Europe Has Tested Security Waters Before, Panel Says

March 2, 2005

Europe's handling of terrorism and border security offers valuable lessons for U.S. government officials, said panelists at the J.B. Moore symposium, "Beyond the U.S. War on Terrorism" Feb. 25.

Law Professor David Martin

"In many ways the United States is behind Europe in dealing with some of these issues," said panel moderator David Martin. "Europe has a very extensive and in many ways impressive history and experience of dealing with these issues."

Martin pointed to Germany's problems during the Munich Olympics, Spain's handling of the Basque separatist movement, the United Kingdom's struggle with terrorism in Northern Ireland, and Italy's Red Brigades, who kidnapped and killed a former prime minister. Martin said it was important "to learn about their own struggles on a variety of very tough issues."

Germany's Experiences with Terror and Torture

The German perspective on terrorism has been influenced by the country's experiences with World War II and domestic terrorism afterwards, said panelist Shawn Boyne, a fellow at the Institute of Legal Studies at the University of Wisconsin Law School.

"Germany has rejected the U.S. metaphor of war-that there is a war on terrorism," Boyne said, instead focusing on criminal law to handle terrorism cases.

Shawn Boyne

Germany's past experiences with terrorism have driven this decision, Boyne suggested. Political factors shaped Germany's response to terrorism during the 1960s through the 1980s, she said, as "each political party wanted to be on board first in passing more aggressive legislation."

There were no noticeable protests in Germany immediately following World War II because of the economic struggle to survive, Boyne said, but during the 1950s there were modest protests against NATO and nuclear weapons. Protests surged during the 1960s, with many German students angry at the "increasingly authoritarian nature of government," and protests were met with heavy-handed police tactics. Students were dissatisfied that so many former Nazis had government posts. They also thought the Basic Law-their constitution-was forced on them by foreign powers.

Some frustrated students formed terrorist groups such as the Red Army Faction (Baader-Meinhof) and the June 2 Movement.

"Ironically the birth of the terrorist groups coincided with the decline of the student movement," Boyne said. The Soviet invasion of Czechoslovakia in 1968 brought most students to their senses and the Social Democratic Party's Willie Brandt was elected chancellor in 1969, giving students hope they would have a greater voice in government.

During the late 1960s through the early 1980s the terrorists launched a violent campaign, targeting U.S. military troops and committing arson, bombings, and assassinations of top public and private citizens. "It's hard to underestimate the impact that that instability had on German society," Boyne said.

Finally, with the bombing of the Springer publishing house, the government enacted emergency legislation. Such emergency measures had been a precondition for the Allies to turn over sovereignty to Germany, but the German parliament was unable to pass them previously due to the public's memories Nazi abuses of power.

The emergency legislation included a measure to maintain public and private databases to profile terrorists that politicians also used to profile non-terrorist leftist leaders. Civil service applicants had to pledge loyalty to the government and couldn't engage in broadly defined "anti-constitutional activity." A new provision to the criminal code criminalized the act of forming a terrorist organization, but this ended up targeting groups of any dissenting opinion.

The public began to realize politicians were capitalizing on their fears of terrorism during the late 1970s, Boyne said. Social Democratic Party deputies blocked a bill proposed by Brandt that allowed searches of entire neighborhoods without a warrant and in 1981 the Parliament repealed legislation that banned publication of anti-constitutional action. These changes happened because Germans "had an increasingly positive national identity."

After 9/11 several prominent Germans said they viewed the attacks as an assault on democracy itself, and considered the worldwide Islamic network a threat. They stopped short of calling countermeasures "war," however, which narrowed the legal scope of the German response. The German parliament passed a package of laws only a week after 9/11, including providing 1.5 billion Euros to German intelligence, security, and military agencies. They tightened post-World War II protections for religious groups from government investigation to exclude extremist groups using religion as a cover; expanded the reach of laws to deal with terrorists in the E.U. and those outside the E.U. if they had connections to Germany; enhanced the responsibilities of key security agencies; deployed troops to Afghanistan; and approved funding for a new anti-terrorism center in Berlin. But legislators also passed laws requiring a suspected terrorist to have a judicial hearing within 48 hours of their arrest and resisted giving the federal police more investigatory powers. There are still significant barriers that block criminal investigation units from exchanging information with federal investigators.

Boyne noted that Germany operates under different legal values as a result of World War II. Human dignity is the central tenet of Germany's Basic Law. A judge cannot hand out a longer sentence to deter others from committing the same crime, for example. As a result, life sentences in Germany are usually just 15 years, and the offender must be given a chance to rehabilitate himself. The state also prohibits mistreating detainees.

Despite German precautions, a few controversies have erupted there since 9/11. In Frankfurt a child was abducted by a law student and the deputy vice president of police in the region gave the order to torture a suspect to find the child's whereabouts. "Only in Germany would they actually type out a written order," she joked. Instead the subordinate threatened the suspect that he would bring in a martial arts expert if he did not tell where the child was. As it turned out, the child was already dead. The chief prosecutor in Frankfurt filed charges against the vice president and the subordinate. Afterwards, some questioned Germany's absolute ban on torture, and the president of the state of Hessen said police actions were understandable.

In northern Germany a suspect was less lucky; a court found police guilty of beating him to death. More recently the press has reported on the mistreatment of German military recruits who were forced to pretend they were Arab terrorists, and allegations of inmate abuse at a former East German prison. Boyne said there has been a general political backlash against such occurrences, but it is unclear if this is because they want to avoid the American example of Abu Ghraib or if they are truly committed to Basic Law.

"This misconduct in Germany by the German police officers was committed against ordinary citizens, not terrorists, which goes to show that there has to be an ongoing commitment to the rule of law," Boyne said.

Europe Aggressive on Border Security

Rey Koslowski is Director of the Research Program on Border Control and Homeland Security at the Rutgers Center for Global Change and Governance.

In addition to terrorism, Europe also has more experience with border control and migration, noted Rutgers political science professor Rey Koslowski. Considering that many of the 9/11 hijackers entered the country with student visas and legal, but altered documents, the United States has been paying more attention to such issues. Despite disagreements with Europe over Iraq, he pointed out, "transatlantic cooperation [on border control] has been ongoing throughout."

The European Union had already been considering altering their border control management because of its expanding eastern border, but after 9/11 accelerated their border control technology programs. Koslowski said the European interior ministries are closer in structure to the new Homeland Security department than the former border control powers spread across the INS, Customs, and Department of Justice, among others. Europe's border control divisions in the interior ministries are proportionally larger than the U.S. equivalent: Poland now has 16,000 border guards with plans to increase that number by 5,000 by 2006, while Hungary has 11,000 guards-about the size of the U.S. border patrol.

The policies of individual E.U. member states have been geared toward coordination at the European level, he said, and before 9/11 states made plans to have common visa policies, policies to deter illegal migration, and an automated system to track those who are denied entry. After 9/11 the E.U. established a European arrest warrant and discussed having a European border guard, settling instead on the Integrated Border Management Agency, which will facilitate cooperation and distribution of forces on an ad hoc basis and coordinate policies.

The terrorist attacks raised concerns about illegal migration as well, Koslowski said. The group linked to the Madrid bombings had been running a human smuggling and document fraud ring to fund their activities and import members into countries like Spain and Iraq.

A key addition to European border control is the Schengen Information System (SIS), which collects data on legal migrants, lost travel documents, missing persons, and those denied entry. As of June 2002, 10,000 people populated the database, but it could not transmit photos and was designed to work with only 18 member states, not the full 25. The new SIS II will store photos and biometric data among all members and will answer police queries within 5 seconds. In February 2004 E.U. members agreed to fund a common online visa database.

Meanwhile in the United States, the 2001 Aviation Transportation Security Act required that U.S. and international flights offer the government access to passenger data in advance of the flight. U.S. airlines readily gave the government access to all passenger records, but the requirement violated E.U. data protection laws.

"Several [European] airlines resisted this…But the United States and the European Commission worked out an arrangement which would allow, and indeed did allow, all of that data to keep flowing," he said.

The European Parliament criticized the arrangement, claiming it lacked a legal basis. After months of negotiation, Parliament again rejected an agreement between the United States and the Commission. The Parliament's resolution does not invalidate the agreement, and the case was referred to the European Court of Justice, where it may take several years before a decision is handed down. "All the while, the data is flowing," Kowlowski said.

Currently most nationals of several E.U. member states have visa-free travel with the United States and among each other. The United States has required that these visa-waiver countries issue machine-readable, tamper-resistant passports with biometric data, and set a deadline of October 2004 for implementation. The International Civil Aviation Organization (ICAO) set the biometric standard as facial recognition via a digital photo and an optional one or two biometrics such as fingerprints or eye scans. The information would be stored on a radio-frequency id chip. When it became clear the European Union and the United States would be unable to meet the deadline, Homeland Security Secretary Tom Ridge requested a two-year extension, but received only a one-year extension. In the meantime, foreign nationals had to submit a digital photograph and two index finger scans upon entering the United States.

Surprisingly, the European Union "agreed to have not only the ICAO standard of the digital photograph …but also fingerprint biometrics," he said. "This exceeds U.S. requirements for U.S. passports."

Before leaving office, Tom Ridge also recommended including 10 fingerprints in U.S. passports. "Even the current move to having biometrics in [ U.S.] passports…wasn't required by Congress, but done because they knew the diplomacy of the issue," Kowlowski said. He suggested that U.S. citizens should expect foreign countries to impose reciprocal requirements on visas and passports, which Brazil has already done. "The question then becomes also as to how they are sharing," he said.

Koslowski suggested that further cooperation may be interrupted by concerns over privacy and data protection, especially as people examine the system more carefully. The visa and passport programs may prove to be "politically unsustainable over the long term.

"What we're probably going to see is the necessity for broad, multilateral agreements," he said.

During a question-and-answer session Koslowski noted that Europeans have a different mindset about sharing data with the government because most have national ID cards and usually have to report to police officials when they move. Europeans worry that the private sector will acquire data, while U.S. citizens traditionally are more worried about government access to their data.

Koslowski questioned how many terrorists would give their fingerprints and photos willingly. The system "will probably be good at catching dumb terrorists and 300 or 400 dumb criminals," he said. As a result of the new system, terrorists are likely to take riskier routes to the United States, such as trekking through a desert on the Mexican border. The proposed solutions are "not silver bullets."

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