009), who
pointed out that ‘because of the work in the intelligence community,
we cannot be on every news and we have only certain selected products
having our name on it’. Moreover, a senior Europol official (Interview,
September 2009) argued that even strategic-level programs and meet-
ings ‘do deliver outcomes in five or six year time’. In his opinion, the
real complicating factor at the strategic level is ‘the occasional policy
changes due to EU Presidency rotation’, although some new initiatives,
such as the 2009 Swedish presidency call for a bi-annual updating of
the EU Counter-Terrorism Strategy, ‘reflect the changing nature of the
terrorist threat and as such ought to be welcomed’.
Europol could also add value in the fight against terrorism by provid-
ing what the EU counter-terrorism policy badly lacks at the moment –
a common terrorist threat assessment at the strategic level. As noted
above, in their current form, the annual TESAT reports are essentially
retrospective compilations from state-provided data which, as stated in
the 2008 report, ‘neither attempts to analyse the root causes of terrorism
nor to assess the threat posed by terrorism’ (Europol, 2008, p. 6). Accord-
ing to one Europol official (Interview, September 2009), SitCen is already
in charge of strategic intelligence analysis, and therefore Europol should
not step into this remit. The available literature, however, indicates that
SitCen also works only with intelligence assessments provided by the
Member States’ intelligence agencies and, where appropriate, with infor-
mation provided by Europol (Lugna, 2006, p. 112). It is, therefore, once
again the national officials who decide what information they want to
send to SitCen. Other Europol officials have suggested that a shared pic-
ture is actually produced by Europol’s day-to-day work within AWFs
but this again relies on data supplied by Member States and is more
of an operational, rather than strategic, nature. Finally, some Europol
officials (Interviews, September 2009) pointed out that when they spot
‘a new problem, based on input from Member States as well as open
sources, they produce and disseminate a report even though it may not
affect all Member States at the given moment’. These reports, however,
are by definition ad hoc and therefore cannot be considered a genuine
replacement of a regular strategic threat assessment.
Europol’s Counter-terrorism Role 87

The persisting absence of a fully informed and independent baseline


assessment of major threats and risks to the EU is highly problematic
for a number of reasons. First, and perhaps most importantly, without
a common assessment of terrorist threats and risks to the EU, ‘different
[national] security authorities are likely to have different perspectives
and will be neither willing nor able to coordinate their efforts to provide
security efficiently’ (Müller-Wille, 2004, p. 12). Second, given the post-
9/11 quantitative and qualitative changes in terrorist activities, ‘it may
be impossible for a single agency to apprehend the full magnitude of
internationally operating villains’ geographical scope of action’ (Müller-
Wille, 2004, p. 12). Third, as long as there is no common baseline
terrorist threat analysis within the EU, there is no means of monitoring
policy effectiveness in detail and proactively. Finally, as Howell and Co.
noted in their report, ‘the EU lacks a key instrument – a fully informed
baseline assessment of threats and risks to the EU. Without this, there
is no way to direct the efforts and set priorities, nor attribute success
nor learn from failure’ (John Howell & Co., 2007, p. 18). This criti-
cism was also echoed by the Chair of the Counter-Terrorism Team of
Eurojust (Interview, September 2009): ‘What are the real top three pri-
orities today? Now Europol has its reports stipulating priorities, we at
Eurojust have our statistics and then we have of course the Stockholm
Programme, which also sets priorities’. As a remedy, she suggested that
if she were the President of the EU she would say, ‘Let’s have a research
work with the academic world, with the politicians and let’s find out
what is now really at stake’. But without some sort of a common assess-
ment of the nature and gravity of the existing security threats, reaching
a consensus on policy priorities is bound to remain an extraordinarily
difficult endeavour.
In the long run, therefore, the potentially most important value-
added from a common terrorist threat assessment produced by Europol
lies in the possibility that it may lead to a common perception of the
major terrorist threats by, and within, the EU Member States. This has
also been acknowledged by the Commission (2004), which envisages
the development of a European Criminal Intelligence Model that would
encompass ‘the synchronisation of threat assessment based on a com-
mon methodology, systematic underpinning of threat assessment by
sectoral vulnerability studies and the required financial and human
resource allocation’. In its written evidence to the British House of
Lords, the Commission seemed to go even further, saying that it ‘saw
a clear need to develop a criminal intelligence policy at EU level, espe-
cially to prevent terrorism’ (UK House of Lords, 2005). More specifically,
88 Counter-terrorism and Policing in Europe

the Commission saw such a policy as helping to focus and prioritise


the efforts of the law enforcement communities of the Member States;
enable each Member State to bring its strategic priorities into line with
those of other Member States; and allow for the development of shared
operational intelligence capacity.

Europol’s fledgling counter-terrorism role: A chicken-egg


dilemma

Even as of mid-2011, it is rather questionable whether all EU Member


States are truly committed to giving Europol a serious counter-terrorism
role. As Doron Zimmermann pointed out,

Europol may be the Union’s primary law-enforcement tool, but not


unlike the Union of which it is a product, it lacks a robust and mus-
cular mandate with which to fight terrorism. [. . .] Although Europol
finally has within its remit not only the function of a clearing house
for criminal intelligence, but a mandate to analyze said information –
and is in effect the Union’s ‘only body for sharing operational intel-
ligence’ – it has not been given any competencies from sovereign
states, or, for that matter, any executive powers.
(Zimmermann, 2006, p. 132)

It was primarily for political reasons that terrorism was originally not
included in Europol’s agenda and full consensus has not yet emerged on
the role and future of Europol. While some Member States, including
Austria, Belgium and the Netherlands, would like to see Europol evolve
into an organisation with an independent investigative role, such as
the American FBI, others, including the Germany, France, Italy, Spain
and the UK, oppose such evolution, preferring instead to keep inves-
tigative authority at the national level with Europol as a coordinating
body (Bensahel, 2003, p. 40; Zimmermann, 2006, p. 135).
On the one hand, disputes like this indicate that at least for some
Member States, it may still be too early to allow the EU to have an influ-
ential role in traditionally state-specific areas such as policing, criminal
justice and intelligence gathering. On the other hand, after more than
two years of deliberations, the Council approved a Decision that turned
Europol into ‘an entity of the Union’ as of 1 January 2010 (Council
of the European Union, 2009). This means that its funding is now pro-
vided from the EU budget and EC staff regulations apply to Europol staff.
The Decision also expanded Europol’s competence from the ‘organised
Europol’s Counter-terrorism Role 89

crime’ to the broader ‘international serious crime’, which also implies


that any terrorist attack on one Member State, including lone terrorists,
should be automatically considered an attack on all Member States and
thus within Europol’s sphere of competence (Interview with a Europol
official, September 2009). Further, and potentially far-reaching, changes
to the content of the Europol’s instruments involve the intensification
of data collection, analysis and exchange of personal data. Specifically,
the Decision envisages the establishment (to be decided by the Manage-
ment Board and approved by the Council) of a new system for process-
ing personal data, which will contain information on a wide range of
individuals currently included in Europol’s AWFs. At the same time, the
Decision should also elevate at least some of the concerns regarding the
lack of ‘independent scrutiny and management’ (Douglas-Scott, 2004,
p. 230) of Europol’s activities from other EU bodies (European Court of
Justice and European Parliament) and the EU Member States.
Generally speaking, the need for revising Europol’s legislative frame-
work was justified on three main grounds:

1. on the need to simplify the form of the Europol legal instru-


ment by replacing the Europol Convention, which could only
be amended by Protocols subjected to lengthy ratification by
national parliaments, by a third-pillar Decision;
2. on the need to simplify and consolidate the complex legal frame-
work on Europol consisting primarily of the original Convention
and a series of amending Protocols;
3. on the need to revise the content of the Europol legal frame-
work, in particular, as regards the powers and nature of Europol.
(Mitsilegas, 2009, p. 550)

On one hand, the move from the Convention to a Council Decision sig-
nifies the partial ‘communautarisation’ of Europol and the further move
away from a purely ‘intergovernmental’ concept of this body. Moreover,
although on paper Europol still does not have any executive powers, in
practice it may increasingly be seen as ‘operational’ because the 2009
Decision grants it the power to request national authorities, to initiate
or coordinate criminal investigations and to participate in JITs. Thus,
according to Mitsilegas, ‘Europol officers may operate in the territory of
a Member State. In this context, the line between assisting and operat-
ing may become rather blurred’ (Mitsilegas, 2009, p. 552). On the other
hand, the same author has also argued that the incremental increase of
Europol’s powers and the introduction of some communautaire elements
90 Counter-terrorism and Policing in Europe

have not changed its fundamentally intergovernmental nature, espe-


cially in terms of accountability and judicial control (Mitsilegas, 2009,
p. 560).
The practical impact of the changes introduced by the 2009 Decision
remains to be seen, but when it comes to counter-terrorism in particular,
the vital competences and resources are more than likely to remain at
the national level. As even the EU Counter-terrorism Coordinator (cited
in Edwards and Meyer, 2008, p. 9) acknowledged,

The fight against terrorism is and will remain, primarily the respon-
sibility of national authorities. [. . .] Police forces, intelligence agen-
cies, the judiciary, customs officers and other officials all remain
instruments of national governments, under the control of national
parliaments. The EU’s role is to support these national authorities,
not to replace them or to duplicate their work.

This was also confirmed in my interviews with Europol officials (Septem-


ber 2009), who repeatedly stressed during the interview that ‘Europol’s
main flag is support to the Member States’ efforts to combat terrorism’.
Thus, as Keohane noted, ‘there is currently no chance of the EU cre-
ating an intelligence agency with its own “euro-spies” and satellites’
(Keohane, 2008, p. 128).
The analysis presented in this chapter nevertheless indicates that
Europol could offer tangible value-added in the area of counter-
terrorism by (1) providing standardised channels and specification of
forms of counter-terrorism cooperation; (2) capturing and disseminat-
ing best practices in the field of counter-terrorism; and (3) performing
a fully informed baseline assessment of the major terrorist threats and
risks to both the EU and its Member States at the strategic level. In order
to do so, however, more than the agreement of the political representa-
tives of the EU Member States will be needed. The hitherto experiences
with Europol suggest that it is one thing for Europe’s political elites
to make public promises on the international exchange of counter-
terrorism intelligence and quite another thing for them to persuade
the relevant national agencies, over which politicians usually exercise
less-than-perfect control, to comply:

Ensuring that agencies exchange information effectively cannot be


achieved solely by agreeing general principles such as the principles
of equivalent access and availability. Such principles can place a
Europol’s Counter-terrorism Role 91

general obligation on agencies to share information [. . .], but they


cannot ensure that that happens without a build-up of knowledge
and mutual trust between the agencies.
(UK House of Lords, 2005)

Moreover, as long as the national intelligence and law enforcement


agencies are unable to pass virtually any buck to Europol, there is no
incentive for them to stop drawing on alternative multi- and/or bilateral
contacts and networks, their numerous weaknesses and shortcomings
notwithstanding. In some cases, there may be good reasons for caution
in sharing sensitive information with an EU agency – in particular, for
the intelligence services the protection of sources is paramount; and the
originators of intelligence must be confident that the organisation with
which it is shared is secure and that it will not be passed on to a third
party without their permission (Müller-Wille, 2008, p. 58). But there
are also less acceptable reasons, such as interdepartmental rivalries and
reluctance to share information for which another agency may take the
credit (UK House of Lords, 2005).
To conclude, it appears that Europol’s counter-terrorism role suffers
from a peculiar chicken-egg dilemma. On one hand, Europol has thus
far not been granted any substantial powers by the EU Member States
and lacks trust by national law enforcement and intelligence agen-
cies because it does not perform any indispensable counter-terrorism
functions at the moment. On the other hand, the persisting lack of tan-
gible ‘value-added’ in the area of counter-terrorism is primarily due to
Europol’s limited powers and the lack of trust from the national agen-
cies. This leads to a vicious circle ‘in that Europol’s ability to add value is
not exhausted for lack of information, which makes the expectations of
its utility fall and allows the contributions to diminish’ (Müller-Wille,
2008, p. 58). This dilemma is unlikely to be entirely solved even by
recently approved Council Decision, whose due implementation should
nonetheless lead to improvements in the operational and administrative
functioning of Europol.

Acknowledgement

Parts of this chapter were previously published in Terrorism and Political


Violence, volume 20, issue 4, pages 498–517, and in Oldrich Bures, EU
Counter-terrorism Policy: A Paper Tiger? (Farnham: Ashgate). The author
gratefully acknowledges the financial support of the Czech Science
92 Counter-terrorism and Policing in Europe

Foundation under the post-doc research grant number 407/08/P016.


Special thanks go to the EU officials and national counter-terrorism
practitioners, who kindly agreed to be interviewed for this research
project. I would also like to express my gratitude to the following
colleagues for their comments and advice: Javier Argomaniz, Artur
Gruszczak, Christian Kaunert, Sarah Léonard and Christoph Meyer. The
usual disclaimer applies.

Notes
1. Some analysts have, nonetheless, argued that, with the expected adoption
of the recent proposals by the Commission and the Council, Europol will
be much closer to becoming a form of ‘real’ federal police force, with
independent investigative and operational powers (see Peers, 2007).
2. In 2007, Europol had a staff of about 530 and a budget of 68 million.
In comparison to the FBI’s almost 30,000 employees and $3 billion annual
budget, Europol remains miniscule. In contrast, Ben Hayes recently argued
that Europol is ‘now a well-resourced organization’, comparable to the UK’s
National Criminal Intelligence Service (NCIS) that, prior to its recent incor-
poration into the Serious Organised Crime Agency, had a staff of over 800
(including seconded staff) and a budget of 67 million pounds (Hayes, 2006).
3. France, for example, has a centralised system, whereas Germany works on a
more fragmented federal level. France has robust laws for detaining terror-
ist suspects and judges specifically trained to deal with the cases, but others
do not.
4. PWGT was set up in 1979 by the Netherlands, the UK, Germany and Belgium.
Currently, it includes all EU Member States plus Switzerland and Norway. For
more information, see Swallow, 2004, pp. 74–76.
5. The Club of Bern was already created in 1971. Although it can act as an
interface between the EU and the heads of Member States’ security and
intelligence services on terrorist matters, this has never been its primary pur-
pose. Rather, it has focused on direct operational cooperation (Müller-Wille,
2008, p. 56).
6. For example, the Commission’s 2005 proposal for a Third Pillar measure aimed
at introducing the principle of availability, which covered a wider range of
data fields than the Prüm Treaty, including DNA profiles, fingerprints, vehicle
registration data, ballistics and telephone numbers and other communica-
tions data. It also provided for stronger safeguards for handling the exchanged
data than the relevant Prüm Treaty provision. This proposal was used as a basis
for a Council Framework Decision, but negotiations stalled in the first half of
2007, largely due to the efforts to incorporate Prüm Treaty into EU law (UK
House of Commons, H.A.C. 2007, para. 131, 143, 281, 282, 284).
7. Intelligence Division of the European Military Staff (INTDIV), European
Union Satellite Center (EUSC).
8. In TESAT 2008, for example, the majority of Member States reported right-
wing and single-issue activities as extremism rather than terrorism (Europol,
2008).
Europol’s Counter-terrorism Role 93

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5
Guarding EU-wide
Counter-terrorism Policing: The
Struggle for Sound Parliamentary
Scrutiny of Europol
Claudia Hillebrand

In its Internal Security Strategy (ISS), the European Union (EU) re-
emphasised its strong commitment to fighting terrorism within its terri-
tory (Council of the European Union, 2010a). Indeed, counter-terrorism
practices are not a purely domestic task anymore. In the aftermath of the
terrorist attacks on New York and Washington, DC, on 11 September
2001 and subsequent terrorist incidents on European territory, ‘police
institutions across the globe have proliferated their counterterrorism
strategies, both domestically and abroad, while international police
have likewise stepped up their campaigns’ (Deflem, 2006a, p. 241). As a
regional actor, the EU quickly identified terrorism as one of the key com-
mon threats its Member States have to face in the current world (Council
of the European Union, 2003, 2010a).1 The transnational nature of the
threat and the realisation that ‘Europe is both a target and a base for
[. . .] terrorism’ (Council of the European Union, 2003, p. 3) are con-
tinuously referred to as justifications for increasing counter-terrorism
activities at the EU level (e.g. Europol, 2008, p. 5). Key features of the
EU’s fight against terrorism are, for example, anti-radicalisation mea-
sures, instruments to combat the financing of terrorism as well as the
strengthening and facilitation of information- and intelligence-sharing
among not only police authorities, but also other security providers,
such as intelligence services (Hillebrand, 2012; Spence, 2007; Howorth,
2008).
While the EU swiftly pushed its counter-terrorism agenda and pro-
vided for institutional and mandatory changes, concerns have been

96
Guarding EU-wide Counter-terrorism Policing 97

raised by parliamentary actors, human rights bodies and a few academic


scholars that this development has not been sufficiently accompa-
nied by thorough democratic monitoring and scrutiny of the activities.
This chapter will investigate this claim, focusing on the efforts of the
European Police Office (Europol) at fighting terrorism. Europol is well
suited for this purpose as it is the only EU-wide law enforcement body,
and it has experienced both an extension of its remits over the years
and an increase in financial and personnel resourcing (see Europol’s
Annual Reports). Originally set up as an intergovernmental body outside
the EU framework, Europol has become an EU agency as of 1 January
2010. The chapter will examine how far the EU’s continuous empha-
sis on its commitment to democracy, accountability and transparency
in its security policies is actually fulfilled with respect to Europol and
EU-wide counter-terrorism policing.2 In the context of transnational
policing, the EU remains an understudied actor. This chapter will shed
some light on how, and to what extent, mechanisms of democratic
accountability and, in particular, parliamentary scrutiny are in place to
hold EU-wide counter-terrorism actors, such as Europol, to account. This
is, in particular, a timely question given the recent institutional and
quasi-constitutional challenges the EU experienced under the Lisbon
Treaty.
The chapter proceeds as follows. The first section will outline the
extent to which the EU and, in particular, Europol are now involved in
activities aimed at fighting terrorism. Based on this exploration, the sec-
ond section will briefly discuss the need for mechanisms of democratic
accountability, and parliamentary scrutiny in particular, with respect to
EU-wide counter-terrorism policing. To explore the challenges of demo-
cratic scrutiny in depth, sections three and four will analyse current
forms and tools of parliamentary scrutiny available to the European
Parliament (EP) and National Parliaments (NPs), respectively, with a
particular focus on counter-terrorism policing at the EU level. Complet-
ing the picture of the parliamentary scrutiny mosaic, the final section
‘Towards a combined effort?’ will explore recent debates concerning
strengthened inter-parliamentary cooperation in this field.

Europol and EU counter-terrorism policing

In July 2001, the EP’s Committee on Civil Liberties, Justice and Home
Affairs (LIBE) regretted in a report the EU’s ‘slowness in responding
to the terrorist threat and the fact that there is as yet no coherent
and legally binding set of coordinated measures’ (European Parliament,
98 Counter-terrorism and Policing in Europe

LIBE Committee, 2001). Two months later, the events of 9/11 had a con-
siderable impact not only on national policing strategies and powers
in many EU Member States, but also on the EU as a whole. Immedi-
ately afterwards, the then Presidency of the European Council (2001)
stated that the fight against terrorism ought to become a major policy
objective of the Union. The 2010 ISS emphasised that terrorism remains
the main common threat to the EU (Council of the European Union,
2010a).
The EU’s agenda on counter-terrorism has been rightly described as
event driven (see, e.g. Coolsaet, 2010). The 9/11 attacks provoked the
EU to prioritise the fight against terrorism as a policy objective. It led, for
example, to an EU-wide agreement on a common definition of the term
‘terrorism’ and the proliferation of initiatives and institutional changes
as well as the expansion of functions and mandates of institutions in
the area of Justice and Home Affairs (JHA). To tackle terrorism, the
European Security Strategy (ESS) called for a broad response to terror-
ism, suggesting ‘a mixture of intelligence, police, judicial, military and
other means’ (Council of the European Union, 2003, p. 7). Yet, it was
only after the Madrid bombings that the EU’s counter-terrorism efforts
really ‘began to come together’ (Howorth, 2008, p. 96). The bombings
were followed by a Declaration on Combating Terrorism of 15 March
2004, providing for a long-term EU strategy to combat terrorism with
a particular focus on the root causes of terrorism. Notably, the Decla-
ration also provided for the expansion of Europol’s competences and
the establishment of the Joint Situation Centre (SitCen), an intelligence
unit which is now part of the European External Action Service (see also
Occhipinti’s chapter in this volume). The 2005 EU Counter-Terrorism
Strategy finally became the main point of reference for the EU’s counter-
terrorism efforts, identifying four key areas in which the EU was
to become more proactive: ‘Prevent’ (radicalisation and recruitment),
‘Protect’ (people and infrastructure from terrorist attacks), ‘Pursue’ (ter-
rorists) and ‘Respond’ (to a terrorist attack) (Council of the European
Union, 2005a).
Given that the EU prioritises a law enforcement approach to terror-
ism, most of its efforts are located in the field of police and judicial
cooperation in criminal matters (PJCC).3 Certainly, ‘large chunks of
counterterrorism endeavours in Europe remain principally within the
confines of national decision-making’ (Coolsaet, 2010, p. 858). That
refers, in particular, to sensitive operational matters. There is neverthe-
less an increasing pressure on security providers to adopt an approach of
‘need to share’, rather than maintain the traditional approach of ‘need
Guarding EU-wide Counter-terrorism Policing 99

to know’ (for the international realm see, e.g. Andreas and Nadelmann,
2006; Gill and Phythian, 2006). Concerning counter-terrorism, logis-
tical, financial and administrative efforts have been made to facilitate
such international collaboration.
The EU broadly focuses on the enhancement of communication
between counter-terrorist actors at various policy levels. In the oper-
ational fields of policing and intelligence, the term ‘communica-
tion’ mainly refers to information- and intelligence-sharing (see also
Occhipinti’s chapter in this volume). For example, the so-called Swedish
Framework Decision of 2006 called on national law enforcement author-
ities to improve their information-sharing; and the aim of a 2005
Council Decision was to strengthen the exchange of information con-
cerning terrorist offences (Council of the European Union, 2005b,
2006). Collecting and analysing information about suspicious individ-
uals and behaviour is widely understood to be of utmost relevance for
detecting terrorist suspects and intervening before the actual criminal
offence. Disrupting terrorist networks often depends on ‘low-level, fac-
tual and fragmented’ (Gibson, 2009, p. 923) information, including
foreign phone numbers, travel records or credit card transactions.
The EU-wide institutional provisions in this field vary immensely. For
example, the 2008 Council Decisions concerning the stepping up of
cross-border cooperation with a particular focus on counter-terrorism
and cross-border crime, based on an international treaty between the
governments of Germany, Austria, Belgium, The Netherlands and Spain
(Treaty of Prüm), allow for the sharing of data among national law
enforcement authorities including fingerprints, deoxyribonucleic acid
(DNA) samples and vehicle registrations (Council of the European
Union, 2008a,b). Other forms of bi- as well as multilateral cooperation
are more informal and partly take place outside the EU framework (see
Den Boer et al., 2008). The most formal example of strengthened coop-
eration in the field of law enforcement, and counter-terrorism as well,
is Europol, the central Europe-wide law enforcement body based in The
Hague.
Europol aims to facilitate the exchange of information and crim-
inal intelligence in the field of law enforcement. The body is best
understood as a formal network due to its elaborated liaison system
including Europol Liaison Officers (ELOs) seconded not only from
national authorities of the EU Member States, but also from non-EU
countries and international organisations, such as Interpol.4 Europol’s
central secretariat is located in The Hague and was staffed, according
to the Europol website, with 802 people in 2012, including ELOs and
100 Counter-terrorism and Policing in Europe

personnel directly employed by Europol. In addition to police officers,


staff of other law enforcement authorities, customs and intelligence ser-
vices work at Europol’s premises. Europol’s budget has been increased
from 68.5 million for 2009 to 92.6 million for 2010, which included
12.5 million to allow for a smooth transition to become an EU agency
(Council of the European Union, 2010b).
According to its mandate, Europol’s overall objective is ‘to support
and strengthen action by the competent authorities of the Member
States and their mutual cooperation in preventing and combating
organised crime, terrorism and other forms of serious crime affect-
ing two or more Member States’ (Council of the European Union,
2009a, art. 3). To fulfil its mandate, Europol focuses on investigative
and analytical intelligence; collects and analyses data from national
police agencies and other security authorities; and transfers informa-
tion and intelligence to designated national authorities or EU bodies
if necessary. According to its Annual Report covering 2008, Europol
supports annually around ‘15,000 international investigations into the
most significant criminal networks in the EU’ (Europol, 2009).
As a network of information exchange, it has only limited capaci-
ties to gather information on its own and so needs to be provided with
data from national agencies (Monar, 2006, p. 503). It nevertheless has
its own analysis capabilities – most obviously in form of the criminal
intelligence databases titled Analysis Work Files (AWFs), two of which –
‘Hydra’ and ‘Dolphin’ – are designated for counter-terrorism. The results
of such strategic analyses on different types of crime, including terror-
ism, are then circulated to EU bodies and national police forces. This
also includes the possibility to assist national criminal investigations by
the means of information analysis.
Europol’s counter-terrorist unit, which used to be part of its Serious
Crime Department, is now part of Europol’s recently established Opera-
tions Department (O4). It comprises ‘more than 50 highly-specialised
anti-terrorism experts’ (Europol, 2011), tackling terrorism; illicit traf-
ficking in nuclear and radioactive substances; illicit trafficking in arms,
ammunition and explosives; as well as racism and xenophobia (Coun-
cil of the European Union, 2005c). Operational and strategic analysis,
support to operational investigations at the national level and training
of police officials are the main tasks of the unit. More specifically, it
provides a range of analytical products (terrorism threat assessments,
‘missing links for ongoing international investigations’); it facilitates
information exchange and access to Europol’s databases and exchange
systems; it can provide expertise ‘on-the-spot’ through its mobile office
Guarding EU-wide Counter-terrorism Policing 101

and hosts; and it maintains several analysis initiatives (Council of


the European Union, 2010b, point 3.1). The 2009 data for Europol’s
secure network suggests that seven per cent of the new cases were
related to terrorism (Council of the European Union, 2010b, point 2.4).
In recent years, it has increasingly developed ‘more strategic instru-
ments, such as the European Bomb Database and the Early Warning
System for explosives and CBRN material’ (Council of the European
Union, 2010a, p. 8).
Due to the limits that Member States imposed on Europol, it does not
have executive police powers (for a sceptical perspective on Europol’s
counter-terrorist capacities, see Bures, 2011 and his chapter in this vol-
ume).5 In the last couple of years, however, various steps have been
made towards a more active and operational role of Europol, which led
to a discussion about Europol’s potential move towards a European Fed-
eral Bureau of Investigation (FBI) (see Occhipinti, 2003 and his chapter
in this volume). Smaller countries such as Austria and Belgium have
indeed suggested the establishment of an FBI-like Europol, but this was
not followed up on (Europolitics, 2005). Nevertheless, there are indica-
tions that Europol is slowly transforming into a more operational body
and there has been an expansion of its powers (Hillebrand, 2012). For
example, Europol staff can participate in so-called joint investigation
teams (JITs) alongside national authorities and it can request individual
states to initiate or conduct investigations in specific cases (Council of
the European Union, 2002b). To improve the EU-wide fight against ter-
rorism, Europol also gained access to other databases of the EU, such as
the Schengen Information System (SIS) and the Visa Information System
(VIS) database (Council of the European Union, 2005c,d see also Balzacq
and Léonard’s chapter in this volume).
There is also an external dimension of Europol’s cooperative net-
work. Europol can establish and maintain relations with bodies from
third countries. The negotiations with the United States (US) after the
9/11 attacks were the most extensive between Europol and a third
country so far. They concluded in an agreement in December 2001
on the exchange of both strategic and technical information in the
fight against a broad range of serious forms of international crime and
the exchange of liaison officers, followed by an additional agreement
on exchange of data on persons in December 2002 (Europol, 2001,
2002). This cooperation was further intensified through a formal liai-
son arrangement with US law enforcement agencies.6 More recently,
as part of the EU–US Terrorism Finance Tracking Programme (TFTP),
Europol has become the EU agency responsible for verifying the legality
102 Counter-terrorism and Policing in Europe

of requests from American counterparts concerning financial data from


the SWIFT banking network.
Europol’s secure communication channels are also used for other
multilateral counter-terrorism activities (see Svendsen’s chapter in this
volume). One example for this is the Atlas group, a grouping of spe-
cial anti-terrorist teams from all 27 EU Member States, including the
British Special Air Service (SAS) and the French Groupe d’Intervention
de la Gendarmerie Nationale (GIGN). While there is little information
publicly available about the group, its key aim is to foster coopera-
tion of national counter-terrorist forces, also in order for those forces
to be able to support each other in the context of a terrorist incident
(European Commission, 2007, p. 9). The forces are meant to strengthen
their cooperation ‘where necessary through organizational and oper-
ational arrangements, between Police, Customs, Security Services and
Special Forces in the Crisis Management of terrorist incidents’ (European
Commission, 2007, p. 9).
To conclude, this section has demonstrated the emergence of counter-
terrorism policies of the EU over the last decade. Europol continuously
strives for a strengthened role in counter-terrorism activities, despite
its remaining lack of operational and arrest powers. As Europol’s direc-
tor recently emphasised in a media interview, that Europol ensured an
important role in the transatlantic TFTP ought to be understood as yet
another indicator that it moves further into ‘frontline counterterrorist
work’ (Fidler, 2011).
Means of counter-terrorism potentially touch on civil rights and indi-
vidual freedoms, however. It is therefore a highly political decision to
fight terrorism by certain means and not by others, if at all. According
to standards of democratic security governance, debates and negotia-
tions about this should not be left to executive, technocratic bodies
meeting ‘behind closed doors’, but such decisions require transparent
debates and scrutiny procedures in public forums, such as parliaments
(see also Elvins, 2003, p. 36). The following section will therefore explore
in how far Europol’s counter-terrorism activities have been accompa-
nied by mechanisms of democratic accountability and, in particular,
parliamentary scrutiny.

A vacuum of democratic accountability?

To ensure democratic accountability, parliaments are often understood


as the most important accountability holders in democratic regimes
(e.g. Bovens, 2007). Parliamentary scrutiny ensures the accountability
Guarding EU-wide Counter-terrorism Policing 103

‘to a body the majority of whose members are democratically elected


and capable of determining the broad direction of policy’ (Morgan
and Newburn, 1997, p. 80). In general, parliaments are mandated to
check the executive and debate and pass laws and therewith ‘confer
democratic legitimacy upon the binding rules that govern the demos’
(Tsakatika, 2007, p. 549). They can hold governmental actors to account
and provide overall guidance for them. By holding policing bodies to
account, parliaments also provide voters with information that allows
them to judge the performance of the institution in question.
A lack of sound democratic scrutiny concerning counter-terrorist
actors and their performance would appear to be particularly severe,
as the activities are of a very sensitive issue and debates about them
are intermingled with questions of human rights and individual free-
doms. That networks under the EU’s umbrella focus on information
exchange and data analysis rather than executive functions does not
mean that such freedoms and rights cannot be hurt by their work. False
or misinterpreted information can impinge on an individual directly.
For example, the individuals listed on the EU’s so-called terrorist list
are directly affected by this administrative act of ‘listing’ as their finan-
cial assets are frozen and they are subject to travel restrictions (Guild,
2008). Moreover, information distributed via networks, such as Europol,
have been gathered somewhere and their origin, and the means by
which they have been gathered, are not always transparent to other net-
work participants. To put it in a nutshell, counter-terrorism might affect
human rights and individual freedoms, and it is therefore supposed to
be governed by strict rules and norms of democratic control.
The experiences of terrorism in various European countries in the
late 1960s and throughout the 1970s encouraged cooperation at the
European level under the umbrella of the TREVI (Terrorisme, Radicalisme,
Extremisme, Violence Internationale) group in 1975. The creation of
TREVI was the starting point for increasing cooperation with regard to
policing, judicial cooperation and mutual assistance in civil and crimi-
nal law, formally framed in Title VI of the Treaty on European Union
(TEU) which became effective on 1 November 1993. Since then, the
area has been characterised by a ‘restless institutional dynamic’ (Walker,
2004, p. 14), further pushed by the Treaty of Amsterdam in 1997 call-
ing for the creation of the Area of Freedom, Security and Justice (AFSJ).
The area grew in impressively short time both in terms of functions and
in terms of institutional capacity, comprising diverse policy aspects and
institutions. As a consequence, the AFSJ is understood as being complex,
ambiguous and opaque (Guild and Carrera, 2005, p. 2).
104 Counter-terrorism and Policing in Europe

Article 67 of the Treaty on the Functioning of the European Union


(TFEU) maintains an explicit mandate for the EU to provide a high
level of security for its citizenry. The tools of providing security through
information-sharing networks such as Europol raise concerns, however,
about the relationship between the citizens – for whom security is pro-
vided – and the networks as the security providers. It appears that the
bonding between the citizens and the practices of transnational counter-
terrorism policing is a fragile and barely existing one. The Third Pillar
was of an intergovernmental nature, that is, the decision-making pro-
cesses remained in the hands of Member States’ governments. While
the Lisbon Treaty merged the acquis of the Third Pillar with that of
the Community, and therefore provides for ordinary supranational EU
decision-making procedures with respect to most matters of JHA, oper-
ational police cooperation is one of the issues that remain subject to
the unanimity in the Council and where the EP has only to be con-
sulted (General Secretariat of the Council of the EU, 2009). In addition,
the Treaty allows for enhanced cooperation with respect to police work.
Due to the strong role of the executive in this policy field, citizens have
only limited and rarely direct impact on the field. This is intensified
by the general problem that transnational policing has only ‘low pub-
lic visibility’ (Loader, 2002). It is therefore likely that accountability and
transparency in this field remain problematic under the Lisbon Treaty.
Certainly, this is in sharp contrast to the original idea of the creation
of the AFSJ, which ‘was to be based upon the principles of transparency
and democratic control, as well as upon an open dialogue with civil soci-
ety in order to strengthen the acceptance and support of citizens’ (Eder
and Trenz, 2003, p. 113; European Council, 1999). Moreover, the Third
Pillar has been well known for its technocratic, de-politicised policy-
making approach (Elvins, 2003, pp. 36–37). With respect to Europol,
this approach became particularly obvious in the debate about the
Europol–US agreements on the exchange of data and liaison officers.
The following two sections will explore the parliamentary scrutiny of
Europol, and the EU’s counter-terrorism activities more broadly, focus-
ing on the EP, as well as the role of NPs. The sections will analyse the
struggle for sound parliamentary scrutiny of Europol over time, tak-
ing into account the recent changes caused by the transfer of Europol
from a body based on an international treaty to an EU agency. While
Europol remains politically accountable to the Council, and Europol’s
director is accountable to Europol’s Management Board comprising
one representative from each Member State, and the Commission, the
arrangements of parliamentary scrutiny are far more complex.
Guarding EU-wide Counter-terrorism Policing 105

Scrutinising Europol at the EU level: The role of the


European Parliament

Given Europol’s mandate and range of activities, scrutiny through the


EP appears to be a crucial feature of its accountability system. Yet, the
EP’s powers were strictly limited with respect to policing before the
entry into force of the Lisbon Treaty. Overall, ‘European internal secu-
rity cooperation [was] characterised by the disinclination of the Union’s
interior ministers and their officials to subject themselves to robust
parliamentary input’ (McGinley and Parkes, 2007, p. 245). The TEU
excluded the EP, and also its national counterparts, from any serious role
concerning matters of policing. Although the Treaty of Amsterdam pro-
vided the EP with a few more competencies concerning the Third Pillar,
the Council continued to hold most of the power in this area. The case
of Europol was no exception (Anderson, 1995, p. 254; Occhipinti, 2003,
p. 68). Moreover, the EP had merely consultative powers with respect to
the implementation process of the EU’s emerging counter-terrorism pol-
icy (Monar, 2005, p. 450). It was also completely excluded from the two
agreements between the EU and the US on extradition and mutual legal
assistance in criminal matters on 25 June 2003 (Monar, 2004, p. 406).
The governments of the EU Member States kept their sovereignty in this
area as much as possible.
Despite the fact that the lack of parliamentary scrutiny had long
been criticised by civil rights activists, parliamentarians and others, the
national governments – in the form of the Council of Ministers – were
deeply reluctant to allow a stronger role for parliaments in this area.
The key reason was their desire to keep full control over this area. Con-
sequently, the Council, and also the European Commission, used to
involve the EP only when absolutely necessary. Article 39 of the TEU
required the Council to consult the EP before the adoption of any legally
binding measures in this field (e.g. decisions, framework decisions and
conventions). That included, for example, decisions regarding the devel-
opment of Europol, but it excluded any priority setting. Moreover,
such a consultation procedure had no binding effects for the Council
‘whereas parliaments in the Member States must approve rules govern-
ing the functioning of national agencies’ (Apap, 2006, p. 3). Even when
it came to the adoption of the Council Act of November 2002 regarding
the crucial protocol to amend the Europol Convention and the proto-
col on the privileges and immunities of Europol, the members of its
organisations, the deputy directors and the employees, a lack of consul-
tation was stated by Members of the European Parliament (MEPs). All in
106 Counter-terrorism and Policing in Europe

all, at least three key challenges to parliaments can be identified in the


specific context of Europol’s work: there is a lack of regular reports on
police cooperation between national authorities; the reports provided
by Europol contain insufficient information to assess effectiveness and
appropriateness of its activities; and there is no independent assessment
of Europol’s operations (Peers, 2005, p. 202).
Given these serious limitations of parliamentary scrutiny with respect
to Europol, several academic scholars, policy-makers and police prac-
titioners suggested improvements concerning the democratic control
of Europol in general and its parliamentary oversight in particular
(see, e.g. Apap, 2006; Bruggeman, 2006; Puntscher Riekmann, 2008).
Some of these have been included into the Lisbon Treaty which, over-
all, strengthens Europol’s parliamentary scrutiny (see also Occhipinti’s
chapter in this volume). However, that the national governments were
keen on keeping the EP excluded from decision-making with respect to
Europol for as long as possible became apparent briefly before the Lisbon
Treaty took effect. The Treaty would abolish the EU’s pillar system and,
constituting one single legal framework, provide for co-decisive and
consent powers for the EP.7 According to Article 68 of the TFEU, the
European Council could set ‘strategic guidelines for legislative and oper-
ational planning’, but the EP was nevertheless to be involved in the
legislation process. Therefore, at a time when the Treaty of Lisbon was
agreed on but not yet ratified fully, the governments of the Member
States ratified and implemented some important protocols which were
necessary in order to agree on a Decision replacing the Europol Con-
vention. If they would not have found an agreement and the Treaty of
Lisbon would have entered into force quickly, such a regulation would
have had to be negotiated with the EP (see also Monar, 2008, p. 121).
A similar situation emerged in late 2009. On 25 November 2009, the
EP rejected four proposals concerning Europol that had been tabled by
the Council with regard to Europol’s AWFs, the confidentiality of its
information, its exchange of personal data with partners and its agree-
ments with third countries. Again, the timing is crucial to understand
the Council’s attempts to avoid parliamentary involvement in matters
of policing. By the time the Council presented the proposals to the EP,
the provisions of the TEU required the Council only to take the opinion
of the EP into account (which in practice meant that it could ignore it).
Had the proposals been tabled only one week later, the Lisbon Treaty
would have been entered into force and the EP would have had the
powers of full co-decision making on these issues. The EP criticised the
Council’s rush of the decisions sharply (European Parliament, 2009).
Guarding EU-wide Counter-terrorism Policing 107

Nevertheless, the JHA Council ignored this criticism and adopted the
four proposals during a meeting on 30 November – one day before
the Lisbon Treaty became effective (Council of the European Union,
2009b–e).
Yet, the EP has not been entirely ‘toothless’ in the field of PJCC.
For example, the EP increased its influence in these matters over time
through so-called issue linkages. Since the Parliament’s approbation was
necessary for First Pillar legislation, it sometimes agreed on a legal instru-
ment only under the condition that its opinion would be considered
seriously with respect to a certain Third Pillar measures. Such was the
case concerning the debate about the VIS, for example (McGinley and
Parkes, 2007, p. 248).
Also, the investigation into the European involvement in the CIA’s
extraordinary rendition programme must be understood as a counter-
terrorism feature where the EP acted as a substitute at a time when NPs
were not sufficiently safeguarding their role as accountability holders
(Hillebrand, 2009). Following an investigation by the Council of Europe
into the involvement of European countries in cases of extraordinary
rendition, the EP used its powers to set up a temporary committee on the
alleged use of European countries by the CIA for the transport and illegal
detention of prisoners (TDIP) (European Parliament, TDIP, 2007; see also
Council of Europe Parliamentary Assembly, 2006, 2007). The collection
of information appeared to be a challenging task, partly because some
EU bodies were reluctant to assist the work of the TDIP committee. As a
consequence, the final report bluntly criticised the lack of cooperation
of individual EU officials and institutions in the investigation, including
the refusal of the then Director of Europol, Max-Peter Ratzel, to appear
before the committee.
Given the limited role of the EP in the intergovernmental decision-
making processes within the Third Pillar and with respect to Europol in
particular, it pushed initiatives to change Europol’s legal basis for some
time. Most notably, in a 2003 Resolution on Europol’s Future Develop-
ments, it suggested to replace the existing Europol Convention with a
Council decision so that decisions relating to Europol would no longer
be taken by the Council acting unanimously but would need to be
adopted by qualified majority voting and by co-decision with the EP
(European Parliament, 2003). The EP also required to be ‘provided with
the legal means and institutional framework to enable it in the future to
exercise genuine democratic control’ (Apap, 2006, p. 4).
The transfer from an intergovernmental institution to an EU
agency also meant that Europol would lose autonomy and that its
108 Counter-terrorism and Policing in Europe

(semi-)operational powers could be easily expanded at the same time.


This led the 2006 Finnish EU Presidency to table the improvement
of Europol’s legal framework, and the JHA Council on 4–5 December
2006 agreed to replace the Europol Convention by a Council Decision.
The Commission quickly provided a draft decision, but a consensus
on the final wording of the Council Decision establishing Europol was
only reached some 15 months later at a Meeting of the JHA Council
on 18 April 2008 (see Amici, 2010, pp. 82–83). The final Decision was
adopted on 6 April 2009 and has been effective as of 1 January 2010.
This 2009 Council Decision includes substantial changes concerning
Europol’s mandate and its powers. Up to the end of the year 2009,
Europol operated outside the EU Treaty, but the Council Decision trans-
ferred Europol into an entity of the EU. That implies that European
Community action rules now apply to Europol. Crucially, the EP is
now involved in controlling and overseeing Europol’s budget (Articles
43(6), (9) and (10), Council Decision). This change had an impact on
the EP’s powers to gather more information directly from Europol, as
‘Europol is also obliged to submit to the EP, at the latter’s request,
any information required for the smooth application of the discharge
procedure for the financial year in question’ (European Commission,
2010, p. 7).
The adoption of the Council Decision strengthens the role of the EP
with respect to Europol’s scrutiny, as the Parliament has the general right
to be heard in respect to all implementing measures based on a Coun-
cil Decision. More explicitly, Article 88 of the TFEU maintains that the
EP will now ‘determine Europol’s structure, field of action and tasks’ in
co-decision with the Council.
So far, however, practices appear not to have changed substan-
tially. Over time, the EP as a whole and, in particular, members of its
LIBE Committee have pointed out again and again the marginalisation
of the EP with respect to EU security matters. For example, in the context
of developing and implementing the ISS, a recent working document of
the LIBE Committee criticised the

disregard shown to date by the Commission and Council for the role
of the European Parliament and national parliaments in drawing up
this strategy [. . .] Incredible as it may appear, the principal strategic
documents adopted to date by the European Council, the Council
and the Commission seem to ignore the existence of the European
Parliament altogether.
(European Parliament, LIBE Committee, 2011, p. 4)
Guarding EU-wide Counter-terrorism Policing 109

Crucially, the Commission was criticised for effectively delaying the


‘Lisbonisation’ of Europol, despite the EP’s clearly signalised priority of
this matter (European Parliament, LIBE Committee, 2011, p. 4).
While the EP remains struggling to ensure a stronger position within
Europol’s oversight system, the Commission, in contrast, continuously
emphasised that ‘the opportunities for scrutiny of Europol by the
European Parliament are “legally appropriate” ’ and that it ‘would not
support deeper involvement by, for example, including provision in a
future Regulation for the European Parliament to designate members
of Europol’s Management Board or to participate in the appointment of
Europol’s Director’ (House of Commons, Select Committee on European
Union, 2011, point 10.11). The Commission justified that decision with
the limited powers and autonomy of Europol. National executives tend
to support the Commission’s stance. For example, the UK Minister of
Crime Prevention argued that ‘in order to protect Europol’s political
independence, there should be no role for the European Parliament
on Europol’s Management Board or in appointing Europol’s Director’
(House of Commons, European Scrutiny Committee, 2011).
While it appears that the recent changes of Europol’s legal footing and
institutional role within the EU have brought about several improve-
ments concerning the EP’s scrutiny powers with respect to Europol and,
overall, strengthened the parliamentary scrutiny at EU level, the follow-
ing section will draw the attention to parliamentary scrutiny procedures
at the national level.

Scrutinising Europol at the national level: The role of


national parliaments

The network perspective on Europol, suggested at the beginning of


this chapter, refers to strong linkages between Europol’s central secre-
tariat and national law enforcement authorities in the Member States –
most notably through Europol’s liaison system. This structure calls for a
crucial involvement of all NPs in Europol’s parliamentary scrutiny land-
scape. From a perspective of democratic governance, scrutiny through
NPs is important as it directly links the elected parliaments with the EU
system (Guild and Carrera, 2005, p. 4). In Europe, police and intelli-
gence authorities and their activities are overseen and controlled within
the domestic framework. Since they are bodies with executive functions,
the scrutiny of the governments through their national parliaments is
a key mechanism. Parliamentary scrutiny is also one element of the
traditional checks on executive law enforcement powers in terrorism
110 Counter-terrorism and Policing in Europe

investigations. Finally, some authors argue that the main problems


with regard to the EU’s overall democratic legitimacy remain at the
national level and should, therefore, be tackled at that level as well (e.g.
Müller-Wille, 2006).
Detailed comparative information about the ways in which NPs scru-
tinise matters of EU-wide police cooperation is hard to find. A rare
exception is the questionnaire that the Secretariat of the Conference
of Community and European Affairs Committees of Parliaments of the
European Union (COSAC) circulated in 2008 among NPs to inquire into
their scrutiny procedures of the Schengen process (i.e. the measures
included in the Schengen Agreement as well as the enlargement of the
Schengen Area) (COSAC, 2008, Annex). The questionnaire was driven by
the question as to whether the particular sensitivity of the issues, which
were touching on questions of asylum, security and individual free-
doms, had pushed the NPs to reinforce their general scrutiny procedures
of EU policies in this particular area (COSAC, 2008, ch. 4 and Annex).
The result was that most NPs continued to use their normal scrutiny pro-
cedures, which are usually not binding for the government in question.
Several parliaments have strengthened their monitoring efforts concern-
ing matters related to the AFSJ. In the German Bundestag, for example,
Schengen-related documents are scrutinised by the Internal Affairs Com-
mittee and the European Affairs Committee and finally in the plenary.
Moreover, the Internal Affairs Committee receives reports by the govern-
ment on Schengen-related topics discussed at the JHAs Council (COSAC,
2008, p. 39). Few countries have substituted their normal scrutiny proce-
dures by special arrangements for Schengen issues. However, several NPs
across Europe have mechanisms in place to examine Europol’s budget
(see COSAC, 2005, pp. 89–94).
Despite such provisions, the role of NPs in the field of European
police cooperation is criticised from various sides. One problem is that
decision-making at EU level tends to exclude NPs in the early stage
of policy-shaping. Concerning procedures of parliamentary scrutiny,
Monar argued that there is a ‘problem of ineffective national parlia-
mentary scrutiny procedures that have difficulties to cope with the
increasing volume of JHA legislation’ (Monar, 2008, p. 120). That leads
to delays in ratifying regulations which have been agreed at EU level.
Another problem was raised by an MEP in an anonymous interview with
the author in March 2008. Asked about the cooperation between the
EP and NPs concerning the AFSJ, they criticised that the NPs are very
much focused on national matters and would not feel responsible for
the scrutiny of the EU’s (then) Third Pillar (Interview A, 2008). An expert
Guarding EU-wide Counter-terrorism Policing 111

in the field of data protection in the Third Pillar also expressed their
impression that NPs either have no time, do not take the time, have no
interest or do not prioritise the area of police cooperation (Interview B,
2008). Given such limitations and restrictions, the general role of the
NPs concerning police cooperation has been described as a ‘non-role’
(Lodge, 2007). Other observers have, however, argued that, in contrast
to the EP, NPs often ‘had better opportunities to influence the legisla-
tion processes in the Third Pillar, due to the unanimity requirement’
(Lummer, 2008).
Concerning Europol, NPs used to be involved in the ratification pro-
cess concerning the proposals to amend the Europol Convention and
the protocols thereto. Such a national ratification process could push
the involvement of NPs to explore Europol’s work (Peers, 2005, p. 203).
Moreover, NPs have the powers to oversee their national representatives
on Europol’s Management Board. These representatives do not report
directly to their parliaments, however, but to their respective govern-
ment minister and, as the collective board, to the JHAs Council. The
national ministers are then answerable to their parliaments.
Up to the entry into force of the Europol Council Decision, the role
of NPs concerning issues related to Europol was not clearly regulated.
Article 34, paragraph 3 of the Europol Convention only pointed to
the fact that the Member States’ governments should deal with the
parliamentary role individually. As a consequence, NPs were usually
not involved in any of the agreements that Europol negotiated with
third parties (such as the two Europol–US agreements discussed above).
Their involvement was limited to the ratification process of propos-
als for amending the Europol Convention and the protocols thereto.
In this process, they did not have an impact on the text, but only decide
whether or not they want to ratify the amendment. For example, when
the Europol Convention – Europol’s previous legal base – was originally
established, neither the EP nor the NPs were consulted in the negotia-
tions or the process of drafting the Convention. When questioned about
the involvement of parliament in drafting and approving the Conven-
tion in the British House of Commons on 11 January 1996, the then
British Home Secretary, Michael Howard, replied in writing as follows:
‘The final text of the Europol convention was published, and laid before
Parliament, on 8 December last year. Drafts of the convention were
not public documents and therefore were not published nor made gen-
erally available’ (House of Commons, 1996). Tellingly, he added that
‘[the] police service was closely consulted throughout the negotiation
of the convention through police representative organizations’ (House
112 Counter-terrorism and Policing in Europe

of Commons, 1996). Thus, while parliaments and the wider public were
not involved in the negotiations at all, executive authorities were much
more so. Moreover, the ratification process of the Europol Convention
provided the NPs with no power to amend the text. This is a crucial
basic problem with respect to Europol since, as Aden stated, ‘[once]
established, international bureaucratic institutions such as Europol will
leave little scope to be reshaped by democratic institutions’ (Aden,
2001, p. 112).
Up to today, NPs primarily examine Europol’s performance ‘through
their control over their respective governments, in accordance with
the constitutional rules of each Member State’ (European Commission,
2010, p. 8). Crucially, NPs supervise the work of the minister responsible
for policing, and therefore also Europol. However, the recent transfer of
the Europol Convention by a secondary EU law act in 2009 carries the
danger that NPs might no longer be directly involved in future changes
to Europol’s legal framework. Future amendments to the Europol Coun-
cil Decision only require a qualified majority voting in the Council. This
appears to be a considerable loss of powers for NPs as the ratification
process of changes to Europol’s statutory footing was one of the few
ways through which NPs were involved in Europol’s scrutiny (Lavranos,
2003, p. 261). This way NPs were able to ‘influence decisions at EU level
by pressuring their governments to veto a certain law’ (Lummer, 2008).
The involvement of parliaments should not be limited to the approval of
a convention anyway, however. Instead, they should already be engaged
during the preparation process so they could have an impact on the con-
tent of agreements. In a similar vein, a report on Europol by the House
of Lords Select Committee on the European Union pledged for a strong
role of the NPs in the accountability procedure of Europol (House of
Lords, Select Committee on the European Union, 2003).
Paradoxically, certain aspects of the TFEU suggest a potentially
strengthened role for NPs. In general, NPs are called on to ‘contribute
actively to the good functioning of the Union’ (Article 12, TFEU). More
specifically, the Treaty explicitly calls for NPs to engage with issues con-
cerning the AFSJ (e.g. by ensuring that EU legislation in this area respects
the principle of subsidiarity). With respect to Europol, NPs are to be
involved in the ‘political monitoring’ (Article 12(c), TFEU) of its activi-
ties. However, the wording of the TFEU in this respect is vague, and it
remains to be seen which mechanisms NPs will use to fulfil their new
mandate. Moreover, under the Lisbon Treaty, NPs receive from the Com-
mission any draft legislative act at the same time as it is transmitted to
the EP and the Council. They are asked to verify the latter’s compliance
Guarding EU-wide Counter-terrorism Policing 113

with the principle of subsidiarity and, depending on the national consti-


tutional procedures, have the right to state an opinion (Article 12, TEU;
European Commission, 2010, pp. 20–21).
What remains a particular concern are intergovernmental arrange-
ments concerning counter-terrorism policing outside the EU framework.
Guild and Geyer (2006) argued, for example, that NPs ‘are not able
to guarantee democratic control over purely intergovernmental agree-
ments.’ A crucial example was the ratification procedure of the Prüm
Treaty in the German Bundestag in May 2006. The government did not
give the Bundestag a fair chance to influence the outcome as it granted
only ‘some weeks for parliamentary scrutiny – including committee
work’ (Guild and Geyer, 2006).
Similarly, the external dimension of Europol’s network raises con-
cerns. The two Europol–US agreements of 2001 and 2002, referred to
earlier in this chapter, became directly binding law, but they did not
involve either the EP or NPs in any meaningful sense. Consequently, the
UK House of Lords Select Committee on the European Union (House of
Lords, Select Committee on the European Union, 2003, p. 17) criticised
the second EU–US agreement for having ‘in effect been settled with the
United States authorities before it was deposited for scrutiny’.
As the scrutiny performance of the EP and, in particular, the
NPs remains unsatisfactory on many accounts, some called for the
parliaments to pool their powers and resources or to, at least, coordi-
nate their work in this context better. To complete the picture, the final
section will briefly explore the main discussion points.

Towards a combined effort?

The remaining shortcomings of parliamentary scrutiny led several


observers to call for increased cooperation between NPs and the EP in
order to ensure a high degree of scrutiny of Europol. A close coopera-
tion between NPs and the EP has also to be welcomed from a network
perspective, given the interwoven structure of Europol’s various ‘nodes’.
While there have been early attempts to establish a joint commit-
tee previously (e.g. European Commission, 2002), such an option is
dramatically facilitated by regulations under the Lisbon Treaty. In par-
ticular, Article 88(2) of the TFEU calls for coordination between the
EP and NPs in scrutinising Europol. In principle, three institutional
arrangements are on the table. Firstly, a strengthened role for an exist-
ing inter-parliamentary body, namely COSAC, which already has some
experience with respect to matters related to the AFSJ. Secondly, a
114 Counter-terrorism and Policing in Europe

more informal option would be the use of existing inter-parliamentary


meetings of MEPs as well as national MPs. And finally, a third option
would be to create a new joint committee comprising representatives of
the EP and the NPs (possibly drawn from existing specialist committees).
Interestingly, the Commission has taken a strong stance in favour
of the third option. In late 2010, the Commission circulated a
Communication on the procedures for the parliamentary scrutiny of
Europol’s activities (European Commission, 2010b). In it, the Commis-
sion expressed dissatisfaction with the existing arrangements and called
for the creation of a joint body or inter-parliamentary forum, compris-
ing the relevant members of NPs and the EP, which would meet on a
regular basis. Doing so would ensure ‘unifying parliamentary control at
European Union level (without prejudice to national parliamentary pro-
cedures)’ (European Commission, 2010b, p. 15). It would also enable a
smoother information transfer on Europol to NPs.
A few NPs have quickly raised concerns about the proposal. For exam-
ple, the Commission Communication was discussed by the EU Select
Committee of the House of Commons in February 2011. It came to
the conclusion that the suggested joint committee would operate on
a European, rather than the national level, and ‘would cover aspects
of Europol’s strategic planning and activities’ that the House of Com-
mons’ Committee ‘would not routinely consider’ (House of Commons,
European Scrutiny Committee, 2011). It also emphasised that ‘any
views expressed within the framework of inter-parliamentary coopera-
tion should not bind national parliaments or prejudge their positions’
(House of Commons, European Scrutiny Committee, 2011). Moreover,
the UK Minister for Crime Prevention, James Brokenshire, rejected the
idea not seeing any additional value of such a body (House of Com-
mons, European Scrutiny Committee, 2011). He pointed to the 2008
report by the House of Lords European Union Committee, which main-
tained that such a joint committee comprising representatives of 27
Member States would be likely to be unworkable.
The Commission’s course of action in this matter hit a sensitive spot
of parliamentary actors, threatening their self-understanding of inde-
pendent authorities. As the House of Commons EU Committee explic-
itly stated, ‘it is for the European Parliament and national parliaments
to determine together how to organise and promote effective and reg-
ular inter-parliamentary cooperation’ (House of Commons, European
Scrutiny Committee, 2011). This is in accordance with Article 9 of the
Protocol (No 1) to the new treaties on the role of NPs, which main-
tains that the EP and NPs ‘shall together determine the organisation
Guarding EU-wide Counter-terrorism Policing 115

and promotion of effective and regular interparliamentary cooperation


within the Union’.
The idea of a joint committee, or strengthened inter-parliamentary
scrutiny mechanisms, crucially depends on the willingness of the par-
liamentarians in question to engage with each other. As the discussion
by the EU Committee suggests, NPs might fear a power drain from the
national to the EU level. As a consequence, NPs appear to slowly wake
up to the need of becoming more actively involved in the discussion.
At a recent meeting of the Speakers of the NPs, the representatives also
discussed the ‘Role of the Parliaments in the Monitoring of the European
Freedom, Security and Justice’. For example, they discussed plans for the
creation of a database which would allow parliamentary committees to
exchange information concerning parliamentary oversight of the secu-
rity and intelligence services (Federal Parliament of Belgium, 2011). The
creation of a European Network of National Intelligence Reviewers by
setting up a website was supported by the participants. More specifi-
cally, the speakers discussed the existing parliamentary mechanisms to
monitor Europol’s activities in the light of the Commission’s communi-
cation. They considered the current forms of scrutiny to be insufficient
and suggested ‘that scrutiny should be exerted by an interparliamentary
body within which representatives of the national parliaments and the
European Parliament would meet on a regular basis’ (Federal Parliament
of Belgium, 2011). While details of form, mandate and structure of such
cooperation remained unclear, it was suggested to organise the scrutiny
‘within the framework of the existing interparliamentary structures’
(Federal Parliament of Belgium, 2011).
While strengthened cooperation concerning the parliamentary
scrutiny of Europol will remain the subject of discussions for some
time, the Commission provided a clear time frame, as it aims to inte-
grate detailed mechanisms of parliamentary scrutiny into a new legal
framework for Europol (expected to be based on an EU regulation)
in 2013.

Conclusion

In most European countries, counter-terrorism activities are now regu-


lated by special legislations which provide both police and intelligence
authorities with special powers and means. At the same time, cur-
rent counter-terrorism activities include procedures of gathering and
sharing information across borders. The EU is an emerging actor in
the field of counter-terrorism policing, though its powers are still
116 Counter-terrorism and Policing in Europe

very limited in comparison to national authorities. Yet, transnational


threats, and the networked response by security providers, ‘put into
question the foundations of a security system based on the norms of
national sovereignty and a state monopoly of the legitimate use of
violence’ (Krahmann, 2005, p. 204). This development also causes chal-
lenges with respect to the democratic scrutiny of current transnational
forms of security provision. This chapter was concerned with polic-
ing efforts via EU-wide networks in the field of counter-terrorism that
are tasked with the facilitation and enhancement of information- and
intelligence-sharing, focusing on the case of Europol.
The analysis of the responsibilities and powers of parliaments scru-
tinising Europol provided above provides a complex picture of the
existing accountability and oversight landscape. At the time of writing
this chapter, Europol’s legal framework and scrutiny procedures are still
‘the subject of an ongoing reflection’ (European Commission, 2010b,
p. 5). The chapter demonstrated that the scrutiny mechanisms have
been changed several times since the creation of Europol, but the recent
changes under the Lisbon Treaty as well as due to Europol’s new legal
framework are the most dramatic ones. The analysis demonstrated that
the EP has come a long way from a consultative body to a co-legislator in
this field. Overall, the Parliament’s scrutiny powers have been strength-
ened. The picture is more blurred when it comes to the role of the NPs,
in particular due to changes in Europol’s ratification procedures. Neither
the EP nor the NPs have been able to make full use of their new pow-
ers and rights so far, however, and currently seem to be in the process of
‘soul-searching’ in this respect. In general, it will remain difficult for par-
liamentary scrutiny bodies in this field to ‘show their muscle as the voice
and guardian of the people’ (Lodge, 2004, p. 254). Any engagement in
the field of police cooperation is hampered by various factors. In par-
ticular, the network-like transnational structure, the multitude of actors
involved and the overall secrecy of the field pose crucial challenges.
An important improvement would be an improved cooperation
among parliamentary actors at both the EU and the national level.
While the final section of the chapter outlined the challenges of creating
any inter-parliamentary forum, such a body would allow parliamentary
actors to compare their ‘best practices’ and problems in this field and
to pool their investigative efforts with respect to EU-wide policing, and
Europol in particular. At a time when internal security has become a
fully-fledged policy matter under the Lisbon Treaty, the EU has con-
firmed its commitment to values such as democracy, transparency and
accountability. However, as ongoing debates about the new ISS suggest,
there remains a mismatch of those normative claims and the EU’s
Guarding EU-wide Counter-terrorism Policing 117

everyday practices (House of Lords, European Union Committee, 2011).


Taking on an active role in negotiating their scrutiny rights and proce-
dures, the NPs could make a constructive contribution to a strengthened
democratic accountability of the EU in this field.

Acknowledgement

The author would like to thank those who have provided constructive
feedback on earlier versions of this chapter, notably the participants
at the ‘European Security, Terrorism and Intelligence: Past and Present’
Conference at the University of Salford in 2009. The original research for
this chapter has been supported by a Marie Curie Early Stage Research
Training Fellowship of the European Community.

Notes
1. This chapter refers to terrorism as defined in Article 1 of the Council Frame-
work Decision of 13 June 2002 on combating terrorism (see Council of the
European Union, 2002a).
2. Recent references to such values can be found in official documents, such as
the Lisbon Treaty, the ISS and the Stockholm Programme (European Council,
2010).
3. In addition, the EU implemented preventive administrative measures to
fight terrorism proactively. Key examples are the establishment of ter-
rorist watchlists, the exchange of Passenger Name Records (PNR) with
countries such as the US as well as the EU’s efforts to freeze terrorist
assets.
4. Laurence O’Toole (1997, p. 445) refers to networks as ‘structures of interdepen-
dence involving multiple organizations. They exhibit some structural stability
and include, but extend beyond, formal linkages alone’. See also Gerspacher
and Dupont (2007) and Deflem (2006b).
5. Article 72 of the TFEU maintains that the ultimate responsibility for the main-
tenance of law and order and the safeguarding of internal security lies with
the Member States.
6. The Europol–US agreements are examples of the growing external dimension
of the AFSJ. In this dimension, the fight against terrorism is also one of the
priority areas (see European Commission, 2005).
7. There are severe limitations to the EP’s role given special provisions on several
issues concerning police and judicial cooperation. In particular, operational
cooperation among national law enforcement authorities is an area in which
the EP will continue to have only a consultative role.

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Challenge_CEPS_July_2007.pdf, accessed on 15 April 2011.
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Different Policy Fields’, in Conference Proceedings ‘Fifty Years of Interparliamentary
Cooperation: Progressing Towards Effective Cross Level Parliamentarism?’ (Berlin:
Stiftung Wissenschaft und Politik).
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omy Thesis in EU Internal Security Cooperation’, European Security, 16(3),
245–266.
Monar, J. (2004) ‘The EU as an International Actor in the Domain of Justice and
Home Affairs’, European Foreign Affairs Review, 9, 395–415.
Monar, J. (2005) ‘Anti-terrorism Law and Policy: The Case of the European
Union’, in Ramraj, Victor V., Hor, M. and Roach, K. (eds) Global Anti-Terrorism
Law and Policy (Cambridge: Cambridge University Press), 425–452.
Monar, J. (2006) ‘Cooperation in the Justice and Home Affairs Domain: Charac-
teristics, Constraints and Progress’, European Integration, 28(5), 495–509.
Monar, J. (2008) ‘Justice and Home Affairs’, Journal of Common Market Studies,
46(1) (Suppl.), 109–126.
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(Boulder, CO: Lynne Rienner).
Guarding EU-wide Counter-terrorism Policing 123

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World’, Journal of Public Administration Research and Theory, 7(3), 443–459.
Peers, S. (2005) ‘Operational Collaboration on Justice, Security and Policing in the
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Justice (Oxford: Oxford University Press), 1–37.
Part III
Counter-terrorism and
Intelligence in Europe
6
Information-sharing and the EU
Counter-terrorism Policy:
A ‘Securitisation Tool’ Approach
Thierry Balzacq and Sarah Léonard

In recent years, securitisation theory (Buzan et al., 1998; Balzacq, 2011)


has occupied an increasingly prominent place in the study of interna-
tional security. It emphasises how a specific type of discourse transforms
certain entities – subjects or objects – into a threat, thereby enabling
the use of extraordinary measures to deal with them. Thus, securiti-
sation theory postulates that threat images can be modelled as the
result of discursive processes that take place between the so-called ‘secu-
ritising actor’ and the relevant audience(s). This might be called the
‘standard’ view of securitisation. However, such an approach does not
seem entirely appropriate to study policy developments in the European
Union (EU), notably because of its sui generis political and institutional
characteristics. As observed by Léonard, ‘[t]he EU is evidently not a state;
it has no government or president to make the kind of dramatic securi-
tising speech acts that can be identified in national contexts’ (Léonard,
2010, p. 236). Nevertheless, there is prima facie evidence that there may
have been securitisation processes at play in the development of the
EU counter-terrorism policy. This is suggested by the adoption of some
extraordinary measures, such as the EU financial sanctions against sus-
pected terrorists. Those are arguably extraordinary on the ground that
they have breached the fundamental rights of the persons concerned
(van Thiel, 2008; Vlcek, 2009).
Drawing on the ‘new governance’ literature (see Hood, 1983; Peters
and van Nispen, 1998; Salamon, 2002), we suggest that such policy
developments in the EU can be more adequately understood by shift-
ing the study of securitisation away from discourse and towards the
‘empirical referents of policy’ – that is, the policy tools or instruments

127
128 Counter-terrorism and Intelligence in Europe

that the EU uses to tackle public problems defined as threats (Schneider


and Ingram, 1990, p. 510). Given the volume of EU programmes, where
discourse and ideology are increasingly entangled, while differences
between securitising actors and audiences are blurred, focusing on the
nature and functions of policy tools may improve our understanding of
securitisation in at least two ways. Politically, a tool approach to secu-
ritisation is a helpful method to analyse the dynamics of securitising
practices. In addition to revealing how policy-makers translate inten-
tions into concrete actions, it shows how the life of a policy tool is
affected by social processes. Moreover, policy tools convey latent devel-
opments and produce effects that are often ‘more consequential than
[their] ostensible goals’ (Feenberg, 1991, p. 5). Methodologically, the
analysis of security policies can therefore be enhanced by using a tool
approach, which is more sensitive to the nature of the threat.
Thus, the aim of this chapter is to examine the securitisation dynam-
ics at work in the development of the EU counter-terrorism policy by
focusing on policy tools. The EU counter-terrorism policy has four main
strands of work, which have been presented in the 2005 EU Counter-
terrorism Strategy under the headings of ‘prevent’, ‘protect’, ‘pursue’
and ‘respond’. ‘Prevent’ refers to activities aiming to tackle the causes
of terrorism, while ‘protect’ concerns activities aiming to decrease the
vulnerability of people and infrastructures to terrorist attacks. ‘Pursue’
refers to the investigation of terrorist activities, while ‘respond’ concerns
the reaction to terrorist attacks (Council of the European Union, 2005b).
Arguably, achieving success in each of these four strands of work requires
the sharing of information to at least a significant degree. Within the
Schengen area, where internal border controls have been lifted, Member
States are required to share information in order to reach their objectives
in the fight against terrorism, be that to ensure that terrorist suspects are
not granted a Schengen visa or to arrest those suspected of terrorist acts,
among others. It can therefore be argued that information-sharing is one
of the most crucial aspects of EU counter-terrorism cooperation. For this
reason, this chapter focuses on two of the main information-sharing
systems – also known as ‘large-scale IT systems’ or, more commonly,
‘databases’ – used by the EU for its internal security, namely Eurodac1
(a fingerprint database mainly created to support the EU asylum pol-
icy) and the Visa Information System (VIS). Those belong to a specific
category of policy tools, namely capacity tools.2 The chapter investi-
gates the impact that counter-terrorism cooperation has had on their
development. These two databases have been chosen because, as case
studies, they enable us to see more precisely the impact of 9/11 and the
A ‘Securitisation Tool’ Approach 129

ensuing EU counter-terrorism cooperation, as one was established prior


to 9/11 (Eurodac), whereas the other (VIS) was established after 9/11.
This chapter is divided into two main sections. The first introduces the
concept of policy tools, focusing in particular on capacity tools – a cate-
gory of tools that notably comprises the databases that are at the core of
this chapter. The second part examines the evolution of two of the EU’s
capacity tools – Eurodac and the VIS – and the securitisation dynamics
that have been at work in their development.
Before proceeding further, it is worthwhile emphasising that the tool
approach set out in this chapter is compatible with the precepts of
critical theory (Jones, 1999). On the one hand, a tool approach to
securitisation should not be equated with an instrumental view of pol-
icy, which holds that policy tools are ‘subservient to values established
in other social spheres – political and cultural’ (Feenberg, 1991, p. 5).
On the other hand, as acceptable as the basic propositions of the ‘sub-
stantive’ approach to policy tools may be, the position developed here
goes further. Although policy tools may have attributes that influence
social and political relations in a distinctive way, their use produces con-
sequences, the nature of which ultimately depends on power relations
(Feenberg, 1991). Moreover, this chapter does not attempt to consider
the politics of the choice of tools (see Varone, 1998). It is true that it
might be instructive to analyse the reasons for which policy-makers
choose certain instruments over others in order to understand the causal
factors that underpin their decisions (Aus, 2003; Lodge, 2005). However,
if the nature and the functions of a tool affect the image of a threat (and
vice versa), then one cannot grasp how securitisation operates merely
by knowing the reasons for which a specific tool was adopted.

Policy tools and securitisation

As previously mentioned, a discursive approach to securitisation gives


an incomplete picture of what a threat is at any given time, because it
fails to account for variations of intensity within the process of securitisa-
tion. This can be more adequately grasped by switching the focus to pol-
icy tools. However, it is important to emphasise that, when using a tool
approach, the relationship between words and instruments is indetermi-
nate. In particular, the choice of a policy instrument is typically a pro-
cess characterised by intense power games, while, generally, discourse
often pre-dates (or otherwise constrains the choice of) a policy tool.
However, in many instances, instruments have ‘latent developments’
and may produce unforeseen effects. In addition, notwithstanding their
130 Counter-terrorism and Intelligence in Europe

different logics and mechanisms, instruments and discourses mutually


reinforce each other in the policy process. Furthermore, instruments
convey a sense of consensus (even if false) among Member States.
In other words, the policy tools of securitisation are powerful strategies
for harmonising what otherwise remains highly disputed, both in terms
of what is at stake and what ought to be done about it. In that respect,
the European Data Protection Supervisor observed that ‘[o]ne can safely
assume that technical means will be used, once they are made avail-
able; in other words, it is sometimes the means that justify the end [. . .]
[while] legal changes quite often confirm practices which are already in
place’ (European Data Protection Supervisor, 2006, p. 2). The remainder
of this section seeks to define the concept of ‘tool’ and to delineate its
key features, before focusing on the category of capacity tools.

Definition and key features of policy tools


What, then, is an instrument or a tool of public action? Given the range
of definitions, connotations and degrees of abstraction, a useful first step
may be to outline more precisely what an instrument (or tool) is not.
Firstly, a tool is not a programme. In general, a programme comprises
one or several tools that it mobilises in specific circumstances. This also
means that a single tool can be used to tackle a range of issues by differ-
ent programmes. Secondly, and more significantly, a tool is not a policy.
Typically, policies are more general than tools as they are primarily ‘col-
lections of programmes operating on a similar field or aimed at some
general objective’ (Salamon, 2002, p. 20).
The confusion between these elements has long obstructed concrete
definitions. This is fully in line with the extant variety and somewhat
multifaceted aspects of artefacts labelled ‘tools’ within the securitisa-
tion literature. For example, Guild describes carrier sanctions as ‘tools of
control’ (Guild, 2006). Neal argues that the European External Borders
Agency, Frontex, ‘may [. . .] be a tool of securitization or a securitizing
actor’ (Neal, 2009, p. 346). Ole Wæver also emphasises the importance
of tools in securitisation processes, as he observes that ‘at times, the
tool of securitization may seem necessary’ (Wæver, 1995, p. 76). How-
ever, the commonality between all these contributions is that they do
not explicitly address the question of what tools are and how they can
be identified. Instead, securitisation scholars appear to concur with the
standard view that a tool is simply a means to accomplish an end, or
‘everything that an actor uses or could potentially use to aid in the
attainment of one or more goals’ (Hoogerwerf, 1989, p. 4). In fact, more
nuanced approaches postulate that tools can be grasped either as objects
A ‘Securitisation Tool’ Approach 131

or as activities (de Bruijn and Hufen, 1998, pp. 13–14). In the first sense,
instruments are tangible, that is, mostly material phenomena. In con-
trast, as practices, instruments are ‘a collection of policy activities that
show similar characteristics focused on influencing and governing social
purposes’ (Ringeling, 1983, p. 1).
This distinction is coherent and useful, but incomplete. It does not
allow for a synthetic understanding of tools. Thus, the precise mean-
ing of tools remains underspecified, which is not necessarily surprising.
Indeed, certain instruments that are traditionally regarded as objects
have, on closer scrutiny, the main endogenous features of activities
(Hood, 1983). For this reason, in this chapter, we define a tool or instru-
ment of securitisation as an identifiable social and technical ‘dispositif’ or
device embodying a specific threat image through which public action is config-
ured in order to address a security issue (Linder and Peters, 1984; Salamon,
2002, p. 19; Lascoumes and Le Galès, 2004, p. 13). On the basis of this
definition, imperfect as it may be, it is possible to highlight three basic
characteristics of securitisation tools.
Firstly, each tool has specific features, some of which align it with
other tools, whereas other features render it unique or, at least, differ-
ent from other tools. For instance, all Justice and Home Affairs (JHA)
databases in the EU require the collection, storage and exchange of
information, but they differ significantly in the nature of the infor-
mation they hold, the duration of the data storage and the conditions
under which the data can be retrieved. Secondly, tools configure actions,
in the sense that each tool ‘has its own operating procedures, skills
requirements, and delivering mechanisms, indeed its own “political
economy” ’ (Salamon, 2002, p. 2). What is involved here, moreover,
is the idea that a tool is a kind of institution. According to this view,
it is a routine set of rules and procedures that structure interactions
among individuals and organisations. In short, policy tools can config-
ure social relations in decisive ways. In this respect, by their very nature,
tools ‘define who is involved in the operation of public programmes,
what their roles are, and how they relate to each other’ (Salamon, 2002,
p. 19). In other words, tools of securitisation reconfigure public action
in the field of security, the aim of which is to address issues identi-
fied as threats. Thirdly, policy tools embody a specific image of a threat
and, to a large extent, what ought to be done about it. In this respect,
JHA databases not only quantify but also categorise individuals entering
into and moving within the EU area, as well as commanding a particular
method of policing, namely tracing and localising those whose details
are stored in the databases (Brouwer, 2006).
132 Counter-terrorism and Intelligence in Europe

Thus, the policy instruments of securitisation do not represent a


purely technical solution to a public problem. Of course, the opera-
tional – that is, technical – character of a securitisation instrument has
to be adequately linked to a specific issue that it intends to address.
However, a narrow focus on the operational aspect of securitisation
tools neglects two crucial features of instruments, namely the politi-
cal and symbolic elements. First of all, instruments are fundamentally
political. The selection, use and effects of securitisation instruments
depend on political factors and, in turn, require political mobilisation
(Peters and van Nispen, 1998, p. 552). It should therefore be kept in
mind that, while securitisation tools might have technical attributes,
the reason for which they are chosen, how they operate and evolve and
what their consequences are cannot simply be reduced to the technical
particulars of the instruments. Moreover, there are symbolic attributes
built into policy instruments ‘that [tell] the population what the [secu-
ritizing actor] is thinking [. . .] and what its collective perception of
problems [is]’ (Peters and van Nispen, 1998, p. 3). In other words, the
focus on the political and symbolic aspects of securitisation instruments
will support a more robust conceptualisation of how ‘the intention of
policy could be translated into operational activities’ (de Bruijn and
Hufen, 1998, p. 12). Drawing upon Salamon, it is possible to further
define a securitisation tool as a ‘package’ comprising four different
elements:

(1) a type of good or activity (e.g. the provision of information, training,


surveillance);
(2) a delivery vehicle for this good or activity (e.g. media, electronic
devices);
(3) a delivery system, that is, a set of organisations that are engaged in provid-
ing the good, service or activity (e.g. an agency, air carriers, a directorate
general);
(4) a set of rules, whether formal or informal, defining the relationship among
the entities that comprise the delivery system (e.g. the EU directive on
the retention of telecommunication data) (Salamon, 2002, p. 20).

As a result, the study of securitisation tools and their attributes can also
shed light on the threat that public action is seeking to address through
their deployment. Furthermore, it reveals policy preferences and the
direction of action. Despite basic similar attributes, each securitisation
tool has different effects. In addition, different tools are not equally
effective in all cases. Indeed, securitisation tools can sometimes have
limited consequences or indirect effects. It therefore becomes obvious
A ‘Securitisation Tool’ Approach 133

that the function of an instrument has a major impact on securitisation,


and that function itself depends on the nature of the tool.

Capacity tools
Attempts to classify policy instruments are quite common in the pub-
lic policy literature (Hood, 1983; Schneider and Ingram, 1990; van
Nispen and Ringeling, 1998, pp. 204–217; Lascoumes and Le Galès,
2004, pp. 357–363). There is no shortage of typologies. This is mainly
due to the fact that public action specialists use different features in
order to compare and contrast tools. Hood, for example, focuses on
two key dimensions, namely the role of the government by which
tools are used and the government resources that they enlist, such as
organisation and authority (Hood, 1983). From a different theoretical
perspective, McDonnell and Elmore distinguish between instruments
according to the strategy of intervention that governments use, lead-
ing to four types of tools: mandates, capacity building, system changing
and inducements (McDonnell and Elmore, 1987). Also, mainly on the
basis of the type of governmental intervention, van der Doelen divides
tools into three distinct categories, namely legal, communication and
economic tools (van der Doelen, 1989). Finally, Schneider and Ingram
produce a fivefold classification emphasising the behaviour that tools
seek to change: authority, incentive, capacity, symbolic and learning
tools (Schneider and Ingram, 1990). Thus, each categorisation attempts
to capture different facets of the policy tools.
As explained before, this chapter focuses on databases because of their
importance in the EU counter-terrorism policy. Databases belong to the
category of capacity tools. In simple terms, capacity tools allow indi-
viduals, groups and agencies to make decisions and carry out activities,
which have a reasonable probability of success (Schneider and Ingram,
1990, p. 517). In this sense, capacity tools notably include informa-
tion systems, training and other resources necessary to the attainment
of policy purposes. Moreover, capacity tools, like any other tools, are
often unstable. For example, there is regular pressure to change the rules
governing EU databases, to extend their functions and to mobilise new
resources in order to tackle issues that are perceived to be threatening.

EU databases and counter-terrorism cooperation:


The cases of Eurodac and VIS

This section examines the development of two of the main internal


security databases, namely Eurodac and the VIS. According to Connolly
and Begg, a database can be defined as ‘a shared collection of logically
134 Counter-terrorism and Intelligence in Europe

related data (and a description of this data), designed to meet the


information needs of an organization’ (Connolly and Begg, 2009).
In computer science, it is widely held that what is called ‘data’ is, in fact,
a body of knowledge. This knowledge is essentially made up of three
components: (1) an entity, that is, what is represented in the database
(a person, place, object, concept or event); (2) a property that provides a
description of the entity recorded; and (3) relationships, that is, an associ-
ation between the entities recorded. In other words, information stored
in a database system is a set of ‘logically connected’ entities (Connolly
and Begg, 2009, p. 16).
This section analyses the impact that the growing counter-terrorism
cooperation has had on the evolution of these capacity tools. As pre-
viously explained, these two databases have been chosen because they
have been established at different times – one pre-dates 9/11 and the
launch of the EU counter-terrorism policy (Eurodac), whereas the other
was established afterwards (VIS). The aim of this section is to exam-
ine how these policy tools have evolved under the influence of EU
counter-terrorism cooperation and whether they can be considered
securitisation tools. If the latter question can be answered positively,
then this would confirm that securitisation does not only take place
through specific discourses, but also through the deployment of certain
tools.

Eurodac
Eurodac was established by Council Regulation 2725/2000 of 11 Decem-
ber 2000 and became operational in 2003. In contrast with the VIS,
which is examined below, Eurodac is used by all the EU Member States,
as well as Norway, Iceland, Liechtenstein and Switzerland. Its main aim
is to support the application of the Dublin Convention, which lays
down criteria for determining the EU Member State that is responsi-
ble for the examination of a specific application for asylum. Eurodac
comprises a Central Unit and a system for electronic data transmission
between EU countries and the database. The central database stores the
fingerprint data of asylum seekers, which national authorities collect at
the time of the asylum application, as well as the fingerprint data of per-
sons who have been apprehended while attempting to cross an external
border irregularly.3 In all cases, only persons who are at least 14 years old
have their fingerprints taken. Eurodac, therefore, enables Member States
to compare fingerprint data in order to determine whether a person has
previously lodged an application for asylum in another Member State.
Thus, the remit of Eurodac, as a policy tool, was initially clearly limited
to asylum and migration matters.
A ‘Securitisation Tool’ Approach 135

Following the terrorist attacks in Madrid in March 2004, a new accel-


eration in the development of the EU counter-terrorism policy (see the
chapter by Léonard and Kaunert in this volume) led to debates on
a potential extension of the functions of Eurodac. In a Communica-
tion on improved effectiveness, enhanced interoperability and synergies
among European databases in the area of JHA in November 2005, the
European Commission emphasised that the law enforcement commu-
nity viewed its lack of access to Eurodac as leading to ‘a serious gap in
the identification of suspected perpetrators of a serious crime’ (Com-
mission of the European Communities, 2005, p. 6). On that basis, the
European Commission tabled a proposal on requesting comparisons
with Eurodac data by Member States’ law enforcement authorities and
Europol for law enforcement purposes in September 2009. It notably
justified the proposal on the grounds that, in a large number of Mem-
ber States, law enforcement authorities have direct or indirect access to
national databases that contain the fingerprint data of asylum seekers
for the purpose of combating crime, and that those who consult such
databases for criminal investigations ‘consider the hit rate significant’.
However, this proposal proved to be very contentious. In particular,
the European Data Protection Supervisor argued that it constituted a
‘further step in a tendency towards giving law enforcement authorities
access to data of individuals who in principle are not suspected of com-
mitting any crime’ (European Data Protection Supervisor, 2010, p. 4).
After the Lisbon Treaty came into force in December 2009, the pro-
posal became obsolete and was replaced by a new Eurodac proposal.
This had a broader scope as it aimed to enhance the use of Eurodac,
but did not include any provisions concerning the granting of access
to the law enforcement community. However, this new proposal was
not favourably received by several Member States, most notably because
of this omission. After acknowledging the absence of progress in the
negotiations of not only the new Eurodac Regulation but also other asy-
lum instruments, the European Commission decided to put forward an
amended proposal in May 2012 in a bid to facilitate the negotiations of
all these instruments. This was emphasised by the European Commis-
sion in its explanatory memorandum, which stated that ‘[it] has [. . .]
become clear [. . .] that including law enforcement access for EURODAC
is needed as part of a balanced deal on the negotiations of the Common
European Asylum System package with a view to completing the pack-
age by the end of 2012’ (European Commission, 2012, p. 3). Thus, the
amended Eurodac proposal includes provisions that aim to authorise
the comparison of fingerprints contained in Eurodac with those held
by national law enforcement authorities or Europol for the purpose of
136 Counter-terrorism and Intelligence in Europe

combating terrorism and serious crime. It is still under negotiation at


the time of writing.
There are two main points worth emphasising here. First of all, it is
evident that the question of granting law enforcement authorities access
to Eurodac has been rather controversial. This is evidenced by the long
time that has elapsed since the idea was first aired, the existence of var-
ious proposals, and the protracted negotiations on this topic. However,
it now appears likely that the law enforcement community will even-
tually gain access to Eurodac, notably because this issue has become
part of the broader EU asylum package negotiations. Secondly, if the
law enforcement community is granted access to Eurodac in order to
combat terrorism and serious crime, then the nature of Eurodac as a pol-
icy tool will change. More precisely, it will become a securitisation tool.
This is because such an initiative strongly suggests that, through access-
ing the information contained in Eurodac, law enforcement authorities
are likely to gain information that is relevant to their criminal inves-
tigations. In line with the criticisms of the European Data Protection
Supervisor, it can be argued that such an amended Eurodac system
would cast asylum seekers as categories of persons more likely to pose
a risk to the EU than others. This is compounded by the important
role of fingerprints in the functioning of Eurodac, which have tradition-
ally been strongly associated with criminal investigations in Western
countries.

The Visa Information System


The aim of the VIS is to allow the members of the Schengen area to
exchange visa data in order to support visa cooperation. Indeed, the
members of the Schengen area have adopted common conditions of
entry and rules on visas for short stays, that is, stays of up to three
months. The Visa Code, adopted in 2009 as Regulation (EC) 810/2009,
comprises all the procedures and conditions for issuing visas. In order
to be granted a Schengen visa, an applicant must fulfil several criteria,
including possessing valid travel documents, as well as being able to
justify and document the purpose of his or her visit and its means of
subsistence. In addition, the applicant must not be registered in the
Schengen Information System (SIS) as a person to be refused entry.
These checks aim to ensure that only those who do not represent ‘a risk
of illegal immigration or a risk to the security of the Member States’
are granted a Schengen visa (Article 21 of the Visa Code). However,
not every person travelling to the Schengen area is required to have
a visa. The EU has adopted a so-called ‘white’ list, which comprises the
A ‘Securitisation Tool’ Approach 137

countries whose nationals are not required to have a visa to enter the
Schengen area, and a so-called ‘black’ list, which comprises the coun-
tries whose nationals are required to have a visa to enter the Schengen
area. In 2008, there were 130 countries on the ‘black’ list, comprising
almost all the countries of Africa, the Middle East, South Asia and Cen-
tral Asia. In other words, some categories of third country nationals are
considered a priori to be more threatening to the EU than others.
In contrast with the case of Eurodac, the terrorist attacks of 9/11 pre-
dated and actually played a role in the decision to establish the VIS.
In the immediate aftermath of the attacks, the JHA Council called for
the establishment of ‘a network for information exchanges concerning
the visas issued’, which would be more efficient than the VISION (Visa
Inquiry Open-border Network) consultation network that was used at
the time (Council of the European Union, 2001, p. 9; EPEC, 2004,
pp. 13–14). In February 2002, the Council called for the development
of a ‘European Visa Identification System’, as part of a plan to com-
bat illegal immigration and the trafficking of human beings in the EU.
In June of that year, the Heads of State and Government gathered in
Seville identified the development of such a system as a top priority.
The Council eventually adopted Decision 2004/512/EC establishing the
VIS in June 2004. It was initially planned that the VIS would become
operational in 2006. However, because of various technical difficulties,
the launch of the system was delayed until 2011. The VIS comprises a
‘Central Visa Information System’ (CS-VIS), an interface in each Member
State (‘National Interface’ (NI-VIS)) and a communication infrastructure
that links the national systems to the central system.
By connecting consulates in non-EU countries and all external border
crossing points of Schengen states, the VIS allows the members of the
Schengen area to exchange data and decisions concerning applications
for short-stay visas in order to check the authenticity of visas and the
identity of their holders. The VIS records alphanumerical data concern-
ing the visa applicants, biometrical data, including digital photographs
and fingerprints, as well as links to the application files of those trav-
elling together and to previous visa applications. Thus, the VIS mainly
aims to support the implementation of a common visa policy.
However, since the early stages of its development, the VIS has been
framed as a ‘multipurpose tool’ (Brouwer, 2006, p. 137). On 7 March
2005, the Council (Council of the European Union, 2005a, p. 15)
decided that the authorities of the Member States responsible for
internal security should be guaranteed access to the VIS ‘in order
to achieve fully the aim of improving internal security and the
138 Counter-terrorism and Intelligence in Europe

fight against terrorism’. This led to the adoption of Council Decision


2008/633/JHA of 23 June 2008 concerning access for consultation of
the VIS by designated authorities of Member States and by Europol
for the purposes of the prevention, detection and investigation of ter-
rorist offences and of other serious criminal offences. In practice, the
operating units within the designated authorities may apply for access
to VIS data through central access points and on a case-by-case basis.
The request is verified and processed by the central points prior to a
VIS query. It has to be reasoned and is required to fulfil a set of crite-
ria. In particular, it should be necessary for the purpose of investigating,
preventing or detecting serious criminal offences. As for Europol’s access
to the VIS, the Council Decision laid down that a specialist unit would
act as the central access point and would be authorised to access the
VIS within the limits of Europol’s mandate (i.e. ‘for the purposes of the
prevention, detection and investigation of terrorist offences and of other
serious criminal offences’). In addition, it was decided that Europol’s
ability to process the information obtained through the SIS would be
subject to the consent of the Member State that initially entered the
data in the system.
Thus, despite these limitations to the access of the law enforcement
community to the VIS, it becomes clear that the VIS aims to support not
only the EU common visa policy and the attempts to decrease irregular
migration, but also the EU counter-terrorism policy and the fight against
other forms of serious crime. By emphasising that sharing information
on visas can contribute to combating terrorism and serious crime, the
VIS strongly suggests that Schengen visa holders are potential threats
to the EU. Thus, the VIS is not only a tool that supports the Schengen
common visa policy. It is also a securitisation tool, because the rules
defining the access to its data socially construct Schengen visa holders as
potential security hazards to Schengen states. As in the case of Eurodac,
this is reinforced by the use of fingerprinting, which is largely associated
with the conduct of criminal investigations in Western countries.

Conclusion

This chapter has shown that, in the EU, the fight against terrorism, as
charted in Chapter 1 in this volume, has had an important impact on
information-sharing. It has prompted the reinforcement of data collec-
tion, processing and retention. In addition, the significant acceleration
in EU counter-terrorism cooperation that has followed 9/11 has had
a substantial impact on the design of the VIS, while also leading to
A ‘Securitisation Tool’ Approach 139

calls for altering the configuration and functioning of Eurodac, which


had just been established. As a result, the VIS has been designed as a
securitisation tool, while Eurodac is on its way to be reconfigured as
a securitisation tool. This is because, as we have just seen, these tools
do not only support the EU asylum and migration policies. The deci-
sion to grant law enforcement authorities access to the VIS means that
Schengen visa holders are cast as potential threats to the Schengen
states. At the time of writing, it appears likely that the same will apply to
Eurodac and asylum seekers in the near future. Granting the law enforce-
ment community access to Eurodac would also socially construct asylum
seekers as a category of particularly dangerous persons.
Several conclusions can also be drawn from this analysis that pertain
to securitisation theory. First of all, securitisation may occur and produce
social and political consequences, or changes in scope and scale, in the
absence of a discursive articulation. In other words, above and beneath
the discursive level may loom subtle, yet decisive, processes of securiti-
sation that a standard approach to securitisation would miss. Secondly,
focusing on policy tools, rather than discourse, can highlight changes
in securitisation processes, in terms of both scope and scale. Thirdly,
policy tools can change and become securitisation tools in reaction to
some events – such as 9/11 and the ensuing development of EU counter-
terrorism cooperation. However, the difference between the cases of the
VIS and Eurodac suggests that it may be easier to develop a tool as a
securitisation tool from its inception, rather than trying to transform a
tool into a securitisation tool at a later stage.

Acknowledgements

The authors would like to thank all the colleagues who have provided
helpful comments on earlier drafts of this chapter. This chapter partially
draws upon an article by Balzacq published in the Journal of Common
Market Studies, volume 46, issue 1, in 2008.

Notes
1. Eurodac stands for ‘European Dactyloscopy’.
2. Other types of instruments used by the EU for fighting terrorism include reg-
ulatory instruments, such as legislative acts, and incentive instruments, such
as development aid.
3. In addition, in certain circumstances, Member States may transfer to the Cen-
tral Unit the fingerprint data of persons who have been found in an illegal
situation on their territory.
140 Counter-terrorism and Intelligence in Europe

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7
Availability by Stealth? EU
Information-sharing in
Transatlantic Perspective
John D. Occhipinti

Since 1999, the European Union (EU) has experienced a number of


remarkable developments concerning its Area of Freedom, Security and
Justice (AFSJ). These include several EU-level initiatives aimed at pro-
moting information-sharing among law enforcement, security and bor-
der control agencies to facilitate the common fight against transnational
crime and terrorism. In July 2010, the European Commission published
the first-ever official inventory of information-sharing mechanisms in
the AFSJ, outlining what has been implemented or planned, analysing
the principles that affect policy development in this area and pointing
the way forward (European Commission, 2010a). This chapter exam-
ines several of these EU-level initiatives on information-sharing, which
will be considered as examples of ‘intelligence reform’. This conceptu-
alisation allows the analysis of EU-based information-sharing to benefit
from comparison of parallel cases of intelligence reform in the United
States (US).
Intelligence reform is a process that has been repeated in many
countries and contexts for as long as police and intelligence services
have been in existence. Such changes have often come in response to
changing security threats or apparent failures of intelligence, regard-
ing collection, sharing or analysis. This was indeed the case in the
US and Europe following the attacks on the US on 11 September 2001,
subsequent attacks in Madrid and London in 2004–2005 and several
failed attacks, such as the attempted bombing of a US-bound airliner
on 25 December 2009. Each of these incidents resulted in some kind of
reaction in the shape of intelligence reform.

143
144 Counter-terrorism and Intelligence in Europe

In both the US and Europe, improvements in information-sharing


have been a key aspect of this kind of change. In the US, initiatives
to enhance information-sharing among the 17 component agencies of
the US intelligence community have taken the form of key institu-
tional and leadership reforms, as well as strategies designed to make the
most of these new structures to ensure that information-sharing actually
improves. In the EU, there has been a similar pattern of change. Ini-
tially, measures to improve information-sharing took the form of new
or enhanced EU-level bodies intended to promote information-sharing
among the law enforcement and security agencies of its Member States.
Later, the EU attempted to facilitate and encourage information-sharing
among its Member States by developing the ‘principle of availability’.
According to this principle, information for law enforcement purposes
needed by the authorities of one EU Member State should be made
available by the authorities of another Member State, subject to certain
conditions.
Presently, a variety of EU-level databases exist that facilitate various
kinds of international information exchange, representing the further
development of the availability principle. In addition, legislation has
been approved at the EU level, and further initiatives are being dis-
cussed as part of the EU’s current multi-year agenda for its AFSJ, known
as the Stockholm Programme, which was endorsed by the heads of gov-
ernment in late 2009. At about the same time, the Justice and Home
Affairs (JHA) Council approved conclusions on a comprehensive ‘Infor-
mation Management Strategy’, with work on these happening simulta-
neously with the drafting of the Stockholm Programme (Council of the
European Union, 2009a,b). However, it is interesting to note that even
as the EU continues to make information increasingly available for the
fight against cross-border crime and terrorism, the available principle
per se was not being mentioned in several key reports and commu-
nications of the European Commission or the EU’s Counter-Terrorism
Coordinator (CTC) in 2010–2011.
In this sense, it seems appropriate to characterise information-sharing
in the EU as ‘availability by stealth’ (cf. Genschel and Jachtenfuchs,
2011). This implies that progress towards implementing the availabil-
ity principle in the EU is continuing, but has not been highlighted
in recent public reports where it would seem to be significant and
receives much less attention compared than other important concepts,
such as data protection and personal privacy. A thorough considera-
tion of why this might be happening must remain the subject of future
research. At present, there is no evidence to support the notion that
A Transatlantic Perspective 145

this was done intentionally by EU policy-makers who support the avail-


ability principle because they view its implementation by stealth as the
path of least resistance in the context of the Lisbon Treaty and the
newly empowered European Parliament (EP), which both emphasise
data protection. What can be done at this juncture is to explore how
the availability principle is being implemented and whether its imple-
mentation by stealth might have any implications for its effectiveness
in the promotion of information-sharing in the future.
Before doing so, this chapter examines information-sharing in the EU
by considering what has been accomplished to date and the factors that
will likely influence further progress. In the main body of the paper,
identifying these factors will be achieved by juxtaposing parallel devel-
opments in both the US and EU concerning institutional change and
specific measures aimed at improving information-sharing. Following
this, the conclusion of the chapter examines the future of information-
sharing by applying a conceptual framework that was developed within
the US intelligence community. This framework focuses attention on the
challenges confronting US policy-makers when they attempt to imple-
ment a new vision of information-sharing based on a ‘responsibility to
provide’ mentality, rather than an organisational culture based on the
‘need to know’. In doing so, the chapter is able to draw the very tenta-
tive conclusion that much needs to be done in the EU before its own
availability principle can be implemented with full effect.

The United States

In the US, the promotion of information-sharing has come in the con-


text of significant and seemingly persistent institutional change, often
as a response to perceived failures of information-sharing in the fight
against terrorism. This section of the chapter examines these insti-
tutional reforms of the US ‘intelligence community’. The subsequent
section of the chapter takes up the question of the promotion of
information-sharing more directly.

Institutional change
The failure to share information helps explain why the US intelligence
community was unable to foresee and prevent the terrorist attacks
of 9/11. The 9/11 Commission Report of 2004, in particular, cites sev-
eral instances of inadequate information-sharing prior to 11 September
2001 regarding the flow of information not only within some law
enforcement and intelligence agencies, but also among them. This was
146 Counter-terrorism and Intelligence in Europe

the situation, for example, within the law enforcement and counter-
terrorism (CT) section of the Department of Justice (DOJ), as well as
between the Federal Bureau of Investigation (FBI) and Central Intelli-
gence Agency (CIA). For example, after 9/11, it was revealed that the
CIA had delayed giving the FBI details about two of the eventual hijack-
ers once it knew that they had entered the US after having attended an
Al Qaeda strategy meeting in Malaysia in 2000.
The popular metaphor used to describe limited information-sharing
is ‘stove-piping’. This refers the way smoke is produced by a stove and
then travels outward vertically in its own conduit, keeping it isolated
from its environment until its release. When applied to intelligence,
stove-piping refers to lack of horizontal intelligence-sharing within and
among agencies in the fight against crime and terrorism. Stove-piping
prevents police and security analysts from having access to all available
intelligence, which potentially inhibits their ability to ‘connect the dots’
and identify terrorist and criminal threats in advance.
By the start of 2003, the Bush administration was under Congres-
sional pressure to improve information-sharing in the war on terrorism.
Within a year, the impetus for to reform was only increased by the fail-
ure of the US to discover any weapons of mass destruction (WMDs) in
Iraq, after largely justifying its invasion of that country based their exis-
tence. All of this contributed to several legal and institutional reforms
to the US intelligence community aimed at preventing the stove-piping
of intelligence.
The USA Patriot Act of October 2001 had already made a significant
contribution to this by essentially eliminating the perceived ‘wall’ pre-
venting information-sharing between the FBI and CIA. Facilitating this
information-sharing link between foreign intelligence gathering (by the
CIA) and domestic law enforcement investigations (by the FBI) was
generally viewed as appropriate in the post-9/11. In contrast, other
provisions of the USA Patriot Act were eventually subjects of some
controversy, such as the legislation’s provisions on surveillance, infor-
mation requests and searches. As the memory of 9/11 faded in the
US, many aspects of the USA Patriot Act came under greater Congres-
sional and public scrutiny, but not its important provision allowing
information-sharing between the CIA and FBI.
Another major innovation in US efforts to mitigate stove-piping came
in form of major institutional change, starting with President Bush’s
announcement during his State of the Union Speech in January 2003
to create a ‘Terrorist Threat Integration Center’ (TTIC). Created via an
executive order signed by Bush in June 2003, the TTIC was intended
A Transatlantic Perspective 147

to bring together all US intelligence on terrorist threats to the US and


its citizens and use these to prepare situation reports and threat warn-
ings for senior US officials as well as for the US President’s daily ‘threat
matrix’. Soon after its creation, the work of the TTIC was folded into
a broader body intelligence agency recommended by the Commission
on Terrorist Attacks upon the US (which became known as the ‘9/11
Commission’). The broader institution would become known as the
National Counter Terrorism Center (NCTC), officially mandated by Pres-
ident Bush via executive order in August 2004. More detailed legislation
for the NCTC was later incorporated into the Intelligence Reform and
Terrorism Prevention Act (IRTPA) of 2004 (‘Intelligence Reform Act’),
which also placed it under the authority of the new Director of National
Intelligence (DNI), which will be discussed below.
The NCTC is supposed to be the primary organisation in the US gov-
ernment for the integration and analysis of all American intelligence
regarding terrorism and CT. It is staffed by personnel detailed from the
CIA, FBI and other agencies in the broad US intelligence community
(which includes the CIA, Office of the DNI and 15 other agencies in the
Departments of Defense, Energy and Homeland Security). The NCTC
was later joined by a smaller, parallel body called the National Counter
Proliferation Center, which was established by executive order in June
2005, following a recommendation of the Silberman–Robb Commission
on intelligence regarding WMDs.
In addition to the institutional changes designed to promote
information-sharing, all actors in the US intelligence community have
been implementing new information technologies aimed at enhancing
the collection, analysis and intra- and inter-agency sharing of CT intel-
ligence. For example, it was not until June 2007 that the FBI was able
to launch the first phase of next generation information-management
system, known as Sentinel. This came after the management and design
problems caused the FBI to scrap its planned virtual-case ‘Trilogy’ sys-
tem in 2005, after spending $170 million on it (Lichtblau, 2006). The
Sentinel program was fully operational by the summer of 2012, nearly
three years behind schedule and more than $100 million over budget
(Seper, 2010).
Other institutions of note regarding the prevention of stove-piping
are the Joint Terrorism Task Forces (JTTFs), which bring together state
and law local enforcement officers with federal officials, including those
from the departments of Justice and Homeland Security. The JTTFs are
attached to FBI field offices across the country and aim to build the kind
of personal familiarity and trust required to ensure that the most useful
148 Counter-terrorism and Intelligence in Europe

CT data are actually shared effectively and in a timely fashion. First cre-
ated in 1980 in New York City among metropolitan police officers and
FBI officials, there were eventually 35 JTTF’s in place before 9/11. After-
wards, another 65 JTTFs were added in cities across the US, including
one for each of the FBI’s 56 field offices. The work of these bodies is
coordinated by a national JTTF (NJTTF), which is based at FBI headquar-
ters in Washington, DC, and brings together officials from more than 30
federal agencies. By changing the way the CIA is permitted to share data
with other law enforcement authorities, USA Patriot Act has facilitated
the contribution of the CIA to the work of the JTTFs at both the national
and field office levels.
In addition to the JTTFs, most US states and a few large cities have
established so-called ‘fusion centres’, which bring together law enforce-
ment from various levels of government but are owned and operated by
state and local authorities. Here, the term ‘fusion’ refers to ‘the overarch-
ing process of managing the flow of information and intelligence across
all levels and sectors of government and private industry’ (DOJ and DHS,
2006). Most of the existing fusion centres were created in 2004–2005
and utilised funding from a variety of local, state and especially federal
sources.
In the absence of a single nation-wide plan for their development, the
initial fusion centres evolved differently, inhibiting information-sharing
among them. With this problem in mind, the DOJ spearheaded the
development of guidelines for the fusion centres, and, working with the
Department of Homeland Security (DHS), publishing these in 2005 and
later updated these within a year. According to these guidelines,

Data fusion involves the exchange of information from different


sources – including law enforcement, public safety, and the private
sector – and, with analysis, can result in meaningful and actionable
intelligence and information. The fusion process turns this informa-
tion and intelligence into actionable knowledge. Fusion also allows
for relentless reevaluation of existing data in context with new data
in order to provide constant updates.
(DOJ and DHS, 2006, p. 2)

By October 2008, there were 58 fusion centres in the US, and by Novem-
ber 2010, this number grew to 72, with analysts from DHS participating
in most of these.
Meanwhile, the FBI also participates in more half of the fusion cen-
tres through its 56 Field Intelligence Groups (FIGs), which serve as
A Transatlantic Perspective 149

the primary link between the FBI and the fusion centre network. The
FIGs are composed of intelligence analysts, special agents, language
analysts and surveillance specialists and are charged with taking raw
information from local cases or obtained from participation in fusion
centres, and making big-picture sense of it. FIGs also use local infor-
mation to fill in gaps in national cases with local information and
share their findings, assessments and reports with the entire intelligence
community.

Leadership
In addition to these institutional developments aimed at promoting
information-sharing, the IRTPA of 2004 prescribed the creation of the
DNI to oversee the work of the entire US intelligence community.
In principle, the Director of the CIA had played this role since this
position was created in 1946. However, the DCI never had much
real influence on the work of the intelligence community beyond the
CIA itself. The DCI was, in practice, ‘merely’ the head of the CIA and
principal intelligence advisor to the President.
The creation of the office of the DNI changed this situation in sev-
eral regards. First, the DNI has direct authority over the DCI and CIA as
well as the work of the new NCTC, giving him influence over its work
and information-sharing. Two additional sources of the DNI’s powers
stem from the Bush administration’s response in June 2005 to some of
the recommendations found in the report of the Silberman–Robb Com-
mission on WMDs (‘WMD Report’). By executive order, the DNI has
authority over not only the CIA and its budget, but also most of the FBI’s
$3 billion annual intelligence budget. Second, President Bush ordered
the creation of ‘national security service’ within in the FBI, to bring
together its divisions on CT, counter-intelligence and WMD prolifera-
tion. The head of this body, which eventually became known as the
National Security Branch (NSB), is chosen jointly by the FBI Director,
Attorney General and the DNI. Related to this, the DNI is permitted
to communicate with FBI field offices through the head of the NSB or
its staff.
For a variety of reasons, there has been little continuity in this new
position. In fact, as of March 2013, there had been four directors and
one acting director in the new role. John Negroponte, a career diplomat,
became the first DNI in 2005 and he was replaced in February 2007 by
Michael McConnell, a retired admiral. Under the new administration of
President Barack Obama, McConnell was replaced in January 2009 by
another retired admiral, Dennis Blair.
150 Counter-terrorism and Intelligence in Europe

Blair took over a position that had strengthened somewhat in the


summer of 2008 by an executive of President Bush, drafted under the
leadership of McConnell in consultation with other key players in
the intelligence community, such as the DCI and Defense Secretary.
The new legislation provided the DNI with enhanced power in several
areas, such as the right to veto the Defense Secretary’s choice to head var-
ious defence intelligence agencies and to suggest that they be replaced.
The DNI also won new authority to control the dissemination of intel-
ligence to foreign authorities by the CIA, as well as required defence
intelligence agencies to give access to and share all intelligence informa-
tion, including data that was previously restricted to special components
of the Pentagon (Pincus, 2008).
Despite these reforms, the DNI still lacks much authority over the
US military’s intelligence budget, which still accounts for more than
three quarters of all intelligence spending in the US. Moreover, many
have questioned whether the 2008 legislation strengthening the author-
ity of the DNI went far enough. Indeed, former director the CIA and
National Security Agency and Deputy DNI, Michael V. Heyden, has
argued that the DNI is now ‘cut loose from the resources of the CIA’
and ‘in many ways actually weaker’ than the position of the Director of
the CIA once was when he held this office and also led the entire intelli-
gence community. Heyden has also pointed out that even the potential
authority of the DNI during the Obama administration was diminished
because the White House favoured its CT advisor, John Brennan, over
DNI Blair (Hayden, 2010).
In fact, this seemed to contribute to the downfall and eventual fir-
ing of Blair in May 2010 in the aftermath of the perceived intelligence
failures that contributed to the nearly successful Christmas Day bomb-
ing of the airliner headed from Amsterdam to Detroit (Strohm, 2010;
Wall Street Journal, 2010). The next DNI was retired Lt. Gen. James
R. Clapper, who was nominated by President Obama on 5 June 2010
and confirmed by the US Senate on 5 August 2010. Clapper took office
in 2011 amid continued debate on whether and how to improve intelli-
gence community by enhancing the role of the DNI (Pincus, 2010).

Information-sharing strategy
Along with changes of legal frameworks, institutions and leadership,
there have been a number of key developments in the US specifically
aimed at improving informational-sharing. Soon after his State of the
Union address in which he announced plans for the TTIC, President
Bush made an important speech at FBI headquarters in Washington,
A Transatlantic Perspective 151

DC, on 14 February 2003, adding to the growing impetus to improve


information-sharing in the US. He declared

all across our country we’ll be able to tie our terrorist information
to local information banks so that the front line of defeating terror
becomes activated and real, and those are the local law enforcement
officials. We expect them to be a part of our effort; we must give them
the tools necessary so they can do their job.
(U.S. Department of Justice, 2005)

In response, the DOJ instituted a ‘global information sharing initiative’


and a related working group. The main result of these efforts was the
National Criminal Intelligence plan, published by the DOJ by the end
of that year and updated a few times by August 2005 (U.S. Department
of Justice, 2005). This consisted of 28 recommendations for implement-
ing intelligence-led policy at the level of local, state and federal law
enforcement, as well developing a model for intelligence-sharing among
these. The plan included recommendations regarding standards, train-
ing, technical infrastructure, civil liberties (privacy) and the building of
trust among agencies.
Beyond the creation of the NCTC and the DNI, the Intelligence
Reform Act 2004 also contributed to information-sharing by mandat-
ing the creation of an ‘Information Sharing Environment’ (ISE), as well
as a Program Manager and inter-agency Information Sharing Council to
implement this. Rather than aiming to create a single, US-government-
wide computer system containing all terrorism information, the goal of
the ISE has been to standardise policies and procedures for sharing intel-
ligence, while utilising existing systems of informational technology.
These policies and procedures were identified in the ISE Implementation
Plan, published in November 2006 by the ISE Program manager, and
have been gradually implemented since then (Program Manager, 2006).
According to this plan, the standardised policies and procedures of
the ISE are intended to create coordinated and trusted inter-agency
partnerships, replacing the existing, multiple information-sharing envi-
ronments that were designed to serve five separate communities: intel-
ligence, law enforcement, defence and homeland security and foreign
affairs. For example, the ISE Implementation Plan addresses how to
share information that might be ‘sensitive, but unclassified’. The Imple-
mentation Plan also identifies several new management objectives and
training programmes for putting the new policies and procedures into
practice and helping to foster the intended trusted partnerships among
152 Counter-terrorism and Intelligence in Europe

all levels of government, the private sector and foreign partners –


all aimed at improve information-sharing to fight serious cross-border
crime, especially terrorism.
Today, the main objectives and approaches for improving information-
sharing among the 16 agencies of the US intelligence community are
found the in the Information Sharing Strategy, published in February 2008
by the Office of the DNI under McConnell. According to this strat-
egy, the creation of the ISE and new institutions, such as the NCTC,
are merely the ‘tip of the iceberg’. The acceleration of information-
sharing relies instead on a change of mindset within the intelligence
community. Indeed, in his foreword to the Strategy, McConnell argued
‘together, we must challenge the status quo of a “need-to-know” culture
and move to one of a “responsibility to provide” mindset’. Similarly, his
Associate Director, Dale Meyerrose, noted that ‘the information sharing
strategy is focused on developing a “responsibility to provide” culture
in which we unlock intelligence data from a fragmented information
technology infrastructure spanning multiple intelligence agencies and
make it readily discoverable and accessible from the earliest point at
which an analyst can add value’ (Office of the Director of National
Intelligence, 2008).
The new strategy entails three main parts. The first, entitled ‘Chal-
lenging New Environment’, outlines the general mandate for improving
information-sharing. This includes a brief discussion of the enduring
terrorist threat at hand, as well as the legal and executive impera-
tives for action, such the IRTPA, 9/11 Commission Report, several key
executive orders (e.g. EO 133356 on information-sharing) and WMD
Report.
The second section of the strategy document contains the strat-
egy itself and describes the new vision for information-sharing in the
US intelligence community, pointing the way forward for change by
outlining several strategic goals and objectives. This new vision is ‘an
integrated intelligence enterprise that anticipates mission needs for
information by making the complete spectrum of intelligence infor-
mation seamlessly available to support all stages of the intelligence
process’. To this end, the strategy identifies five fundamental prin-
ciples, called ‘keystones’, upon which the entire strategy is based.
These are

1. ‘Intelligence Information Retrieval and Dissemination Moves Toward


Maximizing Availability’.
This keystone cites the legal imperative given to the DNI by
the IRTPA ‘to ensure the maximum availability of and access to
A Transatlantic Perspective 153

intelligence information within the intelligence Community consis-


tent with national security requirements’.
2. ‘All Intelligence is Discoverable, and All Intelligence is Accessible by
Mission’.
This keystone emphasises that intelligence information must not be
restricted to its original stovepipes. All analysts and collectors should
be aware of the existence of intelligence information regardless of its
classification or compartment.
3. ‘Sharing Requires Greater Trust and Understanding of Mission
Imperatives’.
This keystone spells out key issues to be addressed to implement a
trust-based model for the free flow of information among partici-
pants in the intelligence community.
4. ‘Developing a Culture that Rewards Information Sharing is Central
to Changing Behaviors’.
This keystone argues that ‘changing the culture to one that naturally
encourages the responsible sharing of information is fundamental
to success’. This requires not only training, but linking professional
rewards and advancement to the implementation of the responsibility
to provide (emphasis added).
5. ‘Creating a Single Information Sharing Environment (SIE) will Enable
Improved Information Sharing’.
This highlights the main ways that the SIE can facilitate improved
information-sharing.

These five keystones provide the rational for moving to a new model of
information-sharing that differs in six important ways from the ‘legacy
model’ that it replaced. Over time, as the new information-sharing
model replaces the legacy model, it is intended to foster greater collabo-
ration among intelligence community stakeholders and partners (Office
of the Director of National Intelligence, 2008, p. 9).
Finally, the third section of the strategy on ‘Implementing Our Strat-
egy’ focuses mainly on the challenges that must be overcome to improve
information-sharing. These are grouped into five main areas, known as
‘building blocks’, that entail key challenges that must be met for the
actual sharing of information to be improved.
The building block of ‘governance’ refers to the environment of
oversight and leadership for information-sharing among different agen-
cies. ‘Policy’ refers the specific rules for sharing and encompasses
national and internal policies, as well as rules of engagement, standards,
including those related to the protection of data vis-à-vis national
154 Counter-terrorism and Intelligence in Europe

security and privacy. The building block of ‘technology’ is described as


the capability that enables sharing and includes the systems and stan-
dards for organising, identifying and searching. ‘Culture’ is described as
‘the will to share’ and entails the organisational approach and philoso-
phy concerning information-sharing. Lastly, the building block of ‘eco-
nomics’ refers to the value of information-sharing and encompasses the
ability to obtain and provide resources or information-sharing initiatives
and the budgetary pressures that can influence how these recourses are
allocated and managed (Office of the Director of National Intelligence
2008, p. 15). Addressing the issues related to these building blocks forms
the ongoing intelligence reform agenda for the Obama administration.
Moreover, the conceptual framework created by these challenges fac-
ing the US regarding information-sharing can be applied efforts within
the EU to implement its availability principle regarding crime fighting
and CT. In addition, by examination American lessons to use new insti-
tutions, sources of leadership and strategies to promote information-
sharing can provide lessons for the EU. Of course, this includes not only
what seems to have been done properly in the US, but also what has
failed and why.

The European Union

As in the US, efforts to improve information-sharing among the EU


Member States to fight cross-border organised crime and terrorism
initially entailed extensive institutional change and later focused on
policies and practices aimed at promoting the actual behaviour of
information-sharing. In the EU, the goal of preventing the stove-piping
of information pertains mainly to the problem of intelligence collected
by one country not being shared with others. However, the challenge
of information-sharing increasingly pertains to the connections among
relatively new agencies, offices and databases at the EU level related
to its AFSJ.
Admittedly, comparing information-sharing in the EU and US is
fraught with challenges. The sharing of information in the EU is
conducted in an international environment that is shaped by European
law and pre-existing bilateral relations, as well as impacted by impor-
tant cultural, political and legal differences among EU Member States.
In contrast, information-sharing in the US takes place in a domestic con-
text, but one with a multitude of long-standing and new inter-agency
relationships and rivalries, including those that stretch horizontally at
the federal level, but also vertically among the federal, state and local
levels.
A Transatlantic Perspective 155

Nevertheless, parallel challenges exist for both the EU and the US and
comparing these is indeed worthwhile. Beyond the common issue of
stove-piping, there is the task of using of new information technol-
ogy to ensure that data is collected, shared and analysed effectively.
For the EU, there is the added challenge of dealing with the linguis-
tic translation of intelligence or analyses into a working language of
a country’s security apparatus (e.g. their own language or another,
such as English), and doing so in a timely fashion. Second, and more
importantly, there is the issue of international trust (Walsh, 2006). Just
as in the US, where inter-agency rivalries need to be overcome and
federal agencies must find trusted partners for information exchange
with state and local law enforcement, police and security officials in
EU Member States must become comfortable with exchanging sensi-
tive intelligence multilaterally and almost automatically – and not just
bilaterally on a selective basis (or not at all) – if stove-piping is to be
avoided.

Availability by stealth?
In the recent past, some EU Member States, especially the United King-
dom (UK), have resisted calls by others, such as Belgium and Austria,
to improve information-sharing by creating an actual EU intelligence
agency. Instead, efforts have largely focused on the construction of a
new institutional infrastructure of crime fighting and CT at the EU
level, which is intended to facilitate collaboration, coordination and
the exchange of information among the Member States’ respective law
enforcement and internal security authorities. Since 2010, however, spe-
cific references to the availability principle have not been prominent as
one would expect given its importance to the AFSJ.
For example, these mechanisms and structures were among the many
initiatives included by the Commission in its 2010 public communica-
tion that outlined all of the EU’s tools used to promote information-
sharing, including nearly 20 programmes, agencies and agreements
governing the exchange of personal, business and telecom data of
EU citizens (European Commission, 2010a; Mahony, 2010; Vandystadt,
2010a). Astonishingly, in this communication, the availability principle
is mentioned only once in passing as the basis for a Commission pro-
posal in 2005 that was eventually withdrawn (see below). After detailing
all these instruments, the Commission report provides an ‘analysis’ that
describes the general nature of information-sharing in the EU in eight
points. Specifically, EU information-sharing is noted by its (1) decen-
tralised structure; (2) the limited purpose of each instrument involved;
(3) the overlapping function of several instruments regarding the data
156 Counter-terrorism and Intelligence in Europe

collected; (4) the controlled access rights to the data; (5) the vary-
ing rules on data retention among the instruments; (6) the effective
use of identity management, especially biometrics; (7) the increasing
preference of national authorities to use EU-provided means of shar-
ing sensitive data; and (8) the divergent review mechanism among the
databases (pp. 21–24). The availability principle is not discussed.
More surprisingly, the availability principle is still absent from the
next part of the report, where the Commission ‘proposes to develop
and implement new initiatives and evaluate current instruments on the
basis of two sets of principles’ (pp. 24–27). The ‘substantive principles’
entail (1) safeguarding fundamental rights, including privacy and data
protection; (2) the necessity of collecting and sharing data; (3) ensuring
that EU activities do not violate the subsidiarity principle, as expressed,
in particular, in the protocol related to the Lisbon Treaty; and (4) the
basing the sharing of risk assessments on accurate evidence and not
merely hypothetical threats. Meanwhile, the set of ‘process-oriented
principles’ include (1) cost-effectiveness; (2) bottom-up design; (3) the
clear allocation of responsibilities; and (4) the inclusion of review and
sunset clauses. Once again, there is mention of neither the availability
principle, nor its goals. This is also the case for the report’s very brief
conclusion. What is interesting is that most of the information-sharing
instruments described in the report do, indeed, promote the availability
principle, including several specific mechanisms to be discussed below
in this paper.
Likewise, the handling of information-sharing in the EU’s Internal
Security Strategy (ISS), published in 2010, is also noteworthy (European
Commission, 2010b). Despite the growing list of EU instruments
devoted to information-sharing in the fight against cross-border crime
and terrorism, the promotion of information-sharing is not mentioned
in the strategy as a major challenge, strategic objective or planned
action – and the availability principle per se is not mentioned at all.
However, a few aspects of the strategy do relate to information, and
these will also be discussed below.
In addition, the neglect of the availability principle in the Commis-
sion communication and ISS of 2010 is also interesting because it is
featured fairly prominently in the Stockholm Programme, which pro-
vides the EU’s policy agenda for its AFSJ for 2010–2014. This agenda
built on the work of the ‘Future Group’, which consisted of the EU’s
JHA Commissioner, and the JHA ministers from the current and next
EU Trio presidencies at the time (Germany, Portugal, Slovenia, France,
Czech Republic and Sweden), plus a member of the Council Secretariat
A Transatlantic Perspective 157

and the chair of the EP’s JHA Committee (i.e. LIBE) as observers
(Kaunert, 2010, pp. 220–225). The Future Group produced a set of rec-
ommendations in June 2008 that included several references to the
importance of the availability principle, as well as an entire section of
the report devoted to ‘the Principle of Availability and a European Union
Law Enforcement Information Management Strategy (EU IMS)’ (Future
Group, 2008; Wolff, 2009).
Several of the Future Group’s prescriptions can be found in the
Stockholm’s Programme’s fourth main section, entitled ‘A Europe that
Protects’, which includes a sub-section on ‘Upgrading the tools for the
job’. This part of the Stockholm Programme contains a sub-section on
‘Managing the flow of information’ that begins:

The European Council notes with satisfaction that developments


over the past years in the Union have led to a wide choice and created
an extensive toolbox for collecting, processing and sharing informa-
tion between national authorities and other European players in the
area of freedom, security and justice. The principle of availability will
continue to give important impetus to this work.
(European Council, 2010, Section 4.2.2, emphasis added)

In this context, the Stockholm Programme invites the Council and the
Commission to ‘assess the need for developing a European Informa-
tion Exchange Model’ and ‘to implement the Information Management
Strategy for EU internal security’. As noted at the start of this chapter,
work on the latter is well under way having resulted in conclusion
that were approved by the JHA Council at the end of November 2009
(Council of the European Union, 2009a). The availability principle is
mentioned at several points in these conclusions, indicating its con-
tinued significance for the future of information-sharing in the EU.
Moreover, as with the Stockholm Programme itself, the conclusions are
careful to balance and juxtapose the expressed need for the sharing of
data to fight crime and terrorism with need for safeguards to protect per-
sonal data and privacy. Nevertheless, the preamble of the conclusions
for an EU information-sharing strategy also notes that ‘the principle of
availability also requires citizens’ expectations of privacy to be balanced
against their expectations of security’ (p. 5).
This clear support of the availability principle in these conclu-
sions and the Stockholm Programme makes its omission noteworthy
regarding the Commission’s communication on information-sharing
158 Counter-terrorism and Intelligence in Europe

instruments, the ISS and the Counter Terrorism Coordinator’s discus-


sion papers and statements (see below). By contrast, the protection of
data and privacy is mentioned at every turn in such reports. What the
availability principle shares with the principles of data protection and
personal privacy is that all of these are, in fact, being built into the EU’s
future information-sharing strategy. Consequently, the characterisation
of EU information-sharing as ‘availability by stealth’ seems warranted.
However, will this way of implementing the availability principle
bring about its intended effect? To address this issue, this chapter now
turns to an examination of how the availability principle, is being
applied in initiatives involving institutions and leadership, as well as
in particular information-sharing instruments. The chapter will then
consider what can be learned by applying the evaluative framework
developed for the American information-sharing strategy, discussed
above, to the challenges faced by the EU.

Institutional change
The evolution of the EU’s institutional structures of crime fighting and
CT can be traced back to the 1970s and the formation of the Trevi
Group in 1975 by the nine Member States of the European Community
(EC). Existing outside of formal treaty structures of the EC, the Trevi
group was essentially a collection of largely ad hoc working groups and
forums held among Member States’ law enforcement, security and inte-
rior ministry officials, including an annual summit of interior ministers.
In November 1993, institutional cooperation became more permanent
and regularised with entry into force of the Maastricht Treaty and the
resulting creation of the new ‘European Union’ and its so-called ‘third
pillar’ devoted to ‘Justice and Home Affairs’. By the 1999, with the
Amsterdam Treaty and the Tampere Programme, the EU was on its way
to establishing a number of new institutions and policies that would
promote information-sharing as part of its newly defined AFSJ.
Before examining key developments in this regard, one noteworthy
example of European-level information-sharing outside of the EU treaties
should be mentioned, namely the Counter-Terrorism Group (CTG) (see
also Svendsen’s chapter in this volume). This was created after Septem-
ber 2001 by the parties to the ‘Berne Club’, which was originally formed
in 1971 as a forum for national intelligence officials. Today, the CTG
organises gatherings of the heads of security and intelligence services
from the 20 EU Member States plus Norway and Switzerland to foster
cooperation on broad range of security issues (Walsh, 2006). In par-
ticular, the CTG provides an opportunity for national experts to share
A Transatlantic Perspective 159

data and analyses of Islamic extremist terrorism and develop and share
periodic threat assessments (Den Boer et al., 2008, p. 116).

Europol
Among other things, the Maastricht Treaty prescribed the establish-
ment the European Police Office (Europol), which was created via the
intergovernmental negotiations of a convention and several related pro-
tocols, each requiring ratification in the EU Member States. After much
delay, Europol became fully operational in 1999 and remains a cen-
tral component in the EU’s role as a facilitator of information-sharing
related among its Member States. In 2008, the JHA Council decided
to transform Europol into a formal EU agency, which, since 2010, has
allowed it to be funded out of the Community budget and has eased
the legislative process of altering its mandate and powers (Busuioc et al.,
2011; see also Hillebrand’s chapter in this volume).
At its heart, Europol is an international liaison network of criminal
investigators supported by a criminal intelligence database and a per-
manent staff of analysts and national experts drawn from Member State
authorities, such as police and customs. At various times, the overall
effectiveness of Europol has been questioned, but there is no doubt
that it is being increasingly used, given its steadily increasing caseload
(European Police Office, 2010). Moreover, the 9/11 attacks led to the
creation of a CT task force in Europol. However, Europol has not been
fully utilised in this area, leading to its leaders occasionally to plead for
what Europol could become, rather than to trumpet what it has already
achieved (see Bures’s chapter in this volume).
For example, in the wake of the terrorist attacks of 11 September 2001,
the Director of Europol at that time, Jürgen Storbeck, lamented the fact
that his organisation could be more effective in the fight against terror-
ism if only Member States would share more intelligence. Soon after the
terrorist attacks in London in 2005, the subsequent leader of Europol,
Max-Peter Ratzel, noted that ‘we need to combine better our work with
other European agencies, such as Eurojust or Joint Situation Centre
(SitCen). The flow of information between us must be more structured
and more dedicated’ (Laitner, 2005). Most recently, Europol’s current
director, Robert Wainwright, argued in 2009 that the European Police
Office should act as ‘a strong centre of operational support in the EU
for combating terrorism and international crime’ by becoming the ‘EU’s
key information centre in these areas’ (Vandystadt, 2009a).
In his work on EU CT policy, Oldrich Bures (2011) is pessimistic
about whether this can be achieved and has explained this in terms
160 Counter-terrorism and Intelligence in Europe

of Europol’s ‘chicken-egg dilemma’ (see his chapter in this volume).


On the one hand, Member States lack sufficient trust to share their best
intelligence with Europol and question the added value that it can con-
tribute in this area. On the other hand, Europol’s inability to provide this
added value stems from its lack of authority and Member States’ distrust.
Meanwhile, Björn Fägersten has blamed Europol’s shortcomings regard-
ing CT information-sharing on ‘bureaucratic resistance’. This includes
‘bureaucratic interests’ that inhibit the transfer intelligence networks
formed at the national levels to the Europol, as well as ‘bureaucratic
culture’, which entails differences among police and security agencies
or among those involved in internal versus external intelligence gather-
ing and the ‘national-minded’ approach of these actors (Fägersten, 2010,
pp. 515–517). In sum, Europol has much to accomplish on information-
sharing for CT. Yet, its own particular role as a conduit for data-sharing
among national police authorities is now well developed, and this will
be discussed below.

EU INTCEN (SitCen)
Another key institutional development regarding information-sharing
was the development of SitCen, which was created in 1999 within the
Council Secretariat under the authority of the Secretary-General of the
Council and High Representative for the Common Foreign and Security
Policy (CFSP). SitCen brought together analysts and foreign intelligence
officers from the Member States to support the EU’s crisis manage-
ment activities by providing around-the-clock monitoring and analysis
of regions and situations of interest. Under the Lisbon Treaty SitCen was
folded into the new European External Action Service, led by the High
Representative for Foreign Affairs. In 2012, it was reformed and renamed
the European Union Intelligence Analysis Centre (EU INTCEN).
In its early years, SitCen functioned mainly to support the EU’s
European Security and Defence policy, relied solely on open-source
intelligence and focused entirely on developments outside of the
Europe. Its role in CT began to evolve after the terrorist attacks of
11 September 2001, which led to the founding of its CT group and the
international exchange of sensitive information. However, the scope of
this information-sharing was limited because only seven EU Member
States had formal external intelligence agencies. Finally, in 2004, the
terrorist bombing in Madrid led to more profound changes, notably
the inclusion of officials from Member States’ domestic intelligence ser-
vices at SitCen, allowing attention to both internal and external threats
and information-sharing among analysts working on both (Argomaniz,
A Transatlantic Perspective 161

2011, pp. 24–26). Nevertheless, data sharing within SitCen/EU INTCEN


has dealt with strategic planning, rather than specific operations on CT –
which remained firmly in the hands of the Member States.

Issues for the future


In March 2011, the European Commission revisited the issue of insti-
tutional change by suggesting the EU create should create a new type
of security body that would pull together the CT activities of a num-
ber of EU entities already working on the issue, including Europol,
Eurojust (liaison network for public prosecutors), CEPOL (virtual police
academy for high-ranking police officers), Frontex (border management
agency) and COSI (standing committee for coordination internal secu-
rity operations). According to a Commission official, Olivier Luyckx,
while speaking at a hearing of the EP, the new body could be estab-
lished within the recently created European External Action Service
under a mandate provided by the 2010 ISS (Rettman, 2011). Among
other things, the new strategy prescribes that the EU should ‘link up
the different situation awareness centres’ in the Member States that are
working on CT (Objective 5, action 3). The strategy argues,

Information on a situation inside or outside of the EU must draw


from all relevant sources, analysed, assessed and shared with Member
States and the operational and policy branches in EU institutions.
With fully networked secure facilities, the right equipment and prop-
erly trained staff, the EU can develop an integrated approach based on
a common and shared appreciation in a crisis situation (emphasis in
the original). [. . .] These arrangements will help improve links with
EU agencies and the European External Action Service, including the
Situation Centre, and enable better information sharing and, where
required, joint EU threat and risk assessment reports.
(European Commission, 2010b)

According to Luyckx, this new security body could be headed by the


EU’s CTC (see below) and would provide ‘a one-stop shop for informa-
tion sharing’. Although the type of new body being discussed would not
entail any operational capacity, Luyckx argued that ‘today, crisis centres
in member states share contacts and information on a voluntary and
informal basis. We need to go a step further and to see, while respect-
ing the division of labour set up in the EU treaty, how to make those
linkages in a tighter way’ (Rettman, 2011). While it remains to be seen
162 Counter-terrorism and Intelligence in Europe

whether the impetus to create a new EU intelligence agency can over-


come enduring scepticism among many Member States to do so, the
public airing of the proposal for a new body demonstrates that institu-
tional change remains an important aspect of intelligence reform in the
EU aimed at improving information-sharing.

Leadership
In addition to bringing about changes in SitCen, the terrorist attacks
on Madrid on 11 March 2004 also prompted another significant insti-
tutional change regarding information-sharing in the EU, namely the
creation of the position of CTC. This post was originally created under
the authority of the Secretary General of the Council and High Repre-
sentative for Common Foreign and Security Policy and was originally
held by Gijs de Vries of the Netherlands. Compared to the executive
powers of the DNI, the EU’s ‘Mr Terror’, as he became known, has been
more of a ‘cheerleader’ than a powerful administrator.
More specifically, the CTC has been charged with encouraging Mem-
ber States to share more and better intelligence with each other in
the fight against terrorism, including sharing done through EU-level
institutions (Bures, 2011). This new office was also charged with mon-
itoring Member States’ compliance with CT legislation approved at
the EU level. This entailed monitoring whether EU legislative mea-
sures have been transposed into national law properly and on time
and then making periodic reports to the Council (Argomaniz, 2011,
p. 25). To date, the impact of the CTC on this has been limited,
as his influence has been largely restricted to ‘naming and shaming’
(Bures, 2011, p. 139). However, in recent years, the CTC has become
increasingly active in providing evaluations to Member States on the
terrorist threats at hand, as well as advocating for various kinds of policy
change.
In March 2007, de Vries resigned, citing personal reasons, though
it was widely believed to be related to his dissatisfaction with limited
authority of his position (European Report, 2007a). In fact, the naming
of his successor was delayed several months as the EU Member States
reconsidered the nature of the CTC position and who should fill the
post. It was not until September 2007 that Member States’ interior min-
isters agreed that ‘the coordinator should have a largely technical profile
and role and be particularly concerned with coordination, and bundling
of and pooling resources between member states and other authori-
ties’ (Agence France Presse, 2007). In the end, Member States wanted the
CTC to have a lower profile and play a behind-the-scenes role largely in
A Transatlantic Perspective 163

Brussels via the EU-level institutions, rather than in the Member States
(Bures, 2011, pp. 141–144).
To this end, the Member States agreed on Gilles de Kerchove to
fill the new post. He was previously director for police and customs
cooperation in the Council Secretariat’s Directorate General. In his first
exchange of views with the EP, de Kerchove noted his lack of power
on CT, including his limited budget. He was also not consulted by the
Commission before it presented a package of CT proposal in Novem-
ber 2007 (European Report, 2007b). Despite his limited authority, de
Kerchove has consistently used his leadership position to press for a
variety of enhancements to the EU’s CT strategy, including improve-
ments related to information-sharing. For example, in his first report to
Council pointed out several ongoing problems regarding the implemen-
tation of EU-level CT legislation, as well as deficiencies in the sharing of
information among CT bodies within Member States, which, in turn,
inhibits cooperation at the EU level (European Report, 2007c,d). Later,
while presenting a report to the JHA Council in November 2009, the
CTC included ‘information management’ among the key challenges for
the EU to deal with the enduring threat of terrorism – albeit a challenge
that also includes the task of ensuring proper data protection. Along
with his other suggestions in this regard, de Kerchove noted:

In most lessons learned exercises (sic) after major terrorist incidents


there are indications that an attack could have been stopped had all
the relevant information been available to the right people at the
right time. We need to improve the way in which Member States
are feeding information to Europol and Eurojust. All Member States
should also have a national fusion centre and we should set up a
network connecting them.
(Counter-Terrorism Coordinator, 2009)

In his more recent biannual ‘discussion papers’ and reports to the Mem-
ber States, de Kerchove has not suggested the need for greater powers for
his position, though he has continued to emphasise particular kinds of
threats, especially those related to the radicalisation of individuals and
groups within Europe, cyber-security, transport and explosives. Con-
cerning information-sharing, the CTC has also promoted a number of
international exchanges with non EU states, especially the US, as well as
new, internal EU initiatives, such as new programmes of information-
sharing on passenger name record (PNR) data and terrorist finance
tracking. De Kerchove has also advocated the revision of the legal basis
164 Counter-terrorism and Intelligence in Europe

for Frontex, the EU’s external border management agency, to allow it to


process personal data for fighting cross-border crime (Counter-Terrorism
Coordinator, 2011). Interestingly, de Kerchove has not mentioned the
availability principle in his major written reports and discussion papers
since 2009.

Information-sharing instruments
Along with changes involving institutions and leadership, a variety of
EU-level databases have been established or have been planned to help
collect and share information among national authorities to fight cross-
border crime and terrorism. Two of these will be discussed below in some
detail, namely the Schengen Information System (SIS) and the Europol’s
data systems. There are a variety of other systems that are either rela-
tively new or planned for implementation in the near term, namely the
Customs Information System (CIS) for smuggling data, Eurodac – the
database for asylum applicants – (see below) and the Visa Information
System (VIS) for visa applicants (see also Balzacq and Léonard’s chapter
in this volume). The two latter mechanisms contain biometric identifiers
to prevent multiple applications and the use of fraudulent documents.
In addition to these mechanisms, the EU is also planning to create
a biometric border entry and exit system that could also be involved
in information-sharing to fight cross-border crime and terrorism. First
conceived in 2008 and now planned for 2014 or 2015, the system will
operate on the same technical platform as the VIS and SIS II (see below)
and will be paired with a trusted traveller programme for non-EU citi-
zens who cross frequently in and out of the Schengen zone (Malhère,
2009; Vandystadt and Malhère, 2010; Smets, 2011). Along with its
databases, EU legislative measures have also been established to facilitate
the exchange of data among national authorities, such as is now done
via the so-called ‘Swedish framework decision’ and the Prüm decisions,
which will also be examined below. Regarding all of its databases and
information-sharing mechanisms, the EU faces the dual challenge of
ensuring the inter-linking of information systems while protecting both
integrity of ongoing criminal investigations and privacy of the persons
whose data is being stored and shared (see also Balzacq and Léonard’s
chapter in this volume).

Schengen Information System


The oldest EU-related database related to crime control is the one asso-
ciated with the Schengen zone. The EU’s passport-free travel area was
gradually implemented among most EU Member States beginning in
A Transatlantic Perspective 165

1995 and was eventually incorporated into the body of EU law. However,
the history of the Schengen zone extends back to the mid-1980s, when
plans were already under way to perfect the EC’s burgeoning common
market. At the time, this was expected to exacerbate customs and immi-
gration delays at many border crossings, which was already a growing
problem.
Consequently, many Member States began considering an alternative,
based on the removal of internal controls and the development of com-
mon standards for the management of a shared external border. Built
on the 1984 Saarbrücken Agreement between France and Germany, the
Schengen Agreement was signed near Schengen, Luxembourg among
five EC states in 1985 and followed in 1990 by a more detailed con-
vention in 1990. The Schengen rules (acquis) were finally brought into
the EU’s acquis communautaire with the Amsterdam Treaty in 1999. Since
then, the Schengen zone has grown to include 22 EU states (not the UK,
Ireland, Cyprus, Bulgaria and Romania) and four non-EU states (Norway,
Iceland, Switzerland and Liechtenstein).
Along with facilitating passport-free travel, the Schengen acquis
also provides a legal basis for international police cooperation and
information-sharing. For example, police may continue surveillance of
a suspect if he/she moves to another Schengen state. Hot pursuit of
suspects across international borders is also permitted, but not arrests.
In both cases, national authorities must be contacted as soon as possible.
In addition, the Schengen acquis also encompasses the SIS, which is a
data bank that can be accessed by multiple law enforcement officials in
the Schengen countries. Although the UK and Ireland have chosen not
to participate in the passport-free zone, they have agreed to participate
in some of the crime-fighting provisions of the Schengen acquis, such
as the SIS. At the same time, in 2012, Bulgaria and Romania were still
trying to qualify for the passport-free zone, though they have belonged
to the SIS since November 2010.
The SIS contains ‘alerts’ of names and information about missing
persons and wanted criminals/suspects, as well as a registry of lost or
stolen weapons, automobiles, currency and identity documents. Each
Schengen Member State decides which data are to be uploaded and
updated, as well as how and when this is done. Police and border offi-
cials can search the database and get either ‘hit’ (match) or ‘no hit’ in
response. For example, hits on searches in the SIS can allow police to
match a name with a stolen weapon or vehicle. This information can
then be supplemented by data that can be provided by a network of
human law enforcement contacts among participating states, known
166 Counter-terrorism and Intelligence in Europe

as SIRENE (Supplementary Information Request at the National Entry).


The successor to the SIS, known as SIS II, has experienced many delays,
but is now scheduled to be in operation in 2013. SIS II is designed to
serve a wider group of participating countries (30 or more instead of 15)
and entails several key technological enhancements, such as the storage
and search function for biometric identifiers, including fingerprints and
photos. These features raise privacy concerns for some, especially when
the new system might store data that was not collected as part of a crim-
inal investigation. This is especially an issue given the multiple points
of access to Schengen data, as well as the possible interface of SIS II with
other EU-level databases, such the VIS and Eurodac.
The VIS is the EU’s planned information system designed to prevent
‘visa-shopping’ for visa applicants at consulates of EU members. The
VIS will also allow border officials to prevent the use of fraudulent
travel documents by allowing them to use biometrics to match visas
to the travellers holding them. After much delay, the VIS became oper-
ational in 2011. Regarding information-sharing, the legal basis for the
VIS allows access by police and law enforcement authorities to consult
the data for preventing, detecting and investigating terrorist offences
and other serious crimes, subject to conditions intended to uphold EU
standards for data protection.
Over the last few years, it has also been discussed whether law enforce-
ment officials should have similar access to the data stored by Eurodac,
the EU’s system using biometric data of asylum applicants to prevent
asylum shopping that has been operation since 2003. While allowing
such access would be consistent with the availability principle and has
been promoted by the EU’s CTC, Gilles de Kerchove, from the secu-
rity point of view, the proposed change to the Eurodac legislation has
raised many questions regarding both its legality and potential impact
on human rights (Vandystadt, 2009b). In addition, the Commission sug-
gested in 2009 that a new EU agency should be created to manage and
link the data contained in Eurodac, the VIS and the SIS II. This would
also promote the availability principle, but raises questions related to
civil liberties and human rights as well (Vandystadt, 2010b). At the time
of writing, the agency, which has its seat in Tallinn, was about to become
operational. The connection among these databases also relates to the
key issue of the interoperability of IT systems, which is highlighted in
the Stockholm Programme (Section 4.2.2) and is a key ‘focus area’ in the
Conclusions on Information Management Strategy, approved in 2009
(Council of the European Union, 2009a, p. 7). As with the availabil-
ity principle itself, the importance of promoting this via interoperable
A Transatlantic Perspective 167

IT systems is not mentioned in the Commission communication on


information-sharing instruments or the EU’s ISS.

Europol
Europol’s core function is to facilitate information-sharing, and it
accomplishes this through a variety of means. One way is through
Member States’ Europol Liaison Officers (ELOs), which are based at
Europol in The Hague and utilise defined points of contact at the
‘National Units’ within each EU country. Europol also has liaison and
information-sharing agreements with non-EU entities, such as the US,
Iceland, Norway and Interpol.
In addition, through its staff of analysts and experts, Europol can pro-
duce analyses and threat assessments on organised crime and terrorism,
which are then provided to investigators in the Member States. Europol
can and sometimes does play a role in coordinating multinational joint
investigations, increasingly through ‘joint investigation teams’ (JITs),
but its staff members have no powers to conduct criminal investigations
in Member States without their consent. Nor can Europol officers make
arrests.
Europol also utilises its ‘Information System’ (IS), which has been
operational since 2005 and contains a registry of convictions and crim-
inal suspects regarding serious crimes. These data must be inputted by
the Member States, but analyses based on these data can be prepared by
Europol’s staff (see below). Along with this, Europol produces and main-
tains a database of Analysis Work Files, which are prepared groups of
national ELOs and Europol staff (Deflem, 2006). Access to these files is
limited to the participants of the group that has produced them, and the
wider dissemination of these data is ultimately controlled by the Mem-
ber States that contributed the data in question. There is also an index
system for the Analysis Work Files, which can be consulted or searched
by all ELOs. However, as noted, the dissemination or operational use
of the Analysis Work Files themselves can be limited by the Member
States that originally provided the data. This is done to protect sources,
investigative methods and ongoing investigations.
To date, the main challenge faced by Europol is the willingness of
Member States to share more high-quality criminal data with staff
members and the EIS. As already discussed, this is especially the case
regarding CT, which remains an area in which Europol performs in a
fairly limited capacity. Since 2007, however, Europol has played a some-
what more prominent role on terrorism by producing an annual ‘EU
Terrorism Situation and Trend Report’. Nevertheless, this is merely a
168 Counter-terrorism and Intelligence in Europe

general and strategic contribution to CT in the EU. Moreover, Europol is


still trying to prove its value as a potential contributor to the operational
success of multinational investigations of other forms of cross-border
crime, though notable successes have come in the fight against coun-
terfeiting of the euro and child pornography. Moreover, Europol has
demonstrated that many forms of international information-sharing,
cooperation and coordination can be promoted by bringing national
liaison officers into the same physical space, which can foster mutual
trust and effective relationships.

The availability principle and the Swedish framework decision


As Europol was making its final preparation to put its IS into full oper-
ation, the terrorist attacks on Madrid of 11 March 2004, prompted
the Member States of the EU to intensify their efforts to promote
information-sharing among their respective police and security author-
ities (Argomaniz, 2011, pp. 24–26 and 82). In response to the Madrid
attacks, the European Council approved a ‘Declaration on Combating
Terrorism’ on 25 March 2004, which included a number of prescrip-
tions regarding improved information-sharing to fight terrorism. For
example, the European Council instructed the Council to create a
database on forensic material and simplify the exchange of information
and intelligence between law enforcement authorities of the Member
States, as well as examine how to provide information exchanges on
convictions for terrorist offenses. In addition, ‘the European Coun-
cil called on Member States to ensure that law enforcement agencies
(security services, police, customs, etc.) cooperate with each other and
exchange all information relevant to combating terrorism as extensively
as possible’.
At the same time, the Commission was invited to bring forward pro-
posals on exchange of personal information (DNA, fingerprints and visa
data) for the purpose of combating terrorism, as well as legislation to
enable national law enforcement agencies to have access to the EU sys-
tems. In June 2004, the Commission responded to the call for action
by the European Council by publishing a Communication on enhanc-
ing information-sharing. Almost simultaneously, Sweden made a formal
legislative proposal to the Council on the same subject.
During this same time, the Commission was also finalising its plans
for the EU’s second multi-year agenda for its AFSJ, which would be
approved in November 2004 and cover 2005–2010. The Hague Pro-
gramme, as it would be known, is particularly noteworthy because it
enshrined the ‘principle of availability’ as an official goal of the EU.
A Transatlantic Perspective 169

In this regard, the Hague Programme pointed out that the European
Council was ‘convinced that strengthening freedom, security and jus-
tice requires an innovative approach to the cross-border exchange of
law-enforcement information. The mere fact that information crosses
borders should no longer be relevant’ (Council of the European Union,
2004, p. 27, Section 2.1).
The Hague Programme invited the Commission to implement the
principle of availability in new legislation that would also uphold
a number of guidelines intended to ensure that information-sharing
would compromise criminal investigations or civil liberties. Although
the programme emphasised the use of use of new technologies, it also
stressed that existing EU-level databases should be better utilised and
made interoperable – rather than the creation of new systems. The
Hague Programme called for the availability principle to be in effect
with the start of 2008.
In mid-2005, with The Hague Programme in effect, the Swedish
proposal on information-sharing from June 2004 was still under con-
sideration by the Council and EP. Meanwhile, the Commission was
also preparing its own proposal to promote information-sharing. By this
time, however, the sense of urgency created by the Madrid attacks had
already started to wane, and the prospects for rapid progress on CT mea-
sures were not bright. It was at this point that the terrorist bombings
in London of 7 July 2005 provided renewed impetus for progress on CT
in the EU, especially as the latest attacks came near the start of Britain’s
Presidency of the Council.
Thus, by the autumns of 2005 there was progress on several fronts.
First, a proposed framework decision to require IT companies to retain
and share personal data for criminal investigations was back in discus-
sion after months of dormancy following its initial endorsement by
the European Council after the Madrid attacks and formal proposal in
April 2004. Second, the Commission published its own proposal on
information-sharing in October 2005. Third, ‘the Swedish proposal’ as
it had become known, finally received attention at the ministerial level
(i.e. JHA Council). Finally, in December of 2005, the European Coun-
cil approved the EU’s new Counter-Terrorism Strategy, which, under its
pillar of action entitled ‘pursue’ included the need to implement the
availability principle (Council of the European Union, 2005). At about
the same time, there was agreement in the Council on both the ‘data
retention’ framework decision, formally adopted in March 2006, and on
a general approach to the Swedish proposal, which was not formally
adopted until December 2006.
170 Counter-terrorism and Intelligence in Europe

The resulting Swedish framework decision of 2006 is intended to sim-


plify and hasten information-sharing among law enforcement authori-
ties via the establishment of deadlines for the meeting of specific types
of data requests. For requests deemed ‘urgent’ regarding any of 32 ‘seri-
ous crimes’ covered by the European Arrest Warrant, the deadline for
providing information is eight hours. For ‘non-urgent’ requests regard-
ing these same crimes, the time-limit is seven days. The deadline is 14
days for all other requests. The information subject to these requests
includes all data held by law enforcement or private authorities that
are available to police without taking coercive measures. The requested
information may be transmitted via existing bilateral channels, such
as Europol, Eurojust, SIRENE, Interpol National Central Bureaus and
others. Although the legislation is intended to expedite information-
sharing, it also allows some room for requested states to postpone
responses to requests.
Some Member States failed to meet the deadline of December 2008
to transpose the Swedish framework decision into national law, but
even when all had done this, several practical issues impeded the
actual implementation of the measure among police authorities. To help
resolve these problems, the Council Secretariat produced and then
updated in December 2010 a number of guidelines clarifying to the
Member States how their national police authorities were to utilise
the new mechanism in interaction with counterparts from other coun-
tries. For example, the guidelines define key terms in the legislation,
specify the types of information that can be shared and describe
how to use the standard request form. In addition, for each coun-
try, the guidelines indicate a preferred language for requests and des-
ignate particular channels of communication and points of contact
for normal and urgent requests for data (Council of the European
Union, 2010).

The Prüm decisions


Another recent development at the EU level regarding information-
sharing involves the transformation of the Prüm Convention into EU
law. This covers DNA profiles, fingerprints and vehicle information.
Work on the convention itself had been initiated by Germany in 2003
to promote police cooperation and the sharing of data beyond what
seemed politically possible within the growing EU at that time. The
Prüm Convention was eventually signed in Prüm, Germany in 2005 by
Belgium, Germany, Spain, France, Luxembourg, the Netherlands and
Austria. The Convention gradually and unevenly entered into force
A Transatlantic Perspective 171

among the signatories starting in November 2006 as they completed


their ratification processes.
By then, interest in the information-sharing provided by the Prüm
Convention was already growing among several other EU members who
had not signed the treaty. Owing to this, the Germany Presidency suc-
cessfully pressed for the incorporation of key parts of the Prüm acquis
into EU law, which was accomplished via two third pillar Council
Decisions in June 2007. These have incorporated many aspects of the
original treaty, but also some mechanisms that were only in the proposal
stage at the EU level. For example, the Prüm decisions comprise key areas
of information-sharing that had been mentioned in the Commission
proposal of 2005 (see above), which explains why work on that initia-
tive eventually ceased. In the end, the most important aspects of the
original Prüm Convention were retained in the decisions, but not the
treaty’s provisions on hot pursuit and sky marshals. In contrast, the new
arrangements allow for police to be deployed on foreign soil in uniform
and carrying their service weapons (such as when working with local
authorities to police international sporting events). In addition, other
parts of the original Convention (e.g. Art. 27 on responding to requests)
were left out of the two Council Decisions of 2007, but had already been
included in the Swedish framework decision of 2006 (see above).
Of course, without the Prüm mechanism, EU Member States already
have the ability to share data on fingerprints, DNA and vehicles with
each other bilaterally or via Interpol. What makes the Prüm decisions
noteworthy is that they allow for the automated, mutual searching of
national databases for this information. Specifically, the Prüm arrange-
ments, when implemented, will allow national authorities to search
each other’s national databases when they obtain forensic DNA stains,
fingerprints and vehicle information but cannot determine the people
associated with these using their own databanks. Initially, the result of a
search is merely an indication of a ‘hit’ or ‘no hit’. For hits, the searching
state must then request the personal information associated with the
matched record via the existing legal channels, such as through bilat-
eral ties or ELOs. Regarding vehicle information, searches can be done
using the chassis or registration number. When a match is located, the
personal data associated with the vehicle (owner, operator, etc.) is auto-
matically transferred to the searching state because this kind of personal
data related to vehicles is considered public information.
In recent years, the new arrangements have come online gradually
and unevenly among the states that ratified the original Prüm Treaty
and for a few other states that are party to the EU-wide decisions as they
172 Counter-terrorism and Intelligence in Europe

have been able to implement these. Consequently, there is one group


of states already exchanging DNA data, another group for finger prints
and a third group mutually searching vehicle information. The Prüm
decisions were supposed be fully implemented by all EU members by
28 August 2011, but this deadline was not met by several of them. For a
few member countries, the issue was making it technologically possible
for other states to search their databanks, and some of these states also
have faced related challenges concerning human resources and finances
(Malhère, 2010). Moreover, by 2011, Greece, Ireland, Italy and Malta
had yet to create national DNA databases, though they were planning
to do this (Thibedeau, 2011). Collectively, there are more than 5 million
profiles in the existing and newly created databases in the EU, but about
70 per cent of them are stored by the UK, which was the first EU state to
create a national DNA database in 1995.
From a security perspective, the new arrangements based on the Prüm
decisions will be enhanced as participating states build up their collec-
tion of fingerprints and DNA profiles. However, from the civil liberties
perspective, the new legislation raises several concerns. For example,
some peoples’ DNA profiles remain in police databanks even after they
have been acquitted of crimes or despite the fact that their samples were
not even collected as part of criminal investigations. In fact, in Decem-
ber 2008, the European Court of Human Rights ruled in favour of two
complainants who argued that the British government should not be
permitted to store their DNA profiles and fingerprints in its criminal reg-
istry because they were actually cleared of the charges that had resulted
in their collection when they were arrested. To be sure, this kind of con-
troversy over personal privacy will likely continue as the availability
principle continues to be operationalised in not only the Prüm deci-
sions, but also regarding the other EU information-sharing initiatives
noted above.

Present and future challenges

This concluding section of the chapter serves two functions. First, it


briefly examines the forces that will likely impact the further develop-
ment of the availability principle. Second, it applies the key questions
and challenges raised in the US Information Sharing Strategy to this
same policy domain in the EU, allowing for both comparison to the
US experience and lessons for the future.
As the EU moves forward to implement the availability principle,
progress in this regard will be influenced by two sets of factors. First,
A Transatlantic Perspective 173

there are the political dynamics of the EU itself concerning its ongoing
efforts to improve its AFSJ. Second, there are factors that pertain to the
particular issue of promoting better information-sharing among a wide
variety of law enforcement and security agencies in its Member States.
Regarding the first set of variables, the long-delayed reform of the
EU’s treaties has significantly impacted policy-making on information-
sharing. Until recently, this policy domain was handled as a third pillar
matter, affording little actual influence by the EP and involving con-
sensual decision-making in the Council. However, under the Lisbon
Treaty, the legislative process for initiatives on ‘the collection, storage,
processing, analysis and exchange of relevant information’ falls under
the ‘ordinary legislative procedure’ (Article 87, paragraph 2a, TFEU)
(Kaunert, 2010, p. 186).
As has been emphasised by academics and practitioners alike, this
change allows the EP to have significant influence over EU policy
making on information-sharing, just as with most areas of police coop-
eration (though still not all areas). Although the EP’s political groups do
not speak with one voice, the EP has been, in general, been quite vocal
on issues connected with the protection of civil liberties and the need
for oversight regarding a wide variety of issues that have come before its
Committee on Civil Liberties, Justice and Home Affairs (LIBE) (see also
Hillebrand’s chapter in this volume). Indeed, the earliest indication of
the EP’s new influence on information-sharing came in early 2010 with
its high-profile rejection of the EU’s original agreement with the US to
share financial data from SWIFT. Moving forward, the challenge for the
EP will be to shape legislation on information-sharing, while avoiding
being viewed by citizens as impeding progress security issues, which are
important to voters in Europe. In short, the EP’s role will certainly be
more significant than ever before as EU policy-making on information-
sharing seeks to strike the right balance between data protection and
privacy on the one hand, and the implementation of the availability
principle on the other. Moreover, because of the EP’s attention to data
protection, the Commission, Council and CTC will have proceed care-
fully should they try to move away from a policy of availability by
stealth and towards a more overt promotion of information-sharing.
In addition to affecting the role of the EP, the Lisbon Treaty has
also brought about other changes that impact EU policy making on
information-sharing. For example, majority voting in the Council is
now possible on this issue, which could expedite progress. Despite this,
the norm of consensual decision-making will likely continue in the
Council when it comes to the sensitive area of information-sharing,
174 Counter-terrorism and Intelligence in Europe

especially because all Member States will need to be supportive of a par-


ticular measure if data is to be truly exchanged effectively. Perhaps more
significant is the Commission’s new power under the Lisbon Treaty to
bring infringement proceedings against Member States in the Court of
Justice to pressure them to transpose legislation on information-sharing
properly or on time. This could improve delays with implementation of
EU legislation at the national level.
However, looking to the future, the Lisbon Treaty’s provisions will
hardly be the only factor to influence information-sharing in the EU.
In fact, the mere passage of EU legislation will not ensure that the imple-
mentation of the availability principle will actually lead to improved
information-sharing among the EU Member States. This will, in fact,
likely be shaped by the same kinds of issues and challenges that can
be expected to shape information-sharing within the US intelligence
community.
These potential factors, as well as the key questions or challenges
related to each – as outlined above – will now be applied to the
information-sharing in the EU, though in a slightly different order
than introduced above. In their original formulation, these ‘building
blocks’ of information-sharing refer to challenges that confront organi-
sations within the US intelligence community. In the context of the EU,
these same factors and questions can be applied to information-sharing
among EU Member States via EU-related instruments.
This manner of study is not without its problems because the EU
and its Member States, unlike the hierarchical organisations in the
US intelligence community, are not unitary actors concerning their
respective sources of information. Indeed, the member countries of the
EU possess their own internal divisions among law enforcement, secu-
rity, intelligence and border management agencies. Nevertheless, the
application of the US evaluative framework can be instructive for elu-
cidating the challenges facing the EU as it aspires to implement the
availability principle and obtain actual results concerning improved
information-sharing.
The building block of ‘policy’ will be the first area to be applied to
the EU context. As noted above, this refers to the ‘rules’ for sharing and,
in the context of the EU, entails legislation, policies, procedures and
formal standards for international information-sharing, as well as the
formally defined roles of the players involved in information exchanges
at EU and national levels. Key questions here are whether the proper
legal infrastructure exists that authorises or mandate sharing of informa-
tion at the international level, and whether these rules impede national
A Transatlantic Perspective 175

authorities from sharing information with other each other internation-


ally. A separate, but related, issue is whether the legal infrastructure
provides proper protection for civil liberties and personal privacy.
As illustrated in this chapter, the EU has achieved much in this regard
in recent years. None of the information-sharing instruments noted
above even existed before 1995 and only a few were operational before
2004. Indeed, with regard to ‘policy’, the EU seems to be well on its
way to achieving an infrastructure of information-sharing based on the
availability principle, but also tempered by provisions to ensure data
protection and personal privacy.
However, what is left to be accomplished is significant indeed from
the perspective of security, as well as potentially controversial from
the perspectives of civil liberties and human rights. For example, pro-
posals to allow law enforcement to have access to Eurodac data were
long delayed amid opposition in both the Council and EP. In addi-
tion, several new information-sharing instruments needed to be fully
implemented, such as the SIS II, VIS and the mechanisms related to
the Prüm decisions and Swedish framework decision. Meanwhile, other
new information-sharing systems are still in the planning stages at the
time of writing, including those pertaining to airline security and travel,
such as the EU PNR system, a European border surveillance system
(EUROSUR), Entry/Exist system and the related Registered Travellers Pro-
gramme. At the same time, additional instruments are being studied,
such as an EU terrorist finance tracking system and an Electronic Sys-
tem of Travel Authorisation – both modelled after similar US systems
(European Commission, 2010a).
Still other initiatives were under way to implement the availabil-
ity principle regarding police and judicial cooperation, but these had
already been criticised from a civil libertarian perspective (Jones, 2011).
This includes a European Criminal Records Information System (ECRIS)
that allows judicial authorities access to each other’s and was imple-
mented in 2012, as well as a European Police Records Index System
(EPRIS) that would function on a hit/no hit basis and was still in the
planning stages in 2013. Finally, at the same time, discussions were
under way at the EU level about an Information Exchange Platform
(IXP) for Law Enforcement Authorities that would potentially be a
central access point for information-sharing among a wide variety of
law enforcement and border security authorities at the local, regional,
national and EU levels (Jones, 2011).
To be sure, much additional legislation would be needed to create the
new information-sharing instruments noted above or make some data
176 Counter-terrorism and Intelligence in Europe

systems interoperable. Moreover, many EU mechanisms that are already


in use are so new that they have yet to be evaluated for their effective-
ness concerning the actual promotion of availability principle’s goals.
Thus, unlike intelligence reform in the US, which peaked during the
Bush administration, the EU is not yet at the end of its policy-formation
phase.
The next building block is ‘governance’ and refers to the ‘environ-
ment’ of factors that influence information-sharing. This especially
entails the oversight and leadership that help govern information-
sharing. Here the role of ‘managers’ is central, which in the context of
the EU, refers to leadership positions at both the national and EU lev-
els that oversee decision-making on information-sharing. Another key
question is whether rules are in place – at the EU level – to resolve any
disputes that might arrive if and when information is not exchanged as
expected under the given rules.
Regarding these questions, there has been some progress, but what
has been implemented may prove insufficient. On the positive side, the
2009 ‘Conclusions on an Information Management Strategy for the EU’,
discussed above, bring to light the active leadership roles of the Coun-
cil Secretariat, Council Presidency and related Ad Hoc Working Group
on Information Exchange. Collectively, these actors are now engaged in
helping Member States to create and implement a wide range of strate-
gies and practices aimed at professionalism, efficiency, cost-effectiveness
and accountability across the full range of EU information-sharing
mechanisms (Council of the European Union, 2009a). In addition, in
July 2011, the incoming trio-presidency of the Council was poised to
take up a number of important issues related to information-sharing,
such as mapping information flows, setting strategic priorities and
making recommendations for new initiatives based on the European
Information Exchange Model (EIXM) (Council of the European Union,
2011a,b).
On the other hand, the ‘leadership’ positions created at the EU
level that are connected with information-sharing seem inadequate. For
example, Europol’s director and the EU’s Counter Terrorism Coordinator
possess neither the political authority, nor the political or professional
clout to promote information-sharing effectively or resolve disputes
about what data might be shared or not and when. Moreover, in 2007,
when the Member States had the opportunity to strengthen the role of
their ‘Mr Terror’, they chose not to do so (Bures, 2011, pp. 140–144).
Overall, the position of the CTC has the potential to provide more
‘leadership’ than it does at present regarding information. Of course,
A Transatlantic Perspective 177

because an operational role for an EU intelligence agency is not foreseen,


the EU’s CTC will never have the power and authority of the American
DNI. However, it should be pointed out here, as mentioned above, that
some have questioned whether this relatively new American position is
sufficiently powerful to promote coordination and information-sharing
in the US intelligence community – even with the DNI’s access to
the US President and authority over key intelligence bodies, personnel
decisions and budgets.
The key message here is that to promote similar coordination and
information in the EU, the position of the CTC should also be strength-
ened. The recent suggestion of putting the CTC in charge of a new
EU security agency, as discussed earlier in the paper, indicates that this
could indeed happen in the future, depending, as always, on the politi-
cal will of the Member States. In sum, the proper implementation of the
availability principle may depend on stronger leadership from the CTC
or a new and enhanced position that could replace this.
‘Technology’ is the next building block of important issues to be
applied to the EU. This refers to the technical capability to share, includ-
ing all of the relevant computer systems and standards that enable not
only information-sharing, but also the protection of data from the per-
spective of both security and civil liberties. Here, the key questions relate
to whether common standards exist for organising data in national and
EU-level systems so that data can be effectively entered and searched.
In addition are the various technical systems in place to ensure that
data remains confidential, that access to the data is properly restricted
as needed and procedures and actual transfers can be audited when
necessary?
The answers to some of these questions are either subjects for future
research or go beyond the expertise of this author. Nevertheless, the case
can surely be made that EU’s record of implementing new IT systems
for information-sharing has not been ideal. Many systems have experi-
enced long delays and cost overruns, such as with the launching of the
Europol’s Information System, as well as the SIS II and the VIS. Of course,
the technological challenges at hand are indeed immense and have been
made even more difficult due to the growing membership of the EU and
the immergence of new technological tools, such as biometrics. More-
over, when compared to similar technological difficulties experienced in
the US, as evidenced by the FBI’s IT troubles, the EU’s own shortcomings
in this regard are hardly surprising.
In any case, the tasks of increased automated data transfers and the
interoperability of systems, as suggested by the Future Group in its
178 Counter-terrorism and Intelligence in Europe

report of 2008, would only exacerbate the technical challenges already


at hand (Future Group, 2008). Although the Future Group’s suggestion
to establish more automated data transfers was not written into the
Stockholm Programme, such as regarding data requested via the Swedish
framework decision mechanism, the policy agenda does include the pre-
scription for greater interoperability of IT systems. This would certainly
promote the availability principle, but the EU would also have to take
steps to ensure that the automatic transfer of data among Member State
authorities would neither harm civil liberties, nor disrupt ongoing or
future criminal investigations related to the sources and methods used
to obtain the data at issue. In this regard, it will, by no means, be easy
for the EU to overcome the technological challenges confronting greater
information-sharing.
Due to their associated costs, these technological hurdles are closely
related the next building block of information-sharing, ‘economics’,
which refers to the so-called ‘value’ of information-sharing. For actors
at the levels of both the EU and its Member States, this refers the abil-
ity to obtain and provide resources for information-sharing initiatives,
especially budgetary issues. Certainly, the questions here are familiar to
just about any initiative taken at the EU level. Is there enough funding
(e.g. to meet technological challenges)? How will the burden of provid-
ing these resources be shared among the Member States, and how will
performance be measured? Concerning information-sharing in partic-
ular, how can the right incentive structures be implemented to ensure
that the desired type of information-sharing takes place – regarding the
frequency, scope, quality and timeliness of the data exchanged?
To be sure, many of the EU’s ongoing and planned information-
sharing instruments discussed earlier in the chapter above are quite
expensive, and its Member States are generally reluctant to devote more
resources to new initiatives when it means paying more into the Union’s
budget or making painful cuts to politically important, existing pro-
grammes. Moreover, the cost of promoting information-sharing can be
especially high because they entail not only developing and deploy-
ing new IT systems, but also keeping hardware and software updated
to ensure their reliability, effectiveness and security.
These and other issues will come to fore as the EU finalises its dis-
cussions on its next multi-annual financial framework for 2014–2020,
including debate on how much spending will be devoted to its AFSJ in
general, and to information-sharing in particular. The budgetary chal-
lenge of information-sharing will also be compounded because some
Member States will value EU-promoted information-sharing more than
A Transatlantic Perspective 179

others or will perceive different levels of threat regarding cross-border


crime and terrorism. For example, some states may be content to rely
on their own resources or existing bilateral relationships to obtain intel-
ligence, rather than ‘paying’ for EU-level initiatives. Meanwhile, the EP
may use its new budgetary authority under the Lisbon Treaty to press its
own agenda on data protection and personal privacy.
Along with budgetary considerations, the building block of ‘eco-
nomics’ also raises the issue of whether and how incentive structures
should be created to promote information-sharing. This is a process
of reform that is only now under way in the US intelligence commu-
nity and may ultimately depends on providing monetary compensation
for agencies or their employees to share valuable information or anal-
yses with other intelligences bodies (see Sales, 2010). In the European
context, it is difficult to imagine how the EU can play a direct role
in providing such incentives. Instead, it will likely be up to the Mem-
ber States themselves to provide sufficient incentives to their own law
enforcement authorities to encourage them to share quality informa-
tion internationally in the face a myriad of motivations not to do so –
such as the desire to take individual or at least national credit for arrests
and convictions or to protect sources and methods used to obtain data
regarding related investigations.
While new incentive structures could potentially help at the margins,
the long-term success of information-sharing in the EU will depend on
‘culture’, which is the final building block to be considered and refers
to ‘the will to share’. Concerning information-sharing in the EU, this
relates to Member States’ organisational approaches and philosophies
for sharing criminal intelligence and security data with others. It also
refers to the propensity of countries to adapt to changing circumstance
without necessarily terminating international information exchanges.
In this regard, the key questions for the EU include how national
authorities can be motivated to make proper use of new information
exchange instruments, assuming that the proper structures are in place
in terms of policy, governance and technology as noted above. For
this to happen, it will be crucial for national authorities in the EU to
adopt the availability principle as a governing ‘norm’ of information
exchanges, especially when internal or external circumstances arise that
might provide sceptics of international information-sharing with cause
to forego this.
Changing the mindset of security and law enforcement authorities in
the EU to view international information-sharing in this fashion will
not be easy. This is not surprising, especially when one considers the
180 Counter-terrorism and Intelligence in Europe

difficulties experienced by the US in this regard – in the context of a


single nation. The challenges of building a new culture of international
information exchange within the EU can be expected to be at least as
difficult to overcome – if not more so.
There is a role to be played by the EU in meeting this challenge.
Indeed, the Stockholm Programme addresses this problem by highlight-
ing the importance of new training programmes: ‘[in] order to foster a
genuine European judicial and law enforcement culture, it is essential
to step up training on Union-related issues and make it systematically
accessible for all professions involved in the implementation of the
area of freedom, security, and justice’ (Section 1.2.6). Along with an
expanded role for the European Police College (CEPOL) and Frontex
in this regard, the Stockholm Programme also suggests the creation
of Erasmus-style exchange programmes for law enforcement and secu-
rity personnel. Such new training initiatives could be used to build
a new culture of information-sharing that could be founded on the
norm of availability. Moreover, the establishment of this new mind-
set for information-sharing could be facilitated by the development of
greater international trust among security and law enforcement author-
ities in the Member States. This was also highlighted by the Stockholm
Programme (Section 1.2.1) and could be fostered by new training pro-
grammes or new institutions. In this regard, the EU might look to the
US and seek to create its own international variants of forums and
organisations modelled after the American JTTFs and fusion centres,
which promote the development of trusting, personal relationships and
the integration of data across different agencies at multiple levels of
government.
For such initiatives to be successful in the building of new culture of
information-sharing, the EU should not continue its apparent course of
‘availability by stealth’ as identified in this chapter. Although this can
be rationalised politically, the failure to emphasise the need for informa-
tion availability in key documents and reports could undermine efforts
at the practitioner level to develop the norm of availability, especially
where information-sharing is not automated. In short, the availability
principle must be highlighted at every turn, just as it is important to
stress the need to protect data and ensure personal privacy.
In sum, the EU faces many challenges before its availability princi-
ple can be implemented with full effect. Regarding information-sharing
policy, the rules facilitating this in the EU have begun to take shape,
but governance lags behind, especially concerning the role of leader-
ship. In addition, dealing the technological and economic challenges
A Transatlantic Perspective 181

of greater information will not be easy. Yet, most difficult of all will
be the fashioning a new culture of information-sharing in the EU.
Beyond the creation of new instruments, the notion that data and
intelligence on transnational crime and terrorism ought to be shared
internationally must be further developed among the law enforcement
and security agencies of the EU if it is to achieve its stated goals on
information-sharing.

Acknowledgement

Earlier versions of this chapter were presented at the ‘European Secu-


rity, Terrorism and Intelligence: Past and Present’ Conference, University
of Salford (United Kingdom), 29–30 January 2009 and at the ‘Pol-
icy Change in EU Internal Security’ Workshop, European University
Institute (Florence, Italy), 12–13 May 2011.

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8
On a ‘Continuum with Expansion’?
Intelligence Cooperation in Europe
in the Early 21st Century
Adam D.M. Svendsen

In this chapter, several interconnected propositions are presented for


consideration. Adopting a broad approach that intends to comprehen-
sively survey the highly complex and dynamic terrain of contemporary
European intelligence cooperation – and other closely associated activ-
ities, which essentially involve any form of critical information flows –
many timely insights seek to be provided. In the main, this chapter
argues that during the early 21st century, we have witnessed, in gen-
eral, greater intelligence cooperation in Europe. Indeed, when exam-
ining wider trends, we can even appropriately discuss the increased
‘regionalisation of intelligence’.
The enhanced intelligence cooperation in Europe has been most
focused on the issue of counter-terrorism. This was catalysed espe-
cially in the wake of high-profile terrorist atrocities – notably the
11 March 2004 Madrid attacks and the 7 July 2005 London bomb-
ings (Wetzling, 2007, 2008, pp. 498–532; Aldrich, 2011a). Other issues
that have spurred closer regional intelligence and security cooperation,
such as confronting transnational ‘organised crime’, civil protection
and crisis management concerns, have also formed important priori-
ties. These factors should not be overlooked either (EU, 2003a,b, 2005a,
2008, 2010a,b,c,d; Burgess, 2008, pp. 60–78; Brookings/USIP, 2010a,b;
European Societal Security Research Group, 2010; Giegerich, 2010). This
is an approach that also largely chimes, although not exclusively, with
the ‘Copenhagen School’ in security studies, particularly where there
is an emphasis on ‘widening’ conceptual lenses so that analysis goes
beyond merely focusing on ‘traditional/classical’, strongly ‘Cold War

185
186 Counter-terrorism and Intelligence in Europe

era-associated’, and solely ‘military-orientated’ security concerns (Buzan


et al., 1998; Hough, 2008; Buzan and Hansen, 2009, p. 212).
When taken together, the cooperative intelligence trends (known in
the parlance of the intelligence world as ‘liaison’) persistently and effec-
tively reflect the condition of ‘uneven and combined development’.
They are occurring non-uniformly, and in their work, along with their
evolution, they are under way at several different rates of development.
This is particularly marked at different ‘levels’ of relations in the various
‘pockets’ of European cooperative intelligence activity. High complexity
is manifest (Svendsen, 2009a, pp. 1–22, 2010a, pp. 167–173). Ultimately,
this chapter concludes by arguing that overall in Europe there is the
development of an ever-more complex web consisting of a plethora of
variously overlapping international intelligence liaison arrangements.
Collectively, these provide a form of regional intelligence coverage and
intelligence and security reach, resulting in the delivery and produc-
tion of effects and outcomes that can, in turn, today, be regarded as being
generally satisfactory. How the arrangements and their associated net-
works overlap and complement one another is important, accounting
for the connections, and notably the ‘disconnects’, that publicly come
to our attention. Room for tidying remains. The developments are essen-
tially on ‘a continuum with expansion’. But as ever when working in the
‘sensitive’ and slightly ‘fenced-off’ intelligence world, and indeed when
researching it, important caveats remain. Distinct operational parame-
ters and limitations therefore continue to feature in a dominant manner,
but essentially they do not overwhelm practically.

Examining this subject

A wider concern can be readily articulated. This consideration especially


accounts for why the subject under examination in this chapter has
much contemporary relevance and why it deserves being opened up
to at least a degree of closer and further scrutiny. In terms of scholar-
ship and our understanding, although being increasingly addressed over
time, we start from a comparatively and relatively ‘low base’. Both gener-
ally, on a global basis, and more specifically with regard to regions, such
as Europe, studying international intelligence cooperation is especially
important today. This is because during the so-called ‘War on Terror’ and
‘Long War’ (c. 2001–2009), and continuing during the subsequent years
since, international intelligence cooperation has expanded exponen-
tially. Including extending into ‘globalisation realms’, it now effectively
represents the most significant dimension of intelligence (Leader, 2005,
On a ‘Continuum with Expansion’? 187

p. 12; Gardner, 2006, p. 30; Jane’s, 2006; Roberts, 2006, pp. 135–138;
Sims, 2006, p. 195; Svendsen, 2008a, pp. 129–144, 2008b, pp. 661–678,
2012; Aldrich, 2009a, pp. 889–902, 2011b).
Hand-in-glove has been a similarly burgeoning accountability and
oversight deficit (Müller-Wille, 2006; Roberts, 2006, p. 139; Aldrich,
2009b; Born et al., 2011). This is concerning and matters to us all, what-
ever our exact status. Indeed, ‘profound implications’ (Rudner, 2002)
have been starkly witnessed during the early 21st century. For example,
prominent episodes of US ‘extraordinary renditions’, ‘intensive inter-
rogations’, and ‘torture’ allegations have emerged publicly, and their
‘fallout’ has had a significant and ongoing impact in several individ-
ual European countries, as well as regionally, across Europe as a whole
(Grey, 2006; Roberts, 2007; Egeland and Aguirre, 2009; Media sources,
2009–2011; Porteous and Inkster, 2010).
Furthermore, while over recent years much scholarship has been
undertaken concentrating on the broader and closely overlapping
theme of ‘security cooperation’ in Europe, particularly with a strong
emphasis on ‘governance’ concerns, considerably less has been writ-
ten about the main focus of this chapter, namely the more specific
area of ‘intelligence cooperation’ in Europe (Smith, 2003; Jones, 2007;
Kirchner and Sperling, 2007; Giegerich, 2010). Different approaches
to the ‘problems’ encountered also exist, such as the contrastable
law enforcement/security-dominated methodology of ‘see and strike’
and the intelligence methodology of ‘wait and watch’ (Svendsen,
2010a, p. 34).
With the analysis advanced below, this chapter now aims to better
contribute towards more fully addressing this observed ‘paucity’ in the
overall subject literature. This is together with better highlighting some
of the analytical complexities involved in, and during the course of, that
addressing. In summary, building on the foundations of the existing
scholarship, this chapter aims to perform the reflective functional role of
being a comprehensive ‘introduction’ to this subject, with the analysis it
presents being primarily connective and explorative in nature. Enduring
reference utility similarly intends to be advanced.
Accordingly, as it seeks to better bridge discernible ‘gaps’, comprehen-
sive observation is one of the main tasks undertaken throughout this
chapter. Beginning with an exploration of the theme of ‘intelligence and
Europe’ and its witnessed increased ‘regionalisation’ (and what is meant
by that process), this chapter continues to examine the vexing question
of how recent intelligence cooperation in Europe can be best evaluated,
with the key structures facilitating contemporary European intelligence
188 Counter-terrorism and Intelligence in Europe

cooperation then being unpacked in depth. Following the presentation


of this analysis, how wider European intelligence cooperation trends
can be best captured is then discussed. Finally, several overall con-
clusions are presented, demonstrating that, extending into the future,
many pressing challenges still remain within this domain of intelligence
activity. At the least, these need their continued consideration for con-
stantly maintaining the fashioning of the most advantageous effects and
outcomes.
Advancing an increasingly enhanced understanding of this subject,
as it continues to unfold in our contemporary context, can be most
useful. Not least, this occurs as an ever-more sophisticated response is
required in an ever-more timely manner in our ‘just-in-time’ society.
Notably, operational through to strategy/policy-orientated ‘ends’ and
‘missions’ can be most effectively accomplished by applying the help-
ful ‘tool’ and ‘mechanism’ of intelligence cooperation, as a ‘means’ and
as an ongoing issue management ‘solution’. This emerges as being in
much demand in order to effectively navigate and address the multiple
regional(-ised) to global(-ised) intelligence and security concerns that
are currently confronted in Europe and in closely linked theatres beyond
(Svendsen, 2011). We begin with the ‘higher-level’ constructs involved.

Exploring the increased ‘regionalisation’ of intelligence


in Europe

The issue of intelligence in Europe has increasingly emerged. Not all


comfortably, it has acquired a higher public profile, and it has become
a subject of much concern and debate. This has in part been fuelled by
the experience of the United States (US) and the subsequent European
homeland terror attacks, as well as the responses to them (BBC, 2011a;
Svendsen, 2011). Greater contextualisation is necessary. Alongside the
prominent terrorism concerns, further law enforcement and intelligence
liaison driving factors in Europe, and more generally in the increas-
ingly globalised context in international affairs, have featured. These
include key security issues that extend from being regional-to-global
(even ‘glocal’) in their impact, such as: weapons of mass destruction
(WMD) proliferation, increased organised crime, illegal immigration,
people and drugs (narcotics) trafficking, as well as fulfilling the demands
of peacemaking, peacekeeping and other humanitarian, civil protec-
tion and crisis management operations (Scholte, 2005, pp. 279–315;
Adamson, 2006; Weber et al., 2007; Farrell, 2010; Vines, 2010; GSN,
2010a; BBC, 2011b,c).
On a ‘Continuum with Expansion’? 189

A brief literature survey suggests that earlier, around the end of the
20th century, the issue of intelligence vis-à-vis Europe was arguably
more overlooked (Gal-Or, 1985, pp. 74–76). It was also more under-
studied – albeit an imbalance beginning to be addressed more seriously
around 2000 (Villadsen, 2000; Baker, c. 2001; O’Brien, 2001). During
2000–2001, there were also several debates surrounding the contro-
versial European Parliamentary Inquiry into the UKUSA arrangement’s
ECHELON system (Economist, 2000; Jane’s, 2000; Richelson, 2000;
Keefe, 2005, pp. 288–289). By 2012, the subject of ‘intelligence and
Europe’ is now more effectively addressed in the literature (as the
collection of essays in this book reflects), and the trend of closely fol-
lowing behind the curve of developments and events occurring in the
‘real-world’ continues (Müller-Wille, 2004; Walsh, 2006, 2009, 2010;
Fägersten, 2008). These developments can be readily characterised. Gen-
erally, we are witnessing greater intelligence cooperation – even if
admittedly intelligence cooperation is mixed, and can be regarded as
emerging haphazardly and incrementally in places (Daun and Jäger,
2006). Indeed, today, collectively this greater intelligence cooperation
is taking place on a sizeable enough scale in Europe to allow the discus-
sion of trends pertaining to the increased regionalisation of intelligence.
A form of regional intelligence coverage exists for all participants.
Several relevant insights can equally be drawn from other closely
related bodies of scholarship. This includes from the literature focussed
on the themes of ‘regionalism’ and ‘regionalisation’ in the overlap-
ping security context, as well as from the literature concentrating
on the broader theme of (general) ‘international cooperation’. These
more generally concerned sources offer added value in further help-
ing us to extend our understanding of the developments undergone
in this more specific realm, namely, in this chapter, in relation to the
cooperative intelligence interactions under way in Europe (Griffiths
and O’Callaghan, 2002, pp. 273–275; Snyder, 2008; OSCE, 2009,
2011; Bergenäs, 2010; Mendelsohn, 2010; Norrlof, 2010; Zartman and
Touval, 2010).
Indeed, Swedish scholar Björn Hettne’s ‘new regional theory’ is most
instructive. This is particularly where Australian scholar Craig A. Snyder
summarises it as arguing that ‘the development of regionalism is depen-
dent on the support of the regional great power(s), the extent of
reciprocity that exists in the relations of the states in the region, and
the level of strategic reassurance that exists among these states’ (Snyder,
2008, p. 227). Preliminary observations soon emerge. Unsurprisingly,
particularly in the wake of the deeply shocking 11 September 2001
190 Counter-terrorism and Intelligence in Europe

(9/11) terrorist attacks in the US, the intelligence cooperation in and


beyond Europe in the early 21st century has mostly been focussed on
the issue of counter-terrorism (ASEAN, 2005; Rees, 2006; EU, undated).
In Europe, this cooperation was then essentially catalysed substantially
further, particularly internally, in the wake of the 11 March 2004 Madrid
attacks, in which 191 people were killed.
Most immediately, the Madrid attacks resulted in widespread
demands for increased and more effective sharing of counter-terrorism-
related intelligence within Europe. These movements were to be accom-
plished within the region both geographically as well as organisationally
within the EU framework, for example with the enhancement of the Joint
Situation Centre (SitCen) (see below). This call resonated strongly as dis-
coveries were made during the course of the post facto investigations that
the perpetrators of the Madrid attacks had substantive connections to a
number of European countries (Media sources, 2004; Ország-Land, 2004;
Ranstorp and Cozzens, 2004). The 7 July 2005 bombings in London sim-
ilarly spurred some close UK intelligence interactions with both their
European and other international intelligence liaison partners (Cobain,
2005; Sciolino and Van Natta, Jr., 2005).
The important impact of the broader context in which these coop-
erative intelligence activities are embedded and taking place is likewise
demonstrable. Multiple and mutually shared terrorist threats to Europe
regionally, to specific European countries, and to their close partners
beyond, such as, most notably, to the US, Canada and Australia, have
also continued to be manifested since (Cilluffo et al., 2010; Media
sources, 2010–2011; Nicoll, 2010a; Svendsen, 2010b). In the wake of
the horrific attacks in Norway on 22 July 2011, with the bombing in
Oslo and the shooting on the island of Utøya, in which 77 people are
reported to have died, Norwegian Intelligence cooperated widely with
their European and international partners as part of their post facto
investigations, firmly demonstrating that mode of activity remains a
valuable tool (Media sources, 2011).

Evaluating intelligence cooperation in Europe

As the mini-analysis undertaken above so far demonstrates, several com-


plexities within this domain of activity evidently begin to quickly and
increasingly emerge. Enhanced introspection into this area of research
and analysis, and how those processes are conducted in this context, is
now helpful. How and where to begin evaluating intelligence coopera-
tion in Europe are more moot points. Unfortunately, analyses are highly
On a ‘Continuum with Expansion’? 191

prone to a substantial array of shortcomings; therefore, undertaking


some methodological reflection is essential. Many areas need addressing.
Considerations such as (1) how ‘Europe’ is conceptualised; (2) which
units of analysis or actors are selected for examination; (3) which pre-
cise levels of experience and activity are focussed upon; and (4) which
approach is adopted – such as how far in depth (macro to micro)
the analysis is followed through – can all contribute towards differing
interpretations.
Mindful of these considerations, this chapter tries to establish some
clear operational parameters for its analysis. Firstly, ‘Europe’ is concep-
tualised as a geographic entity, extending from the Atlantic to the Urals
(De Blij, 2009; Gallaher et al., 2009; Porter, 2010). Then, secondly, a
macro ‘structural’ analysis (MSA) approach is adopted. This is done in
order to try and better capture the overall, underlying and longer-term
trends. In so far as it can be physically located per se, European intel-
ligence cooperation is recognised as occurring in several different areas
of activity. For instructive illustrative purposes, some of the main differ-
ent intelligence cooperation structures that can be found in Europe will
next be highlighted in turn.

Structures facilitating European intelligence cooperation

To keep the analysis undertaken in this chapter within clear bound-


aries, three main categories are focussed upon. Into these, the variously
overlapping different intelligence liaison arrangements in Europe can
be placed more or less appropriately (PET, 2009). Simultaneously, some
informed insights into their significant connections are offered. By,
first, better understanding the ‘structures’ participating, a greater under-
standing of the intelligence dynamics and the more ‘cultural’ aspects
involved in the European intelligence interactions, can then be valuably
communicated (Rees and Aldrich, 2005; Svendsen, 2009b).
Firstly, there is a plethora of bilateral relationships traversing Europe
(Hess, 2003; Lander, 2004; Jane’s, 2009a; BBC, 2011d). These are the
oldest (most traditional) arrangements and, in their comparatively well-
tried and tested forms – especially where ‘standards’ and ‘best practices’
in the interactions have become most operationalised for facilitating
trust – they represent the most ‘exclusive’ intelligence liaison relation-
ships that exist in Europe. They thereby usually facilitate the greatest
and speediest qualitative and quantitative exchange of ‘secret intelli-
gence’. This product figures in the ‘purer’ form of operationally viable
(‘actionable’ or ‘serious’) intelligence, present in its myriad of different
192 Counter-terrorism and Intelligence in Europe

forms (tactical through to strategic), including the exchange of some


‘rawer’ (or less ‘sanitised’/‘diluted’) product.
With reference to widespread counter-intelligence and security anx-
ieties that exist in the European context, these bilateral intelligence
liaison arrangements are also most likely to be preferred by intelli-
gence practitioners (McDermott, 2004, p. 8; Espiner, 2011). As the UK
Intelligence and Security Committee’s (ISC) Annual Report noted when
evaluating ‘European Cooperation’, the familiar sources and methods
protection considerations were important: ‘[c]ooperation on operational
matters is primarily bilateral, to ensure that intelligence is shared
where necessary and to protect operational sources and information-
gathering techniques’ (ISC, 2006, p. 28, para. 99). Adopting network
terminology, the intelligence and security services, concentrated in the
‘hubs’ of national European capital cities, then strive to form ‘nodes’
(Arquilla and Ronfeldt, 2001; Wark, 2003, p. 2) – for instance, joining
up their different bilateral European intelligence liaison partner rela-
tionships in their headquarters, alongside engagement with ‘privatised’
and ‘outsourced’ dimensions of intelligence activity (Bennett, 2008;
Keefe, 2010).
Secondly, there are various multilateral Europe-region-centred intel-
ligence liaison arrangements. These developed most markedly from
around the early to mid-1990s, after the Cold War thaw and the disman-
tling of the ‘Iron Curtain’ in Europe. Again, each of these arrangements
involves different combinations of parties. Most significantly, they
include the Club of Bern (CoB), which consists of the European Union
(EU) Member States’ security services, and also those of Switzerland
and Norway; the Counter Terrorist Group (CTG), which is essentially the
counter-terrorism intelligence-focussed subgroup of the CoB (formed
after 9/11 in September 2001) (Switzerland Police, 2004; Lugna, 2006,
p. 126); the Middle European Conference (MEC), which consists of ‘16
intelligence services of 13 states of Western and Central Europe’ (Slovak
Information Service, 2007); as well as, perhaps more peripherally, the
more recent ‘War on Terror’-associated and more operationally focussed
arrangements. These, in turn, include ‘Alliance Base’ in Paris, which
involves some European countries – notably the UK, Germany and
France – with the US Central Intelligence Agency (CIA) (Segell, 2004;
Priest, 2005; Rosenau, 2006; Aldrich, 2009c; AP, 2011a; Winnett and
Gardham, 2011). With more of a law enforcement focus, the Police
Working Group on Terrorism (PWGT) likewise features (Deflem, 2006).
In this category – within the CTG, for instance – discussions are gen-
erally more concerned with higher and macro-level considerations and
On a ‘Continuum with Expansion’? 193

strategic issues. As the UK ISC report noted, ‘[a]ll of the [UK intelligence]
Agencies contributed to discussions which resulted in the formulation
of the EU Counter-Terrorism Action Plan, which draws strongly on the
UK’s CONTEST model’ (the UK’s 2003 Counter-Terrorism Strategy) (ISC,
2006, pp. 28–29, para. 101).
More peripherally, transatlantic-spanning arrangements, in which
several European countries are involved, perhaps could also be argued as
sitting at least on the fringe of this category (NATO, 2007, 2010a). These
latter arrangements include the North Atlantic Treaty Organisation
(NATO) and its own plethora of variously overlapping intelligence-
associated arrangements – including, with NATO members participat-
ing to different extents, the NATO Special Committee, the US Joint
Analysis Center (JAC) and the NATO-supporting ‘Intelligence Fusion
Centre’, based at US EUCOM (European Command) at Royal Air Force
(RAF) Molesworth in Cambridgeshire, UK (NATO, 2006, 2010b, 2011;
NATO SHAPE, 2006a, 2006b; UK MoD, 2006; Tigner, 2009) – and then
there is the International Special Training Centre (ISTC) for Special
Operations Forces, located in Germany (ISTC, 2008; Finlan, 2009, p. 131;
Svendsen, 2010a, pp. 79, 83, 90).
Open-source intelligence (OSINT) partnerships also exist, such as the
‘International Open Source Working Group’ (IOSWG), which includes
several European nations, notably Germany, Denmark, the Netherlands,
the UK, Italy, Austria, Sweden, Norway, France and Belgium, as well as
there being more ‘exclusive’ European OSINT partnerships, including
the ‘Budapest Club’, established in 2007 (ODNI, 2007; Dyèvre, 2008;
Rettman, 2011a).
Together with all of these arrangements, operating alongside are the
increasingly internationally connected European countries’ national
terrorism threat analysis centres, including: the Joint Terrorism Anal-
ysis Centre (JTAC) in the UK, the ‘Centre for Terrorism Analysis’ in
Denmark, and the ‘Coordination Center’ in Germany, which act as
intelligence ‘fusion centres’ (Miko and Froehlich, 2004; Tebbit, 2006;
Reuters, 2010; AP, 2011b; TL, 2011a). Furthermore, as Dutch intelligence
scholar Cees Wiebes has reportedly observed, in parallel there exists
a degree of burgeoning intra-European signals intelligence (SIGINT)
cooperation, occurring at least among some select countries: ‘Since the
end of the 1990s [. . .] cooperation between the monitoring services
of France, Germany and the Netherlands has grown and the coun-
tries exchange “Sigint” daily. Together with Denmark and Belgium, a
“Group of Five” is slowly taking shape’ (Fidler, 2004; Rudner, 2004;
Cody, 2010). Meanwhile, focussed on issues such as money laundering,
194 Counter-terrorism and Intelligence in Europe

the ‘Egmont Group’, an ‘international law enforcement financial intel-


ligence exchange network’, might also be cited within this category
(Jane’s, 2009b).
Thirdly, there are the EU intelligence arrangements. Developed from
around the late 1990s onwards, these again contribute to varying
degrees. These arrangements essentially act as specialist intelligence liai-
son ‘pockets’ within the EU framework as a whole, namely as part of the
EU’s Common Foreign and Security Policy (CFSP) and, as of 2010, the
Common Security and Defence Policy (CSDP) (previously the European
Security and Defence Policy – ESDP) (Antunes, 2005; Podolski, 2004; EU,
2005b). As Björn Müller-Wille has elaborated, the types of intelligence
arrangements in this third category include:

the EU Satellite Centre [(SatCen)], the Joint Situation Centre [(SitCen)


(Hansard, 2005; UK HoL, 2009; Jane’s, 2009c; AFP, 2010)] and the
Intelligence Division of the European Military Staff . . . [which] are
responsible [for] providing the ‘strategic’ intelligence support needed
for the decisions that fall within the Council’s competencies . . .
[including] issues such as the launching and preparation of an EU
peace support operation (PSO).
(Müller-Wille, c. 2005)

In the process, European intelligence arrangements partially extend into


the wider realm of peacekeeping intelligence (PKI) (De Jong et al., 2003;
Carment and Rudner, 2006; Ravndal, 2009; Dorn, 2010). Simultaneously
overlapping are initiatives such as the EU Terrorism Working Group
(TWG) and MONEYVAL, the Council of Europe’s anti-money launder-
ing arrangement (Jane’s, 2009b; Säpo, 2009; TL, 2009; European Expert
Network on Terrorism Issues (ENER) in Cilluffo et al., 2010, p. 19, fn. 48;
Pop, 2011).
In this EU intelligence arrangement category, law enforcement intel-
ligence liaison contributions from Europol on the issue of terrorism,
together with Eurojust initiatives, can be included (BBC, 2006; Lugna,
2006, p. 125; Fägersten, 2010). Notably, as Lauri Lugna from the
Estonian Ministry of the Interior has noted, ‘EUROPOL is charged with
building and maintaining a database of information supplied by the
Member States, and using this data to analyse crimes, conduct specific
investigations at the request of national law enforcement authorities,
and request that the latter launch such investigations’ (Lugna, 2006,
p. 124; Deflem, 2010, from p. 127; Dodd and Taylor, 2011). By 2006,
further strengthened internal EU cooperation between Europol and the
On a ‘Continuum with Expansion’? 195

SitCen also appeared to be emerging (Council of the European Union,


2006).
But, within this domain of activity, further challenging complexities
clearly exist. The ‘structural’ considerations are not the only ones that
are encountered. The type of intelligence product being interacted over
during the conduct of liaison in these contexts similarly has an impor-
tant role to perform. This factor now needs to be better brought into
the overall analytical narrative being presented. This is so that several of
the main intelligence dynamics involved can be better understood. The
‘intelligence’ that features in the EU is essentially strategic, rather than
tactical and operational, and can be characterised in its composition as
being all-source-based assessments derived. An important analytical dis-
tinction emerges, which can also extend more widely into the other
somewhat overlapping European region and geographic arrangements.
Defined intelligence controls persist. Due to all the prevailing security
and counter-intelligence anxieties concerning the protection of sources
and methods that exist in such multilateral contexts (see as discussed
above), for greater comfort, the intelligence supplied to the EU is based
on ‘sanitised’ strategic, finished and processed intelligence. This is pack-
aged and delivered to the SitCen instead more as diluted information
input from EU Member States’ intelligence communities (Seiff, 2005).
For example, according to the UK ISC, ‘[t]he UK (in particular the
JIC [UK Joint Intelligence Committee] and JTAC) is one of the biggest
providers of information to SitCen papers’ (ISC, 2006, p. 29, para. 102 –
emphasis added), revealing the nature, as well as the form, of the UK’s
contribution (EU, 2005 [2011]; Jeffreys-Jones, 2009).
In the EU context, this ‘information’ arguably then becomes ‘intelli-
gence’ when ‘loaded’ in a ‘purposeful manner’. For instance, this occurs
within the SitCen during the conduct of its own analysis, and when it
generates its own product ready for dissemination among its own select
customers, including EU Commissioner Baroness Catherine Ashton, the
High Representative of the EU for Foreign Affairs and Security Policy,
and head of the recently created (July 2010) European External Action
Service (EEAS) (Cross, 2011).
However, a criticism can be raised that it is still just essentially informa-
tion rather than more serious intelligence that is being handled in the EU
context. Other distinct limits with these EU intelligence arrangements
can be highlighted. Notably, limited resources, such as small staff sizes,
can be cited (with the SitCen in 2010 consisting of around 100 personnel
(Gros-Verheyde, 2010)), suggesting the need for the strict prioritisation
of tasks. These considerations in turn raise many questions, including
196 Counter-terrorism and Intelligence in Europe

regarding the impact of bureaucratic factors, such as the issue of ‘time-


lags’, during day-to-day business processes (Stevenson, 2004; Müller-
Wille, 2005; Bicchi and Carta, 2011; Tigner, 2011a,b). This is not least as
wider, concerning events, such as those rapidly occurring in their mul-
titude in international affairs, are meanwhile frequently unfolding in
high-tempo and condensed-space operating environments (Svendsen,
2010c, p. 376; Healy, 2011; BBC, 2011e).
Further developments can be implemented. The concerns identified
here naturally suggests that intelligence and information arrangements
under the umbrella of the EU have plenty of scope for their gradual
expansion and extension into the future. Indeed, during the summer
of 2008, there were attempts by various European countries to better
improve SitCen’s intelligence capabilities, as well as to extend ‘stan-
dardisation’ processes within its framework – most critically including
trying to work around operational obstacles (Politics, 2008). Accord-
ing to The Guardian, evaluating the internal EU report seen during
August 2008:

[w]hile cooperation between national police forces in the EU was


advancing, the report conceded that the sharing of espionage and
intelligence material was a ‘considerable challenge’ as it clashed with
the ‘principle of confidentiality’ [(or the ‘third party rule’, known
interchangeably as the ‘control principle’, which is intended to pre-
serve the confidentiality of secret exchanges between different parties
during intelligence liaison)] that is the basis for successful exchanges.
(Traynor, 2008)

For improved intelligence-sharing within the EU context, there needs


to be the continued further addressing of the ever-present secrecy-
sharing dilemma that exists with regard to multilateral arrangements
(Aldrich, 2004, p. 732). Moreover, this addressing requires being under-
taken adopting a cultural (including a philosophical), as well as a
structural, approach towards facilitating sharing activities (Atkinson,
2010, p. iv). Whether into the future there is a greater centralisation
of intelligence and information liaison arrangements in the EU con-
text still remains to be seen (Nomikos, 2005a,b; Rüter, 2007). Although
the SitCen evolves over time, a distinct ‘EU CIA’ is probably going
to remain highly unlikely, while an ‘EU NIC’ – that is, undertak-
ing higher and more strategic level monitoring work, more akin to
the research-based/dominated activities of the US National Intelligence
Council (NIC), for instance with its in-depth future ‘global scenarios’
On a ‘Continuum with Expansion’? 197

development (but on more of a ‘regional’ basis) – is a much more


realistic model on which to focus attention (NIC, 2007a,b; Burrows,
2008; Fingar and Burrows, 2008; NIC/ODNI, 2008; ODNI, 2008; NIC and
EU ISS, 2010; Rettman, 2011b). Within this domain of activity, there
are certainly not going to be any rapid or dramatic movements, with
trends continuing, as witnessed previously, on a gradual, evolutionary
path (Gros-Verheyde, 2010; Richards, 2010).
During November 2008, the UK House of Lords reportedly ‘warned’
that ‘intelligence on terrorism, drug trafficking and serious fraud is not
being routinely shared with Europol [. . .] over fears of leaks’, with the
UK Serious Organised Crime Agency (SOCA)’s exchange with Europol
being particularly criticised. Generally, therefore, political-to-policy and
strategy-orientated drivers still appear stronger than more regularised
operational movements. These last aspects seem to take longer to ‘catch-
up’, preferring to proceed more cautiously on more protected, specific
and detailed individual (ad hoc) case-by-case bases (Sky, 2008; Casciani,
2010; Fägersten, 2010).
However, despite their imperfections, and not being universally
popular (Todd and Bloch, 2003, pp. 101–133; Statewatch, 2005;
Bunyan, 2010), these EU intelligence arrangements and initiatives
are rightly recognised as being important in the EU context and
beyond. This is particularly when dealing with pressing transnational
issues, such as, most prominently, counter-terrorism. In 2005, with
still-relevant initiative-driving aspirations clearly apparent, the EU’s
Counter-Terrorism Coordinator remarked:

Timely and accurate information – its collection, analysis and dis-


semination – is essential to prevent acts of terrorism and to bring
terrorist suspects to justice. Progress is being made in implementing
the decisions of the Council to improve the exchange of terrorism
related information. Last year [2004] the Council decided to stimu-
late cooperation among Europe’s security and intelligence services by
reinforcing the Situation Centre (SitCen) in the Council Secretariat.

He continued:

As a result, SitCen now provides the Council with strategic analy-


sis of the terrorist threat based on intelligence from Member States’
security and intelligence services and, where appropriate, on informa-
tion provided by Europol. Meanwhile, Europol is also strengthening
its counter-terrorism task force. Eurojust is playing an increasingly
198 Counter-terrorism and Intelligence in Europe

prominent role in helping national prosecutors and investigating


judges to cooperate across borders.
(De Vries, 2005a, p. 3; see also De Vries, 2005b,c; Hertzberger,
2007; Gowan and Batmanglich, 2010)

Ultimately, whatever is generally thought of the ‘intelligence’ material


handled in the EU – and its usefulness, especially at the lower and micro
levels of experience and activities, such as operationally and tactically –
the EU intelligence arrangements clearly continue to have substantial
and sufficient relevance. They are certainly worth the effort of sustain-
ing into the future (Glick, 2008). In recent years, important EU efforts
have also been witnessed concerning the addressing of pressing ‘radical-
isation’ issues (Haahr, 2009; Goodwin, 2011; Hewitt, 2011; Myhre, 2011;
Riedel, 2011; TL, 2011b; UPI, 2011; Vidino, 2011; Wilner, 2011).
As the implementation of the EU Lisbon Treaty increasingly gathers
momentum, especially with the creation of the EEAS during July 2010,
and with the ESDP becoming re-branded as the CSDP, interest remains
keen to see what the fullest implications of these changes are both for
the SitCen – which became part of the EEAS in late 2010 (Nicoll, 2010b,
pp. 64–81, esp. pp. 75–77; Rehrl and Weisserth, 2010, p. 47; Rettman,
2010a,b,c) – and for the overall process of multi-functional information-
sharing in the EU, over the longer term (Brady, 2009; ISIS Europe, 2009,
p. 5, col. 2; Waterfield, 2009; Brand, 2010; Council of the European
Union, 2010; Gya, 2010; Meo, 2010; Rettman, 2010d; Wendling, 2010;
Carta, 2011; Jane’s 2011a; Menon, 2011).
Shorter-term impact is already clearer. Consisting of three units, essen-
tially the ‘Operations Unit’, the ‘Analysis Unit’ and the ‘Consular Unit’,
in detail,
the SITCEN contributes [. . .] by

• providing all-source assessment on CFSP issues and assessment of


the terrorist threat to the Union and its Member States;
• providing 24/7 support for the day-to-day conduct of CSDP crisis
management operations;
• providing support for the functioning of the EU-Crisis Coordina-
tion Arrangements;
• operating the secure communications networks linking the for-
eign affairs, defence, intelligence and security communities of the
Member States and the Institutions.
(Rehrl and Weisserth, 2010, p. 47)
On a ‘Continuum with Expansion’? 199

Ultimately, the value of sustained cooperative intelligence efforts in


the EU context is starkly obvious. This is demonstrably the case if
we work from the simple basis that the lack of these initiatives and
arrangements altogether would engender worse scenarios, resulting
in counter-productive ignorance concerning especially the key issue
area of counter-terrorism within the EU zone (Den Boer et al., 2008;
Müller-Wille, 2008; Coolsaet, 2010). Moreover, European intelligence
cooperation clearly extends further than merely the ‘components’ just
examined. Wider trends also demonstrate significance (AP, 2011c; Hale,
2011; Jane’s 2011b; Tigner, 2011c).

Capturing wider European intelligence cooperation trends

Along the lines presented above, the overall prevailing wider trends con-
cerning intelligence cooperation in Europe collectively point towards
the increased ‘regionalisation of intelligence’. This is despite, within
that regional framework, the overlapping international intelligence liai-
son developments over time occurring in a mixed manner, in both their
operation and evolution, and varying in their ‘specialness’. This mixture
effectively spans the full spectrum of being, at times, more haphazard
and ad hoc (for instance, work being conducted more case-by-case), as
well as, at other times, being more regularised, and with developments
occurring more systematically and incrementally (e.g. as seen with the
EU SitCen) (Lindblom, 1959, 1979; Gibson, 2005; Rasmussen, 2006;
Coker, 2009). Variations in nature exist.
Borrowing the reported words of the former Director General of the
British Security Service (MI5), Dame Eliza Manningham-Buller (2002–
2007), the discernible overall regionalisation trends can be evaluated as
being essentially on ‘a continuum with expansion’ (ISC, 2004, pp. 22,
para. 74). This assessment stands even if you adopt a sceptic’s stance.
Admittedly, over time, due to the potent mixture of factors involved,
these trends have not had a smooth development, and unevenness
therefore continues to be effectively reflected. For instance, time-
consuming and problematic trade-offs have been evident – including
the ‘secrecy-sharing dilemma’ and the ‘constraints’ somewhat imposed
by the ever-present counter-intelligence and security anxieties, shown
where strictly sanitised ‘information’ rather than ‘intelligence’ per se
features (as discussed with regard to the EU, above).
Moreover, due to their differing natures, the intelligence liaison
relationships in Europe are also clearly of varying degrees of ‘exclu-
sivity’. At times, they are somewhat differently focussed, together with
200 Counter-terrorism and Intelligence in Europe

handling different types of intelligence according to their different oper-


ating parameters. Stemming from these considerations, these arrange-
ments then operate to what can be regarded as varying degrees of
effectiveness in terms of their outcomes, as seen frequently depending
upon information and communications security (INFOSEC/COMSEC)
and Information Assurance (IA)-associated factors, such as which (who)
and how many parties are involved (e.g. Lugna, 2006, pp. 111–139).
Questions and worries about maintaining the momentum of counter-
terrorism initiatives have also figured, especially as the immediacy
of terrorist threats essentially ebbs as time progresses between shocks
(Müller-Wille, 2003; BBC, 2004; Corera, 2005; Nicoll, 2010a).
Evidently, further advances have still yet to be made. This conclu-
sion extends to applying in several different areas, in many different
directions, and to many different extents. However, this situation of
overall and underlying trends on the whole tending to be on ‘a contin-
uum with expansion’ is discernible, especially if those developments are
(a) referred to collectively; (b) examined over the longer term (e.g. traced
over the years from 2000 to 2011); and also (c) if the literature on
this subject is comprehensively explored (Müller-Wille, 2002; Gregory,
2003; Makarenko, 2003; ISC, 2006, pp. 28–29, paras. 98–103; Lindstrom,
2006).
Also, equally, there is evidently sufficient room for substantial over-
lap in terms of both intelligence targeting concerns and require-
ments (or topics of interest), and in at least elements of the intel-
ligence/information product that is handled. This is most apparent
where, for instance regarding the EU SitCen:

On the basis of open source and classified information coming from


Member States and the European institutions, SITCEN monitors and
assesses international events 24 hours a day, 7 days a week. The focus
lies on sensitive geographical areas, terrorism and the proliferation
of weapons of mass destruction. The information and evaluations
provided by EU SITCEN are of a civilian and military nature, covering
all aspects of EU crisis management.
(Rehrl and Weisserth, 2010, p. 47)

Meanwhile, intelligence liaison sceptics and critics are more likely to


query the extent of the observed wider trends. This is as well as those
critics disputing their prevalence and effectiveness, especially if the
minutiae and low and micro levels involved in intelligence activi-
ties are particularly highlighted over general trends, and above the
On a ‘Continuum with Expansion’? 201

generally prevailing incentives for enhanced cooperation (Smith, 2005;


UPI, 2005).
This last point starkly suggests the involvement of further complex-
ities. For instance, particularly when thinking in terms of counter-
terrorism intelligence, the quality of the intelligence, as well as the
quantity (or volume) of intelligence exchanged, is another worthy factor.
Moreover, generally, human intelligence (HUMINT) is shared differently
from signals intelligence (SIGINT), and differently again from imagery
intelligence (IMINT), and from the other ‘collection disciplines’ or ‘INTs’
that exist (Svendsen, 2010a, pp. 11–12). Also in some circumstances,
rather than intelligence-sharing per se taking place, merely ‘access’ to
intelligence is granted, for example provided in Secure Compartmen-
talised Information Facilities (SCIFs), as evident in NATO (Svendsen,
2010a, pp. 41–42). Assessment difficulties persist as generalisability
limits are rapidly encountered.
Further analytic efforts, therefore, need their extension. Indeed,
when attempting to evaluate intelligence cooperation and its associated
trends, it is most helpful if an awareness of these further cascading lev-
els of multiple complexities is effectively communicated, for instance
through being explicitly conveyed and then being better taken into
account. This is especially when that analysis is trying to be undertaken
in a comprehensive manner at the macro level. Again, this commu-
nication can be done most expeditiously through engaging in some
extended methodological reflection. This observation now brings us to
overall conclusions.

Conclusions

Much can be deduced. Overall in Europe there is the discernible devel-


opment of an ever-more complex web consisting of a plethora of various
overlapping international intelligence liaison arrangements. Essentially,
the three broad ‘categories’ detailed above capture these, and, in their
overall mosaic-like arrangement, they collectively provide a form of
regional intelligence coverage in Europe.
Unpacking the three categories in depth allows us several valuable
insights not only into the European cooperative intelligence entities
that exist, but also into the intelligence dynamics and interactions that
occur (and equally not!) both within and between them. These entities
clearly operate to varying degrees of speed and effectiveness, depend-
ing upon the constraints and limits, even operational obstacles, they
encounter, and likewise they develop at different rates. Overall, similar
202 Counter-terrorism and Intelligence in Europe

processes, for not too dissimilar reasons, occur over time both within and
across the three different categories.
In our contemporary era, this discernible mode of regional intelli-
gence cooperation has been focussed mainly on the key issue of counter-
terrorism – although other regionalised-to-globalised security con-
cerns, such as organised crime and WMD proliferation, together with
peacekeeping and crisis management considerations, are simultaneously
present to a considerable extent. This occurs primarily due to regional
intelligence and security reach continuing to be extended into ‘newer’
realms of activity as demands, requirements, and strategic and opera-
tional remits all become widened (Van Duin, 1993; Boin et al., 2005).
Closely associated with broader globalisation trends apparent in
international affairs, the ‘regionalisation of intelligence’ developments
charted throughout this chapter are essentially on ‘a continuum with
expansion’. Moreover, notwithstanding the observation that details and
specifics – as well as the low and micro levels of experience and activity –
matter significantly in the intelligence world, the overall trends are not
ambiguous (Svendsen, 2008a,b, 2012; Aldrich, 2009a,b).
However, as seen when generalising, while the trends may not be
ambiguous in themselves – especially in terms of more tangible widen-
ing and structural developments – how far they precisely extend and
endure – particularly in terms of less tangible deepening and cultural
(including philosophical) developments – are more debatable issues.
Concerns such as these will continue to be hotly contested into the
future, and no easy answers present themselves. A ‘complex co-existence
plurality’ of developments is encountered.
Further conclusions are apparent. While significant caveats remain,
suggesting that distinct operational parameters and limitations for all
the arrangements continue to feature, the important overlap of the
various arrangements in Europe allows them to perform in a more
empowering than hindering manner. The limitations do not overwhelm
the whole ‘system’. Intelligence cooperation trends within Europe can
therefore be generally evaluated positively as being essentially on
an upward trajectory, even if that trajectory is caveated (IISS, 2009,
pp. 35–36).
The essence is that the whole is greater than the sum of its parts, and
generally the overall ‘system’ that does currently exist appears to work
substantially on that basis. Already present, at their least, as a reasonably
adequate starting foundation on which further European intelligence
cooperation developments can be built, these trends now need to con-
tinue to be better harnessed into the future. Seizing and maintaining a
On a ‘Continuum with Expansion’? 203

‘forward’-driving initiative continues to be required in an increasingly


timely fashion. This is in order to have an appropriately continuing
transformative effect on wider developments in Europe and beyond as
time progresses (Boin and Ekengren, 2009; Maclean, 2010; Muncaster,
2010). Opportunities also figure.

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On a ‘Continuum with Expansion’? 209

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9
Security Partnerships, Intelligence
and the Recasting of the UK
Monopoly of Violence in the
21st Century
Carlos Ortiz

Certain factors engendered in the transition to the post-Cold War world


figure prominently in explanations for the origins of the ongoing phe-
nomenon of the privatisation of security. These factors include, inter
alia, the downsizing of armed forces during the 1990s, which created a
bountiful supply of personnel available for private military and secu-
rity contracting. Further, the reinvention of state forces into highly
specialised and technological machineries has fostered a greater depen-
dence on the private sector, particularly for the maintenance of the new
implements of warfare as well as military and security-related research
and development (R&D). Intelligence agencies were also scaled down
after the end of the Cold War, which released into the market a gener-
ation of specialists in possession of rare skills. The homeland security
market, which encompasses myriad of private services and technologies
designed to counteract the expansion of international terrorism after the
terrorist attacks of 11 September 2001 in the United States (US) (9/11),
is also part of the narrative about the causes or consequences of the
privatisation of security.
Political changes in the transition to the post-Cold War world and
after 9/11 are useful to explain the growing use of firms in areas of
defence and homeland security. However, this epochal transformation
has deeper and unsuspected roots. For example, British Aerospace (the
forerunner of BAE Systems, the largest defence contractor in Europe),
smaller defence firms such as the defunct Airwork Services Ltd and
numerous individual advisors were already engaged in Saudi Arabia

215
216 Counter-terrorism and Intelligence in Europe

and other countries in the region in the 1970s. In 1968, Harold Wool
(Wool, 1968, p. 117) argued that the retention of trained specialists by
the armed services was emerging as a ‘chronic problem’, and in 1971,
Morris Janowitz (Janowitz, 1971, p. xxiii) argued that the practice of
having contractors performing logistics and supply roles was fostering a
‘tendency to assign uniformed personnel to purely military or combat
functions’.
This brief exploration confirms that trends towards the privatisa-
tion of security have gained momentum since the 1990s. However,
the exploration also shows that there are other issues that we need to
take into consideration in order to explain more accurately the roots of
the phenomenon, which predates the end of the Cold War. In particu-
lar, I believe it is important to examine certain structural components
within the state leading to a recasting of the state monopoly of vio-
lence premised on systematic contractor support. This chapter follows
this line of enquiry by emphasising the role public management has
played in this transformation, while, at the same time, reflecting on the
evolving nature of state intelligence.
Firstly in the chapter, I outline the evolution of public managerial
practices over the last few decades. This overview throws new light
on the origins of the policy agenda that has systematically called for
a greater reliance on defence contractors, Private Military Companies
(PMCs), and intelligence firms for the satisfaction of state defence and
security. Secondly, I argue that the notion of ‘security partnerships’ is
helpful to synthesise the logic behind the contemporary privatisation of
security. Thirdly, I explore the implementation of intelligence functions
through the security partnerships model. Lastly, I elaborate on distinc-
tive technical issues affecting the new management of defence and secu-
rity through security partnerships and examine implications of the first
global recession of the 21st century for the evolution of the model. As a
country at the forefront of trends towards the privatisation of security
and thus setting standards of European transcendence, the trajectory of
the United Kingdom (UK) is used as a case study in the chapter.

The shift towards the security partnerships model

Security partnerships find their normative foundations in the neoliberal


revolution well under way as the Cold War entered its closing stage.
In the 1980s, the government of Margaret Thatcher engaged in a
comprehensive programme towards the privatisation of public assets.
Privatisation was partially seen as an answer to the need to transform
Security Partnerships and Intelligence 217

the bureaucratic and monolithic structure of government. A key goal


also became the reinvention of government through strategies involving
a wider use of the private sector besides outright privatisation. In addi-
tion, this transformation called for the application of market principles
to the running of the public sector. Abstract ideas inspired by neolib-
eralism became political realities. Out went the establishment of clear
distinctions between the public and private sectors, as proposed in 1886
by Woodrow Wilson (Wilson, 2004, p. 22) in his influential essay The
Study of Administration; turning the workings of the public sector into a
perfect machinery, as sought by the followers of Frederick W. Taylor,
the scientific management movement; and the bureau and bureau-
cratic administration as the key public institutions, as argued by Max
Weber (Weber, 1997, p. 214). This is what, Fox and Miller note, con-
stitutes ‘post–modern public administration’, or the abandonment of
Wilsonian, Taylorist and Weberian principles (Fox and Miller, 1995).
By the early 1990s, there was a good degree of consensus in identify-
ing the emerging approach as simply new public management (NPM).
The approach is empirical and experimental in its design and methods.
It also borrows from economics and business theory. Discussions within
governments, professional commentary and academic scholarship all
converged on this paradigmatic movement (Barzelay, 2001, p. 159).
It appears that, by the early 1990s, segments within this epistemic com-
munity were already advocating the application of NPM principles to
at least defence procurement, logistics support and aircrew training.
In this light, the Private Finance Initiative (PFI), through which the UK
Ministry of Defence (MOD), rather than owning and operating capital
assets, agrees to their private financing in return for paying for their use
and associated support services (Hartley, 2004), was launched in 1992.
Henceforth, NPM-style reform has been highly pervasive and spread to
other ambits of the UK monopoly of violence.
The management of the monopoly of violence involves numerous
tasks associated with the preservation of the integrity of the state from
internal and external aggressors. The design, the production, the sup-
port, the maintenance or the operation of defence, law enforcement
and intelligence services and technologies are some of the generic areas
within this distinctive security universe. The application of NPM prin-
ciples to the management of these areas entails particular methods
and values. The fundamental value is the assumption that private sec-
tor participation is essential to improve the delivery of public goods
and services related to defence and homeland security. The interlinked
aspiration is to raise the efficiency of the selected goods and services,
218 Counter-terrorism and Intelligence in Europe

namely to minimise delivery costs while attempting to maximise the


benefits the state derives from these goods and services. Methodolo-
gies such as the creation of public–private service comparators and
public institutions and managers dedicated to implement them belong
here, and imply the forging of close and formal patterns of collab-
oration between government and private sector firms. In their most
developed form, these patterns of collaboration become public–private
partnerships (PPPs). PPPs ‘integrate selected parameters for contractual
privatisation into a managerial interface linking the public and pri-
vate sectors in service delivery’ (Ortiz, 2010a, p. 39). Among other
advantages, PPPs facilitate the integration of otherwise ad hoc param-
eters and requirements; the amalgamation of public sector aspirations
and private sector entrepreneurship; and the delineation of goals and
responsibilities between government and firms more effectively.
I use the term ‘security partnerships’ to denote the application of
PPP principles to defence and homeland security, an approach that
denotes both a practical and a conceptual compact. At the outset, these
partnerships touch sovereign ambits, thus involving more specific ten-
dering and monitoring methods than is the case for conventional public
services. In particular, national security considerations tend to impact
tendering and contracting decisions. For instance, domestic firms might
be favoured over foreign bidders and the employed personnel also
required possessing or undergoing security clearance. At different gov-
ernment levels and sectors of the security forces, these skills amalgamate
knowledge in areas such as counter-terrorism, intelligence, IT systems,
logistics, maritime security or military training, as well as specific
activities such as the detection of improvised explosive devices, drone
and physical surveillance, intelligence data analysis, tactical jamming
systems and so on (Ortiz, 2010a, p. 39). Commensurably, the new man-
agement of defence and homeland security requires specific types of
firms, namely defence contractors, PMCs and intelligence firms.
Security partnerships permeate all non-lethal sectors of the UK
monopoly of violence. For example, Qinetiq is a listed corporation that
evolved from the partial privatisation of the Defence Evaluation and
Research Agency, previously comprising the defence R&D arm of the
British government, and its subsequent transformation together with
the Carlyle Group of the US into a quasi-security partnership. Led by
Qinetiq, the Metrix consortium was selected in January 2007 as the
preferred bidder for the Defence Training Rationalisation (DTR) Project,
worth £12 billion and launched with the aim of centralising the design
and delivery of the technical training for the British Army, the Royal
Security Partnerships and Intelligence 219

Air Force and the Royal Navy. Similarly, the United Kingdom Mili-
tary Flying Training System (UKMFTS) is a project aimed at creating
a tri-service organisation focusing on the flying training of the British
forces. UKMFTS will be handled by a Training System Partner (TSP) and
implemented through a PFI. At the time this chapter was being writ-
ten, Ascent, a joint venture between VT Group and Lockheed Martin,
was named as the preferred bidder for the TSP contract. Babcock Inter-
national Group and Carillion are in charge of a security partnership
handling the training of British military engineers. Incorporating R&D
from the computer game industry and adapting it to military require-
ments, the battlefield training simulation Virtual Battlespace 2 (VBS2 )
introduces British servicemen to the use of lethal force in simulated sce-
narios in Iraq, Afghanistan or elsewhere where they might be deployed
(Sherwood, 2011), and so on. The whole British defence and security
apparatus is now interlaced and held together by an intricate web of
security partnerships.

The re-engineering of state intelligence

The application of security partnerships to the management of the UK


monopoly of violence has accelerated since the beginning of the 21st
century. However, the process has not occurred suddenly or in a vac-
uum, as some analysts suggest. This fundamental transformation of
state defence and security has been informed and modelled by a step-
wise succession of policy reviews since the late 1980s. Thus, the 1998
Strategic Defence Review already noted that besides PPPs, the efficiency
and innovation record of MOD since the late 1980s had partly rested
on ‘the greater involvement of the private sector’ (MOD, 1998, para.
170). By 2005, the Defence Industrial Strategy noted that a growing pro-
portion of the defence budget was being ‘spent sourcing products and
services from a largely private sector industrial base’, and highlighted
as part of the MOD’s ‘values for acquisition’ the sharing of ‘objectives,
risks, and rewards’ with the private sector (MOD, 2005, para. A3.6 and
unnumbered table before para. C1.8). After 9/11, along the seemingly
nascent trend towards the securitisation of homeland security, together
with the identification of international terrorism as the main threat to
global security and the internalisation of risk (Ortiz, 2010b, p. 104), state
intelligence functions started migrating markedly to a model based on
security partnerships.
The intelligence reform agenda gained momentum in the UK largely
as a response to the terrorist attacks of 7 July 2005 on London’s transport
220 Counter-terrorism and Intelligence in Europe

system (7/7). Hence, the 2007 Security and Counter-Terrorism Strategy


stressed a policy commitment to strengthen cooperation with business
‘by establishing partnerships to deliver the full spectrum of science
and technology solutions and to encourage innovation’ (HM Govern-
ment, 2007, p. 8). The follow-up 2009 Science and Technology Strategy
reiterated this ‘greater partnership and engagement with industry’, for
example, to improve analytical tools and in surveillance, interception
and the collection of data (HM Government, 2009, pp. 13, 26). The
2010 National Security Strategy, which will shape defence and home-
land security strategies throughout at least the current decade, continues
to emphasise the ‘need to build a much closer relationship between gov-
ernment, the private sector and the public when it comes to national
security’ (HM Government, 2010a, p. 5). British national security is
largely imagined as a ‘domestic resilience’ exercise targeting the threat
that, inter alia, terrorism (national and international), cyber-attacks and
natural disasters pose to peace and stability (HM Government, 2010a,
pp. 10–11). In effect, these ‘speech acts’ (see Buzan et al., 1998) reflect
the accelerated securitisation of the homeland security environment
in partnership with the private sector and in an apparent, but some
say sometimes disproportionate, response to calls for increased societal
security.
While surveillance and wiretapping are increasingly carried out in
security partnerships with contractors, intelligence functions sometimes
involves the accessing of data stored or collected by contractors as an
element intrinsic in the delivery of some private military and security
services. In Afghanistan and Iraq, for example, the field intelligence
feeding counter-terrorism and reconstruction strategies has partly orig-
inated in information collected by PMCs and other contractors on the
ground.
Although private sector services and technologies began to play grow-
ing roles in British counter-terrorism and intelligence strategies after 7/7,
security partnerships for intelligence have been established even before
9/11. However, this type of security partnerships is little documented
and complex to research. The reasons for it are at least twofold. The
first reason relates to the nature of intelligence activities and concomi-
tant difficulties in identifying the firms hired to support intelligence
functions.
Intelligence entails the limited public disclosure of information about
the activities undertaken to enhance our homeland security. Therefore,
it is only when, first, controversies arise or, second, projects are large
or expensive enough to be impossible to be concealed that we learn
Security Partnerships and Intelligence 221

about the use of contractors in intelligence tasks. Among other note-


worthy examples, the Wall Street Journal reported in June 2009 that
Germany’s Siemens AG and Finland’s Nokia Corp. were partly behind
the monitoring centre controlling and censoring Internet access in Iran
(Rhoads and Chao, 2009). On the second point, with a price tag in excess
of US$500 million by 2010, the Terrorist Identities Datamart Environ-
ment (TIDE) in the US is a classified database developed by Lockheed
Martin and containing the names as of December 2009 of over 550,000
terrorists, suspected terrorists and potential terrorists. Thousands of
licenced users across the US and abroad access this database as an ele-
ment of regular counter-terrorism checks. Umar Farouk Abdulmutallab,
the so-called underpants bomber who was able to board a plane in
Amsterdam bound for the US with an explosive device hidden in his
undergarments, was listed in TIDE, though he was then not considered
a threat big enough to be incorporated on a no-fly list. At the time
this chapter was being written, Boeing, SRI International and various
subcontractors collaborated in the design of TIDE’s upgrade, a database
project called Railhead (Subcommittee on Investigations and Oversight,
US Committee on Science and Technology, 2008). It is not overly adven-
turous to suggest that the Mastering the Internet (MTI) project, aimed
at monitoring all online activity in the UK, will incorporate counter-
terror surveillance features similar to those deployed by TIDE. Lockheed
Martin and Detica appear to be the key contractors behind MTI (Leppard
and Williams, 2009).
In addition to other corporations already mentioned, Tim Shorrock
identifies Booz Allen Hamilton, Science Applications International Cor-
poration (SAIC), BAE Systems and Lockheed Martin as key private
intelligence suppliers (Shorrock, 2008, p. 11). It is not possible to refer
to these corporate giants as simply PMCs, defence contractors or intel-
ligence firms. Nevertheless, many of these corporations deliver a vast
array of intelligence-related services. Again, governments would only
marginally disclose the names of the firms contracted out in areas of
intelligence and what exactly they are doing on behalf of the state.
The failure to acknowledge these issues has led some commentators to
underestimate the role played by the private sector in state intelligence.
The convergence of defence and homeland security functions adds
additional complexities to the problem of modelling security partner-
ships for intelligence. In the current environment, ‘non-military secu-
rity services sometimes use equipment which is technologically similar
to defence equipment’; military and constabulary forces ‘operate closely
together to fulfil the same missions’; and sometimes segments within
222 Counter-terrorism and Intelligence in Europe

‘the armed forces have both military and non-military tasks for which
they often use the same equipment’ (European Commission, 2007,
p. 14). Corroborating this European Union (EU)-wide issue, the 2005
UK Defence Industrial Strategy further noted the interchangeability of
intelligence capabilities used in the homeland security environment
with those applied in the military field, which this White Paper argued
‘reinforces the importance of the counter-terrorism sector, and pro-
vides greater opportunities for both industry and MOD to become more
cost-effective’ (MOD, 2005, para. B.10). Whereas counter-terrorism and
intelligence are not exactly the same activities, the two are interdepen-
dent and sometimes used indistinctly in the speech acts underpinning
the securitisation of the homeland security environment in the UK.
As boundaries between defence and homeland security break down,
so too does the analysis of the roles played by private sector firms in
partnership with the state and of the tangible benefits society experi-
ences from their broadening use. Indeed, the problems inherent in the
modelling of security partnerships for intelligence are just a prelude to
the various issues that will permeate the study of intelligence as we
move further into the 21st century. Meanwhile, we should not loose
sight of the key points that security partnerships for intelligence are a
patent reality and that their use will only grow. While this type of part-
nerships engenders distinctive complexities, intelligence outsourcing is
also affected by more generic technical problems.

Outsourcing opportunities and problems

Even though raising the efficiency of service provision is a key aspiration


of the management of defence and homeland security tasks through
security partnerships, efficiency targets are not always achieved. Limits
imposed on open and full competition and what I term ‘performance
provisions’ are two of the most common problems affecting the efficient
allocation of resources and services (Ortiz, 2010a, pp. 36–38; 2010b,
pp. 128–131).
At the level of the EU, for example, the European Commission estab-
lished that, between 2000 and 2004, the EU older Member States did not
publish in the Official Journal of the European Union on average 87 per
cent (in value terms) of tender opportunities for defence equipment
(European Commission, 2007, pp. 13–14). These tender opportunities
were largely restricted to national markets. An indeterminate proportion
of tenders were also probably awarded on the basis of performance pro-
visions, which are in place when governments feel compelled to limit
Security Partnerships and Intelligence 223

competition in order to safeguard classified information and are typi-


cal of intelligence outsourcing. Further, exceptions to competition rules
for sensitive non-military security equipment, some of which is used to
perform intelligence functions, were also found by the European Com-
mission to be widespread. Likewise, in the UK, competition and cost
did not appear to have been issues when early in 2004 the British gov-
ernment hired Risk-Analysis to investigate the source of leaked Cabinet
Office documents (Winnett et al., 2004; Winnett and Leppard, 2004). For
such a sensitive matter, the fact that Christopher Davy, the chairman of
Risk-Analysis, ‘served for more than 26 years in UK Government Secu-
rity working closely with law enforcement agencies’, and Martin Flint,
a then managing director, ‘served for over 20 years as an intelligence
officer in MI5’ (Risk-Analysis, 2009), must have influenced the decision
to hire the firm.
Problems arise too after the awarding of contracts and they can be
subsumed as instances of public or private mismanagement, deficient
oversight and over-billing. For instance, the independent inquiry into
the September 2006 mid-air fire of the Nimrod MR2 aircraft XV230 in
Afghanistan that killed 14 British servicemen was highly critical of BAE
Systems and Qinetiq, the defence contractors dealing with the record
case of the plane. The inquiry report stressed that the safety case of the
plane was a ‘lamentable job from start to finish’, ‘riddled with errors’,
and its production ‘a story of incompetence, complacency, and cyni-
cism’ (Haddon-Cave, 2009, p. 10). Compounding MOD procurement
management and oversight problems, the National Audit Office (2009,
para. 31) reported in July 2009 that MOD was unable to account for
about £6.6 billion worth of military equipment (National Audit Office,
2009, para. 31).
The consequences of the first global recession of the 21st century add
further uncertainty to the future development of security partnerships,
as European governments need to contain public spending and defence
and homeland security budgets have to be correspondingly optimised.
In the UK, outlining ongoing and future plans involving contractors,
the Defence Industrial Strategy was published in December 2005. In the
foreword to this White Paper, it was noted that British military stand-
ing has moved alongside ‘sustained real increases in the Defence budget
arising from each Spending Review since the [former Labour] Govern-
ment was elected in 1997’ (MOD, 2005, p. 2). However, the global
recession brought the curtain down on budget increases (and British
military standing). The 2010 Strategic Defence and Security Review thus
signals that ‘bringing the defence budget back to balance is a vital part of
224 Counter-terrorism and Intelligence in Europe

[. . .] this country’s national security’ (HM Government, 2010b, p. 3). The


contraction of security expenditure is substantial and in practical terms
entails an ‘unfunded liability’ estimated at £38 billion over the next ten
years and affecting all sectors of the forces (HM Government, 2010b,
p. 15), as well as future plans for large-scale security partnerships. One of
the biggest casualties so far has been DTR, which was terminated in 2010
as a result of budget cuts, while a £6 billion PFI planned for the reor-
ganisation as a security partnership of the search-and-rescue helicopter
service operated by RAF, the Royal Navy and the Maritime Coastguard
Agency went back to the drawing board. Critically, by linking economic
to national security, the 2010 Strategic Defence and Security Review has
changed the tone of the security debate in the UK.
An element of the defence consolidation process in the UK impli-
cates mediating between the different requirements of armies, navies
and air forces. Whereas armies want to be better equipped for the
counter-insurgency and reconstruction conflicts of the 21st century,
the requirements of navies and air forces tend to be centred on con-
ventional warfare and be based on expensive and sometimes prestige
infrastructure. At the same time, the balancing act also needs to take into
consideration an already long and costly deployment in Afghanistan
and the deteriorating security outlook of other Middle Eastern and
North African countries in which the UK might get involved besides
Libya. Whether this last scenario materialises or not, more discretionary
spending on smaller security partnerships rather than multi-billion PFIs,
which typically last three decades, is likely to be a trend during the
second decade of the century. Among this type of partnerships, the pri-
vate provision of personal protection details for British officials while
on overseas duty is likely to remain at no less than the current ratios,
as insecurity is on the rise and there is no immediate substitute for it.
The planned reduction of 17,000 service personnel by 2015, as outlined
in the 2010 Strategic Defence and Security Review (HM Government,
2010b, p. 32), will boost labour supply to satisfy any new demand for
private security services.
Other than agreed intelligence and counter-terrorism initiatives, R&D
expenditure remains a question mark in the UK until budget rational-
isations filter down to all sectors of the security forces and priorities
are re-organised to reflect new cycles of austerity. This will probably
occur after 2015. Nonetheless, homeland security is becoming priority
spending and is also the fastest growing market along with the digi-
tisation of public services. Furthermore, the noted interchangeability
of intelligence services and technologies between the defence and the
Security Partnerships and Intelligence 225

homeland security environments due to the convergence of both areas


might result in an expansion of intelligence spending comparatively
to other security areas. On the one hand, this is because an increase
of intelligence budgets can be justified in light of the deteriorating
global security outlook. On the other hand, interchangeability between
defence and homeland security services and technologies can facilitate
the justification of larger intelligence budgets as ‘efficient’ spending, as
it can be argued that budgeted costs cover both intelligence for defence
and homeland security. Bearing in mind that a great deal of the intel-
ligence expertise now rests with the private sector, particularly those
tasks requiring new information technologies, security partnerships for
intelligence are only likely to multiply over the next decade. Along
this expansion, we will need to start thinking and theorising on state
intelligence functions anew.

Conclusion

As the conclusion to this chapter was being written, Europe has found
itself at a historical juncture. In Norway, on 22 July 2011, a bomb blast
in central Oslo and a shooting rampage at an island youth camp claimed
the lives of 77 people. Anders Behring Breivik, the self-confessed perpe-
trator of the terror attacks, failed to match the post-9/11 securitisation
script. He was not an Islamist fundamentalist, but a Norwegian far-
right sympathiser with connections to like-minded people elsewhere
in Europe, including the UK. In the UK, early in August 2011 unex-
pected and extensive rioting in metropolitan areas of England sent
ripples throughout society. The extensive criminal damage caused dur-
ing the riots matched that which we could have imagined occurring
as a result of large-scale and synchronised terrorist attacks. In a matter
of weeks, the securitisation focus shifted away from conceived priority
threats.
This is not to say that the common threats and challenges established
in the European Security Strategy (see the first two chapters in this vol-
ume) ceased to matter – for example, terrorism, serious and organised
crime, and natural and man-made disasters. However, the threat those
two events posed to European security found a better answer in between
the lines of common threats and challenges noted in the strategy rather
than the rehearsed speech acts. Discussing the consequences of those
two events falls outside the scope of this chapter. Yet, it seems prudent
to keep them in mind while reflecting on the UK experience managing
state defence and homeland security through security partnerships.
226 Counter-terrorism and Intelligence in Europe

Security partnerships have proved a resilient structural component


of the UK monopoly of violence. They unfold against strategies con-
ceived for implementation over periods ranging anything from a few
years to a few decades. Therefore, considering the long-term goals that
defence and security reviews establish and the fact that any new strat-
egy builds on preceding models, it is unconceivable to think that we
would see the security edifice suddenly and somehow brought to the
ground. The reinforcement of law enforcement after the events in
Norway and England will thus incorporate private sector support and
new or enhanced security partnerships.
Indeed, defence and homeland security management through secu-
rity partnerships suffers from many imperfections. In particular, there
are problems with the restrictions imposed on open and full competi-
tion, the failure to attain efficiency savings and limited oversight (on
the latter, see also Hillebrand’s chapter in this volume). In addition,
while it can be argued that abuses of authority, mismanagement and
over-billing have only been committed by a comparatively small sample
of contractors among hundreds operating in the UK alone (or support-
ing deployed forces and foreign missions), suspicion lingers in the air
that this might be the tip of the iceberg. Public disclosure of such
matters is limited in the UK, making it difficult to construct a com-
parative analysis from which to draw better conclusions than the ones
this chapter has offered. Nonetheless, all the distinctive issues and prob-
lems discussed here further highlight the new security architecture of
the British state based on security partnerships and the extensive use of
contractors.
The experience of the UK is also unique because it is an EU coun-
try that also maintains a distinctly close alliance with the US when it
comes to defence and homeland security. This is highlighted in the 2010
National Security Strategy, where it is noted that the UK can best pursue
national interests through a commitment to collective security ‘notably
with the United States of America [. . .] and our vital partnership in the
European Union’ (HM Government, 2010a, p. 10). Against this back-
drop, being at the forefront of the trend towards the establishment of
security partnerships together with the US has partly contributed to the
argument of an Anglo-Saxon security model (Ortiz, 2012). At the same
time, however, as an EU member, the UK has fostered the European ten-
dency to curtail the use of private lethal force. By integrating the lessons
learned by the UK in this dual capacity, the EU could thus bolster its
position as a global security player.
Security Partnerships and Intelligence 227

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10
Conclusion – European Security,
Terrorism and Intelligence:
Assessing the Path of
Development
Alex MacKenzie and Kamil Zwolski

In 2003, the European Security Strategy (ESS) explicitly stated that the
development of globalisation had led to ‘European dependence – and
so vulnerability – on an interconnected infrastructure in transport,
energy, information and other fields’ (European Council, 2003). This
statement demonstrates that Europe is now closely economically inte-
grated and, by implication, European Union (EU) Member States must
take coordinated internal security measures commensurate with exist-
ing threats. The ESS outlined five threats that pose risks to Europe:
terrorism, the proliferation of weapons of mass destruction, regional
conflicts, state failure and organised crime. In setting out a European
strategy, EU Member States recognised that there are certain shared
threats that pose risks across the European continent. Consequently,
as this book has charted, EU Member States have responded vigor-
ously to a number of threats (Zwolski, 2011a,b, 2012a,b; Zwolski and
Kaunert, 2011). We perceive the various security arrangements that have
emerged since 2001 (in particular) to be indicative of a broader trend of
‘Europeanisation’ of internal security. The fact that EU Member States
also managed to arrive at an Internal Security Strategy (ISS) in 2010 sug-
gests, firstly, that European integration in security matters has proven
beneficial to all involved and, secondly, that EU Member States share
a desire to deepen their cooperation (Council of the European Union,
2010).
Over time, EU Member States have enhanced their cooperation on
matters of internal security; however, in this process of integration in
security matters, a lack of overall strategic vision can be discerned. It has

229
230 Conclusion

been argued that the EU has reacted to crises and decisions have been
taken on an incremental basis (following the terrorist attacks on Madrid
in 2004, e.g.) (Argomaniz, 2009a), which has led to a plethora of ini-
tiatives and strategies, but it is not at all evident where this process is
heading or what the ultimate goal is (Schroeder, 2012). What is very
clear is that the EU has become more important in matters of internal
security over the past ten years; that European institutions have carved
out an important role for themselves in European security, which is set
to grow further with the Stockholm Programme and the new arrange-
ments introduced by the Lisbon Treaty (Kaunert, 2007, 2010a,b,c); and
that there are further challenges that the EU must overcome if it wishes
to enhance its role further. Ultimately, this conclusion reflects on how
this increased role for the EU has been created, the prospects for future
developments at the EU level and the conditions necessary to achieve a
more comprehensive and coherent ESS in the future. It is clear that the
trajectory of European security matters is very much in the direction of
further integration, which explains why this volume is both timely and
important.

The Europeanisation of internal security

This book brings together different areas of European security coop-


eration, with a focus on internal security. Developments in internal
security cooperation at the European level can be traced back to at
least the TREVI Group in the 1970s (Bures, 2006), but this was an
informal arrangement that existed outside the control of the European
Community at the time. The Maastricht Treaty brought this intergov-
ernmental arrangement into the pillar system in 1993. Then, in 1999,
the European Council meeting at Tampere set out an ambitious agenda
for security cooperation at the European level, but real progress appeared
to be hamstrung by the sovereignty concerns of Member States. The
events of 9/11 perhaps had the most significant external effect on the
Union, providing a context in which many of the initiatives discussed
at Tampere could be introduced (Zimmermann, 2006). Following these
external events and internal institutional developments, the Area of
Freedom, Security and Justice (AFSJ) has become an objective in its own
right and has moved from being a measure flanking the single mar-
ket to being listed as the second objective of the EU since the entry
into force of the Lisbon Treaty (Kaunert et al., 2012). Therefore, we can
clearly see that the EU’s role in European security has gone from mod-
est to significant in some areas and that providing security to Europe
has become a more important objective for the Union. We will now
Conclusion 231

draw out some of the issues that have led to this transformation –
including the role of terrorism; the changes made to the EU’s architec-
ture by the Lisbon Treaty; the influence of external actors, particularly
the United States (US); and the increase in the role of the EU institu-
tions in European security, both through treaty change and their own
efforts.
It is evident that the EU held a very limited role in European security
prior to 9/11. European aspirations were evident at the aforementioned
European Council meeting at Tampere and through the creation of
the fully-fledged Europol, both occurring in 1999. However, the end
products of the meeting in Tampere were vague commitments and
aspirations, with little chance of any of the measures being initiated.
The events of 9/11 and international terrorism more generally changed
this. Edwards and Meyer state in unequivocal terms that ‘[t]he gover-
nance of the European Union has been changed through its responses
to international terrorism’ (Edwards and Meyer, 2008). Following 9/11,
Zimmermann emphasises that over 150 measures were included in the
‘Anti-Terrorism Roadmap’, which is evidence of how seriously Member
States viewed the threat of terrorism at the time, as well as their desire
to show solidarity with the US and demonstrate the measures that they
were prepared to take to combat the threat (Zimmermann, 2006). The
most high-profile measure to have been introduced by the EU is almost
certainly the European Arrest Warrant (EAW). Although its use is not
restricted to terrorism only, this was a step forward for the Union on
the basis that extradition was simplified to become surrender and there
is now mutual recognition between the legal systems of the Member
States. In short, we can conclude that international terrorism has prob-
ably been the single most important threat to have had an impact upon
the Union and has led to a significant number of actions.
Yet, this does not mean that other threats have been ignored; how-
ever, terrorism, perhaps more so than any other threat, has had a lasting
and profound influence upon the EU. The activities following 9/11 have
led EU Member States to see value in cooperation and to expand their
activities. In addition, there are threats that have been identified as
being linked to terrorism, such as drugs and organised crime, some of
which have been seen as emanating from North Africa and South Asia in
particular (Hutchinson and O’Malley, 2007; Marret, 2008; De Kerchove,
2009; Gibert, 2009; Interpol, 2010). Afghanistan is known to supply over
90 per cent of the world’s heroin, including Europe’s, and Al Qaeda in
the Islamic Maghreb (AQIM) has been involved in criminal activities for
fundraising purposes in European countries. From this, it is evident that
threats from external sources have internal consequences. Therefore, the
232 Conclusion

EU must work towards a coordinated and comprehensive response in


order to counter these threats.
This has exposed a second catalyst for European integration in inter-
nal security matters: pressure from external sources. In particular, the
US has had a profound effect on EU internal security. Washington had,
in fact, attempted to initiate and build security cooperation with the
EU through both the Transatlantic Declaration of 1990 and the New
Transatlantic Agenda of 1995, but these efforts were ‘rebuffed’ as pre-
mature, to great frustration in the US (Rees, 2006). Once more, 9/11
changed the EU’s outlook and led to the EU opening itself up to security
cooperation with the US. The first agreement between the transatlantic
partners on Mutual Legal Assistance and Extradition in 2003 was the
first time that the US had legally recognised the EU in this area. In the
years since 2003, the EU and the US have signed a number of important
agreements – including four Passenger Name Record (PNR) agreements,
an agreement on the Container Security Initiative (CSI), two Europol–
US agreements, one Eurojust–US agreement and the agreement on the
Terrorist Financing and Tracking Programme (TFTP), also known as the
SWIFT agreement. These agreements have led to an expanded recog-
nition of the EU by others, such as Canada and Australia, which also
expressed a desire to cooperate on PNR with the EU. In the future, it can
be expected that many other countries will want to cooperate with the
EU on PNR matters.
External agreements have had an important impact upon the EU in
that the Union, or certain Member States or institutions, have become
‘norm-takers’ of US security norms (Argomaniz, 2009b; Ripoll Servent
and MacKenzie, 2012). Agreements between the EU and the US caused
some tensions, with some Member States, such as the UK and Spain,
demonstrating, for historical reasons, a preference for enhancing the
security role of the EU, while others, for cultural reasons, highlighted
their concerns over data protection issues (Rees, 2008). Most clearly, the
SWIFT agreement increased these tensions to a considerable extent, as
Germany, Austria, Greece and Hungary all expressed concerns over data-
protection issues (Monar, 2010). In addition, the European Parliament
(EP) had for many years been a strong upholder of data protection in
the EU, but it softened its position on data protection during the SWIFT
negotiations (Ripoll Servent and MacKenzie, 2011). Therefore, some EU
Member States have acted to help facilitate cooperation between the EU
and the US, while the Commission and the EP have generally become
more convinced of the utility of EU–US agreements. Now, from these
agreements with the US, there are signs that the EU wants to develop its
Conclusion 233

own internal security policies modelled on the US policies, which most


clearly highlights the EU’s role as a ‘norm-taker’. This is most evident in
the proposals for an EU PNR and an EU TFTP that have surfaced over
the past few years (Pawlak, 2009a; MacKenzie, 2012).
This interaction with the US provided the Commission in particular
with the opportunity to establish itself as a partner for the US (Bossong,
2008). More generally, EU–US cooperation established and reinforced
the respective roles of the European Commission and the Department
of Homeland Security (DHS) in the US in internal and external secu-
rity matters (Cameron, 2007). In addition, the EP had attempted in the
past to become more involved in internal and external security matters,
but had failed to do so as institutional arrangements held it back. Once
more, this was evident in the 2007 PNR agreement with the US, which
was adopted on the basis of the former Third Pillar, thereby excluding
the EP (Pawlak, 2009b). However, during the negotiation of the SWIFT
agreement, the EP was one of the main actors pushing for an EU TFTP,
meaning that it had enhanced its role in EU security matters as a result
of the Lisbon Treaty and had also, to an extent, absorbed US security
norms. Consequently, external cooperation has helped establish the EU
as an important actor in internal and external security matters and has
aided the development of internal security measures that would not
have occurred without the influence of external actors.
EU–US negotiations have therefore exposed the fact that the EU’s
institutions have become more involved in European security matters.
Although the fact that the institutions had positioned themselves in
a manner that would see them take on greater cooperative responsi-
bilities with the US has been discussed previously, there has not been
sufficient discussion about treaty and institutional change. In particular,
the Lisbon Treaty saw the pillar system formally disappear. In practice,
this reform concerned mainly the former first and third pillars of the
EU, whereas the Common Security and Defence Policy (CSDP) was left
largely intact. As a result of providing a more unified framework for the
EU’s security policy, there is now a greater opportunity to utilise various
instruments more strategically.
The Lisbon Treaty strengthened European institutions in various
ways, not least the Commission and the EP; it amended the Treaty on
European Union (TEU) and established the Treaty on the Functioning
of the European Union (TFEU). We have already seen that the Lisbon
Treaty raised the status of the AFSJ to the second objective of the EU
in the TEU, but it is yet to be shown that the role of the EU institu-
tions has also been considerably reinforced. First of all, there is now
234 Conclusion

a commonality of legal instruments between the previous first pillar


(European Community) and third pillar (Justice and Home Affairs or
JHA) (Kaunert et al., 2012). There is now an ‘ordinary legislative pro-
cedure’ (Article 294, TFEU), and issues in the AFSJ must be dealt with
through this procedure. In short, this means that there is qualified
majority voting (QMV) in the Council and the EP is a co-legislator.
Therefore, the EP is now involved in much of the EU’s policy output
in JHA. Here, however, it is noticeable that the EP has not always stood
by its traditional policy of civil liberties and data protection, particularly
when it has been granted new powers and must use them responsibly.
There is an emerging literature on this issue with regard to JHA matters,
including internal and external security and migration (Acosta, 2009;
Ripoll Servent, 2010; Ripoll Servent and MacKenzie, 2011).
In addition to institutional changes, a mutual solidarity clause is
potentially a significant innovation of the Lisbon Treaty. It stipulates
that, in the case of a terrorist attack or a ‘natural or man-made disaster’,
the Union ‘shall mobilise all the instruments at its disposal, including
the military resources made available by the Member States’ (Kaunert
et al., 2012). Consequently, the Lisbon Treaty raises questions as to how
this clause relates to the Article 5 of the North Atlantic Treaty, which
has been at the core of European and transatlantic security since 1949.
In any case, can the EU provide security for the continent? Nothing
at present suggests that there is an agreement across the EU to further
strengthen its defence dimension.
Although this book has certainly charted the rise of the EU in
European security matters, terrorism has not been the only issue on the
table. In fact, we can see how the EU has taken a role in dealing with
a number of security issues, as shown by the new insights presented in
this book.
In the first part of the book, Chapters 2 and 3 by Zwolski and Rozée,
respectively, have provided a conceptual introduction surrounding EU
actorness in international security. Zwolski has mainly argued that the
EU as a security actor has frequently been misunderstood. Scholars have
often focused too heavily upon the Common Foreign and Security Pol-
icy (CFSP) and the European Security and Defence Policy (ESDP) and
have neglected the EU’s broader response to threats, even though it
has been acknowledged that the security agenda has been broadened
beyond that of the typical military focus on security. Ultimately, this
focus on CFSP/ESDP has underplayed the role of the EU in security mat-
ters because (1) this excludes a number of tools that exist outside of the
CFSP/ESDP framework that the EU can deploy against threats; and (2) a
Conclusion 235

focus on CFSP/ESDP gives the false impression that security matters are
almost always dealt with through intergovernmental methods, when, in
fact, the EU is showing that the Member States have integrated on secu-
rity matters and are now pursuing certain issues in this area. Chapter 3
has examined the extent to which the EU could be considered a com-
prehensive police actor, discussing how the EU has responded to threats;
how Europol’s role in security matters has been enhanced since it was
created in 1999; and some policing missions that the EU has undertaken
outside its borders. Because the literature on EU policing has focused
heavily upon dividing the internal from the external and has looked at
certain limited aspects of the EU’s policing role, this chapter has filled
a gap in the literature by providing a more comprehensive analysis of
the EU’s broader policing role. It has shown that the internal and exter-
nal aspects of security are now intertwined and must be acted on in a
coordinated manner. In sum, Rozée has added empirical substance to
the concept of actorness and has demonstrated that the EU is becoming
a more important actor not only in Europe, but also further afield.
The book has then turned to counter-terrorism and its role in driv-
ing the process of European integration in security matters, with a focus
on counter-terrorism and police cooperation in the next two chapters.
In Chapter 4, Bures has examined the role of Europol in the EU’s ‘fight
against terror’. He has demonstrated that, although Europol’s security
role has increased somewhat over the past few years, it is still hamstrung
by a lack of trust between the Member States and the limited powers that
it has received. Furthermore, Bures has pointed out that there are exter-
nal networks that Member States prefer to use rather than Europol, such
as those with the US intelligence services, because EU Member States are
reluctant to jeopardise these traditional ties. Hillebrand has continued
the discussion of counter-terrorism and policing in Chapter 5, focus-
ing once more on Europol. She has identified concerns about policing
network structures in Europe, in particular the difficulties inherent to
exercising parliamentary scrutiny. She has put forward a strong case for
improved parliamentary scrutiny of European policing and has exam-
ined possible options for the EP that could be pursued in future in
order to enhance scrutiny. Both Bures and Hillebrand have shown how
Europol has become more active in EU counter-terrorism and inter-
nal security more generally, while police forces cooperate more actively
across the EU than they did previously. However, they have also iden-
tified problems of coordination and democratic accountability, which
must be addressed if the Union intends to progress further in security
cooperation.
236 Conclusion

With the following chapter, the book has then moved to consid-
ering the issue of counter-terrorism and intelligence cooperation in
Europe. In Chapter 6, Balzacq and Léonard have examined information-
sharing in the EU by focusing on the development of two of the EU
internal security databases, namely Eurodac and the Visa Information
System. In particular, they have examined the question of the access
by the law enforcement community to these databases, which turns
these databases into what they call ‘securitisation tools’. Occhipinti has
expanded on the issue of information-sharing in Chapter 7 by exam-
ining the development of the ‘availability’ principle and looking at the
EU’s efforts to improve information-sharing for the purposes of fight-
ing crime and terrorism. He has shown that there are several initiatives
under way in the EU to do this and that there are possibilities that vari-
ous databases may be linked together at some point in the future, which
once more demonstrates the EU’s increasing importance in something
as integral to national security and sovereignty as intelligence. Svendsen
has argued in Chapter 8 that, across and beyond the EU, there has been
an increasing ‘regionalisation of intelligence’, which has generally been
crisis driven as terrorist events in particular have occurred on European
soil. This chapter has highlighted the haphazard and non-uniform man-
ner in which increased intelligence cooperation has occurred in Europe.
Significant caveats remain regarding the EU’s increased role in intelli-
gence matters, but there are clearly movements towards an ever more
elaborate and complex web of intelligence-sharing arrangements in
Europe, even if such arrangements sometimes overlap. Finally, Chapter 9
by Ortiz has considered the increasing privatisation of the military and
security more generally, examining the influence of New Public Man-
agement (NPM), particularly the role of Private Military Companies
(PMCs) and intelligence firms. This chapter has notably examined possi-
ble future scenarios for the relationship between the public and private
spheres of defence and the consequences for the organisation of state
defence and security in the years to come, including for combating
terrorism.
From the chapters in this volume, it is clear that we can see a growing
role for the EU in European internal security, which has ranged from
police cooperation to information-sharing. Security cooperation in the
EU has come a long way since 9/11. However, there are at least three
issues of concern that must be overcome for the EU to make further
progress in future. First of all, it is of some concern that developments
have often been crisis driven – therefore meaning that events have cre-
ated ‘windows of opportunity’ for measures that may have been difficult
Conclusion 237

to introduce at other times, such as the EAW and biometric information


in passports. Secondly, it appears that there is no coherent strategy for
future developments; as a result, we have no idea of the end-point for
the EU’s security role or even the direction of its development beyond
that of the Stockholm Programme. Moreover, there are still concerns
over the lack of parliamentary scrutiny of some European policing and
information networks at both the national and supranational levels.
We now reflect upon where we may expect European security to develop
over the coming years.

The prospects for future developments in European


internal security

In the previous section, we observed how European security integra-


tion has proceeded over the past decade or so. Overall, it is evident
that the EU’s role has significantly increased since 2001 in particular.
Real progress has occurred in several of the above areas, and this seems
likely to continue for the foreseeable future, particularly with certain
ambitions evident in the Stockholm Programme and other measures
currently being proposed in the EU. Although the Eurozone sovereign
debt crisis of recent years has overshadowed almost everything else in
the EU, it does not mean that the EU institutions and Member States
have stopped planning and making progress in other areas. We now
examine what we expect to occur in the coming years.
The Stockholm Programme lists intentions and claims European
progress in, among other things, combating serious and organised
crime, trafficking in human beings, sexual exploitation of children and
child pornography, cybercrime, economic crime and corruption, drugs,
terrorism and disaster management (Council of the European Union,
2009). This is a far from exhaustive list of the areas of EU involvement
in security matters, but it demonstrates just how broad EU action has
become and how much we expect the Union’s role to expand in the
coming years.
Not only have we observed how much has occurred over the past
ten years, but a progression towards further security integration seems
inevitable, especially if the goals set by the Stockholm Programme are
reached. Much of this progress has taken place in the area of JHA.
Despite the dynamic progress that has occurred here, we must also
note that no comparable progress has taken place in the CSDP. The
external security framework remains intergovernmental and the EU has
achieved little growth in consolidating its external policy capabilities
238 Conclusion

(Börzel, 2005). Even with the Lisbon Treaty, the areas of security within
the CSDP have conspicuously resisted significant integration, and this
appears likely to remain the case for the foreseeable future.
Despite this progress, there remain other obstacles to the EU’s security
role. Most noticeably, the Eurozone’s sovereign debt crisis has shaken
the very core of the European project and made both EU Member States
and the EU institutions focus on surviving the crisis, placing many
other issues, namely some internal security matters, onto the back-
burner. Perhaps most noticeably, the UK, one of the real drivers of
cooperation in security matters in Europe (despite its peculiar position
in JHA), appears to be considering the possibility of a referendum on EU
membership, which could have a significant impact upon further inte-
gration in security matters. Even so, there are several possibilities that
are still progressing (albeit slowly) behind the scenes of the EU’s current
existential crisis.
For instance, it was mentioned earlier that the EU was moving towards
introducing an EU PNR and an EU TFTP. With regard to an EU PNR, the
European Commission first presented a framework decision to establish
an EU PNR system in the months following the conclusion of the EU–
US PNR agreement in 2007 as part of their counter-terrorism package
(Pawlak, 2009a). A revised version of the proposal was subsequently pre-
sented by the European Commission in January 2009 (Pawlak, 2009a).
Following further discussions, the Commission published a new pro-
posal for a directive on EU PNR in February 2011. However, it was
criticised by the Article 29 Working Party, which ‘considers that the
necessity of an EU PNR system has not yet been proven and the mea-
sures proposed are not in line with the proportionality principle, in
particular as the system envisages the collection and retention of all
data on all travellers on all flights’ (Article 29 Data Protection Working
Party, 2011, p. 8). In other words, there is progress behind the scenes,
but there still exist tensions between civil liberties and data protection
and security, which must be overcome if the EU is to develop its role
further in security matters.
Progress has also been made on an EU TFTP (referred to as a European
‘TFTS’ [Terrorist Finance Tracking System] in official documents) fol-
lowing its appearance in the EP’s Resolution of 17 September 2009
and its subsequent insertion into the second EU–US SWIFT agreement
(European Parliament, 2009; European Union, 2010; MacKenzie, 2012).
In July 2011, the Commission presented several options for an EU
TFTP in its Communication to the EP and the Council (European Com-
mission, 2011). The adoption of an EU TFTP would prove to be a
Conclusion 239

strong signal regarding the direction that further EU security integration


could take because it would require monetary input (between 33 and
47 million, according to Archik [2012]). This could prove difficult to
justify in times of such economic uncertainty. Also, more importantly,
greater intelligence cooperation has long been resisted by some EU
Member States (Müller-Wille, 2008). Therefore, these two possibilities
may in themselves provide a greater clue as to where European integra-
tion in security matters will proceed from its current state. In particular,
the issues to overcome, particularly intelligence-sharing, are crossroads
that may help facilitate cooperation in other areas that require these
types of cooperation.
The US was evidently highly influential in the process of the EU’s
move towards an EU PNR and TFTP because it was there that both
systems originated, and the US committed itself to aiding the EU in
setting up an equivalent to the US TFTP in the SWIFT agreement.
A consequence of the closer internal cooperation in the EU has meant
that external actors – most noticeably the US – took greater note of
the EU. Consequently, the US was able to reach out to the EU and
cooperate directly with it. Following US recognition, other countries
also began to see the EU as an attractive partner, as shown by the
existing PNR agreement with Australia and the forthcoming one with
Canada. To further demonstrate this point, other external third states,
including South Korea and Qatar, have expressed an interest in PNR
agreements with the EU, while Cuba, Malaysia and South Africa are
preparing lists of demands (EUObserver, 2011). Evidently, EU inter-
nal cooperation and external recognition by the US have contributed
to the EU becoming a more important actor in the area of secu-
rity. This suggests that the ‘capability-expectations gap’ (Hill, 1993)
may, in some areas of European action, be shrinking because the EU
is now more active on the international stage and interactions with
its partners show that the EU does not necessarily disappoint as an
interlocutor.
The European Security Strategy (2003) stated that

[a]s a Union of 25 [now 27] states with over 450 million people
producing a quarter of the world’s GNP, and with a wide range
of instruments at its disposal, the European Union is inevitably a
global player . . . . The increasing convergence of European interests
and the strengthening of mutual solidarity of the EU makes us a more
credible and effective actor. Europe should be ready to share in the
responsibility for global security and in building a better world.
240 Conclusion

At the time that it was written, in 2003, this statement could have been
seen as bravado because the EU was not thought to be making a signifi-
cant contribution to global security, but it is interesting to note that the
EU had aspirations towards this goal. However, it is now evident that
the EU has become a security actor internally and externally. On the
internal side, the EU itself now recognises that it has a role, which is
demonstrated in the EU Internal Security Strategy of 2010:

[t]he concept of internal security must be understood as a wide and


comprehensive concept which straddles multiple sectors in order to
address these major threats and others which have a direct impact
on the lives, safety, and well-being of citizens, including natural
and man-made disasters such as forest fires, earthquakes, floods and
storms.

Evidently, the EU is now an important actor in European internal secu-


rity. These internal responses then had external consequences, which
led to external actors taking note and recognising the EU’s role in secu-
rity, leading to the development of significant cooperation between the
EU and third states.
In sum, the EU has travelled a long way since 9/11. Despite challenges,
such as the European sovereign debt crisis, significant developments in
European integration are still taking place, notably in the field of secu-
rity, while others are set to occur in the future. In particular, the EU
has taken strides forward in JHA cooperation, yet the CSDP remains
intergovernmental. It will be interesting to see whether, in the years to
come, the EU can also penetrate this last bastion of national sovereignty.
Therefore, to return to what we mentioned earlier – the lack of a
coherent overarching strategy and the need for better policy coordi-
nation – we have to recognise that there are still many obstacles to
overcome with regard to further progress in European integration in
security matters, especially if it is to be coherent and fully respectful
of human rights. However, one can conclude that some important steps
have already been taken in achieving enhanced cooperation in secu-
rity matters in Europe, especially when it comes to internal security
matters.

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Index

accountability, 65, 80, 81, 90, 97, 102, 152, 154, 156, 161, 164, 165, 166,
104, 105, 107, 112, 116, 117, 176, 168, 169, 174, 175, 179, 198, 235
187, 235 Bulgaria, 165
aeroplane security, see air security Bush, George Walker (1946), 146–50,
Afghanistan, 1, 23, 51, 219, 220, 223, 176
224, 231
Africa, 21, 23, 137, 224, 231, 239 Canada, 190, 232, 239
AFSJ, 18, 103, 104, 110, 112, 113, 117, CBRN, 101
143, 144, 154–8, 168, 173, 178, Central Asia, 137
230, 233, 234 CEPOL, 161, 180
agencies, 9, 10, 18, 41, 51, 52, 54, CFSP, 8, 9, 29, 160, 194, 198, 234, 235
65–8, 72–5, 79–86, 90, 91, 100,
chemical, biological, radiological and
101, 105, 133, 143–55, 159–61,
nuclear weapons, see CBRN
168, 173, 174, 179–81, 193, 215,
CIS, 174
223
civil liberties, 151, 166, 169, 172, 173,
see also CEPOL; Eurojust; Europol;
175, 177, 178, 234, 238
Frontex
Civil Liberties, Justice and Home
air security, 4, 78
Affairs Committee, see LIBE
Al Qaeda, 3, 4, 27, 71, 146, 231
civil protection, 185, 188
Amsterdam Treaty, 67, 103, 105, 158,
civil rights, 102, 105
165
Club of Berne, 76, 79
Area of Freedom, Security and Justice,
Common Foreign and Security Policy,
see AFSJ
see CFSP
asylum, 10, 110, 128, 134–6, 139, 164,
Common Security and Defence Policy,
166
see CSDP
Common European Asylum System,
consistency, 22, 23, 30–3
135
Container Security Initiative, see CSI
Australia, 190, 232, 239
coordination, 12, 28, 52, 53, 57, 65,
Austria, 78, 88, 99, 101, 155, 170, 193,
70, 72, 83, 113, 155, 161, 162,
232
168, 177, 193, 198, 235, 240
availability principle, 10, 78, 90, 92,
COSI, 161
143–84, 236
Council of Europe, 107, 194
Council Secretariat, 24, 32, 156, 160,
Balkans, 18 163, 170, 176, 197
Baltic Sea Task Force, 78 Counter-terrorism Coordinator, 1, 3,
Belgium, 75, 88, 92, 99, 101, 115, 155, 5, 73, 90, 144, 197
170, 193 Counter-terrorism Strategy, 1, 5, 86,
Benelux, 78 98, 169, 193, 220
bin Laden, Osama (1957–2011), 3 Counter-terrorist Group, see CTG
borders, 5, 9, 23, 40, 53, 54, 56, 78, 99, crisis management, 18, 28, 31, 102,
115, 128, 130, 134, 137, 143, 144, 160, 185, 188, 198, 200, 202

244
Index 245

CSDP, 9, 18, 19, 28–30, 33, 194, 198, 96–123, 135, 138, 159, 160, 161,
233, 237, 238, 240 163, 164, 167–8, 170, 176, 177,
CSI, 232 194, 197, 231, 232, 235
CTG, 76, 77, 79, 82, 158, 192 external dimension, 18, 40, 59, 101,
Cuba, 239 113, 117
customs, 90, 100, 102, 159, 163–5, 168 extradition, 55, 105, 231, 232
Customs Information System, see
CIS fingerprints, 78, 92, 99, 134–7, 166–72
Cyprus, 165 France, 1, 3, 75, 77, 78, 88, 92, 156,
Czech Republic, 78, 156 165, 170, 192, 193
Frontex, 18, 130, 161, 164, 180
data protection, 68, 74, 111, 130, 135,
136, 144, 145, 156, 158, 163, 166, Germany, 71, 77, 78, 82, 83, 88, 92,
173, 175, 179, 232, 234, 238 99, 156, 165, 170, 171, 192, 193,
Department of Homeland Security, see 221, 232
DHS Bundestag, 110, 113
DHS, 73, 148, 233 governance, 17, 79, 102, 109, 127,
DNA, 22, 78, 92, 99, 168, 170, 171, 153, 176, 179, 180, 187, 231
172 Greece, 172, 232

EAW, 4, 6, 44, 170, 231 Hague Programme, 51, 168, 169


effectiveness, 48, 66, 87, 106, 135, human rights, 17, 20, 25, 97, 103,
145, 156, 159, 176, 178, 200, 201 166, 172, 175, 240
emergency, 28, 52–4, 56, 57 Hungary, 232
US Federal Emergency Management
Agency, 28 Iceland, 134, 165, 167
enlargement, 29, 110 implementation, 8, 10, 19, 21, 24, 30,
EP, 10, 29, 89, 97, 104–9, 114–17, 145, 69, 76, 91, 105, 145, 151, 153,
157, 161, 163, 169, 173, 175, 179, 163, 164, 170, 173, 174, 177, 180,
189, 232–5, 238 198, 216, 226
ESDP, 28, 29, 194, 198, 234, 235 IMS, 144, 157, 166, 176
ESS, 7, 8, 19, 98, 225, 229, 239 Information Management Strategy, see
Eurodac, 10, 128–9, 133–9, 164, 166, IMS
175, 236 information-sharing, 10, 11, 67, 68,
Eurojust, 45, 68, 79, 82, 87, 159, 194, 85, 99, 104, 127, 128, 138,
197, 232 143–81, 236
European Arrest Warrant, see EAW institutionalisation, 25
European Court of Human Rights, 172 Internal Security Strategy, see ISS
European Court of Justice, 89 Interpol, 44, 66, 67, 99, 167, 170, 171
European External Action Service, 29, Iraq, 23, 26, 146, 219, 220
98, 160, 161, 195 Ireland, 165, 172
European Parliament, see EP ISS, 96, 156, 229, 240
European Police College, see CEPOL Italy, 77, 88, 172, 193
European Police Office, see Europol
European Security and Defence Policy, Joint Analysis Terrorism Centre, see
see ESDP JTAC
European Security Strategy, see ESS JTAC, 193, 195
Europol, 1, 3, 6, 9, 10, 11, 40, 44, 45, judicial cooperation, 4, 98, 103, 117,
48, 51, 52, 54, 55, 58, 59, 65–95, 175
246 Index

legitimacy, 65, 80–2, 103, 110 pillars, 19, 32, 233


LIBE, 108–9, 157, 173 PNR, 117, 163, 175, 232, 233, 238, 239
Libya, 224 Poland, 23, 77, 78
Liechtenstein, 134, 165 police cooperation, 7, 54, 67, 75, 104,
Lisbon Treaty, 10, 28, 31–4, 97, 104–7, 106, 110, 111, 116, 165, 170, 173,
109, 112, 113, 116, 117, 135, 145, 235, 236
156, 160, 173, 174, 179, 198, 230, Police Working Group on Terrorism,
231, 233, 234, 238 see PWGT
London, 11, 143, 159, 169, 185, 190, Portugal, 156
219 privacy, 144, 151, 154, 156–8, 164,
Luxembourg, 75, 165, 170 166, 172, 173, 175, 179–80
Prüm, 11, 77, 78, 92, 99, 113, 164,
Maastricht Treaty, 4, 19, 54, 158, 159, 170, 171, 172, 175
230 PWGT, 76, 82, 92, 192
Madrid, 5, 11, 70, 71, 73, 74, 98, 135,
143, 160, 162, 168, 169, 185, 190, Qatar, 239
230 QMV, 107, 112, 234
Malaysia, 146, 239 qualified majority voting, see QMV
Malta, 172
Mediterranean, 23 radicalisation, 1, 4, 5, 96, 98, 103, 163,
Middle East, 3, 137, 224 198
migration, 10, 23, 77, 78, 134, 136–9, Rapid Reaction Mechanism, 29
165, 188, 234 rendition, 107, 187
money laundering, 193, 194 risk, 20, 27, 30, 32, 50, 80, 81, 87, 90,
MONEYVAL, 194 136, 156, 161, 219, 229
mutual legal assistance, 105, 232 assessment, 156, 161
Romania, 165
NATO, 19, 25, 27, 28, 31, 193, 201 Russia, 23, 30, 31
Netherlands, the, 75, 88, 92, 99, 162,
170, 193 Salzburg Forum, 78
norms, 18, 103, 116, 173, 179, 180, Schengen, 10, 110, 128, 136, 137, 138,
232, 233 139, 164
norm entrepreneur, 18 Schengen Information System, see
North Atlantic Treaty Organisation, SIS
see NATO securitisation, 10, 20, 127–42, 219,
Norway, 1, 76, 92, 134, 158, 165, 167, 220, 222, 225, 236
190, 192, 193, 225, 226 SIS, 40, 54, 101, 136, 164–7
Sitcen, 79, 82, 84, 86, 98, 159–62, 190,
Obama, Barack (1961), 149, 150, 154 194–200
organised crime, 7, 8, 20, 27, 31, 40, Situation Centre, see Sitcen
49, 51, 77, 92, 100, 154, 167, 185, Slovakia, 78
188, 197, 202, 225, 229, 231, 237 Slovenia, 78, 156
Serious Organised Crime Agency, see SOCA, 92, 197
SOCA Society for Worldwide Interbank
oversight, 106, 109, 115, 116, 153, Financial Telecommunications,
173, 176, 187, 223, 226 see SWIFT
solidarity, 231, 234, 239
Pakistan, 1, 3, 23, 28 Somalia, 30, 31
passenger name record, see PNR South Africa, 239
Index 247

South Asia, 27, 137, 231 TFTP, 101, 102, 232, 233, 238, 239
South Korea, 239 trafficking, 27, 49, 51, 54, 70, 71, 100,
sovereignty, 25, 75, 105, 116, 230, 137, 188, 197, 237
236, 240 transparency, 65, 80, 97, 104, 116
Spain, 3, 75, 77, 78, 88, 99, 170, 232 trust, 9, 65, 75, 81, 91, 147, 151, 153,
Standing Committee on Internal 155, 160, 164, 168, 180, 191, 235
Security, see COSI
Stockholm Programme, 11, 87, 117, UK, 3, 77, 78, 88, 92, 109, 113, 114,
144, 156, 157, 166, 178, 180, 230, 155, 165, 172, 189, 190, 192, 193,
237 195, 197, 215–28
‘stove-piping’, 146, 147, 154, 155 United Kingdom, see UK
Sweden, 156, 168, 193 United Nations Office on Drugs and
Swedish Framework Decision, 11, 99, Crime, 44
164, 168, 170, 171, 175, 178
SWIFT, 102, 173, 232, 233, 238, 239 visa, 10, 76, 101, 128, 139, 164, 166,
Switzerland, 76, 92, 134, 158, 165, 192 168, 236
Visa Information System, 136–8
Tampere Programme, 158, 230, 231
technical assistance, 29, 30, 76 weapons of mass destruction, see
technology, 48, 151, 152, 154, 155, WMD
177, 179, 220 WMD, 19, 68, 146, 188, 200, 229
Terrorist Financing and Tracking
Programme, see TFTP Yemen, 4