Mapping Transatlantic Security Relations: The EU, Canada and the War on Terror (Routledge Studies in Liberty and Security)

Mapping Transatlantic Security Relations

This book examines how legal, political, and rights discourses, and security policies and practices, migrate and translate across the North Atlantic. The complex relationship between liberty and security has been fundamentally recast and contested in liberal democracies since the start of the “global war on terror.” In addition to recognizing new agencies, political pressures and new sensitivities to difference, it is important not to overstate the novelty of the post-­9/11 era: the war on terror simply made possible the intensification, expansion, or strengthening of policies already in existence, or simply enabled the shutting down of debate. Working from a common theoretical frame, if different disciplines, these chapters present policy-­oriented analyses of the actual practices of security, policing, and law in the European Union and Canada. They focus on questions of risk and exception, state sovereignty and governance, liberty and rights, law and transparency, and policing and security. In particular, the chapters are concerned with charting how policies, practices, and ideas migrate between Canada, the European Union, and its member states. By taking a “field” approach to the study of security practices, the volume is not constrained by national case study or the solipsistic debates within subfields, and bridges legal, political, and sociological analysis. It will be of much interest to students of critical security studies, sociology, law, global governance, and International Relations in general. Mark B. Salter is Associate Professor at the School of Political Studies, ­University of Ottawa.

Routledge studies in liberty and security Series editors: Didier Bigo, Elspeth Guild, and R. B. J. Walker

Terror, Insecurity and Liberty Illiberal practices of liberal regimes after 9/11 Edited by Didier Bigo and Anastassia Tsoukala Exceptionalism and the Politics of Counter-­terrorism Liberty, security and the war on terror Andrew W. Neal Muslims in the West after 9/11 Religion, politics and law Edited by Jocelyne Cesari Mapping Transatlantic Security Relations The EU, Canada, and the war on terror Edited by Mark B. Salter

Mapping Transatlantic Security Relations The EU, Canada, and the war on terror Edited by Mark B. Salter

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 This edition published in the Taylor & Francis e-Library, 2010. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. Routledge is an imprint of the Taylor & Francis Group, an informa business © 2010 Selection and editorial matter, Mark B. Salter; individual chapters, the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-­in-Publication Data A catalog record has been requested for this book ISBN 0-203-85067-X Master e-book ISBN ISBN10: 0-415-57861-2 (hbk) ISBN10: 0-203-85067-X (ebk) ISBN13: 978-0-415-57861-5 (hbk) ISBN13: 978-0-203-85067-1 (ebk)

Contents



List of contributors List of abbreviations Introduction

vii xii 1

M ar k B . S alter

  1 Special delivery: the multilateral politics of extraordinary rendition

11

M aria Koblanc k

  2 Miscarriages of justice and exceptional procedures in the “war against terrorism”

28

E mmanuel - ­P ierre G uittet

  3 Risk-­focused security policies and human rights: the impossible symbiosis

41

A nastassia T sou k ala

  4 The North Atlantic field of aviation security

60

M ar k B . S alter

  5 Tracing terrorists: the European Union–Canada Agreement on Passenger Name Record (PNR) matters

73

P eter H obbing

  6 The global governance of data privacy regulation: European leadership and the ratcheting up of Canadian rules A braham N ewman

98

vi   Contents

  7 Made in the USA? The impact of transatlantic networks on the European Union’s data protection regime

110

P atry k P awla k

  8 Norms and expertise in the global fight against transnational organized crime and terrorism

128

A mandine S cherrer

  9 The accountability gap: human rights and EU external cooperation on criminal justice, counter-­terrorism, and the rule of law

141

S usie A legre

10 The role of NGOs in the access to public information: extraordinary renditions and the absence of transparency

162

M á rton S ulyo k and A ndrÁs L . P ap

11 Replacing and displacing the law: the Europeanization of judicial power

198

A ntoine M é gie

12 Transjudicial conversations about security and human rights

212

A udrey M ac k lin

13 A coordinated judicial response to counter-­terrorism? Counter-­examples

236

R ayner T hwaites

14 The other transatlantic: policies, practices, fields

259

M ar k B . S alter and C an E . M utlu



Bibliography Index

266 294

Contributors

Mark B. Salter (editor): Associate Professor at the School of Political Studies, University of Ottawa. He is editor of Politics at the Airport (University of Minnesota, 2008) and, with Elia Zureik, of Global Policing and Surveillance: Borders, security, identity (Willan, 2005). He is the sole author of Rights of Passage: The passport in international relations (Lynne Rienner, 2003) and Barbarians and Civilization in International Relations (Pluto, 2002; also published in Chinese). Recent research appears in Geopolitics, Citizenship Studies, International Political Sociology, Alternatives, Security Dialogue, the Journal of Air Transport Management and the Journal of Transportation Security. In 2007 he was the recipient of the National Capital Educator’s Award and the Excellence in Education Prize at the University of Ottawa. In 2008 he was Visiting Fellow at the Centre for Research in the Arts, Social Sciences and Humanities and Visiting Scholar at the Centre of International Studies at the University of Cambridge. Susie Alegre: An internationally acknowledged specialist on the relationship between international human rights law, international crime, and counter-­terrorism. Her expertise includes international cooperation in criminal law, EU justice and home affairs, and comparative criminal law. As Anti-­Terrorism Adviser to the Organization for Security and Co-­ operation in Europe (OSCE), she devised the OSCE’s highly regarded counter-­terrorism and human rights program, which has been implemented around the world. She has published widely on terrorism, crime, and human rights, including co-­authoring European Arrest Warrant: A solution ahead of its time? (JUSTICE, 2003). Susie was called to the Bar in 1997. She trained at the European Commission in the Task Force for Justice and Home Affairs and at the Council of Europe Directorate of Legal Affairs, focusing on international judicial cooperation on criminal matters and human rights. She has also worked for Amnesty International and JUSTICE, in both of which she had responsibility for international criminal justice and human rights issues. Her practice as a barrister focused on criminal law and extradition.

viii   Contributors Emmanuel-­Pierre Guittet: Lecturer in Politics at the University of Manchester. He obtained his PhD in Political Science at the University of Nanterre (2006) after a Master’s in Political Sociology and Comparative Politics. He is an associate researcher at the Centre d’Études sur les Conflits (C&C, Paris) and at the Canada Research Chair in Security, Identity and Technology of the University of Montreal (Canada). He is also Deputy Editor of the French journal Cultures et Conflits, a member of the Managing Editorial Board of International Political Sociology (Blackwell Publishers), a member of the c.a.s.e. (Critical Approaches to Security in Europe) collective and a member of the International Studies Association (ISA). Guittet has been involved in several European research framework programmes, including the integrated program CHALLENGE – The Changing Landscape of European Liberty and Security since 2004. Among his numerous consultancies for public agencies, he also has produced policy papers and recommendations for the French Ministry of Defense. Peter Hobbing: Senior Associate Fellow of CEPS (the Centre for European Policy Studies) and ex-­official of the European Commission (retired). He is a member of the think tank DCAF in Geneva. He holds various consulting assignments in border security, police and EU matters for governments and international organizations, in particular the European Parliament (Civil Liberties Committee). He has assisted in projects in border matters for Poland and former Yugoslav and ex-­ USSR states on behalf of DCAF, CESS, ERA and NATO. He is Lecturer at Wilton Park (UK). Maria Koblanck: PhD candidate and instructor at the University of Victoria, Assistant Editor of International Political Sociology and Alternatives. She is working within the field of legal and political theory with a focus in international law and politics. Her dissertation provides a counter-­argument to the liberal, legal formalism prevailing within the field by engaging in ways to include human experiences of international law in our understanding of the form and function of international law. She has previously published on this topic in general and on the situation of the Sami, the trans­ nationally nomadic indigenous people of Fennoscandia, in particular. Audrey Macklin: Associate Professor at the Faculty of Law, University of Toronto. She holds law degrees from Yale and Toronto, and a Bachelor of Science degree from Alberta. After graduating from the University of Toronto, she served as law clerk to Mme Justice Bertha Wilson at the Supreme Court of Canada. She was appointed to the faculty of Dalhousie Law School in 1991. While teaching at Dalhousie she also served as a member of Canada’s Immigration and Refugee Board. She was a member of the 1999 Canadian Assessment Mission to Sudan (Harker Mission), appointed by Canada’s Minister of Foreign Affairs and

Contributors   ix International Trade, that investigated slavery as well as links between oil development in Sudan and violations of human rights. Professor Macklin’s teaching and research focus on legal issues relating to migration, citizenship, gender, and culture. She has published widely on these topics, and is currently co-­authoring a book on the regulation of transnational enterprises in conflict zones. Antoine Mégie: Has obtained his PhD in Political Science at Political Institute of Paris (Sciences Po/Centre for International Studies and Research – CERI) in 2007, and a postdoctoral fellowship at the University of Montreal during 2008. His research is dedicated to international judicial cooperation and he has published widely in this area. He has also been involved in several European research framework programs, including the program AGIS-­Terrorism and Counterterrorism in Europe and the program CHALLENGE – The Changing Landscape of European Liberty and Security. He is currently coordinator of a French national program of research (ANR) dedicated to the “law and jurists in the governing of Europe” (University Paris I – La Sorbonne). Can E. Mutlu: Doctoral candidate at the School of Political Studies at the University of Ottawa, after an MA at the University of Victoria. His research interests intersect border studies, theories of sovereignty, the geopolitics of public policy and theories of exception. His recent research appears in Security Dialogue, Geopolitics, Comparative European Politics and Environment and Planning D: Society and Space. Research projects include his PhD dissertation on the borders of the European Union under the European Neighborhood Policy, psychoanalytical analysis of post-­9/11 security measures at the US–Canadian border, conceptualization the location of the Aboriginal reserve as a political space within Canadian multilevel governance scales, and analysis of securitization theory as it applies to the case of Diego Garcia military base. He is currently Communications Officer for the International Political Sociology section for ISA. Abraham Newman: Assistant Professor at the Edmund Walsh School of ­Foreign Service, Georgetown University. He received his BA in International Relations from Stanford University and his PhD in political science from the University of California, Berkeley. His research focuses on European international relations, with a special interest in digital technologies. He is currently completing a project on European global leadership in the area of data privacy. His work examines the intersection of comparative political economy and international political economy, specifically how domestic institutions shape international affairs. He is author of Protectors of Privacy: Regulating personal data in the global economy and co-­editor of How Revolutionary Was the Digital Revolution? National responses, market transitions, and global technology, as well as numerous articles and chapters.

x   Contributors András L. Pap: Senior Research Fellow at the Hungarian Academy of Sciences, Institute for Legal Studies and Professor of Law at Kodolányi János College, Székesfehérvár, Hungary. He has been Associate Professor and now is a lecturer at Eötvös Loránd University (ELTE) Faculty of Law as well as at the Central European University Nationalism Studies Program. He also serves as Project Manager of the Hungarian Focal Point of the European Union Agency for Fundamental Rights (FRA), and is staff editor of the Hungarian Internal Affairs Review (Rendészeti Szemle). He has obtained JD and PhD degrees from Eötvös Loránd University (ELTE) Faculty of Law as well as an MPhil in Comparative Constitutional Law and an MA in Nationalism Studies from Central European University. Between 2000 and 2002 he was a visiting scholar at New York University Law School, Global Law Program. Patryk Pawlak: Researcher at the European University Institute, Florence. Since October 2009 he has been a Postdoctoral Fellow at the Centre for International Relations, Warsaw, in the framework of the Transatlantic Post-­Doc Fellowship for International Relations and Security (TAPIR). During his doctoral studies he was a visiting researcher at the Center for Peace and Security Studies, Georgetown University, and a research fellow at the Centre for European Policy Studies in Brussels. Since September 2006 he has been a participant to the European Foreign Policy Studies Programme founded jointly by Compagnia di San Paolo, Volkswagen Stiftung, and Riksbankens Jubileumsfond. His main areas of interest include transatlantic relations, external relations of the European Union, and the external dimension of the EU Justice and Home Affairs (in particular, issues related to border protection). Amandine Scherrer: Postdoctoral fellow at CÉRIUM (Université de Montréal) in 2007–2008. She is a member of the Canada Research Chair International Law of Migration. She is also on the Managing Editorial Board for International Political Sociology and on the editorial team for Cultures et Conflits. Márton Sulyok: PhD Candidate in the Department of Constitutional Law at the Faculty of Law and Political Sciences at the University of Szeged (Hungary), where he teaches constitutional law. His research focuses on the contribution of innovative info-­communication technologies (ICTs) to the transformation of legal frameworks in the information society and the examination of the effects on the status and development of electronic governance mechanisms, primarily in Hungary. Major foci of his research are data protection and freedom of information legislation, and issues of fundamental rights protection in connection with ICTs. He was legal coordinator of the Project WordNet (2008) at the University of Szeged, in which a joint research group compiled

Contributors   xi a digital legal terminology database for interlingual use in administrative back-­office communications. He is co-­author (the Preamble) of the Commentary on the Hungarian Constitution (2009). Rayner Thwaites: Doctoral candidate in the Faculty of Law at the University of Toronto. Anastassia Tsoukala: Professor of Criminology at the University of Paris XI and Research Fellow at Paris V–Sorbonne University, France. Her research centres on the design and implementation of security policies in Europe with regard to football (soccer) hooliganism, counter­terrorism and immigration, and on the social construction of threat.

Abbreviations

AFIS API APIS APP ATS AVSEC CAPPS CATSA CBA CBP CBSA CCR CCTV CEPS CIA CRS CSC CSIS CUTE DHS DG JLS

Automated Fingerprint Identification Service advance passenger information Advance Passenger Information System advance passenger processing Automated Targeting System aviation security Computer-­Assisted Passenger Prescreening System Canadian Air Transport Security Authority Canadian Bar Association Customs and Border Protection (United States) Canada Border Services Agency Center for Constitutional Rights (United States) closed-­circuit television Centre for European Policy Studies Central Intelligence Agency (United States) computer reservation system Correctional Service of Canada Canadian Security Intelligence Service Common Use Terminal Equipment Department of Homeland Security (United States) Directorate-­General for Justice, Liberty, and Security (European Union) DG RELEX Directorate-­General for External Relations (European Union) DG TAXUD Taxation and Customs Union Directorate-­General (European Union) DG TREN Directorate-­General for Transportation and Energy (European Union) DPAs data protection authorities DPD Data Protection Directive (European Union) EAW European Arrest Warrant ECAC European Civil Aviation Conference ECHR European Convention on Human Rights

Abbreviations   xiii ECJ ECommHR ECtHR EH EJN EKINT ESDP ESTA ETA EU FBI FOEIA FOIA FRA GDS GSC HB HBS HCLU HHC HLCG IATA ICAO ICCPR IFSSA INS IPS IRA IRPA ISE ISYF JHA JLS KFOR MEP MNC MoU NATO NDP NGO OECD

European Court of Justice European Commission on Human Rights European Court of Human Rights Euskal Herritarrok (Basque Citizens) European Judicial Network Eötvös Károly Institute European Security and Defense Policy Electronic System of Travel Authorization Euskadi Ta Askatasuna (Basque Homeland and Freedom); also, electronic travel authorization European Union Federal Bureau of Investigation (United States) Act XC of 2005 (Hungary), on the freedom of electronic information Act LXIII of 1992 (Hungary), on the protection of personal data and the disclosure of information of public interest European Union Agency for Fundamental Rights global distribution system General Secretariat of the Council of the European Union Herri Batasuna (Unity of the People) hold baggage screening Hungarian Civil Liberties Union Hungarian Helsinki Committee EU–US High-­Level Contact Group on Information Sharing and Privacy and Personal Data Protection International Air Transport Association International Civil Aviation Organization International Covenant on Civil and Political Rights International Forum for Security Screening in Aviation Immigration and Naturalization Service (United States) international political sociology Irish Republican Army Immigration and Refugee Protection Act (Canada) information sharing environment International Sikh Youth Federation justice and home affairs justice, liberty, and security NATO Kosovo Force Member of the European Parliament multinational corporation Memorandum of Understanding North Atlantic Treaty Organization New Democratic Party (Canada) non-­governmental organization Organisation for Economic Co-­operation and Development

xiv   Abbreviations OLAF OMC OSI PACE PBS PDBTS PIRA PIU PNR PP PSOE RCMP RFID RFOIA RM RSA SA SARPs SIAC SIS SIRC SPT SSR TC TEU TOC TSA TSCG UN CAT UNHCR USAP VIS VWP

European Anti-­Fraud Office (Office européen de lutte antifraude) open method of coordination Other Service information Parliamentary Assembly Council of Europe pre-­board (passenger) screening High-­Level Political Dialogue on Border and Transportation Security Provisional Irish Republican Army Passenger Information Unit passenger name record Partido Popular Partido Socialista Obrero Español Royal Canadian Mounted Police radio-­frequency identification Law 544 of 12 October 2001 (Romania), setting out the rules of free access to public interest information risk management Law 182 of 12 April 2002 (Romania), containing provisions on the protection of classified information Act LXV of 1995 (Hungary) standards and recommended practices Special Immigration Appeals Commission (United Kingdom) Schengen Information System Security Intelligence Review Committee (Canada) Simplifying Passenger Travel Special Service request Transport Canada Treaty on European Union transnational organized crime Transportation Security Administration (United States) Transportation Security Cooperation Group United Nations Convention Against Torture United Nations High Commissioner for Refugees Universal Security Audit Program Visa Information System visa waiver program

Introduction Mark B. Salter

One of the most important developments in international studies in the past ten years has been the development of international political sociology (Bigo and Walker 2007). A series of studies and policy work reflect the empirical changes in the management of security, arising particularly from the European scene (c.a.s.e. collective 2006). The development of the European Commission led to the creation of new bureaucracies and new legal instruments – the Schengen acquis, Frontex and the Schengen Information System (SIS) – structuring the reformulation of European border policing (Neal 2009; Vaughan-­Williams 2008; Bigo and Guild 2006; Carrera 2007). Borders are not where they are supposed to be; and the border function of inclusion/exclusion occurs in multiple sites, according to overlapping and multiple regulatory regimes (Guild 2003b; Salter 2007). Bigo (2001) was the first to identify how police and security agencies were no longer organized by or aimed exclusively toward either the domestic or the international. In a struggle to meet transnational threats and in developing new networks and competences, policing and security agencies sought to expand their area of operation (Bigo et al. 2008a). This book grows out of a series of questions and problems: How do the dynamics of the emerging European security fields interact with communities of practice outside of area? Can exemplars, such as the cases of extraordinary rendition and aviation security, map out those transatlantic fields of practice? How do legal and policy communities interact? How do ideas, policies, or discourses migrate across the North Atlantic? To what extent are the European patterns or models of security management proliferating? Our collection connects European Union studies to security studies and critical legal studies building on work by a diverse set of scholars in Europe and Canada. While US–European security relations are well researched and the geopolitics of NATO and its expansion are frequently analyzed, there has been little research examining the dense networks of  security professions and legal discourse connecting Canada and Europe. Two important books from within the CHALLENGE project, the  Changing Landscape of European Liberty and Security, supported by  Sixth Framework Programme of the European Commission’s

2   M. B. Salter Directorate-­General for Research, set out the stakes and examples from within Europe (Bigo and Tsoukala 2008; Guild and Geyer 2008). This collection pushes the European experience into the transatlantic arena. We ask: How are aviation security standards harmonized between the European Union and Canada? How does the Union cooperate externally on justice and home affairs (JHA) matters? How have international norms and practices for fighting organized crime been adopted for the new object of counter-­terrorism? How mobile are legal precedents, and have they been interpreted correctly across the North Atlantic? How are indefinite detention and the extraordinary rendition program used in Canada, the European Union, and the United States? How do practices and policies actually move between Canada and the European Union? Are there self-­defined transnational fields of public security officials that share common assumptions about the world, their relationship, their norms, and their goals? To answer these questions, our collection examines how legal, political, social, and rights discourses, policies, and practice migrate and translate across the North Atlantic, keeping in mind the third part of the triangle: the United States. In addition to the creation of new agencies, the strengthening of political pressures, and new sensitivities to difference (both positive and negative), it is important that we not overstate the novelty of the post-­9/11 era. A number of the authors in this collection demonstrate that the global war on terror simply made possible the intensification, expansion, or buttressing of policies already in existence – or, in some cases, the social and political capital made available after the attacks made simply “unsayable” some registers of protest. A remedy to the twin temptations of describing either a brave new world or that everything old is new again is careful political sociological analysis of the communities of security practice.

Security and policing: risk and rights The complex relationship between liberty and security has been fundamentally recast and contested in liberal democracies since the events of 9/11, even if the processes of surveillance, control, and preemptive risk management predate the attacks (Bigo and Tsoukala 2008; Amoore and de Goede 2008b). There is a double move that sees the blurring of the line between policing and international security and between risk and response. The empirical threats that interior ministries or police agencies are facing are more transnational: crime, human trafficking, narcotics, smuggling, terrorism. Ever since NATO reoriented its missions toward its southern flank, we have seen military forces take on policing roles. The increased role of intelligence-­led policing and risk-­based analysis shifts the focus from forensic or investigatory crime-­fighting toward preemptive risk  management. Another crucial move, happening at the same time, is the elision of security and emergency preparedness, stemming from a

Introduction   3 managerial move toward “all-­hazards” approaches to resiliency and response. Rather than separate environmental or terrorist threats to infrastructure, economic networks, or social structures, the all-­hazards approach equates natural disasters and pandemics with terrorist attacks. As a consequence, within the horizon of military and security agencies the future is deemed both to be radically uncertain and uncontainable and to be manageable through statistics and expertise. Bigo speaks of the transnational “managers of unease” (2002) that have emerged over the past five to seven years with a new expertise, a new language, and a new set of policy tools for engaging these new security threats.

Method To understand the current security scene we must understand more than the structural effects of anarchy, international institutions, and geopolitical positioning or the legal institutional dynamics of the European Union. Security practices are determined by networks of professionals who make policies, set best practices, and implement administrative discretion in their prosecution of larger strategy. Mapping Transatlantic Security Relations: The EU, Canada, and the war on terror takes this tack and provides a balance between theoretical chapters on global norms within the global war on terror and empirical cases of specific, particular, often-­neglected areas of Canada–European Union cooperation on security issues. We do not treat the political, policy, and legal fields as entirely divorced or mutually incomprehensible, and, indeed, the discourses and practices of security management seem to migrate in legal communities in the same way that they move among policy communities. Best practices, legal precedents, and core arguments about security do migrate. Working from a common theoretical frame, if different disciplines, the chapters in this volume present policy- and problem-­oriented analyses of actual practices of security, policing, and legal interpretation in the European Union and Canada. They focus on questions of risk and exception, state sovereignty and governance, liberties and rights, law and transparency, and policing and security. One of the key methodological innovations of international political sociology (IPS) is a focus on “fields” of security professionals (Bigo 2001), adapted from Bourdieu. Analysts direct their attention to self-­constituted communities of practice, as defined in their everyday interactions and through language. As a consequence, rather than imposing national or institutions categories on the object of study, the empirical material drives the definition of community. “Common beliefs, practices and meanings” can render even the heterogeneous, international, and dispersed network of security professionals clear as an object of analysis (Bigo and Tsoukala 2008: 8). Judicial communities often read judgments from different jurisdictions in order to write their opinions, the aviation security field spans

4   M. B. Salter public/private and national/regional/international boundaries, and the practices of extraordinary rendition by necessity represent a single line of flight within a complex network of actors, agencies, and states. This book also adds a number of neglected cases to considerations of the relationship between security and liberty under the sign of the global war on terror. Discussions of exceptional practices and normal security politics too often generalize from well-­trodden cases in Western Europe or the United States. These new examples can add much-­needed depth to the theoretical debates about the novelty of new security practices. In particular, our collection connects three silos of policy-­relevant analysis on security, policing, and law. Certainly, within critical security studies, legal voices are almost entirely absent. These three areas – security, policing, and law – are usually separated in both policy and analysis, making conversations between legal scholars, security experts, and police difficult and unlikely. Legal studies and the sociology of non-­governmental human rights groups often take place in different disciplines, jargon, and normative registers. Technical discussions about bilateral treaties and managerial discussions of aviation screening practices are equally far apart. The Hungarian case, for example, is quite new within security studies, even if it is somewhat known within post-­ Soviet studies. In sum, by adopting a “field” approach to the study of security practices the authors are not constrained by national case studies or solipsistic debates within their subfields. Fostered by a series of workshops with policy analysts, jurists, and academics, these chapters provide an accessible set of new case studies into wider conversation. In addition to the quotidian cases of counter-­terrorism policies, risk management, and the new war on terror, we also take two critical cases of cooperation between Canada and Europe: aviation security and extraordinary rendition.

Chapter synopsis Koblanck makes three important contributions to this volume. First, her chapter (Chapter 1) sets out the case of Maher Arar, the Canadian-­Syrian who was subject to extraordinary rendition as a result of the sharing of intelligence between the Royal Canadian Mounted Police and American counter-­terrorism agencies. Second, she rightly points out that the value attached to multilateralism must be measured by the kind of cooperation that takes place: multinational complicity in extraordinary rendition does not have the same character as multinational coordination in humanitarian relief or even in collective security arrangements. Finally, Koblanck argues that the fundamental ideals of state-­security apparatuses were strengthed by the Arar case, in Canada after a public inquiry and in the United States, where there was absolutely no public investigation. She concludes that the invocation of national interest in all of the cases served to reinforce simplistic ideals about benign multilateralism and bullish unilateralism in the face of complex realities.

Introduction   5 Guittet, in Chapter 2, contextualizes the most recent appeal to terrorism in security measures by examining how the notions of exception and “miscarriage of justice” have been applied in other legal, historical circumstances. He argues that within exceptional circumstances, the conditions that not only permit but structurally encourage miscarriages of justice are the reduction of standards of proof, most often done under the sign of emergency or exigent circumstances. The British case of the “Guildford Four,” the Spanish case of the banning of a Basque nationalist party (Batasuna), and the case of Maher Arar all point to the same structural dynamics: an emergency is declared and suspicion comes to be prioritized over procedural rights, security data and probative evidence come to be confused, and miscarriages of justice occur, as demonstrated by subsequent inquiries or court judgments. By drawing comparisons across national and politico-­juridical contexts, Guittet is able to demonstrate how police and judiciaries arrive at the tipping point of abuse of power through necessary, if not sufficient, precursors. Guittet and Koblanck tell different parts of the Arar story, the former focusing on the processes of extraordinary rendition by the policing and intelligence services during the actual process, the latter on the invocation of national interest in the judicial review. Both chapters demonstrate a common language of security, suspicion, and exception that is fundamental to understanding how these critical cases are justified within the field of security professionals and political elites alike. Tsoukala has published widely in criminology and political sociology on the management of public security, policing, and fear. In Chapter 3 she argues that the current climate in which security and counter-­terrorism policies have been positioned against human rights and liberty is not new. As one of the pioneers with Bigo of a robust analysis of “fields” of security, Tsoukala continues her current work into the negotiations between liberty and security by examining how policing practices have changed over the past 30 years. She contends that the adoption of a risk-­based model of policing and now counter-­terrorism policies is entirely opposed to a rights-­ based approach to liberty and freedom. Strategies of control based on risk, rather than historical strategies based on deviance, have become completely imbricated in the policing of society – “at-­risk” groups become the subject of law and policing, rather than individuals, which radically undermines the role of personhood within a rights-­based society. Policing by risk, pre-­emption, and precaution all seek to act before any notion of proof or probable cause; statistics come to stand in for guilt. Once figured within a liberty–security discourse, liberty and the attendant human rights lose their sacral status and become part of a wider discourse of political bartering. The change in the strategies of the police toward a risk causes a fundamental devaluation of the individual and of democratic personhood in law and society. Newman, in Chapter 6, is also concerned with the proliferation of norms across states, and examines more precisely the Canada–European

6   M. B. Salter Union relationship regarding data privacy. By using a political economy approach, Newman can demonstrate that the European Union has used its institutional and economic weight to standardize global privacy norms, among developed countries and particularly with regard to Canada. Here, the field approach is seen to adhere to privacy commissioners, regulators, and private actors. The discourse within the privacy field, in this instance, is not isolated from power politics or economic forces – just the opposite: the competing norms within the privacy field are affected by the institutional and geopolitical positions of their adherents. In setting high privacy norms, the EU community of data protection and privacy advocates provide positive examples for other actors. The complex regulation of international data transfer demonstrates how empty the category of the sovereign nation-­state is for real analysis of politics. A regional regulation by the European Union, the European Privacy Directive, which was designed to prevent a regulatory race to the bottom within the Union, governs intra-­firm transfer of data about a European citizen by Canadian companies to their national headquarters. These extraterritorial regulations, then, have influence well beyond the geopolitical limits of a particular state or organization. Newman describes and analyzes the Article 29 Working Party (WP 29), which oversees the European Privacy Directive both within and outside of Europe – an institution that is also important to Hobbing’s analysis of personal data in aviation security in Chapter 5. WP 29 exemplifies the institutionalization of a field of privacy professionals: the constitution of its membership, and the self-­defined community it represents, exceed the traditional boundaries of national/international, public/private; it develops over time a set of beliefs, expectations, norms, best practices, and discourses around which actors’ expectations converge. In contrast to Hobbing’s narrative of a difficult relationship on privacy, Newman argues that another set of conversations – between WP 29 and national, non-­European privacy advocates – is much more productive. Even without coercion, European norms have proliferated. The EU case, particularly with evidence from Canadian privacy reform, demonstrates the capacity of norms to migrate across jurisdictions in a way not simply understood by coercion. Aviation security and, in particular, international data transfer of aviation records have not been widely researched. The chapters by Salter and Hobbing (Chapters 4 and 5) represent substantive new material in an important area of bilateral security cooperation. Salter looks at the European Union–Canada relationship in the field of aviation security (AVSEC) and sets out a schema of a North Atlantic field of AVSEC professionals. Through an analysis of the complex governance of security regulations, the interplay of public and private actors, and the effect of a lack of consensus on certain security measures, Chapter 4 demonstrates how the authority of a field of professionals may increase even during policy disputes. While traditional studies of security focus on state apparatuses of

Introduction   7 power and military force or policing, Salter contends that more and more security work is being done by new actors and agencies that do not conform to the old models. The AVSEC case in Europe and Canada confirms that security screening at airports is being performed by private actors according to security regulations being written by transport ministries. While quotidian, the management of aviation security touches international, regional, and national regulations, and reaches across public and private domains. Para-­security agencies and actors are increasingly involved in public security work, such as aviation security screening. Although government and industry desire an integration of risk management (RM), the practical acceptance of the RM methodology is hampered by a complete lack of metrics for public security and risk. Salter examines how sector-­wide standards circulate among a field of national, regional, international, public, and private actors, and makes a similar point to that made by Koblanck – that is, even when there is tension between actors, the authority of the field to manage its object increases. The dispute between EU, Canadian, and US standards for the handling of liquids and hold baggage screening strengthen the shared assumptions, norms, and expertise of the AVSEC field. Different approaches to risk management, in this case, do not undermine the consensus either on risk or on public security. Hobbing introduces a substantial new study of the international agreements between Canada and the European Union regarding passenger name record (PNR) data. In contrasting the American and Canadian cases, he clearly demonstrates that the European Union–Canada agreement, at least in its present form, adheres to privacy standards in a way that the United States–European Union agreement does not, particularly as recently revised. The colonization of PNR data by security agencies provides an excellent example of spill-­over securitization, a process in which the availability of data, the importance of the transport network, and the nature of the threat completely marginalize discussions about privacy and civil liberties. Hobbing also demonstrates how the best practices embedded with the European Union–Canada agreement did not migrate or translate into the European Union–United States agreement, which challenges the familiar story of Canada as a middle power or normative power that is always beggar at the North Atlantic feast. Alegre, in Chapter 9, expands the analysis of external cooperation of the European Union and presents a puzzle similar to that posed by the European Union–United States PNR agreement. The structural need for external coordination on security and criminal justice matters requires cooperation with countries that do not adhere to European human rights standards. She suggests that questions of the exchange of data, the prohibition on torture, the right to a fair trial, and the exposure to the death penalty test EU cooperation in the areas of justice and home affairs (JHA). Alegre details a number of European cases of extradition or extraordinary rendition that pose the same questions as those posed by Guittet and

8   M. B. Salter Koblanck: how exactly does the judiciary frame the push back against violations of human rights by civil society groups and governments? In Chapter 8, Scherrer charts how policing strategies used by the G8 Experts Group against transnational organized crime have been adapted in counter-­terrorism. Based on extensive and difficult ethnographic fieldwork, Scherrer’s chapter represents some of the best work on how ideas migrate within fields of security professionals. Scherrer demonstrates how Bourdieu’s notion of the field and habitus can improve study of security communities; the epistemic communities approach provides a sanitized and overly homogeneous view of norm producers in international organizations. By using ethnography and biography, scholars are encouraged to map out the institutional and personal topography of particular fields. The G8 Lyon/ Roma Group presents such an institutional center of gravity, a forum for senior civil servants from home or interior ministries (justice, intelligence, and law enforcement) and foreign affairs ministries that sets norms, best practices, and common beliefs. Despite the secrecy of the Lyon/Roma Group, Scherrer is able to register the demographic change of the organization, with police, interior, and intelligence agencies coming to dominate the group over the balance between justice and foreign affairs before 9/11. This demographic change is accompanied by a hardening of ideas about best practices, following the trend suggested by Guittet and Tsoukala in their chapters – a move toward intelligence-­driven and risk-­centric policing, rather than a deviance model or investigative policing. The G8 Lyon/Roma Group case expounded here proves the utility of the field approach to understanding the dissemination of ideas and practices through policy communities. Mégie, in Chapter 11, shifts the focus from policing toward the “Europeanization” of judicial power, as demonstrated through the creation of regional instruments such as the European Arrest Warrant (EAW) and EUROJUST. He demonstrates how European norms created a transnational structure of judicial power that transcended national definitions of law, and have become quickly adapted for counter-­terrorism strategies. Framed by a field of legal professionals, judicial norms have been instituted by a network of bureaucrats, advocates, and police that transcends the national/international, public/private distinction. Insisting again that these legal changes were initiated before 9/11, Mégie also demonstrates how the European field of legal professions was able to mobilize the social and political capital made available by the 9/11 and subsequent terror attacks to forward policies, despite the resistance of member states. Mégie points to the passage of Canada’s anti-­terrorism law, Bill C-­36, which displayed many of the same characteristics as the EAW. Even though national courts lack a formal mechanism for speaking back to European policy, they do so in their judgments and through professional fields. In Chapter 12, Macklin proves very clearly how ideas migrate within the judicial community by showing how human rights and security discourses are invoked across national courts. Courts, she shows, see themselves as

Introduction   9 participating in a transjudicial conversation about norms, particularly in new areas of law enforcement and in times labeled as exceptional, chasing after governments that are engaging in transnational policies of cooperation. Macklin demonstrates a specific transjudicial conversation between the Supreme Court of Canada and the European Court of Human Rights, with an intervention by the UK House of Lords on the subject of non-­ nationals who allegedly pose a threat to national security. Comparing Chahal v. United Kingdom, Suresh v. Canada, Saadi v. Italy, and Charkaoui v. Canada, Macklin shows how norms established in one case were adopted (incorrectly) by others. In fact, the United Kingdom adopted a model of a special advocate process that did not then exist in Canada, nor was present in legislation that Canada later adopted. This “jurisprudential simulacrum: the manufacture of a real copy of a fictitious original” demonstrates the power of a transnational field of legal professionals to create norms in law through their assertion of expertise. Thwaites, in Chapter 13, also engages Canadian jurisprudence with regard to non-­nationals deemed a security threat. In examining Charkaoui v. Canada, he compares Canadian with UK and US correlates and supports Macklin’s conclusions: courts often misrepresent or misunderstand comparative jurisprudence. In a close reading of the case, Thwaites argues, similarly to Koblanck, that a focus on the procedural issues of the protection of those caught up in indefinite detention reinforces the legal distinction between citizens and non-­citizens and the ability of the state to use the “exceptional discretion” justification. The Hungarian case, presented in Chapter 10 by Sulyok and Pap, indicates a need to add more specificity to the analysis of security and privacy dynamics. Sulyok and Pap argue that the American policy of “extraordinary rendition,” by which individuals are abducted and removed to incarceration in states more friendly to extreme measures of questioning, emphasizes the role of non-­governmental organizations (NGOs) in pushing governments for transparency. Sulyok and Pap set out a very useful critical history of Hungarian privacy and freedom of information policy, and contrast those ideals of openness and accountability with the actual practices of state agencies in relation to the extraordinary rendition process. They point out that the Hungarian Constitutional Court was able to prevent secret service agencies from gathering (and sharing) personal data “for stock” – that is, in the absence of a particular suspicion or criminal process. As Bigo (2002), Amoore and de Goede (2008b), and others have demonstrated, one of the new and worrying characteristics of the contemporary dynamics of international processes of information sharing is the collection of vast amounts of data “for stock” and the generation of abstract risk profiles. This ruling presents a case where that practice was resisted successfully by NGOs. This project was initially supported by the European Commission, hosted by the Centre for European Policy Studies (CEPS), directed by

10   M. B. Salter Sergio Carrera, Elspeth Guild, and Audrey Macklin, titled “The Changing Landscape of Justice and Home Affairs Cooperation in the European Union and EU–Canada Relations.” Initial versions of these chapters were presented at events in Brussels hosted by CEPS, in collaboration with the University of Toronto and the Institute for Research on Public Policy in Ottawa at a workshop entitled “EU–Canada Cooperation on Anti-­terrorism and Human Rights,” and in Budapest hosted by the Hungarian Academy of Sciences. Earlier versions of chapters by Hobbing, Macklin, Mégie, and Scherrer appear on the CEPS website, although they have been substantially revised for this version. The editor thanks Can Mutlu for his hard work on moving this project toward publication and the Social Sciences and Humanities Research Council of Canada for financial support. Salter would also like to acknowledge the Centre for Research in the Arts, Social Sciences, and Humanities and Wolfson College, Cambridge, for intellectual and financial support during an extremely productive sabbatical Michaelmas term in 2008, during which this volume was conceived.

1 Special delivery The multilateral politics of extraordinary rendition Maria Koblanck

Introduction In the post-­9/11 era, in the light of disastrous campaigns in both Iraq and Afghanistan, the image of the widening gap between the United States on the one hand and the European Union and Canada on the other is reiterated as the authoritative narrative of the dynamics of transatlantic politics. This gap is often explained in terms of a conflict between a United States pursuing its national agenda unilaterally and the European Union and Canada (and greater parts of the rest of the world) working multilaterally to balance the force of the United States. In academic literature, unilateralism is often pictured as necessarily self-­serving and thus detrimental to the idea of global cooperation, and multilateralism is often linked to aspiring cosmopolitan ideals. This chapter, taking the particular case of the extraordinary rendition of Mr. Maher Arar (implicating Canada, the European Union, and the United States) will present a different reading of transatlantic relations in the field of liberty and security as one of extensive multilateral cooperation. Despite superficial differences, the argument here is that the actors involved have more in common than what sets them apart. This becomes most obvious in terms of how the idea of national interest is invoked when the actors have responded to critiques of their anti-­terrorist policies. Moreover, and in direct opposition to prevailing methods to analyze dynamics of world politics in terms of “ethical multilateralism” and “destructive unilateralism,” this chapter will argue that not all multilateralism is benign. Actually, it is multilateral cooperation that makes policies like that of extraordinary rendition possible in the first place. In order to form an opinion on the dynamics of European Union– Canada cooperation within the field of liberty and security in relation to transatlantic politics, we will begin by briefly addressing current perceptions (both in academia and within policy making) of European Union– Canada relations and what is involved in either affirming that particular idea or critically engaging with it. In order to question some of the limits of the discourse in academia and policy making alike, focus will shift to the

12   M. Koblanck particular case of Mr. Arar. Taking Mr. Arar’s case as an example of transatlantic multilateralism, we will see that what is at stake in this context is claims to legitimate authority, the determination of the limits of legal action, and the mobilization of the concept of “national interest.”

European Union–Canada (and the United States): a transatlantic gap? A cursory look at the academic literature and policy documents paints the picture of a peace-­loving, multilaterally operating joint force of the European Union and Canada (and the rest of the world) balancing the power of a hegemonic United States. In the same vein, the current state of transatlantic relations is often characterized (and caricatured) as follows: The relationship between a forward-­looking EU engaged in an exceptional experiment and an overbearing America convinced of, and infatuated with, its own exceptionalism is increasingly strained. [. . .] The EU’s pioneering experiment with institutionalism, constitutionalism, and transnational governance is little celebrated on the western shores of the North Atlantic. [. . .] A wedge has been driven between the United States and the EU and its members, both collectively and individually, as well as between the United States and much of the rest of the world. (Engelbrekt and Hallenberg 2008: 167) Thus, transatlantic relations are often portrayed in terms of conflict, as a continuous mediation of tension – a rift between the multilateral and cosmopolitan European Union and the unilateral and power-­motivated United States. The following is one of many examples of what this reading of transatlantic relations entails: The current tensions between the EU and the United States over what can broadly be characterized as questions of world order: in other words, questions about the role of leadership, the distribution of power, the development of institutions and the articulation of ideas and values about the nature of the world arena. (Smith 2004: 96) In this context, the idea of a multilateral European Union does not stem only from the Union’s action on the world political stage (and its rhetoric) but is also considered a natural continuation of the process of European integration; hence, “in essence, the inner-­European experience of rule-­based cooperation and confidence building being a successful security strategy is translated to the international level” (Berenskoetter 2005: 75). On the other hand, the United States is considered strong enough to

Special delivery   13 pursue certain policy goals without having to build multilateral support. However, as many scholars and policy makers have argued, despite the United States’ prominent position in the world, there is no doubt that American foreign policy greatly benefits if it acquires a certain amount of support before acting. Chris Brown (partly quoting Joseph Nye) points exactly to this: “from the point of view of the US, multilateralism may bring political benefits and a higher quality of decision-­making [. . .] it is no longer a necessity” (Brown 2004: 62). As we will see through an examination of the Arar case, the question should be rephrased as one of whether or not unilateralism is a viable policy option for any actor in world politics. It is within this scheme of things that we need to locate and analyze the development of European Union–Canada relations. If we start with a brief reference to the historical development of European Union–Canada relations, the past forty years can be characterized by a constant oscillation between complete indifference and selective engagement on behalf of both parties, an engagement that was always carried out with a weary concern for the opinion and actions of the United States. In the early 1970s, Canadian foreign policy was primarily focused on what was viewed as an increased dependence on the United States, and the greatest task was considered gaining proper recognition of this “special relationship” (Croci and Tossutti 2007: 18). It is in light of this that we can see why cooperation with the European Union became a more interesting option. In the words of Croci and Verdun, the process since can best be described as “neither dense nor a linear or coherent continuum,” and, if anything, only consisting of “sporadic overtures made by Canada” (Croci and Verdun 2004: 1). However – and this is part of the reason for a renewed interest in European Union–Canada relations – in light of the fast-­changing dynamics of world politics, it has been argued that there have been significant developments in terms of closer cooperation between the European Union and Canada in the past ten years. If we look at the general trends in policy making directly relevant to European Union–Canada relations since 2001, one can find support for an increased level of cooperation and also references to the foundations of this perceived kinship. The 2001 joint declaration states: We repeat our common view that the security, prosperity and well-­ being of our citizens are best served by a world order based on strong international institutions and effective multilaterally agreed rules [. . .] our common values, including individual rights and liberties, and our joint desire to promote the value of democracy and good governance. [. . .] We remain determined to work even more closely together in the fight against terrorism in all its aspects, in close contact with the United States and in support of multilateral efforts. (European Commission 2001: 2–3)

14   M. Koblanck Similar sentiments, but with increased intensity, have been expressed in all policy documents since. The joint approach to challenges faced in world politics is perhaps most forcefully articulated in the EU partnership agenda of March 2004. The partnership agenda was the product of a renegotiation of the previous legal structures for European Union–Canada interactions and now constitutes the framework for all exchanges: The strategic importance of the relationship Canada and the EU share common values that underpin the fundamental nature of our societies. Our close historical and cultural ties, as well as our respect for multilateralism, are the foundations of our partnership. As the EU evolves and enlarges, and as we both face diverse and evolving global challenges, it is critically important to expand our multi-­faceted relationship and build upon these foundations. The increasing frequency with which we vote together in international organizations – well over 90% of the time during the most recent session of the UN General Assembly – is a clear indication of our mutual understanding of the importance of the United Nations and other international and regional organizations. This strong demonstration of our like-­mindedness has encouraged Canada and the EU to deepen consultative mechanisms still further across the multilateral system. (EU Commission, EU–Canada Summit 2004: 1) Interesting to note in this case is how the “respect for multilateralism” and the actual voting record within the United Nations (on top of the much more general references to “shared common values” and “liberal democracy”) are seen as prime examples of the closer relationship between the European Union and Canada. In terms of Canada’s role in transatlantic politics, it is often argued that by the supposed turn from the United States and toward the European Union, Canada has staked out a position of the “neutral” North American voice in world politics, capable of bridging the transatlantic gap. Commenting on the impact on Canadian sovereignty of placing Canadian troops under US command in Iraq, Michael Byers writes that “Canada’s unique multilateral influence would be comprised [sic] the moment doubts were raised as its status as a non-­American voice” (2002: III, 1)

An extraordinary version of ordinary politics Thus far, it can be argued that the account of a transatlantic gap and a mediating Canada is supported not only by state action but also by policy making and academic writings. This chapter wants to shift away from taking these accounts at face value and to pay attention to what happens to this image of transatlantic dynamics in the event of “extraordinary”

Special delivery   15 circumstances, in this case when liberal states perpetrate illiberal acts. These are the moments when the distinction between legality and illegality becomes blurred, when authoritative narratives that employ the concept of national interest are questioned and when claims to legitimate authority are doubted. Thus, the shift in focus opens up for critical engagement with the very foundations of politics and political interaction taken for granted in the previous accounts of transatlantic relations. In particular, we will look closely at the case of Maher Arar, a Syrian-­born Canadian who was detained in the United States and sent to Syria, where he was imprisoned and tortured. There are many reasons to pick Mr. Arar’s case as a starting point for further exploration of the effects of anti-­terrorist legislation on the dynamics of transatlantic relations. This chapter will extend focus beyond the events of Mr. Arar’s rendition and include also the responses by the different actors. The point made here is that the attempts to explain the events on the part of the governments involved are as much part of the policy as the actual events themselves. “Extraordinary rendition” generally refers to the practice by states to transfer suspects to third countries without due legal process, more often than not with the effect that the detainees are subject to torture at their destination. Little doubt remains that the reason for transporting prisoners to a third country is to circumvent the checks and balances that would otherwise apply to all branches of government. It is important to notice that as a policy, the program consisted not only in the physical removal of a detainee, but also in an extensive and sophisticated system of surveillance and information sharing that makes the detention and removal possible. By now it has been established that the United States was not the only country drafting and taking part in the policy; a multitude of countries around the world also participated, among them several EU member states and Canada. Issues of “national security” are not always dealt with in what are deemed the usual modes of political decision making, with the checks and balances that sustain liberal democracies. This is all well and good as long as the secret act of the secret service remains a secret, but it is difficult for any democratic government to explain publicly the reasons for sidestepping the very structures that give it legitimacy in the first place. In other words, the actors involved have to explain publicly how it was and why it was that the very foundations of their political and legal power were at times set aside. The Maher Arar case Maher Arar’s experience and the events that followed have gained worldwide notoriety as an example of the human rights violations carried out by states in the name of the “war on terror.” In September 2002, Mr. Arar, a Canadian citizen returning to Canada after a family visit to Tunisia, was arrested while transiting through the United States. The Immigration and Naturalization Service (INS) and the Central Intelligence Agency (CIA),

16   M. Koblanck acting on information passed on to them by the Royal Canadian Mounted Police (RCMP), arrested and detained Mr. Arar. He was questioned in the United States for 11 days. It took 5 days before he was allowed to make a phone call, and throughout the period Mr. Arar, despite his constant requests, was not given proper access to his lawyer (O’Connor 2006: 33). He was asked to “voluntarily” go “back” to Syria, which he refused to do, claiming that he feared that he might tortured. His fears were considered evidence of guilt. He was further questioned, and eventually put on a plane and sent to a military prison in Syria (via Italy and Jordan). Upon his arrival, Mr. Arar was interrogated, repeatedly tortured, and forced to falsely confess that he (among other things) had been to Afghanistan (ibid.: 33). After nearly a year in unlawful detention, Mr. Arar was released to the Canadian embassy and returned to Canada. From the moment he returned, he has been pressing for some kind of answer to the question why this happened to him. The Canadian response After Mr. Arar’s return to Canada, calls were made to set up a public inquiry into the circumstances of his detention and rendition. The prime minister, Jean Chrétien, rejected the request, citing as primary reasons for doing so both the fact that an internal inquiry was already under way, and that any wrongdoing in the case was the Americans’ fault. However, on 29 January 2004, after elections and the coming to power of Stephen Harper’s Conservative government, the Canadian government agreed to a public inquiry in the form of a commission of inquiry. In Canada a “Commission of Inquiry” is independent of both executive and legislative power and it holds complete power to subpoena relevant documents. The extent of the inquiry ran over “two and a half years, 21,000 documents – 83 witnesses and 45 days of public hearing” (O’Connor 2007: 42). Both the United States and Syria declined invitations to participate. The inquiry as such was plagued not only by leaks but also by forceful responses by the government ordering the return of any leaked information. On 18 September 2006 the Commission issued its report. At the time of its publication, major disputes arose between the Commission and the Canadian government over what parts of the inquiry could be made public. In response to that conflict, the Commission concluded by stating, “Although government agencies may be tempted to make NSC claims to shield certain information from public scrutiny and avoid potential embarrassment, that temptation should always be resisted” (ibid.: 304). The report concluded that Arar was entirely innocent, that there were no reasons to suspect that he was involved in any kind of terrorist activities. Furthermore, it put great emphasis on the fact that the unfortunate chain of events began with the RCMP passing on inaccurate information to US intelligence services. In terms of recommendations,1

Special delivery   17 while recognizing the importance to intelligence agencies of the sharing of information, Justice O’Connor pointed out how important it is that any information passed on to foreign secret services is accurate. Furthermore, he specifically highlighted the extreme danger of assuming that someone is guilty by association in cases related to issues of national security. As a response to the report, the prime minister, Stephen Harper, issued a formal apology to Mr. Arar and his family on 26 January 2007 and pledged to pay him Can$10.5 million in damages. The prime minister also accepted all of Justice O’Connor’s recommendations. It was a change of government that made a public inquiry into Mr. Arar’s case possible. The Harper government mobilized the previous administration’s faulty policy in order to create legitimacy for its own. In other words, Mr. Arar’s misfortunes were the responsibility of neither “Canada” the state, nor even the “Canadian government,” but simply Prime Minister Jean Chrétien’s office. The European response When the news of a US policy of extraordinary rendition to torture in general and Mr. Arar’s case in particular broke, the European Commission’s vice president, Franco Frattini, immediately responded to the allegations by calling for the creation of appropriate inquiries into the role that European countries had played. In the press release, Frattini denied knowledge of any instances of extraordinary rendition on the part of the European Commission (European Commission 2005d). At that time the Council of Europe had already tried to bring attention to the practice of rendition by first and foremost conducting an inquiry into the legal situation of the detention of prisoners in Guantánamo, which necessarily involves questions of extraordinary rendition. The Council quickly set up a committee to look into the alleged European secret detention centers, and issues related to a policy of extraordinary rendition. In its report, published in June 2006, not only was Mr. Arar’s case directly addressed, but so too was the Canadian response. Commenting on the Canadian commission, its mandate, and function, the report stated: The working methods of this commission, a genuine commission of inquiry with real powers of investigation, empowered to take cognizance of classified information, strike me as very interesting. However, Mr Paul Cavalluzo, Mr Arar’s principal lawyer on the Commission, deplores the tendency of the Canadian authorities to hide behind “official secrets”. (European Parliament 2006: 3.6. 183) However, the most often cited response at the European level was an inquiry set up by the European Parliament. Publishing its report in

18   M. Koblanck November 2006, the inquiry concluded that between 2001 and 2005, 1,245 CIA-­operated flights had used European airspace and airstrips. The inquiry pointed out that the number could be even higher but also that not all flights necessarily had the purpose of rendering terrorist suspects. More to the point, 21 well-­documented cases of extraordinary rendition were found (ibid.: 3.6. 42) In relation to the Arar case, the resolution stated that the Parliament “deeply regrets that Italian territory was used by the CIA to make a stopover during the flight that was used to carry out the extraordinary rendition of Maher Arar [. . .], from the United States to Syria via Rome” (ibid.: 3.6. 66). The resolution that followed stated that the EU committee’s findings proved beyond doubt not only that the member states knew about the US program of extraordinary rendition but also that they most likely also benefited from some of the information derived (European Parliament 2006: 3.6. L, M) The member states are criticized not only for keeping this information from the Parliament but also for not cooperating with the Committee when the issue of extraordinary rendition was under investigation (ibid.: 3.6. N, O, P, 13). The committee expressed “outrage” at a previous proposal to set up a framework for the practice on rendition of terrorist suspects in cooperation with the United States (ibid.: 3.6. 25) and pointed out how all EU member states are automatically implicated in these illegal actions by virtue of partaking in the Council (ibid.: 3.6. 24).2 Even though the committee “stresses the necessity of political dialogue with the United States, as well as with other strategic partners of the European Union, on security matters in order to combat terrorism effectively and by legal means,” the underlying sense that emerges from these documents is that the United States is the instigator of a policy of extraordinary rendition and that the European member states were indeed guilty, though rather passive, colluders. In the words of a Member of the European Parliament (MEP), “the report has shown that the allegations where proved, they are serious, they point to the USA” and that “the Europeans have not only been spectators, but we were involved, and in some sense, supported the injustice” (European Parliament 2007b). In this context it is interesting to look at the definition of a “policy of extraordinary rendition” given by European Commission for Democracy through Law (i.e. the Venice Commission), which reads, “Extraordinary rendition may be defined as the transfer of an individual suspected of involvement in terrorism, captured and in the custody of American officials, who is sent to another country often for interrogation sometimes facing torture there” (Venice Commission 2006: 2, emphasis added). This seems to show a felt necessity to shift blame, especially since the allegations raised in relation to a policy of extraordinary rendition could indeed be read as a sign of a transatlantic rift. A major issue at the time of the passing of the report was exactly where blame should be situated, and here the United States was not seen as the sole perpetrator. The debate at the time primarily

Special delivery   19 concerned the degree of guilt bestowed upon the member states and how harshly that guilt could be worded. Interestingly enough, MEP Gerard Batten (an avid advocate of UK withdrawal from the European Union and a founder of the UK Independence Party) pointed to what he believed to be the report’s blatant anti-­Americanism and expressed concern over what he saw as a “grab for more power by the EU” (Venice Commission 2006: 2). The final vote tally in the parliament was 382 votes in favor, 256 against, and 74 abstentions. One of the main issues that arise with regard to the report, one that always arises when speaking about the European Union as an actor in the context of world politics, is the relation between the Union and its member states and the division of powers between the two. In many respects the report is a slap on the wrist for the member states by the European Parliament for acting independently of and contrary to the European Union: “[T]he Member states cannot circumvent the requirements imposed on them by Community and international law” by making use of third parties “like other countries’ intelligence services” to operate either on their territory or in a third country in a way that violates human rights (European Parliament 2006: C). The image of the member states that emerges from the European Parliament-­endorsed document is that they are driven by their own national interest. This national interest has been defined in a manner contrary to prevailing norms of international law, and thus the “so called ‘war on terror’ – in its excesses – has produced a serious and dangerous erosion of human rights and fundamental freedoms” (ibid.: 2). The European Union, on the contrary, considers itself as the primary defender of principles of international law and multilateralism, an approach that also makes it the main defender of human rights. That the European Union in this case, and in other cases where issues of “national security” are at stake, sometimes seems to be a rather toothless defender is another question, and one to which we will return at a later stage. The US response On 22 January 2004 the Center for Constitutional Rights (CCR), on behalf of Mr. Arar, filed suit in the US District Court for the Eastern District of New York against Attorney General John Ashcroft, Federal Bureau of Investigation (FBI) director Robert Mueller, and Homeland Security head Tom Ridge, as well as numerous directors of the US immigration officials. The first ruling, delivered in February 2006, dismissed the case since it was deemed to pose a risk to national security interests. The CCR appealed the decision in November 2007 but the Court of Appeals issued a two to one decision in June 2008 along similar lines. The dissenting judge found that the majority decision gave federal officials license to “violate constitutional rights with virtual impunity” (United States Court of Appeals for the Second Circuit 2008: 47.)

20   M. Koblanck On 18 October 2007 the US House of Representatives (which had had a Democratic majority since the elections of November 2006) held a joint hearing in front of the Subcommittee on International Organization, Human Rights, and the Oversight of the Committee on Foreign Affairs and the Subcommittee on the Constitution, Civil Rights, and Civil Liberties (the House Committee). The hearing was the first public act by a branch of the US government to investigate the Arar case in particular, but also more generally the US program of “rendition to torture.” It is arguably one of the more informative sources on the effects of US policy of extraordinary rendition on US politics. The Democratic majority in Congress paved the way for the hearing to proceed and was one among a multitude of processes aimed at questioning and discrediting the Republican administration of George W. Bush. Despite the particular dynamics of the national political scene, the tone of the House Committee hearing suggests that it is taking place with an increasing sense of urgency due to the United States’ inaction on the matter, and thus “that trans-­Atlantic relations have suffered as a result and that this program [‘US policy of so-­called extraordinary rendition’] accounts, in no small measure, for the low standing of the United States in terms of European public opinion, which we can ill-­afford.” The adverse effects of the policy of extraordinary rendition on America’s international reputation is further highlighted in relation to Canada, where a recent poll is quoted showing “a staggering 71 percent of Canadians hold a negative opinion of United States foreign policy” (US House of Representatives 2007: 1) There are three important points to be made in relation to the hearing. First, there was a felt necessity on the part of the speakers to apologize personally, on behalf of the American people, to Mr. Arar in the absence of an official apology issued by the US government. Across the board, despite individuals’ particular standpoint on the overall assessment of the US policy of extraordinary rendition, and despite their party affiliation, all speakers regretfully apologized to Mr. Arar on behalf of the American people (US House of Representatives 2007: 3, 20). The American people are thus treated as separate from the American administration. Second, there seem to be two main lines of argument presented during the hearing. Either Mr. Arar’s case, in and of itself, is proof enough of an unacceptable level of human rights violations perpetrated by the US government, in which case being a state at war does not constitute a legitimate reason for derogation from national and international legal obligations. If Mr. Arar’s case is seen as a failure of US policy in these terms, the inaccurate information provided by the RCMP is considered to be the main reason for this failure (ibid.: 22). Alternatively, Mr. Arar’s case is to be considered an anomaly, or collateral damage in an otherwise necessary and successful program in the war on terror. Dana Rohrabacher, a Republican representative from California, puts it bluntly: “I challenge anybody to compare the error rate of rendition, this program, with the error rate in any other

Special delivery   21 government program” (ibid.: 18). Third, and directly related to the second point, the absence of a public apology from the US government is discussed in relation to Mr. Arar’s unsuccessful (particularly at the time of the hearing, but even at this date) attempts to seek redress in US courts. The effect of dismissing his claim, in the words of Chairman Conyers, is that “the state privilege outweighs his violated human rights” (ibid.: 18). The fact that Mr. Arar had to testify (this was the first time he testified before a US government agency) via video transmission, since he has yet to be struck off the terrorist watch list, was referred to as another illustration of the Bush administration’s failing policy. One can only speculate as to whether or not it was a direct response to the House Committee hearing, but nevertheless, on 25 October Condoleezza Rice admitted that the United States “mishandled” Mr. Arar’s case, but stopped short of offering an apology (“Rice Admits U.S. Erred in Deportation” 2007). In March 2008 the Inspector General, Department of Homeland Security presented his report on the Arar case. Expressing utter frustration over the unwillingness on behalf of the people involved to cooperate with his inquiry (Skinner 2008: 44), the Inspector General concluded that normal procedures had been sidestepped in relation to Mr. Arar’s detention, that no answer had been given as to why Mr. Arar had been sent to Syria and that he could not exclude the possibility that it was for the purpose of torture (ibid.: 33–35). The report itself, in the form in which it was released to the public, is probably the best illustration of why this is the case. The blacked-­out text, together with the refusal to try Mr. Arar’s case and the fact that Mr. Arar is still not removed from the terrorist watch list, indicates that in this case (and not only in this case) national interest, as defined in Washington, does indeed trump individual rights and the idea of due legal process. Furthermore, Arar’s case was presented before the Second Circuit of Appeals on 30 June 2008 and it was again dismissed on the basis of the nature of the information involved in the case. However, as recently as 12 August 2008 the Second Circuit of its own accord issued an order that the case would be reheard en banc (i.e. with all judges present) and a hearing was indeed held on 9 December 2008.3 In these events we can potentially sense a shift in US policies, a shift toward recognition of the necessity (produced by pressures from the European Union, Canada, the American people, and so on) of addressing human rights violations perpetrated in the name of the war on terror – and the necessity of doing so publicly. However, this development cannot be detached from the general and widespread discontent with the Bush administration.

Unilateralism and multilateralism: rhetoric, national interest, and legitimate authority An overall assessment of the responses to the Arar case in terms of a transatlantic conflict between “benign multilateralism” and “destructive

22   M. Koblanck unilateralism” would require the overlooking of a multitude of similarities present in all cases. There are two points that I wish to make at this stage. First, I want to present a second reading that takes the differences displayed as primarily rhetorical or superficial, a point illustrated by the observation that the concept of national interest is mobilized in the same way, for the same purposes. Even though no one except Mr. Arar can determine the “actual” value of a formal apology, little differs in the policies and responses of Canada, the European Union, and the United States. In many ways, Canada has gone the furthest in dealing with the case, but the argument concerning the conflict between individual rights and national interest is employed in the same manner across the board. Second, a simple enough but very important point in this context: not all multilateralism is benign. To argue (despite evidence of a repeated high level of cooperation taking place) that multilateralism is per se a more ethical policy choice than unilateralism is to misrepresent the issues at stake. What we can see instead is that it is a high level of multilateral cooperation at a multitude of levels that makes certain policies, like that of extraordinary rendition, possible in the first place. National interest What we have seen in relation to the Arar case is the mobilization of the concept of “national interest” in order to publicly explain the violations of human rights and international law. In general, liberal democracies are considered a legitimate source of sovereign power when they abide by the law, the supposed check and balance on all branches of government and the exercise of sovereign power. The important point to make here is that in moments of transgression the concept of “national interest” is often employed to explain the necessity of that transgression. Within the field of International Relations it is the mobilization of the concept of “national interest” in terms like these that is the reason why it has become perpetually connected primarily to the “Realist” school and been given an unquestionable link to “power politics” (Donnelly 2000: 7). In all the responses to the Arar case, “national interest” was defined, redefined, and criticized in similar manner. In the Canadian case, national interest was cited as the reason for dismissing the first calls for an inquiry. At a later stage, after a change of government, it was in the name of “national interest” that the Commission of Inquiry was set up, and in his apology Harper said, “Although the events leading up to this terrible ordeal happened under the previous government, our Government will do everything in its power to ensure that the issues raised by Commissioner O’Connor are addressed” (Office of the Prime Minister 2007). In other words, previous violations of national and international law were mobilized in order to create legitimacy on behalf of the new government. In the case of the United States, “national interest” has con-

Special delivery   23 tinuously been used to fend off calls for further investigation into the practice of extraordinary rendition. The censoring of the few inquiries that have been made public, the dismissal of further investigations, and the refusal to try the cases in courts of law are all explained in terms of the possible disclosure of information being contrary to “national interest.” What we could see taking place in the Joint Committee hearing were attempts at tying a particular mobilization of national interest to the Bush administration and, in so doing, rearticulating a different notion in the name of the “American people.” Again, by mobilizing the concept of national interest the target for the critique was the legitimacy of the Bush administration. Furthermore, in relation to the EU response the divide between the EU institutions and member states over the policy of extraordinary rendition is played out in terms of a divide over the extent to which it is possible for the member states to refer to “national interest” when acting independently or contrary to EU policy. As we have seen, in this case, and in other cases where issues of “national interest” are at stake, the European Union is a rather powerless defender of international law. Not only do the responses to the Arar case give us an insight into how the concept of “national interest” is directly linked to issues of legitimacy, legality, and common good, but what we have seen is that national interest in combination with claims to individual rights can easily be mobilized in a multitude of fashions and with a multitude of goals. The same logic applies to the other cases, which gesture toward the point that legality in combination with a notion of national interest (or common good) is a very fragile foundation for what we claim to be legitimate authority. Multilateralism In relation to the Arar case we are given numerous examples of transnational cooperation between low-­level representatives (for example the flagging of Mr. Arar as suspicious by the RCMP) that seem to be part of a political structure quite detached from what we otherwise would view as the political and legal structures that constitute the foundation for exercise of legitimate authority on behalf of a state. We can see the detachment in the report by the Office of Inspector General, Department of Homeland Security, which points out that what in general parlance are referred to as “diplomatic assurances” (talking about the assurances given to the United States that Syria would not subject Mr. Arar to torture) in this case actually consisted of a quick phone call between two unidentified low-­level secret service officials. This, he continues, should not be (mis) taken for authentic “diplomatic” relations – that is, it should not be mistaken for the exercise of legitimate state authority. One can put it in very simple terms: extraordinary rendition is multilateral in its essence, and the “coalition of the willing” is, precisely, a coalition.

24   M. Koblanck In a comment on the policy of extraordinary rendition, the Venice Commission draws our attention to the degree of multilateral cooperation that underpinned the policy of extraordinary rendition, stating, “Our analysis of the CIA ‘rendition’ programme has revealed a network that resembles a ‘spider’s web’ spun across the globe.” The “spider’s web” is illustrated quite powerfully in the report (Figure 1.1). The discussion of multilateralism within the field of political science in general and International Relations in particular seems to have overlooked this very simple but yet crucial point. In the 1990s, when the debate on the definition and function of multilateralism raged, the primary concern was (here John Ruggie’s article and the entire 1992 summer issue of International Organization are a brilliant example) to explain multilateralism by linking it to the support and enforcement of ethical norms, for example in Ruggie’s case the idea of “collective security” (Ruggie 1992: 567). Since then it seems as if the link between multilateralism and ethics has remained unquestioned. There have been contributions to the debate that have looked at the policies in the name of the war on terror through the lens of multilateralism: [The United States] prefers operating on its own or creating “coalitions of the willing” rather than working through multilateral institutions to promote its foreign policy goals. The Bush administration makes no apologies for this “new realism”. Indeed, Richard Haass, the director of policy planning at the State Department, boasted of helping to define the new doctrine of “à la carte multilateralism”. (Cameron 2002: 4) Because the quotation still retains a differentiation between the “coalition of the willing” and “proper” multilateral institutions, it points to the core of the problem of the discourse. The key to understanding why a general idea of a world split between a “selfish, unilateral United States” and the “benign multilateral European-­led rest of the world” is unhelpful (to say the least) in terms of understanding current developments in world politics is that it fails to separate a choice of strategy to pursue certain goals and an ethical assessment of that strategy and those goals. (In direct relation to post-­2001 US policies, see Patrick 2003: 39–40.) Thus, little doubt remains after looking at the Arar case that EU member states and Canada were far more integrated in US policy than they would like to acknowledge. Perry Anderson is someone who brings the question of transatlantic affinities to the fore. Writing precisely about the policy of extraordinary rendition, he states: Though NATO initiated this system, the abductions it involved were not confined to members of the North Atlantic Council. Europe was eager to help America, whether or not fine print obliged it to do so. North, south, east and west: no part of the continent failed to join in. (Anderson 2007)

Figure 1.1  The global “spider’s web” of secret detentions and unlawful inter-state transfers (source: Venice Commission (2006: 11)).

26   M. Koblanck But Anderson does not stop at merely implicating EU member states in the policy of extraordinary rendition. By extending the argument beyond the field of security issues or instances of anti-­terrorist legislation to issues of economic cooperation and monetary policies, he concludes, “How independent of the United States is [the European Union]? The answer is cruel, as even a cursory glance at the records shows. Perhaps at no time since 1950 has it been less so” (ibid.). Anderson is highlighting some of the difficulties inherent in the type of analysis that we just looked at, namely the view of Europe (and by association Canada) as a “global normative power.”4 Perry Anderson singles out the philosopher Jürgen Habermas, who through his work The Divided West reinforced a view of a world divided as an effect of the Bush administration’s forceful unilateralism. In this divided world, the European Union, its member states, and Canada present a more lawful, humane, and generally peaceful alternative to American power politics. Anderson brushes this image aside as solely self-­ congratulatory and narcissistic on the part of the Europeans. Arguing that the European Union has not developed either according to supranational blueprints or according to federalist plans, the main doctrine shaping European integration has been Friedrich Hayek’s. Anderson’s point is that the European Union is primarily an economic project and its political and ethical ambitions have not been translated into political power. In its insistence on viewing itself as supranational normative power, the Union has also weakened its member states as actors in world politics. Instead, what makes up the core of the European Union is its transnational common market. The reliance on the market is directly a reliance on the United States because of the United States’ role on the global markets, and thus a Europe driven primarily by economics is incapable of ever taking a serious stand against the United States. Crucial to mention at this point is indeed that a forceful unilateralism is not even a possible avenue for a demilitarized European Union to pursue policy goals. What we have seen not only in the particular context of the Arar case but in world politics in general is that in terms of possible strategy choice, unilateralism is not a viable option for the United States either.

Concluding remarks With a focus on the case of the extraordinary rendition of Mr. Maher Arar, this chapter has argued that prevailing images of transatlantic politics in terms of a rift between on the one side the benign multilateral European Union and Canada and on the other side the hegemonic United States do not manage to capture the complexity of the issues at stake. By looking at the Arar case it becomes evident that rather than transatlantic relations being fraught, post-­9/11 politics have engendered a high degree of multilateral cooperation: secret services passed on information, airports were kept open, “diplomatic assurances” were given. However, these are not

Special delivery   27 necessarily cases of the type of “intrastate” cooperation we have a tendency to look for when analyzing world politics, but rather (to borrow the words of the Venice Commission) a “spider web” of multilateral, multilevel, and not always “officially” sanctioned cooperation. In relation to this realization, a very important point to make is that not all multilateralism is benign, that policies like the global policy on extraordinary rendition that has been in place since after 9/11 are by definition multilateral. Despite prevailing images of a forceful, unilateral United States pushing its own agenda, it is clear that not even for the United States is unilateralism a policy option anymore (and for the multilateral European Union and Canada it has never been an option). Thus, we have to move beyond thinking about transatlantic relations in terms of a gap between US unilateralism and the multilateralism of the European Union and Canada. We should begin questioning why these images are so persistent and why we are so eager to constantly reinforce them – academics, policy makers, and citizens alike. This point is especially acute within the field of justice and home affairs, for the simple reason that when we deal with issues of “national security,” political dynamics and events do not necessarily conform to analytical ideals. The method suggested for further engagement in this chapter is one that traces those relations through authoritative narratives that employ the concept of national interest. What we will see is that national interest in combination with claims to individual rights can easily be mobilized in a multitude of fashions, which gesture toward the point that legality in combination with a notion of national interest (or common good) is a fragile foundation for what we claim to be legitimate authority.

Notes 1 Here only a few will be mentioned. Altogether there were 28 particular recommendations published covering issues of the practices of the secret service, the necessity of implementing some type of accountability, the role of the government vis-­à-vis the secret service, issues of extradition process, and more. 2 The recommendations included, for example, the call for inquiries and investigations; the reiteration of the necessity to uphold positive obligations under Community law (European Parliament 2006: 3.6. 189); the necessity for compensating all the innocent victims, including guarantees that there would be no repetition (ibid.: 3.6. 192); and a call to evaluate anti-­terrorist legislation, and especially to focus on the tension between EU integration and the notion of “state secret” (ibid.: 3.6. 194). The draft report’s call for “sanctions,” which had been included in previous drafts, was excluded from the final version. 3 For coverage of the legal process, see http://ccrjustice.org/ourcases/current-­ cases/arar-­v.-ashcroft. 4 Part of the research for this chapter consisted of a literature review of current scholarship published during the past three years in academic journals on the topic of the European Union and its role in world politics. The idea of the Union as a “global normative power” was one of the most prominent themes.

2 Miscarriages of justice and exceptional procedures in the “war against terrorism” Emmanuel-­Pierre Guittet

Introduction The attacks against the United States on 11 September 2001 gave new urgency to the call for political cooperation. With the fight against terrorism having been elevated to the highest priority and “terrorism” presented as a threat to all democracies, the discourses of democratic solidarity against terrorism and of national insecurity have become very clear (Guittet 2004, 2006; Tsoukala 2004). Furthermore, they have emerged as common discourses to invoke a “state of exception” and to suspend the rule of law, which may also include derogations of international commitments. It has been widely accepted among political actors that “necessity” knows no law and that individual rights to liberty are trumped by the collective right to security. The “war against terrorism” is certainly not an American invention (O’Connor and Rumann 2003; Guittet 2004). Indeed, the excesses and failures of anti-­terrorist policies were already a European concern prior to the 9/11 attacks, as was the ensuing common perception of a transatlantic rift in the debate on the “necessary sacrifice” of liberties for the sake of national and international security. In the post-­9/11 period, political actors have sought to justify reliance on emergency measures adopted under exceptional procedures in the fight against political violence (Tsoukala 2004; Bigo and Tsoukala 2008). How, then, does the judiciary respond to the demand to set aside laws in the name of collective security? What are the consequences in terms of rendering justice, and especially in relation to miscarriages of justice? In the classical academic law literature, a miscarriage of justice cannot be said to have occurred unless appeal courts react and overturn criminal convictions. In that legalistic sense, a miscarriage of justice is when an appeal is successful – that is, based on the particular rules and procedures of the considered appeal system. As Michael Naughton (2005: 165) underlines well, this approach renders the study of wrongful convictions essentially legalistic, procedural, and retrospective, and fails to address properly the question of “miscarriages of justice.” My purpose here is not to comment

Miscarriages of justice   29 on the literature dedicated to the issue, to outline the last development of any rights-­based theory, or to produce an integrated theory of the criminal justice and penal processes. To do so would be beyond the scope of this chapter. Here we follow the main argument developed by Kent Roach and Gary Trotter: “The temptation of departing from normal legal standards and engaging in pre-­judgment, prejudice and stereotyping may be particularly high in emotive and devastating cases involving allegations of terrorism and fears of continued acts of terrorism” (2005: 968). In their paper, Roach and Trotter tend to discuss and challenge the previous classical rights-­based definition of miscarriages of justice as whenever individuals are treated by the state in ways that breach their rights (Walker and Starmer 1993); whenever individuals are treated adversely by the state to a disproportionate extent compared with the need to protect the rights of others (Greer 1994); or whenever the rights of others are not properly protected or vindicated by state action against wrongdoers. I agree with them when they argue that the concept of a miscarriage of justice should not be limited to wrongful convictions and should include all procedural shortcuts that allow for detention without a criminal trial (Roach and Trotter 2005: 1036). Despite the profound quality of their argument, I do not hold that “tunnel vision” – the blind determination of the police to get someone convicted at any cost – is the glue that brings together a number of failures in every judicial system facing political violence (i.e. terrorism). My argument is that the recourse to intelligence practices and the deployment of counter-­insurgency methods taken from the military field to oppose terrorism always lead to significant miscarriages of justice or a lack of justice (Guittet 2006). The glue that brings together a number of failures and wrongful convictions in the very judicial system facing terrorism is the political climate of exception, generalized suspicion, and the oscillation of the judiciary between resistance and deference to the primacy of intelligence data when terrorist acts are judged. The reducing of standards of proof and the weakening of rights for suspects and defendants in any anti-­ terrorist criminal justice system is a consequence of this particular climate, which allows certain normal practices to be extended or curtailed, variables to be introduced into the judicial system, and judges to be pushed to their limits. To illustrate these various forms of judicial resistance or, alternatively, deference to the logic of generalized suspicion, let us closely examine three examples of judicial involvement in the fight against terrorism that correspond to three different chronological and socio-­political moments. The examples are as follows: the wrongful conviction of the “Guildford Four,” within the context of the multiplication of exceptional measures in Northern Ireland and the development of a climate of fear in Great Britain (1974); the judicial condemnation and constitutional ban of a Basque nationalist political party, Batasuna, in the name of the fight

30   E.-P. Guittet against terrorism and of the “protection of society” with a new law to govern the creation, functions, and dissolution of registered political parties (2002); and the case of the detention, deportation, and torture in Syria of a Canadian citizen, Maher Arar, based on Royal Canadian Mounted Police (RCMP) information given to the US administration (2002). Confronting these three cases calls for recognition of the differences in context and judicial systems. Nevertheless, they all highlight the importance of the anti-­terrorist perspective with regard to the rendering of justice. These three cases show how some individuals have experienced the derogation of the democratic framework that defines the rule of law, as imposed by politicians in the name of exceptional situations of violence. These situations include the violent campaigns of the Provisional Irish Republican Army (PIRA) in Northern Ireland, the spread of violent attacks by ETA and the development of a large left-­wing nationalist faction in the Basque Country, and the international fear of al-­Qaeda (accompanied by Canadian concerns to avoid disruption to its diplomatic relationship with the US administration). These three cases also underline how in different courts the line between security intelligence data and probative evidence has become blurred to the advantage of so-­called national security imperatives.

Judicial abuse or miscarriage of justice? Three cases The Guildford Four: disproving the evidence The Guildford Four case is now a classic example of miscarriage of justice in academic law courses. On 5 October 1974, timed bombs exploded in two pubs in Guildford, England, that were frequented by off-­duty British soldiers. The Irish Republican Army (IRA) claimed responsibility for the bombs, which killed five persons and injured many more. The following year, four individuals – Gerry Conlon, Paddy Armstrong, Paul Hill, and Carole Richardson – were arrested and jailed for life for the bombings, becoming known as the Guildford Four. Their story was given international prominence by the Oscar-­nominated film In the Name of the Father, directed by Jim Sheridan (1993). In the same case of the two bombings of Guildford pubs, Gerry Conlon’s father and the Maguire family (the “Maguire Seven”) were convicted of possessing nitroglycerin, which was allegedly passed to the IRA to make bombs. In November 1974, two other bombs exploded in two pubs in Birmingham. Six Irish persons were immediately accused and were subsequently convicted. They were all alleged to have made “voluntary confessions” to the police. The Guildford Four and the Birmingham Six were charged with multiple counts of murder. The Maguire Seven were charged with possession of nitroglycerin. The Guildford Four, the Maguire

Miscarriages of justice   31 Seven, and the Birmingham Six were all imprisoned for lengthy sentences on terrorist charges that were eventually shown to have been false (Kee 1986; Mullin 1997), the forensic techniques used to gather the evidence that was essential for the convictions having been badly flawed. The Guildford Four, the Maguire Seven, and the Birmingham Six were all convicted with faulty evidence and/or coerced confessions. Falsified and concealed evidence, police brutality, untrustworthy forensic evidence, and forged confessions – these cases show the archetypal elements of a miscarriage of justice. Among the victims, some were known to have had “IRA sympathies” and may have committed other offenses at the IRA’s behest. But whatever else they may have done, none had any involvement in the crimes for which they were convicted. The legal authorities were determined to convict them despite the absence of any evidence apart from confessions obtained under duress. The judges at the trial and the first appeal gave the police the benefit of any doubt. The pressure on the police to obtain results and find those responsible for the bombings certainly contributed to the arrest and imprisonment of people who were not guilty of the crimes of which they were charged. The physical and psychological abuse eventually did lead to confessions. Threats and brutality were used against the accused, and every witness in their favor was ignored or threatened with imprisonment as an accomplice. Any testimony in favor of the accused was disregarded and hidden, kept from the defense team (facts established by the Royal Commission on Criminal Justice (1993)).1 The British media and almost everyone else accepted the guilt of those charged. In 1989 the Guildford Four were released after fifteen years in prison; in 1990 the Birmingham Six were released after sixteen years. They were released after a long time in prison when the Home Office announced that there was insufficient evidence to maintain the original convictions. As Brenda and James Lutz underline, “this terminology was not quite the same as proclaiming that the four had been innocent, only that there was not enough evidence to prove their guilt” (Lutz and Lutz 2002: 232). The Birmingham Six had undergone two unsuccessful appeals before they were officially acknowledged and recorded as victims of wrongful conviction and imprisonment following their success in a third appeal. The Guildford Four has also launched several appeals before they were accepted, officially, as victims of a miscarriage of justice. Batasuna: the proscription of a party in the name of the fight against terrorism In 2002, Spain passed a law to render constitutionally illegal any political party that failed to condemn terrorism.2 In the contemporary history of European countries, there is no other example of such a political instrument.3 In the Northern Ireland conflict the British authorities never

32   E.-P. Guittet banned Sinn Féin, even if from time to time they were tempted to do so. But very pragmatically, the British authorities always thought that one day the enemy could be a partner in a peace negotiation process. After the 9/11 attacks the Spanish prime minister, José Maria Aznar, soon jumped on the bandwagon and took advantage of the new environment at the international and domestic levels (having an absolute majority) to bring about a hardening of the national anti-­terrorist consensus. On 19 February 2002 the Aznar government suggested to the commission on the follow-­up of the anti-­terrorist pact a package of measures with the purpose of making the Partido Popular (PP)–Partido Socialista Obrero Español (PSOE) pact of December 2000 concrete (Guittet 2008). Among the six suggested measures the government sought to reevaluate the Law on Parties dating back to 1978 in order to acquire a legal means of disposing of political parties in general and the radical Basque nationalist party Batasuna in particular. Since its creation in 1978 as a political coalition4 to channel the separatist movement (izquierda abertzale, “left-­wing patriots”) into a political force that could lobby for independence from the democratic government that was forming in Madrid after the end of the Francoist regime, Herri Batasuna (HB, “Unity of the People”) had a strong record of Basque radical nationalist declarations and speeches. Herri Batasuna was always fiercely critical of Spanish governmental policy toward the Basque Country, and at different periods of its history HB also justified ETA’s violence as the expression of a legitimate goal, namely self-­determination for the Basque Country. In 1997 the Spanish Supreme Court declared that all 23 members of the National Board of Herri Batasuna were guilty of “collaboration with an armed terrorist group,” on the basis of their distribution of a videotape that contained members of the armed group ETA discussing a peace proposal to end the conflict between the Basque Country and the Spanish authorities. Following that condemnation, Euskal Herritarrok (EH, “Basque Citizens”) was created as a political coalition to embrace a wider number of nationalist sympathizers for the 1998 elections in the Basque Country. Three years after the birth of EH, the elections of May 2001 produced the worst results for the party. This led to the creation of Batasuna, which was the main target of the reform of the Law on Parties. Despite the protests of the Basque parliament and public demonstrations, the principle of the reform of the Law on Parties was adopted on 27 June 2002, becoming the Organic Law 6/2002 on Political Parties (Ley Orgánica de Partidos Políticos). In the Spanish legal corpus there were already a certain number of elements allowing the condemnation of apologists for terrorism.5 From this point of view the Law on Political Parties did not bring anything new. That is to say, one has to consider it as it is – the outcome of an exceptional measure announced by the anti-­terrorist pact of December 2000 to put an end to Basque radical nationalism, which

Miscarriages of justice   33 was seen or presented as the “political/legal front” of the violent separatist organization ETA. This is about a law that doubled the possibility – already inscribed in the Penal Code – of establishing criminal illegality (requiring proof of the use of violent means for terrorist activities) and “constitutional illegality” in the case of a targeted party whose only “crime” was not publicly condemning ETA as a terrorist group. On 26 August 2002 the investigation judge of the Audiencia Nacional, Baltasar Garzón, ordered the suspension of the economic and political activities of Batasuna for three years, with the possibility for extension to five years, on the grounds that the party was an important part of the “conglomeration” of ETA. The procedure launched by Judge Garzón included the closure not only of all Batasuna offices and its Internet website, but also of other associations and no fewer than 70 nationalist taverns (herriko tabernas) on the grounds that these were the primary sources of finance and recruitment for ETA.6 This ban was valid for the former names of Batasuna (Euskal Herritarrok, Herri Batasuna) and any other group from Batasuna. At the same time, the Spanish Parliament requested the government to refer the case to the Supreme Court so that Batasuna could be deemed illegal. In parallel with these two actions, the public prosecutor submitted a request for the dissolution of this movement to the Supreme Court. Spain’s Supreme Court outlawed Batasuna, agreeing with the government’s allegation that it formed an integral part of the violent separatist group ETA. The unanimous decision by 16 judges on the Court’s Special Tribunal meant that the group – which typically won between 10 percent and 15 percent of the Basque vote7 – was forced to cease all political activities immediately and was prevented from running in local elections. On 2 September 2002, Batasuna’s activities were suspended. According to the decision by the Audiencia Nacional, any demonstration in favor of Batasuna, including the use of logos and posters of the fallen party or references to Batasuna, were prohibited. No fewer than 1,000 elected representatives were suspended. The Spanish decision to ban a Basque radical party fostered some legal comments or comments from legal experts on the basis of the ban’s legality or otherwise (Turano 2003; Herreros López 2004; Ayres 2004). The questions that arise in this context are not only technical in a legal sense. It could be argued that the failure to condemn a terrorist act is morally or ethically reprehensible, but it is difficult to view it as being “legally” significant in terms of providing grounds for disqualifying a candidate (Navot 2008). The dissolution by the Spanish Supreme Court was based on a finding that Batasuna posed a “grave and repeated threat to fundamental rights and democratic values.” At the time of proscription, was the level of threat so important that it could allow the stability of democratic institutions in the Basque Country or elsewhere in Spain to be jeopardized? The negligible prospect of Batasuna holding political power in the Basque

34   E.-P. Guittet Country at the time of its dissolution makes it difficult to endorse arguments for proscription. Moreover, as Ian Cram underlines, though ETA is still committing violent actions, it could not be said to have caused an institutional crisis for Spanish democracy in the sense of forcing the postponement of elections or preventing opposing parties from standing for election. Neither can it be argued that Batasuna posed a serious threat to the integrity of the Spanish state. (2008: 93) So far, even if the claim of Batasuna in front of the European Court of Human Rights in December 2007 has been declared partly acceptable,8 the outlawing of the party has without any doubt contributed to the disenfranchisement of a section of the Basque electorate. Finally, we do not know to what extent the banning of Batasuna will affect ETA.9 From a simple political-­strategic point of view it might have been better to leave Batasuna as a minority party rather than make new “martyrs” of its members.10 Moreover, the banning of Batasuna might be a very persuasive recruiting argument and offers a long life to radicalized underground Basque nationalism, whereas the initial move was intended to put an end to the violence. Maher Arar: cooperation without accountability The case of Maher Arar is that of a Canadian citizen who was deported from the United States to Syria, where he was tortured and held in horrific conditions as a terrorist suspect. The Maher Arar case involves deportation (“extraordinary rendition” or “expedited removal”11), solitary confinement, torture, and issues of anti-­terrorist cooperation between states without accountability. The case is now well known in Canada owing to the fact that a special and independent commission has been established, namely the Arar Commission, under Dennis O’Connor, Associate Chief of Justice of Ontario.12 As Reg Whitaker (2008) underlines well, “the affair of Maher Arar’s ‘extraordinary rendition’ from a New York airport to the nightmare of a Syrian prison has had a profound impact on Canada.” It is almost as important here to highlight that the Arar case is the first public evidence of the United States’ “extraordinary rendition” policy in the war on terror as a way to outsource torture to foreign countries (torture by proxy).13 In the aftermath of 11 September 2001, Maher Arar was under surveillance by the RCMP because he had met Abdullah Almalki, who had been under the scrutiny of the Canadian police since the end of the 1990s. The surveillance was prompted by the RCMP within the frame of a new anti-­ terrorist investigation project called “Project O Canada.” Project O Canada was created by the RCMP when the Canadian Security Intelli-

Miscarriages of justice   35 gence Service (CSIS) delegated responsibility for its national security investigation on Abdullah Almalki’s relationship with Ahmed Said Khadr, an Egyptian-­born Canadian and alleged associate of Osama bin Laden. On 26 September 2002, Mr. Arar was taken into custody by the US Immigration and Naturalization Service at John F. Kennedy International Airport on his way home to Canada after visiting his wife’s family in Tunisia. He was questioned about his alleged links to al-­Qaeda for nine hours without a lawyer and then removed to the Metropolitan Detention Center in New York. After 13 days he “disappeared” from US custody. It was later determined that he had been deported to Syria without a hearing and without the knowledge of the Canadian consulate, his lawyer, or his family. On 21 October 2002, Mr. Arar was handed over to the Syrian authorities after being held briefly in Jordan for interrogation. He remained in custody, in an undisclosed location, for almost a year, without being charged and without being informed of the details of the case against him. On 5 October 2003, on the eve of his trial before the State Security Court, Mr. Arar was suddenly released to the Canadian consulate in Damascus by the Syrian authorities. The next day he was flown home to Canada. On 5 February 2004 the Canadian government set up the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. The main conclusion of the Commission was that there was no evidence to indicate that Mr. Arar had committed any offense or that his activities constituted a threat to the security of Canada. The US State Department remains convinced that Maher Arar’s presence on the watch list “is appropriate,” and the statement is even more clear regarding the future: “ultimately, the United States will decide for itself who is or isn’t on the watch list.”14 Even if in October 2007 US Secretary of the State Condoleezza Rice acknowledged that the United States had mishandled the case of Maher Arar, he is still on the US Terror Watch list and he will not be allowed to fly to or across the United States.15 Maher Arar’s attempts to obtain redress through US courts have thus far been unsuccessful. So far, Maher Arar has been arrested, deported, and tortured because he had a casual relationship with Almalki, who was suspected of having links with someone – Ahmed Said Khadr16 – who was suspected of being in cahoots with al-­Qaeda. Suspicion works like a spider web: shaking hands is transformed into a proof of shady collaboration between two people, as evidence of a connection in any terrorist network. And suspicion is certainly even further heightened for people who do not look like a “terrorist.” The fact that Maher Arar is an ordinary Canadian citizen may have been interpreted as the final proof of his “dangerousness.” As Laurent Bonelli (2008a) suggested, analyzing the methods of intelligence services dealing with “terrorism,” we find here the classical figure of a counter-­ subversion methodology.

36   E.-P. Guittet

Suspicion and exception in the fight against terrorism In the three cases above, it is apparent that exceptional circumstances generate the possibility that the use of undisclosed evidence will be preferable to an attempt to prove guilt beyond a reasonable doubt in a criminal trial. Exceptionalism leads to suspicious attitudes toward individuals and a belief that intelligence data are reasonable proofs even if inaccessible, especially among the courts, judges, and lawyers. In the case of the Guildford Four and that of the multiple trials in the Basque Country, the presumption that defendants are innocent in criminal prosecutions until guilt has been proven was bypassed. At the center of the Basque situation is a condemnation without trial, which reveals the machinery of a perverse system in which pure political strategy, based on intelligence data, overtook judicial concerns. The justification is that these organizations were the creation of ETA or were sufficiently close to its objectives and members to be considered dangerous. The underlying thesis is that all the accused and the organizations, associations, and political parties affected belonged to ETA. To put it differently, the case of the proscription of Batasuna and the trials aimed at Basque associations are examples of how the use of circumstantial evidence by the Spanish courts has led to a presumption of guilt by association. Furthermore, what is very interesting in the Spanish context is that individuals or groups using expressions in favor of radical politics have been included in the broad category of “public enemy number one” (Ubasart 2008). Are radical political groups the natural allies of ETA simply because radicalism is also a constitutive element of ETA? The answer of the Spanish courts, following the political consensus in Spain, is “yes, indeed.” In the case of Maher Arar it is not a matter of a miscarriage of justice so much as one of a lack of justice based on erroneous information supplied by the RCMP in which, once again, the prosecution of terrorism blurs the distinction between intelligence data and probative evidence. While the inquiry on the Maher Arar case was going on, the reactions of the Canadian government were quite interesting, with a clear tendency to make claims that intelligence material should be immune from disclosure to the public on security grounds. Exceptional measures dedicated to the fight against terrorism have contributed to a climate that has certainly caused violence to a greater degree than it has enabled its reduction. In Northern Ireland, emergency powers to arrest, detain, and interrogate suspects have been used against persons with no prior involvement in any kind of terrorist activities (Campbell and Connolly 2003). It is now clear that in Northern Ireland the great majority of persons detained under emergency powers were never charged with any offense (O’Connor and Rumann 2003). In the case of Batasuna and the condemnation of Basque associations, one can see how the elaboration of offenses has authorized the punishment of people who did not intend to

Miscarriages of justice   37 assist the clandestine organization ETA but who should have known they were assisting terrorists to a certain extent. Moreover, in this context of exceptional procedures, general suspicion has been increased.

The power of suspicion and the reversal of judicial evidence The Irish became a “suspect community” for most of the English (Hillyard 1993): behind every Irish individual there might be a potential terrorist. This principle of collective responsibility, whereby every Irish person is potentially guilty of being an IRA supporter, is a classic counter-­insurgency mindset in which every local is suspected of being in cahoots with the IRA and therefore guilty of hiding what he or she knows. During the “troubles,” Irish people were asked to show more tokens of allegiance than anyone else working in London. The principle of collective responsibility, whereby every Irish individual was potentially guilty of being an IRA supporter, gained the favor of the postcolonial military intelligence establishment, keen to reinstall a classic counter-­ insurgency mindset, even if the police and military themselves opposed this temptation of a generalized suspicion and asked for specific profiles and a very selective policy in trying to identify IRA members one by one. Nevertheless, the path toward suspicion, instead of innocence, was accepted as a normal pattern. A group identity prevails over equality of citizenship and justifies “special searches” (Bigo and Guittet 2004). In the Spanish situation there are no differences regarding the logic of generalized suspicion; most of those involved in the extensive trials surrounding the condemnation of Batasuna were held to be guilty by association, despite lack of access to the classified information. The case of Maher Arar is not so different if one examines why Arar was deported to Syria: his name, his origins, and his travel destinations were considered suspicious. Arabs, Muslims, and those who look Arab and Muslim have been subject to enhanced surveillance and scrutiny in the United States despite holding a Canadian passport (Bahdi 2003). Indeed, suspicion and racial profiling work together. The basis for a climate of suspicion is, on the one hand, the relation of a particular society to political violence and, on the other hand, the analysis provided by the political establishment and the images of enmity it creates that sometimes, if not often, fail to correspond to the perpetrators of the violence – above all when the latter remain clandestine. Furthermore, the climate of suspicion depends not only on the leading groups’ interests in keeping or changing the images of enmity, but also on anxieties about the future and self-­interest deriving from a logic that encourages hostility (Bigo and Guittet 2004). Suspicion generates uncertainty over the nature of the enemy, which eventually has the potential to take on a virtual dimension, as it remains undefined.

38   E.-P. Guittet Herri Batasuna, Euskal Herritarrok, and Batasuna have always been regarded as the political/legal front of ETA. ETA gunmen and women sometimes turn out to be officials or members of these parties, but they have always denied it has anything to do with ETA, apart from sharing its political aims. For the Spanish authorities (political, judicial, and intelligence services officials), because ETA is a Basque radical nationalist armed group, Basque radical nationalism has become a homogeneous, legally responsible community in which all the historical and political disparities among the different groups, bodies, and parties no longer exist. According to this view, everyone is connected to each other and everyone is part of a whole. All the disparities – the different splits and strong oppositions – within Basque radical nationalism are ignored or seen as misleading camouflage for a strong, and reprehensible, similarity. This idea of the concealment of the subversive character of the enemy is the main obsession of any counter-­ insurgency mindset. The object of suspicion is less to fight this hidden enemy than to localize it and to fight the fear born of uncertainty. Suspicion cannot be dealt with as a crime already committed with subsequent calls for a police investigation, nor can it be compared with a military combat against a well-­defined enemy; it is more a question of intelligence services, political management of public opinion, and anticipation of a threatening future (Bigo 2006a). Yet when suspicion is generalized, it erases the exceptional status of derogations and emergency measures, which become mere routine. But without any defined object, space, or time, there are no legitimate grounds for exception in a liberal regime (Bigo and Tsoukala 2008). When suspicion becomes generalized, the violence it is supposed to fight also becomes generalized (Bigo and Bonelli 2008).

The culture of secret: the effects of a counter-­insurgency mindset on the judiciary Suspicion constitutes a frame giving preeminence to the intelligence services, the political management of public opinion, and the services in charge of anticipation of a potentially threatening future. In fact, suspicion and the rise of the intelligence services as leaders of the counter-­terrorist fight are intertwined. When the path toward suspicion, instead of innocence, seems to be accepted as a normal pattern, therefore, a group identity prevails upon the equality of citizenship and justifies “special search.” It is clear that there is a certain judicial reluctance to invalidate government policy in the face of uncertain knowledge as to the level of risk involved, especially when the executive branch purports to have superior knowledge that remains secret and an atmosphere of national emergency exists. In a splendid monograph, Elspeth Guild (2007) stresses how the supranational human rights system is deployed by courts at the national level in ways that impede claims by state authorities to the legitimacy of their declarations of exception:

Miscarriages of justice   39 In reaching to a source of law beyond the State but binding the State, the national judge exercises his or her authority to adjudicate on the proportionality of the State authorities’ efforts to escape some of their supra-­national human rights obligations. (ibid.: 29) Of course, there are some differences between the European Union and the United States, where, with the help of the media, the emergency has become the basis for granting exceptional powers to the executive branch. Still, when security threats are constructed as total war, the need for intelligence becomes a prevailing policy of counter-­insurgency. Behind the screen of an elastic conception of security (Jabri 2006) and the primacy of an intelligence-­based rationale over the judicial process, these tensions between guilt and the rendering of justice distort the classical judiciary procedures and the principle of a fair trial. Moreover, such tensions eventually legitimize proactive and preventive strategies that lead to condemnation through allegations of terrorism rather than proof. One should keep in mind that the risk of political violence in contemporary societies comes above all from highly structured clandestine groups with a strong political orientation, and among these groups only a few are operational. And even in these cases, they usually possess only limited resources. Most of these groups try to keep a low profile and adopt a strategy of concealment rather than one of maximal prominence. The strategy behind the “war against terror” is less a logic of prevention than one of anticipating the worst, in which use of the practices of counter-­ insurgency is constantly advocated. Thinking in terms of counter-­insurgency implies measuring and assessing the present with constant reference to the future and the potential risks. What matters is not what is going on but what might happen. If anticipation is the key word of risk assessment, the vulnerability of our societies constitutes the basis on which the future is always thought of as uncertain. This situation is captured in the maritime metaphor of governmentality proposed by Michel Foucault: one cannot steer a boat to a safe haven because such a place no longer exists – it is not even thinkable. This is precisely why any reflection based on risks is ultimately a form of colonization of the future (as Ulrich Beck suggested), which raises the following question: What are the possible politics of a future in which hypothetical attacks are condemned yet not committed?

Notes   1 The British Home Secretary set up a Royal Commission on Criminal Justice in 1991, which reported in 1993, leading to the Criminal Appeal Act of 1995 and the establishment of the Criminal Cases Review Commission in 1997. See www. ccrc.gov.uk.   2 Ley de Partidos Políticos, enacted by Ley Orgánica (Organic Law) 6/2002, 27 June 2002.

40   E.-P. Guittet   3 The Israeli Parties Law, which regulates the establishment, status, and registration of parties, was reformulated in 1992. In July 2002 an amendment was added in order to allow the disqualification of a party that supports terrorist activity (“Support for armed struggle, by a hostile state or a terrorist organization against the State of Israel”). For an insightful comparison between the Israeli case and the Spanish one, see Navot (2008).   4 Herri Batasuna was registered as a political party in 1986.   5 The question of apology for terrorism has been introduced under the Organic Law on Protection of Citizen’s Security (Sobre Protección de la Seguridad Ciudadana) in January 1979. Since then, apology for and incitement to terrorism have been part of the ordinary judicial tools and are specific criminal offenses under article 578 of the Spanish Penal Code.   6 The case commonly known as 18/98 is not really a single case or one set of criminal proceedings, but rather a whole host of legal proceedings made up of several cases and other pieces: Haika (Case 18/01), Gestoras Pro Amnistía (Case 33/01), Segi (Case 15/02), Batasuna (Case 35/02), Egunkaria (Case 44/04), and Udalbiltza (Case 6/03).   7 Since its creation at the end of the 1970s the party has received between 10 percent and 20 percent of the Basque vote.   8 On 13 December 2007 the European Court of Human Rights declared partly acceptable the claim of the Basque party Batasuna against the Spanish government. Batasuna had accused the Spanish government of violating three articles of the European Convention on Human Rights: the right to freedom of expression (article 10), accepted; the right to freedom of association (article 11), accepted; and the right to an effective remedy before a national authority (article 13), not accepted.   9 Kepa Aulestia, a former member of ETA, suggested that the banning of Batasuna will result in yet another reincarnation of radical nationalism. See Kepa Aulestia, “Basque blackmail,” Guardian (London), 28 August 2002. 10 Batasuna remains a legal non-­profit association in France, registered in the Journal Officiel (Official Journal) as an organization “dedicated to the promotion and defense of individual and collective rights and the promotion of democracy in the Basque Country.” The Spanish authorities have been pushing the French authorities to make Batasuna illegal in France, too. 11 Section 235(c) of the Immigration and Nationality Act authorizes the expedited removal of arriving aliens suspected of terrorist activity. 12 Arar Commission (2006), Report of the Events Relating to Maher Arar: Factual Background (2 volumes), Ottawa: Government of Ottawa. 13 See the report of the Association of the Bar of the City of New York and the Center for Human Rights and Global Justice (2006). 14 “U.S. refuses to take Arar off watch list”, CBC News, 26 January 2007. 15 “U.S. handling of Arar case ‘by no means perfect’: Rice,” CBC News, 24 October 2007. 16 Ahmed Said Khadr was killed in a gun battle with Pakistani troops in 2003. His son, Omar Khadr, was arrested in Afghanistan in 2002 when he was 15 years old and charged with killing a US soldier with a hand grenade; he is the last Westerner held at Guantánamo Bay. Khadr’s trial by a special military tribunal was due to start on 10 November 2008 but was put back until 26 January 2009. See the Amicus Curiae Brief in support of Respondent Omar Khadr written by Robert Badinter (former French Minister of Justice) and co-­signed by numerous professors of law, January 2008, available at: www.law.utoronto.ca/documents/ Mackin/khadr_Amicus_Badinter.pdf.

3 Risk-­focused security policies and human rights The impossible symbiosis Anastassia Tsoukala

Introduction Following the terrorist attacks of 11 September 2001 on New York and Washington, of 11 March 2004 on Madrid, and of 7 July 2005 on London, as well as several terrorist attacks against Western people and interests, usually in non-­Western countries,1 an array of new counter-­terrorism laws and regulatory texts have been enacted in Europe at both national and EU level. In their attempt to counter what was perceived to be a major threat to European security, these texts often introduced provisions and even parallel legal frameworks that have entailed serious restrictions on the civil rights and liberties of European populations. The increasing infringement of human rights in the name of the efficient fight against terrorism has rapidly drawn the attention of many scholars, who, in analyzing certain legal and political questions related to the issue, denounced the introduction in European legal systems of a quasi-­permanent state of exception (Waldron 2003; Haubrich 2003; Sarafianos and Tsaitouridis 2004; Gearty 2005b; Balzacq and Carrera 2006; Starmer 2007). While some jurists and political scientists sought to explain this tendency by analyzing the nature of states of emergency and the relationship between the rule of law and politics in a democracy (Guild 2003a, b; Bigo 2007b; Tushnet 2007; O’Cinneide 2007; Lynch 2007; Sands 2007; Ewing 2007), other academics broadened the scope of their analysis to question, on the one hand, the frame and the grounds of the protection of human rights in present liberal democracies and, on the other hand, the effects of counter-­terrorism on social groups and policies that are a priori unrelated to terrorism. The former sought to analyze the protection of human rights and the challenges posed to their normative foundations and to their political usefulness in light of the changes that have occurred in the post-­bipolar political agenda (Gearty 2005a; Dembour 2006); the latter focused on the dynamics of a rapidly expanding suspicion and studied the impact of the new counter-­terrorism policies on illegal migrants and asylum seekers (Brouwer et al. 2003; Baldaccini and Guild 2006).

42   A. Tsoukala Other scholars have focused on the way public discourses on terrorism framed the threat and structured the arguments in favor of the introduction of new, liberty-­restrictive counter-­terrorism policies in both Europe and the United States (Johnson 2002; Lewis 2002; Steinert 2003; Graham et al. 2004; Lazar and Lazar 2004; Leudar et al. 2004; Hodges and Nilep 2007; Merola 2008). They showed that the legitimization of the increasing infringement of human rights was being established in the name of the efficient protection of public safety and national security, and mainly rested upon the idea of a balance to be struck between security and liberty (Waldron 2003; Tsoukala 2004; Starmer 2007). Yet, as analysis of many relevant political discourses has revealed (Tsoukala 2004, 2006a, b), this idea in turn rests upon a highly controversial interpretation of the status and place of liberty in the European legal systems, according to which liberty ceases to be the condition sine qua non of liberal democracies, the matrix from which stem all rights in a democracy, to be turned into an ordinary right. Once included among the many different social values that have to be protected by the law, it may be subject to the arbitration that usually occurs in the case of a conflict between two equal rights, and thereby can in be part sacrificed for the sake of its allegedly opposed right – that is, security. This political and legal downgrading of liberty has been further reinforced by the powerful dissemination in the public arena of a definition of the concept that frames it in negative rather than positive terms (Tsoukala 2006a, 2009b). According to this scheme, terrorism is seen not as a threat posed to people endowed with free will in democracy but as a threat people have to set themselves free from in order to enjoy their rights. Political discourses on freedom and human rights are thus turned into discourses on fear (Robin 2004; Altheide 2006a, b) in the face of of a grave situation that requires the introduction of all appropriate measures, even freedom-­restricting ones, if these are believed to counter the threat. In other words, far from referring to civil rights and liberties, “liberty” legitimates the very restriction of these civil rights and liberties. People are then expected to accept these restrictions in the name of protection of their freedom from fear. Further analysis of many different political discourses on the definition of the terrorist threat in the post-­11 September era has revealed that the framing and broadcasting of its core elements were closely linked to an array of domestic political and bureaucratic interests that were deeply embedded in the functioning of the political and security fields of a given country (Tsoukala 2008b, c, d, 2009b). Moreover, the findings of past research unveil the fact that the representation of the terrorist threat in many different European countries has also varied significantly according to the importance allowed by governments to certain important geopolitical issues, usually irrelevant to terrorism (Tsoukala 2009b). Nevertheless, notwithstanding the intrinsic quality of the aforementioned analyses, in most cases their findings remain somewhat misleading

Security policies and human rights   43 in that they are explicitly or implicitly linked to the present counter-­ terrorism policies. In this respect, though they do not necessarily share the prevailing view of the newness of the terrorist threat, many of them end up sharing the idea of a key turning point in the elaboration of security policies and in the ensuing tension between liberty and security in Europe. In so doing, they rightly stress the importance of the changes that have occurred in the security policy realm since the terrorist attacks of 11 September 2001 but they incorrectly perceive them in terms of discontinuity and rupture. In other words, while the analyses of the forms taken by the present counter-­terrorism policies and their impact on human rights pertinently focus on the web of interactions between politicians, security professionals, the media, and civil society in order to grasp the evolving relationship between politics and the rule of law, they usually fail to highlight the continuities that lie beneath present and past security policies.2 The search for continuities in the government of crime and deviance has repeatedly stimulated academic work (Pearson 1983; Pratt 1997; Brown and Pratt 2000; Rowbotham and Stevenson 2003). However, when it comes to analyzing the present tension between liberty and security, studies that have sought to address the issue by following the thread of these continuities are still scarce. A first step in this direction was taken in political sociology, when Didier Bigo (2007a, 2008a, c) dissociated the growing infringement of human rights from the post-­9/11 counter-­ terrorism policies and related it to the professional routines and practices of a vast array of public and private security agents, who, in constantly reinforcing their multilateral collaborations since the late twentieth century, have come to form a solidly constituted security field at both national and transnational levels. In criminology, my own analysis of the evolution of the social control of a specific criminal behavior since the late 1960s saw in the present restrictions on human rights one of the effects of the profound changes that have taken place in the criminal justice field since the late 1970s. Far from being transient and fragmentary, they are inherent in the structure and operational logic of the currently prevailing risk-­focused crime control model, thereby signaling a gradual erosion of civil liberties which, quite simply, has spread and gathered pace since the terrorist attacks that took place at the beginning of the twenty-­first century (Tsoukala 2009a). Yet despite their innovatory character, the above-­mentioned studies still do not address what arguably is one of the key aspects of the issue. In focusing on either the security field effect or the crime control policy effect, they tend to explain restrictions on human rights through analysis of various factors that may have impacted on them. In all cases the rationale behind these studies attributes the increasing infringement of human rights in modern liberal democracies to the adverse effect exerted on their scope by an array of social and political processes. In other words, in spite of their different explanatory frames, both theses adopt a rights-­focused approach.

44   A. Tsoukala While endorsing these theses, which can actually be seen as complementary, this chapter will address the issue from a different angle, focusing instead on the place of people within the presently prevailing risk-­based security policies. It will seek to attribute the weakening of human rights to the gradual disappearance of the person as a subject of rights in our contemporary legal systems. It will argue that this vanishing legal personhood is not a side effect but the natural outcome of the prevalence of the risk-­focused mindset in both the crime control and the human rights realms. To present this argument, it will describe briefly the key features of the risk-­focused mindset in order to show how they jeopardize or even negate personhood, and how they correlate with certain deep changes in the legal frame of the protection of human rights in a democracy.

Risk and crime control One of the key changes that have taken place in the criminal justice realm since the late twentieth century is the transition from a rehabilitation-­ oriented crime control model to a risk-­focused one. The former, which prevailed from the nineteenth century until the late 1970s,3 sought to protect the community from the danger produced by an offense by centering on the subjective aspects of the offense – that is, the motive and needs of the offender. Clearly circumscribed in time and space, the reaction of the criminal justice system would manifest itself after a person had breached the sphere of legality, to restore order and social peace. Punishment would then usually seek to attain a threefold objective: a retributive, a dissuasive, and a rehabilitative one. Though this crime control model did not exclude the control of deviant behavior, in the post-­World War II period this was somehow confined to the margins of the criminal justice system as the expression of a form of social control that veered off course, usually related to the ordinary work of law enforcers and tolerated as long as it did not extend beyond some conventionally accepted limits. The rationale behind this crime control model rested upon the assumption that individuals were indissociable from their community, and vice versa. So, it was admitted that the community had to moderate its exclusionary force toward individuals who had departed from the legal norm (Garland 1985; Mary 2003), and impose on them both exclusionary and inclusionary “normalizing” mechanisms in order to allow them to reintegrate with mainstream society. As the state was seeking both to preserve its authority, by exerting legal violence upon its citizens, and to ensure social cohesion, criminal law rested upon a prudent articulation between the wish to punish and the need to forgive (Salas 2008: 15). Consequently, while punishing the individual offense, this crime control model also looked to the future by seeking rehabilitation at the individual level and prevention at the collective one. In the former case the widespread belief

Security policies and human rights   45 in the reforming capacities of disciplinary power over the “undisciplined” incarcerated criminals (Foucault 1975) led to the rapid spread, throughout the postwar years, of rehabilitation policies for prisoners. At the collective level the acceptance of a causal link between crime and society led to many studies of the crime-­generating social milieu (Sellin 1938; Cohen 1955; Merton 1957; Cloward and Ohlin 1960; Sutherland and Cressey 1960; Szabo 1965; Shaw and McKay 1969) and, consequently, to the establishment of many long-­term social prevention programs. However, from the mid-­1970s onwards the neoconservative rejection of the rehabilitation-­oriented crime control model as inefficient (Martinson 1974) and the rising calls for a new, realistic policy which, far from paying attention to the crime-­generating social environment, would merely be centred on the idea of controlling the social effects of crime (Wilson 1975) led to the introduction and subsequent development in all Western countries of a crime control model that was aiming at defending the mainstream society from crime by managing in advance any relevant risk. The objective of crime control is thus radically modified (Feeley and Simon 1992; Simon 1997; Ericson and Haggerty 1997; Shearing 2001; Harcourt 2001; Johnston and Shearing 2003; Feeley 2003; Hörnqvist 2004). In sharp contrast to past policies, social control agents are no longer seeking to defend the community against a danger posed by the commission of an offense but to protect it from the potential risk inherent in a given behavior. The harm that stirs up the criminal justice system does not stem, then, from a specific misdeed but from a vague fear, a feeling of insecurity aroused by a behavior deemed to endanger the well-­being of the community (Salas 2008: 17). Since the former objective assessment of the perpetrated harm is replaced by subjective assessments of possibly risk-­producing situations, the target of social control shifts from the individual offenders to the members of deviant, “risk-­producing” groups, who are controlled on the ground of being suspects, at the present time, and potential offenders, in the future. From now onward, instead of seeking to normalize undisciplined people according to a pre-­fixed range of socially desirable behaviors, in order to have them at some moment reintegrated into the mainstream society, the social control apparatus aims at regulating spaces and populations in the Foucauldian sense of the term (Foucault 1997: 213ff.). In detaching itself from the offense and seeking to identify sources of risk in order to anticipate the commission of future misdeeds, social control also becomes increasingly proactive. It rests, then, upon a vast array of surveillance and control mechanisms that manage crime control by profiling suspects according to the usual actuarial risk-­assessment criteria (Silver and Miller 2002). In line with both the general concern about risk in postmodern societies (Beck 1992, 1999) and the growing impact of technology on the design and implementation of surveillance mechanisms, the

46   A. Tsoukala storage of such profiles in many different (trans)national police databases is nowadays a commonplace in the everyday and strategic management of internal security issues. The ensuing establishment of a vast control of deviant behavior that, in some cases, even leads to the direct punishment of suspects,4 and the underlying transformation of the relationship between politics and the rule of law, have frequently been criticized in academia (Lyon 1994, 2001; Norris et al. 1998; Jones 2000; Dillon 2003; Graham and Wood 2003; Bonditti 2004; Webster 2004; Ceyhan 2007). Usually framed in quantitative terms, one of the key arguments of these criticisms relates the threat thus posed to civil liberties by the present technological progress that allows intelligence gathering to reach unpre­ cedented dimensions in both the size and the interconnectability of the collected data (Geyer 2008). Only recently have some studies pointed out that the control of deviance thus entailed is also qualitatively different than any of its previous forms because, to the extent that it is provided by the law, it ceases to be a marginal form of social control and becomes fully institutionalized (Tsoukala 2007, 2009a). Yet however pervasive it may be, the spread of this risk-­oriented crime control model resulted not in the abandonment of the previous crime control policy but, as usually happens in cases of this kind, in an evolving form of coexistence (O’Malley 2000: 27ff.; Johnston and Shearing 2003: 133ff.). In commenting on the rising populism within the criminal justice system, John Pratt pertinently summarized this process by saying that penal thought and strategies are usually submitted to a range of competing and conflicting influences at any given time, rather than the supreme dominance of any of them, because they are marked by fluidity and overlap rather than rigid compartmentalization (2007: 125–128). In the specific case of the competing crime control models, the development of the risk-­focused crime control policies led of course to the introduction of new measures but, above all, allocated new meanings to existing approaches and practices to make them consistent with the risk-­based way of thinking (Shearing 2001: 212). Therefore, while, formally speaking, certain measures are still based on the earlier crime control model and others follow the risk-­focused one, the risk-­based mindset has in fact been gradually taking over (Hörnqvist 2004: 39). Risk-­oriented crime control and personhood The issue of whether, and to what extent, the aforementioned changes in the objective and target of social control, and the introduction of new elements in the crime control management following the risk-­focused mindset, have entailed a profound alteration of the place held by persons in the criminal justice realm cannot be addressed without defining the key features of personhood that may be relevant in this respect. Indeed, what personal identity consists in and how individuals may be perceived in their relation-

Security policies and human rights   47 ship with others has been a long-­standing matter of discussion within philosophical circles (Martin and Barresi 2006). For the needs of the present chapter it will suffice to define the issue following a twofold criterion – that is, material and intellectual. It is therefore considered that persons have a material substance, as does any living being, inscribed in time and space, and develop a dialectical relationship with their environment, be it natural or social, in order to satisfy their own needs and desires and achieve their goals. Persons are further seen as endowed with reason, self-­awareness, and free will. In the field of law the latter elements imply that they may have a legal capacity – that is, be subject to rights, duties, and obligations. While the rationale behind the rehabilitation-­oriented crime control model is entirely consistent with the aforementioned key features of personhood, thereby guaranteeing the stability of a certain legal personhood as well, the conceptual frame underlying the risk-­focused crime control policies seems, in many respects, to devalue or even negate some of these characteristics. Denial of the individual First of all, in shifting attention from the effectively delinquent person to the deviant, potentially risk-­producing group, the risk-­focused crime control model is no longer placing the person at the core of the criminal justice system. The social control apparatus is no longer targeting individuals – that is, persons who are deemed to be socially dangerous because of their unique behavior – but members of groups – that is, persons who are seen as threatening precisely because they share certain common features with other persons, members of the reference group. In this new configuration, the more a person’s features tend to be essentially perceived and interpreted in connection with a series of parameters related to other persons and situations, the more the person is likely to attract the attention of social control agents. In other words, the inclusion of a person in the criminal justice system is not done in the name of what makes the person distinct from all the other members of the community; on the contrary, the relevant decision is to a great extent determined by the absence of such uniqueness. In the United Kingdom, sexual offenders thus came to be seen as “a homogeneous group, not differentiated by offence, risk, or individual circumstance” (Rutherford 2007: 67). North African youths living in disadvantaged French suburbs may have their data entered in police databases, as suspects for urban riots and petty crime, if they meet with certain criteria, such as spending time in specific public places, meeting regularly certain peer groups and sharing with them specific forms of leisure, and so on (Muchielli 2001: 40ff.; Bonelli 2008b: 399–402). English football supporters may be profiled as suspects for football-­related violence if they are known to keep the company of football hooligans (Armstrong and Hobbs 1994: 225) or if

48   A. Tsoukala “they regularly form part of a risk group” and “seem to be frequently in the vicinity of disorder” (statement of a senior intelligence officer, quoted by Perryman 2006: 210), while the Italian government has recently introduced an order to fingerprint Roma people living in Italy. Denial of the individual in society In putting forward this impersonal, group-­oriented objective, risk-­focused social control further dismisses all crime-­producing factors related to the motives and the ensuing guilt of the offender, to deal only with the effects of socially undesirable behaviors. This shift of attention from the causes to the symptoms of crime wipes away the offender in three respects. First, notwithstanding the cases where the dangerousness of the delinquent personality is attributed to a pathological state,5 the elements that usually make up one’s personality and underlie one’s decision as regards the engagement in crime are not taken into account. All psychological factors that may facilitate or, on the contrary, impede the commission of an offence are thus disregarded. This marginalization of the individual personality goes hand in hand with the implicit divorcing of the offender from the mainstream society. While the rehabilitation-­oriented crime control model was linking individuals to their community in two ways – that is, in correlating the engagement in crime to a given social milieu and in admitting that the optimal development of the community could only be achieved with the participation of as many of its members as possible – the risk-­focused crime control model refuses to admit the pertinence of these bonds. Therefore, the question of whether and to what extent the mainstream society may be seen as one of the potential sources of crime, owing to the combined influence of an array of political, social, economic, cultural, and demographic reasons, is not raised. Following the same reasoning, the development of the community can henceforth be conceived in the most advantageous terms even without the participation of those of its members who, at some moment in the past, had veered off course. This way of perceiving the position of individuals in a society has had a double impact on the design of crime control policies. Since individual behavior is no longer seen as reflecting in part the structure and functioning of a living-­together state, long-­term preventive programs are gradually being marginalized in favor of situational prevention and proactive approaches. Accordingly, since the involvement of as many citizens as possible in the making of social life is no longer seen as one of the preconditions of the successful achievement of collective goals, rehabilitation of prisoners’ programs is increasingly being abandoned (Mary 2003: 32ff.; Salas 2008: 106ff.). The latter point highlights the impact of risk-­focused crime control policies on punishment, and especially on imprisonment. From the very

Security policies and human rights   49 moment that punishment stops seeking to rehabilitate offenders and starts to protect real or imaginary victims from an effectively or hypothetically threatening behavior, it remains confined in its retributive and dissuasive functions, thus becoming indifferent to the prisoners’ future. Therefore, the decision about whether or not a prisoner should be released does not solely depend on the degree of seriousness of the harm caused in the past; it also depends on the assessment of the risk the prisoner may still pose to others. Punishment may then become boundless in time and space, as is clearly shown by the community notification legislation introduced in many countries with regard to sexual offenders, or by the adoption of indeterminate sentences, imposed after the expiration of the initial punishment upon persons deemed to remain somewhat socially threatening.6 Punishment may also go beyond the frame of the ordinary, impersonal judicial procedure and become emotion driven,7 as is revealed by the introduction of the victims in the process of the determination of parole for those who have offended against them (Karstedt 2002; Pratt 2007: 136; Salas 2008: 181ff.). Denial of free will The place accorded to the person in the criminal justice system is further weakened by the prevalence of a proactive, anticipatory pattern of action in the risk-­based crime control policies. While, as will be developed in what follows, the wish to manage future risks wipes away all prior distinction between criminal and deviant behavior, the shift from the individual offender to the deviant, “risk-­producing” group jeopardizes most of the individual-­based principles related to the definition and the punishment of offences. The first principle to be thus endangered is the presumption of innocence. In the incremental surveillance mechanisms applied to many different categories of people believed to be threats to security, a person is no longer deemed to be innocent till proven guilty. The social control apparatus no longer has to justify its action in the name of the transgression of a legal norm. Nor is it confined in the search of evidence of guilt. It can be set in motion and produce formally legal effects on the mere ground of suspicion. The Europol computer system thus has information on possible future offenders; administrative football bans, currently introduced in many European countries, entail serious restrictions on the freedom of movement of football supporters who are simply suspected of being involved in football-­related violence. In the name of the safety of air travel, passenger name record (PNR) databases contain a significant amount of personal data on all passengers traveling to the United States, and these data are transferred to a broad range of law enforcement agents, while a similar scheme is to be applied soon to every passenger traveling to and from the European Union (European Commission 2007b).

50   A. Tsoukala The vanishing of the offense as the justificatory basis for the setting in motion of the criminal justice system further calls into question the principle of legality. Penalties may thus be imposed even in the absence of a conviction, as shown in the case of certain terrorism suspects in the United Kingdom, who are subject to a control order8 if there is insufficient legally admissible evidence. This institutionalization of penalties on the grounds of suspicion leads in turn to the disregard of the principle of the criminal liability. The target of social control is no longer defined according to an array of legally defined links between the person and the punishable act. Risk-­persons are defined following an array of allegedly relevant information and traces that may end up establishing guilt but may equally well remain in an in-­between state. In the latter case the moral assessment of the punishable act as the ground of the liability that entails punishment is irrelevant. Quite unsurprisingly, then, as Clifford Shearing has rightly noticed (2001: 208), the relation between offender and individual or collective victim that used to be at the core of the rationale behind punishment is now waning. The institutionalization of penalties on the ground of suspicion further entails the weakening of the principle of their proportionality and the dismissing of the principles of their personal and individual character. While the latter become meaningless when punishment is imposed as an answer to behavior rather than specific acts, the former is becoming somewhat loose. As a matter of fact, in the absence of an offense – that is, in the absence of an assessable act according to legally defined criteria – the ground upon which may possibly rest the assessment of the proportionality of the punishment for a certain behavior becomes floating. Legal certainty is thus diminished and, to the extent that such forms of punishment may be imposed by non-­judicial agents, persons may even be de facto prevented from enjoying the guarantees offered by the judicial procedure. Being the direct effect of the proactive pattern of action of the risk-­ focused crime control model, this downgrading of the offense and the offense-­related legal principles further unveils a profound change in the way social control agents perceive free will. As a matter of fact, their pretension to possess a kind of global knowledge of future behaviors makes them free to “think about the future in new ways, and to develop calculative techniques that enable them to govern the future from the present” (O’Malley 2000: 19). But, by the same token, they deny the freedom to decide whether, and under what circumstances, a person will commit a given act. Despite the fact that the use of actuarial risk-­assessment tools entails many different built-­in errors (Broadhurst 2000), persons are increasingly reduced to predictable systems of behavior, the efficient monitoring of which cannot but prevent them from taking certain expectable forms. Their personhood, which is deemed to be reproduced through the analysis of an array of allegedly relevant collected data, their future decisions, and their future actions are therefore taken for granted.

Security policies and human rights   51 Highly diversified, to the extent that the very definition of “security,” “risk,” and “risk-­producing person” is closely associated both with the way every security agency perceives its task and the practices in which its agents engage (Bigo 1999, 2000; Manning 2006), this breaking of the multifaceted social reality into controllable strips of coherent events, made intelligible thanks to data gathering and analysis, is further problematic because, as David Lyon has rightly noticed (2001), surveillance creates an illusion of knowledge over unreal people. Data gathering for crime control purposes actually rests upon the aggregation of disparate pieces of information, which are seen as unable to be made sense of unless they are related to each other (Froment 2006). Once collected, these data may be interconnected with other (dis)similar data preserved in other databases, be they related to intelligence, law enforcement, commerce, or health, thus creating a digital persona composed out of these fragmented pieces of information. Henceforth, it is this selectively fragmented digital persona, deprived of consciousness and sociality, that will be seen as a representation of the subject to be put under control, arrested, and probably punished. In this highly predetermined frame of possible human action, randomness and, by extension, free will are logically disregarded, as elements likely to introduce disorder into attempts to seek to produce an orderly image of social life. Multiplicity and constant change in the psychological structure and subsequent behavior of a person in a society (Milovanovic 1997) are replaced by simplified, linear patterns of action (Panoussis 2001). Far from being a side effect of the functioning of the social control apparatus, the exclusion of free will is fully consistent with the key features of the risk-­focused mindset. The intrinsic unpredictability of free will makes it incompatible with the predictability that lies beneath the risk-­ focused surveillance and control mechanisms. In other words, free will has to be disregarded because the pretension of the social control agents to control and even punish people in the name of their capacity to foresee the future behavior of these people cannot be seen as based on reasonable grounds unless one agrees that human behavior does not remain ultimately unpredictable. Denial of the time–space dimension The place of persons in the risk-­focused crime control model is further weakened by the way social control agents inscribe their operations in time and space. Actually, in adopting an anticipatory pattern of action, the social control apparatus dismisses the control of persons living in the time–space dimension of real life to privilege the control of flows of population that are somewhat floating in time and space. While the time dimension is distorted by the introduction of many different proactive measures that are set up before the commission of the

52   A. Tsoukala harmful act and, therefore, end up molding the future (Johnston and Shearing 2003: 122ff.; Ericson 2007), the space dimension is warped by the spread of an array of remote control devices and mechanisms. Antisocial behavior legislation thus enables “preemption of every imaginable source of disruption to domestic security” (Ericson 2007: 200), closed-­ circuit television (CCTV) cameras introduce various spaces of control,9 whereas border controls of the EU countries are increasingly exerted in an array of homocentric geographic circles that go well beyond the European borderlines and, in some cases, even expand in other continents (Bigo and Guild 2003; Cuttita and Ragazzi 2007). The shift from a definite post-­offense time to a vague ante-­risk-behavior period and from a clear-­cut space of control to a web of overlapping spaces of control eventually alters the relation of risk-­based social control to reality. Inasmuch as it focuses on potential rather than real behaviors, its effects are produced not only in the name of its links with reality but also in the name of its projection to a virtual reality. As Ulrich Beck has put it (2006), “risks are not ‘real’, they are ‘becoming real’.” Therefore, in seeking to control undisciplined persons by managing in advance risk-­ producing groups, the behavior of which is monitored by virtue of a series of speculations on its future manifestation (Bigo 2008a; Tsoukala 2009a), social control agents end up operating in an essentially virtual time–space dimension.

Risk-­oriented crime control and human rights This summary presentation of the relationship between risk-­based crime control and personhood clearly suggests that the former dismisses the temporally linear10 and spatially definable rational frame of action of the unique, interior, and autonomous person to privilege a predetermined array of actions of a figure, in the double sense of the term – that is, an outline of the person, and a serialized number. Such a figure can be included in a list of security threats, it can be traced and filed in many different law enforcement databases, but arguably it cannot fully exist as the subject of rights. This assumption is actually grounded on the very nature of the links between personhood and legal personhood. When it refers to individuals, legal personhood consists in the virtual extension of a person in the legal domain.11 It prolongs the capacities of a person – capacities that usually stem from the key features of personhood. It guarantees that the person can enjoy certain legally defined rights – rights that emanate from personhood. Its very existence and development in a lifetime are closely related to that of the personhood it refers to. When some of the key features of personhood are deemed to be diminished12 or when the person dies, legal personhood is accordingly limited or ceases to exist. However, these commonplaces for all jurists only correspond to the cases where legal

Security policies and human rights   53 personhood has to adapt itself to the biological and/or psychological state of the physical person it refers to. What happens, then, to legal personhood when personhood is modified not by any extralegal factor but by the legal system itself? To what extent can legal personhood resist the legal downgrading or even negation of some of the key features of personhood? Given the indissociable nature of the two concepts, it is not unreasonable to presume that, mutatis mutandis, this internal contradiction will entail a substantial alteration of legal personhood. As I shall show in the remainder of the chapter, the effects of this contradiction arguably gather momentum in the human rights realm, especially when they interact with certain profound changes induced by the risk-­focused mindset in the legal system of protection of human rights. Change in the legal ground of the protection of human rights: the “legal upgrading” of the control of deviance The shift from the delinquent person to the “risk-­producing” group, and the ensuing introduction of an anticipatory pattern of action, have blurred in many respects the prior distinction between crime and deviance. The rationale that sources of risk may be identified in every aspect of human activity, ranging from delinquent to deviant and even ordinary behavior, produces a continuum of control (Feeley and Simon 1992: 459) that encompasses indistinctly all types of behavior. For example, CCTV cameras installed in football stadia monitor the behavior of troublemakers, rowdy football supporters, and ordinary football fans alike, while the collection and exchange of intelligence in case of international tournaments extend well beyond known and potential troublemakers to include even ordinary football supporters wishing to attend these sports events. As has already been mentioned, this control of deviance is new not only in quantitative terms but also, and above all, in qualitative terms. Indeed, while its expansion has reached unprecedented dimensions owing to the combined effect of an incremental technological progress and the widening of the field of action of law enforcement agents, the fact that this expansion is now provided by the law entails what has been qualified elsewhere as “legal upgrading” of the control of deviance (Tsoukala 2009a). From the moment the control of deviant behavior is included in normative texts, it ceases to be a form of social control that has veered off course. It is no more the marginal manifestation of an excess of power on the part of the law enforcement agents. It becomes a key component of the legal system, fully consistent with the way in which crime control policies actually operate. Its legal upgrading produces in turn a moral one. The control of deviance is no longer a shameful aspect of the exercise of social control, evidence of an undemocratic trend in the way the executive power restrains its

54   A. Tsoukala force in the criminal justice realm. It is no longer an embarrassing shadow in security-­related operations that, if ever denounced, requires justification, and calls for political and bureaucratic remedies. Its inclusion in law removes it from the dark operational facets of social control and brings it to light, like any other element of a legal norm. Far from being seen as outrageous, it is proposed as one among other normal expressions of the legislator’s will. The break with the past is so radical that it arguably calls into question the whole conception of the criminal justice system in a democracy. This institutionalization of the control of deviance is so wide-­ranging, both at national and at EU level, that it can no longer be seen as a specific swing away from a liberal social control apparatus to one that is more authoritarian in orientation. It is no longer a question of occasional deviations by a criminal justice system that otherwise complies with the rule of law, a subject that was analyzed at length in the 1980s (Delmas-­Marty 1983: 102ff.). While this new form of control confirms Stanley Cohen’s predictions (1985) about the establishment of an expanding and more intense control of deviance in our societies, it also goes beyond these predictions because the hold the social control apparatus increasingly exerts over the private sphere is now formally established and legitimized. Change in the value to be protected by law: from the individual to the group The issue of whether the normative foundations of human rights can possibly rest upon a universal basis remains a matter of debate among human rights experts (Gearty 2005a; Dembour 2006; Oberdorff 2008; Griffin 2008). Nevertheless, it is believed here that sharing this skepticism should not prevent us from assuming that human rights are primarily grounded on the values of personhood, and aim at protecting individual personhood (Griffin 2008: 33ff.). Though human rights violations in the criminal justice realm were never unusual throughout the second half of the twentieth century, when committed under liberal regimes they were more often than not the result of the way the executive and occasionally the judicial power would perceive the rule of law and, consequently, would seek to modify for their own benefit the limits of their power in a given society (Tamanaha 2004). In this respect these violations were, above all, the symptom of an ongoing struggle for the (re)positioning of various agents in the political and security fields of a given country. Arguably, then, they did not originate from any structural opposition between the guiding lines of the criminal justice system and human rights-­related principles. This compliance between criminal justice and human rights principles has, however, been gradually broken up following the rapid spread of the risk-­focused crime control model. These two legal systems are no longer

Security policies and human rights   55 seeking to protect the same values. While for the matters that are analyzed here the purpose of human rights law remains individual – that is, it focuses on the protection of every single person13 – the purpose of criminal justice is becoming increasingly collective since it aims mainly at protecting society as a whole from risk-­producing groups. This opposition creates in turn a form of contradiction that ends up hampering the efficiency of the legal protection of human rights. Actually, the shift from the person to the group as the key target of social control, and the ensuing dismissing in the criminal justice realm of many key features of personhood, cannot but weaken the scope of the protection of human rights to the extent that, owing to its intrinsically individual nature, this protection becomes, in a way, purposeless. People are being increasingly controlled, arrested, and even punished in the name of a grouprather than person-­based identity, while the protection of their rights is still grounded on their personal identity. These two legal systems no longer fit with each other; they defend antinomic values. As long, then, as the collective value of the risk-­focused crime control model prevails, it will logically hinder the development of its opposite value. Consequently, not only will it lead to the growing transgression of human rights in the criminal justice realm but also it will impede the efficient application of the legal protection of human rights, which henceforth will be seen as counterproductive. Quite unsurprisingly, then, apart from some extreme cases, where violations of human rights are still committed but formally denied,14 these violations are justified and accepted as normal aspects of crime control policies. Intrusive surveillance devices are therefore constantly being justified in the name of their efficiency in countering crime, while proactive measures that entail serious restrictions of civil rights and liberties are formally accepted because they are not considered as penalties.15 Change in the nature of the protection offered by the law: from impersonal principles to person-­based approaches Though grounded on and oriented toward personhood, the political project on human rights and its subsequent transcription into law are conceived in terms of abstract principles. The protection they guarantee to any single person is legally and politically possible precisely because it is impersonal. From this point of view, their introduction and development in liberal democracies throughout the post-­World War II period was to some extent consistent with the rehabilitation-­oriented crime control model – because, as long as the criminal justice system was mostly being set in motion by the transgression of a legal norm, it too was impersonal. This impersonal approach is, however, no longer prevalent in the risk-­ focused crime control model, which, on the contrary, is increasingly person focused in that it frequently rests upon series of profiling of human groups. The criminal justice system is now being set in motion not only by

56   A. Tsoukala the transgression of a legal norm but also by the identification of risk-­ producing personalities regardless of the transgression of any legal norm. The fact that risk-­producing personalities are defined in collective rather than individual terms does not alter the substance of the person-­based approach that lies beneath this crime control management. People are still controlled and arrested for what they are, or they are supposed to be, instead of what they do. Notwithstanding the probable discrediting of the social control apparatus and the ensuing decline of trust in the impartiality of the criminal justice system, this transition from a principle-­based to a person-­based approach cannot but jeopardize the efficient protection of human rights. As long as the legislator remained impersonal in his way of managing social life, and was looking at persons only if they caused harm to society and to the extent that they could ultimately be rehabilitated, persons’ rights could be efficiently protected. All attempts made by social control agents to deviate from these principles were seen as unlawful and therefore were likely to be denounced, formally rejected, and even punished. From the moment the legislator became person-­focused, seeking to mold in advance the personality of the people targeted so that they could never cause harm to society, the person’s rights are being restricted. The person-­ based approach, which implies, inter alia, the institutionalization of the control of deviance, denies or at least hampers the possibility of challenging the ensuing violations of persons’ rights.

Conclusion The argument that the present restrictions on human rights cannot be fully understood unless we take into account the impact on both personhood and legal personhood of the prevailing risk-­focused mindset in the criminal justice and human rights realms should not shift our attention away from the fact that this effect is indirectly enhanced by the place currently accorded to human rights by the political class. As is shown elsewhere (Tsoukala 2009b), while losing part of their political interest in the post-­bipolar geopolitical context, human rights have also been subject to a downgrading process imposed by domestic politicians. The prevailing reframing of freedom in negative terms in the post-­ 9/11 security-­related political discourses, and the ensuing dissemination of the idea of a balance to be struck between the henceforth taken-­forgranted opposed values of liberty and security, have had a double effect on human rights. On the one hand, they justified the introduction of liberty-­restrictive laws and therefore legitimized highly controversial security policies. On the other hand, they established the idea that freedom is just one among other rights to be protected by law, thus altering the substance of the concept and, consequently, of its corollary – that is, human rights.

Security policies and human rights   57 Once included in this way in the political arena, human rights lose the “sacral” status they had acquired in the post-­war period (Warbrick 2004: 999). They cease to be seen as indissociable from democracy, like the rule of law or the accountability principles,16 and are being transformed into political tools, adjustable to the needs of the government of the day. Then they can be either totally dismissed17 or temporarily suspended as counter-­ productive, or they are restricted in the name of an allegedly superior value – that is, security. In this ongoing struggle to (re)define the relationship between politics and the rule of law, security professionals play an increasingly important role both in the definitional process of the security threats and in the design of the counter-­security-threat policies (Bigo 2007a, 2008a; Tsoukala 2008b, 2009a). Their growing involvement in arenas that until recently were reserved for politicians and judges has in turn entailed a gradual change in the nature of the loci of the protection of human rights. Parliaments and courts cease to be the sole natural definers and protectors of human rights for the benefit of the law enforcement agencies. Whether it takes the form of a corporatist force that seeks to defend its own interests, a closely interconnected web of domestic and international police and intelligence agencies that claim their expertise in the name of the specific knowledge they possess while eluding democratic control (Bigo 2008b; Bonelli 2008a), a domestic and/or international consultancy that seeks to promote ideological schemes and bureaucratic interests, or a communication strategy, the influence of the police and intelligence officials in the defining of security-­related issues and, consequently, of human rights is rising sharply. In this dense interplay between politics, law, law enforcement, the media, and civil society, where value systems are constantly (re)defined according to an array of domestic and international interests and priorities, the place accorded to human rights can never be taken for granted. Present restrictions on the latter could be seen then as to be expected, to the extent they are one of the possible outcomes of political and bureaucratic games in the post-­bipolar political and security arena of liberal democracies (Alexander 2002: 1157ff.). Indeed, if we assume, along with Lloyd Weinreb (1987: 156), that “every significant liberty, conceived as a right, alters the natural distribution of powers,” it is plausible to presume that the (re)positioning of the key actors involved in the political and security fields of Western liberal societies would, among other things, imply the redefining of their relations among them and between them and the people. Following the same reasoning, the institutionalization of the control of deviance could be seen as foreseeable, to the extent that its targets may be understood as “impersonated embodiments of the otherwise vague and scattered, but daily and commonly suffered fears and nightmares” in an era of increasing uncertainty and insecurity for the future (Bauman 2002: 60). Yet arguably again, these restrictions on human rights would have not been so rapidly introduced and legitimized if

58   A. Tsoukala personhood and legal personhood had not already been eroded by the long-­standing spread of the risk-­focused mindset in both the criminal justice and the human rights realm of all Western liberal democracies.

Notes   1 This was the case, for example, for the terrorist attacks that took place in 2002 and 2005 in Bali, in 2003 in Istanbul and Casablanca, and in 2005 in Sharm-­elSheikh.   2 Arguably, this shortcoming is not counterbalanced by the many different legal studies that rightly highlight the non-­extraordinary character of emergency law in several European constitutional democracies (Donohue 2001; Ewing 2007) but do not correlate the ensuing infringement of human rights with the structural evolution of the political and/or security fields. When scholars do take into account the decision-­making process of the political class and the interplay between politicians and other actors involved in the political field, they address the issue from a historical perspective and do not encompass the post-­World War II period (Ewing and Gearty 2000).   3 This is a rough indication that corresponds to the US criminal justice system. In Europe the transition did not become visible before the 1980s.   4 This is the case, for example, with football supporters subject to football banning orders on the ground of suspicion – that is, in the absence of a football-­related conviction.   5 This is increasingly the case with regard to sexual offenders and especially child abusers.   6 This is the case, for example, for the French law 2008-174, which provides for the indefinite detention of dangerous criminals given long sentences of imprisonment if, when they are due to be released, it is believed that they are likely to offend again.   7 For a thorough analysis of the emergence of the victim and the ensuing emotional element in the Western criminal justice systems, see Salas (2008: 63ff.).   8 The Prevention of Terrorism Act 2005 provides that the Home Office may impose on them many different restrictions, ranging from curfew and house arrest to electronic tagging and restrictions on association with specified people and communications in general.   9 Surveillance by CCTV cameras involves at least two spaces of control – that is, the one that is actually controlled and the one where the controller stands. Yet this scheme applies only to so-­called proactive CCTV cameras – that is, those that are related to live surveillance. Most CCTV cameras are non-­active and act only as visual deterrence that creates the illusion of surveillance – in which case, surveillance constructs a real and a virtual space of control. Other CCTV cameras may be reactive, allowing access to footage of incidents after the event has occurred – in which case, surveillance constructs two spaces of control that are not simultaneous. For an analysis of the typology of CCTV systems, see Webster (2004: 234). 10 That is, inscribed in a past–present–future sequence. 11 As Yves Cartuyvels has noticed (2006: 182), the idea of a subject of rights that is unique and equal in the face of the law – that is, the construction of an abstract, free, and responsible moral person – corresponds to the promotion of a dual vision of the political society that entrusts the state to organize the common good, to share out and control people’s rights and obligations. 12 As happens, for example, during childhood or in case of mental illness.

Security policies and human rights   59 13 This remark concerns, of course, individual human rights – the sole focus of this chapter. 14 To this day, the most accurate example is what is commonly known as the US extraordinary rendition program, the implementation of which rested upon the kidnapping and transfer of people suspected of terrorist activities to countries with low standards of human rights protection, where they have been subject to torture, or at best harsh interrogation techniques. On the forms and practices of denial with regard to torture and, generally, violations of human rights, see Cohen (2001). 15 British and Belgian courts have thus ruled that administrative football bans do not entail a breach of human rights because, despite their punitive element, they are not penalties but preventive measures (Belgian Court of Arbitration, ruling 175/2002 of 5 December 2002; Laws LJ in Gough v. Chief Constable of Derbyshire, 2001, QBD; Court of Appeal in Gough v. Chief Constable of Derbyshire, 20 March 2002). Following similar reasoning, the French Constitutional Court ruled that the recent introduction into French law of the indeterminate detention of dangerous criminals, after the end of their initial sentence, does not violate human rights because it is not a penalty but a security measure (Ruling no. 2008-562 DC of 21 February 2008). Analysis of these rulings would go well beyond the scope of this chapter. Nevertheless, it should be reminded that the European Court of Human Rights has constantly stipulated that, in order to prevent the disciplinary from encroaching illegally on the criminal justice realm, punitive measures should be defined in law according to their effect (Delmas-­Marty 2002: 448ff.). 16 Although in some cases protection of the values they referred to was relative, it was admitted that these values were accepted as fundamental by the international community (Hoffman 2004: 934). It was also acknowledged that some fundamental human rights were ‘non-­derogable even in extreme emergencies’ (Tushnet 2007: 276). 17 As happened, for example, during the implementation of the so-­called US extraordinary rendition programme.

4 The North Atlantic field of aviation security Mark B. Salter

One in the most important trends in contemporary liberal governance has been the dispersal of policing functions, across the public/private divide and in new kinds of social spaces. New para-­security agencies engage with novel areas of social, economic, and political life previously considered private, such as the monitoring of private financial transactions, the implementation of wide-­scale biometric identity documents, or closed-­circuit television (CCTV) systems. The securitization of everyday life is not centralized: we are not simply witnessing the growth of “Big Brother.” Instead, the proliferation of security agencies and actors is better understood as a “security assemblage” (Lippert and O’Connor 2003). The term “assemblage”’ stems from Deleuzian writings on the organization of social space: rather than hierarchical structures, security practices are better understood as rhizomatic, expanding into previously uncolonized space where opportunities are available, like strawberry plants rather than big sequoias. The agencies themselves and their practices expand the ambit of security into formerly private spheres, or what Amoore and de Goede call “transactional surveillance” (2008a). Agencies focused on prevention do not wait for aberrant behavior, but endeavor to survey and police all types of transactions to preemptively build a profile of potential suspects. When the ambit of security is seen as “transactions” or “mobility,” it is no surprise that new agencies are enlisted. When security policies are drafted and carried out by agencies whose primary role is not security or policing, or at least understood as not policing by political elites and public alike, then we can ask whether the same democratic or civil liberties oversight that normally accompany security agencies still apply. While traditional policing organizations, such as the Royal Canadian Mounted Police (RCMP) or Europol, have civilian oversight committees or robust complaints procedures, the extent to which non-­security agencies that perform security functions have such a mechanism or structure to protect both national/ international security and civil/human rights and liberties must be queried. Aviation security is an important sector of the Canadian and European security field. Civil air travel is a crucial axis of global trade, travel, and

North Atlantic aviation security   61 tourism between Canada and Europe, and as a vector of international mobility. The northern Atlantic is one of the most important international airspaces, and has already been the target of multiple terror attacks. While the 9/11 attacks were launched from domestic flights (and passengers who had each transited through Europe), the “shoe bomber” Richard Reid attempted to directly attack a plane traveling between Paris and Miami, while the alleged liquids plot targeted planes leaving the United Kingdom for Canada and the United States. The Lockerbie attack on Pan Am flight 103 departed Heathrow for New York’s John F. Kennedy Airport, and was destroyed over Scotland. Air India flight 182 was also attacked on its transatlantic leg (departing Canada though bound for the subcontinent). There have been multiple incidents of domestic and non-­ transatlantic terrorism, such as the attacks on Athens, Rome, and Vienna airports. In sum, the political and economic incentives for aviation security cooperation are extremely high. Aviation security has been examined along three levels of analysis: high-­ level inter-­state agreements on cooperation and comparative legal jurisdiction (Dempsey 2003; Abeyratne 2004); intelligence-­based, traditional policing of hijacking and other terror threats, which are often exclusively national (Wilkinson and Jenkins 2007); and technical para-­security agencies that provide for other kinds of security (Salter 2007a, b). Hobbing’s chapter in this volume (Chapter 5) analyzes clearly the EU–Canada data-­ exchange agreements, in comparison with similar agreements with the United States. Other work also examines the emerging field of immigration/security security professionals (Bigo 2002; Bigo and Guild 2005). In this field, cooperation between the European institutions (Europol, Interpol, and Frontex) and their Canadian counterparts (RCMP, the Canadian Security Intelligence Service (CSIS), and the Canada Border Services Agency (CBSA)) is structured around the exchange of information. This chapter is concerned with the third field of aviation security that is not explicitly police or intelligence driven – that is, the field of technical cooperation on passenger and hold baggage screening. After laying out the field of aviation security, this chapter examines the role of the International Civil Aviation Organization (ICAO), the International Forum for Security Screening in Aviation (IFSSA), Transport Canada (TC), the Canadian Air Transport Security Authority (CATSA), and its relation to the European aviation security sector.

Mapping the field of aviation security Aviation security (AVSEC) is most often conceived and represented by the field of professionals as an “onion” – that is, a layered approach of different security practices.1 At the outermost level there are intelligence agencies, physical perimeters, and attendant surveillance technologies; at the center, cockpit doors are reinforced to prevent forcible entry, and there

62   M. B. Salter are trained aircrew and sky marshals. The Canadian Air Transport Securty Authority (CATSA), the American Department of Homeland Security, the French Direction Générale de l’Aviation Civile, as well as international bodies such as ICAO and the International Air Transport Association (IATA), use the same international standards. In the Canadian case, while several of these layers are police driven, many are not (Canadian Air Transport Security Authority Act Review Secretariat 2006). Airport authorities themselves are often responsible for adhering to national standards for security, set by Transport Canada, the European Commission, or ICAO, bodies not traditionally seen as part of the international security apparatus. As a public policy problem, the twin drivers of aviation security are efficiency and effectiveness (Hainmüller and Lemnitzer 2003). To what degree do the security measures facilitate or impair the mobility of individuals and goods? And to what degree do the security measures deter or interdict criminal operations and terrorist attacks? Despite the efforts of IATA to make the normative argument that facilitation and the security of passengers are not in conflict, as demonstrated by the Simplified Passenger Travel Initiative, the consensus within the field from representatives of industry, government, and the public is that the more secure, the less efficient, and vice versa. A completely secure system would cripple the industry, as happened after the alleged liquid plots in the United Kingdom and the United States after 9/11. A system that had lost the public trust would be equally disastrous. As a consequence, the aim of aviation and airport security is not total security, which would cause economic collapse of the sector, but an acceptable level of risk. Risk has become understood in business terms. Schneier is a well-­known security commentator and consultant who has since become Chief Technology Officer for BT. He offers the following public comments: We’re not trying to catch the clever, organized, well-­funded terrorists. We’re trying to catch the amateurs and the incompetent. We’re trying to catch the unstable. We’re trying to catch the copycats. These are all legitimate threats, and we’re smart to defend against them. Against the professionals, we’re just trying to add enough uncertainty into the system that they’ll choose other targets instead.2 Despite efforts by the ICAO, the European Civil Aviation Conference (ECAC), and IATA to widely distribute a culture of risk management, there remains no clear methodology – and indeed no data – to evaluate or manage risk in aviation security. Pilots, for example, who have the knowledge and the capacity to use aircraft as weapons of mass destruction, because they have access to the cockpit, must still go through the same pre-­board screening as passengers (despite also having a security clearance by the national aviation authority and the airline). This was highlighted by an enraged pilot who was incensed that his pocketknife was confiscated at

North Atlantic aviation security   63 security, and went to his cockpit, where he retrieved the ax that is kept there (to aid in fire control, rescue, and escape for pilots). At root, the lack of a risk management methodology does not undermine the shared perceptions or beliefs of the AVSEC field; rather, it serves as a pressure to expand the field into areas of consultancy, statistical evaluation of different measures, and security management systems. Within regime theory we would expect that the degree of formal institutionalization of the aviation security sector would mirror and build upon informal networks, particularly in realms of technical cooperation. However, there is a fundamental lack of coordination of security practices even with an alignment of security norms. While all actors agree on the wide strategy of risk aversion, there is a lack of consensus on the epistemology, practice, and policy of risk management. Because “security” as a goal cannot be quantified, there is no mechanism to reconcile different conceptions of risk or of efficacy. Traditional regime analysis of the regulation of international civil aviation has tended to focus on two core concepts, which are inadequate for describing the actual field of practice. Regime analysis as offered by Zacher and Sutton defines norms as “the most general prescriptions and proscription relevant to an issue area that states feel an obligation to obey” (1996: 14). Setting aside the theory’s state-­centric orientation, norms are defined as abstract, general, and indeed “often not stated explicitly or formally in legal texts” (ibid.: 15). Norms are thus tools for understanding the underlying rules of the game in inter-­state interaction. As a conceptual tool, norms are clearly unsuited for understanding or explaining how standards, regulations, or practices vary or change. Rational actor or policy choice models also fail to explain the proliferation of practices between public and private actors. Rationality is always assumed within these models to be independent of the particular power games of states, international organizations, or sub-­state actors; it is always presumed to be abstract and international. Hainmüller and Lemnitzer, for example, have no accounting for the impact of European legislation, reputation, credibility, or technical vocabulary in their comparative analysis of European and American screening practices (2003). Birkland’s bureaucratic analysis is much more useful, demonstrating how disasters and other security events can seize the public and political imagination, even suffering from a kind of social entropy toward disinterest (2004). However, Birkland also neglects the ability of international technocratic elites to engage in venue shopping – that is, finding an organization or political space in which the preferred decision is easier to secure. Hosein (2004), for example, details how the United States used ICAO standards to gain international approval for a particular kind of biometric passport (facial recognition) that would be incredibly unpopular within the political context of America. Of course, rational actors are never rational, even when operating under pressures of time, information, and clear-­thinking. Neither of these traditional concepts – norms or

64   M. B. Salter rationality – can account for the particular construction of best practices, technical or procedural standards, and a multiplicity of types of actors (state, international, regional, sub-­state, or private). In particular, traditional regime analysis has no way of understanding the degree of informal institutionalization that leads to an uneasy lack of coordination in this field (a kind of productive disequilibrium). This chapter (and indeed the book as a whole) uses a different orienting concept: the field. Bigo is largely responsible for introducing this term of art to the analysis of security practices. Empirically, he argued that the dichotomy between internal policing and external war-­fighting was breaking down; he contended that security must be considered a Möbius ribbon in which the inside and outside of the state were indistinguishable in practice (2001). Building again on empirical research into the connections between security agencies, consultants, and international or regional organizations, Bigo identified a “field” of security professionals, which he explained as “rules that presuppose a certain socialization or habitus” (2006a: 11). A corrective to accounts in sociology, political science, and international relations that attempted to separate the “domestic” from the “international” and the “subjective” from the “objective,” habitus is a way of conceiving the perceptions, thoughts, and actions of a particular group, defined sociologically. The field is determined functionally: those who participate in the habitus define the field, which allows analysts to avoid the obstructive state/ society, public/private dichotomies that characterize so much writing about policy. This method also moves analysis away from exclusively discourse or official statements or policies and toward the intersubjective definition of beliefs, languages, and practices within a specific social area. In this chapter we identify and analyze the aviation security field of screening professionals, which are constituted not only by government actors but also industry and technical agents, consultants and risk managers, and private contractors.3 The chief nodes in the field of international and European aviation security, particularly security screening, are the ICAO, the EU Commission, and particularly the European Civil Aviation Conference. The Chicago Treaty (1944) both established the ICAO and contains a number of annexes towards specific areas of civil aviation. Annex 17 is the primary legal instrument for setting “standards and recommended practices” (SARPs) in the field of aviation security, and particularly security screening. This annex, along with interpretative guides, establishes minimum standards and best practices that states must incorporate into their national aviation security programs. While Annex 17 has been revised ten times since its first draft to take account of major shifts in the security landscape (from hijacking to attacks on airports to the use of airplanes as weapons of mass destruction in themselves), the restricted Security Manual, which serves as a guidance document for implementation of Annex 17 SARPs, undergoes constant revision. The ICAO is a specialized agency of

North Atlantic aviation security   65 the United Nations, and shares its respect for the sovereignty of member states. As a consequence, even though the ICAO implemented a Universal Security Audit Program (USAP) in 2002 as part of its “Aviation Security Plan of Action” to evaluate member states’ adherence to the Annex 17 SARPs, the ICAO has no enforcement mechanism. However, even without a legal mechanism for compulsion, or even a public name and shame capacity, ICAO SARPs still have a structural power to define the aims and strategies of global aviation security. Consultants, contracting for donor aid agencies, who modernize receiving countries’ aviation security sectors, use ICAO SARPs and the Security Manual to draft legislation and policies in these receiving states. Though ICAO is classified as a technical body, its work is plainly political, understood within a game of sovereign states: SARPs do not describe the procedures or policies, which could be interpreted as a restriction of sovereign independence. Rather, SARPs express the requirement for security programs, perimeter policing, and screening outcomes, and allow individual states to draft their own regulations. The international agency thus creates a need for regional or industry organizations to set other kinds of standards and practices. The International Forum for Security Screening in Aviation (IFSSA) was founded in 2003 by CATSA and offers an environment in which specific screening agencies can share best practices and disseminate norms on an agency-­to-agency level, but the IFSSA is restricted to government representatives. Another sector of the AVSEC field is police, such as the cooperation between the RCMP, Frontex, Interpol, Europol, etc., but this chapter focuses on the security screening largely done by private companies. IATA is the industry association for civil aviation and represents air carriers, airports, pilots and aircrew, service and facilitation companies, and cargo shippers. It offers training programs and guidance documents for security measures (ICAO programs are only available for state agents). As a representation of commercial interests, IATA generates its own statistics about the sector and provides guidance for companies striving to achieve both profitability and compliance with a bewildering patchwork of national regulations. As a norm entrepreneur, through its sponsorship of the AVSEC World Conference, IATA has created and supported the interest group SPT (Simplifying Passenger Travel), arguing that security and facilitation should be understood as integrated parts of successful business. The participation in SPT of governments, industry groups, airlines, and technology providers is an indication that the AVSEC field exceeds the public/private, domestic/international dichotomy. IATA thus plays a key role for the field in advocating ways that ICAO SARPs are interpreted and implemented, in marketizing the value of public security, and in lobbying national governments, regional organizations, and ICAO for normative changes. Large companies, particularly those participating in the SPT, are also key players in the field. SITA (Société Internationale de Télécommunications

66   M. B. Salter Aéronautiques) is an information and communications technologies company that provides systems to airports, air carriers, and states alike. It was originally formed as a non-­profit, cooperative society for the support of mutually accessible telecom in civil aviation, but has since become a for-­ profit company. It is responsible, for example, for the development and roll-­out of Common Use Terminal Equipment (CUTE), so that multiple airlines can use the same check-­in desk. Many governments are using advance passenger information (API) and passenger name record (PNR) data to delocalize their border by pre-­screening individuals, as Hobbing shows in Chapter 5. SITA has established itself as a common-­use environment, a clearing-­house and a technical network backbone for countries using API/PNR data for screening. SITA’s use of the SPT language to make a business case for the privatization of some security screening functions demonstrates the importance of these private actors to the implementation of public security policy.4 Separate from the issue of data exchange, technology companies are also driving the shape and form of passenger screening. While specific technologies are not required by ICAO SARPs or IATA best practices, in several cases, such as iris scans, explosives detection, or millimeter wave scanners or backscatter X-­rays, there is only a single provider of key technology. The patent for an algorithm key to successful iris recognition, for example, was held by John Daugman at Cambridge University, and so the roll-­out of that technology was tightly restricted to that particular market. The French company SAGEM (the provider of the Automated Fingerprint Identification Service, AFIS) has also been a key global player in the application of biometric identity cards and the information infrastructure necessary for the policing of identity. L-­3, a company of government contractors formed from the remnants of the Lockheed–Martin Marietta merger, is also responsible for millimeter wave scanners, as well as a number of other military technologies for the Department of Homeland Security and the US government. The British company Smiths Detection provides explosives detection, passenger walkthrough archways, and baggage screening systems. General Electric offers not only large-­scale information technology management, CCTV systems, and scanners, but also one of the chief mainline explosive detection systems for baggage screening. We will return to the question of baggage screening systems below. Who writes and enforces aviation screening standards? In most cases, national security authorities are required by ICAO SARPs to establish national aviation security programs, which include programs for airports, air carriers, cargo shippers, and other major sectors. In Canada, Transport Canada writes and audits the Security Screening Order, which determines the precise procedure that screeners must follow at checkpoints, under the authority of the Aviation Security Regulations deriving from the Aviation Act. Canadian aviation security regulations are written by Transport

North Atlantic aviation security   67 Canada, in respect of ICAO Annex 17 SARPs and its own independent research and experience. Canada has been a long-­time supporter of the ICAO, which is based in Montreal, and was one of the first countries to undergo a new international security review by ICAO staff, the Universal Security Audit Program. USAP was formed directly afterwards and in response to the 9/11 attacks, in recognition of the networked nature of international aviation security. While the attacks of 9/11 originated from domestic flights and domestic airports, the civil aviation community recognized that weaknesses in any part of the network could have significant systemic effects. However, as an international treaty organization and part of the UN system, the ICAO has no independent enforcement powers, a fact emphasized by the confidential and secret nature of the USAP reports. The European regulations 2320/2002 were based on ICAO standards Annex 17. As with ICAO regulations, the European Union requires that states designate national aviation security authorities, programs, and audit capacities. The European Civil Aviation Conference (ECAC) was formed in 1955, and includes non-­European members. It provides security and facilitation standards among European countries. ECAC has its own standards for security screening, Doc 30, and its own security manual. National legislation must adhere to 2320/2002, which has much stronger provisions for enforcement, but are also encouraged to set higher standards than the minimum required. The 2320/2002 regulations are supplemented by Commission Regulation (EC) no. 622/2003, which sets out the common basic standards of aviation security, as well as other regulations establishing the standards for quality control programs and their inspection. While ICAO standards are vague as to specific performance measures, only requiring that there be security performance, Commission Regulation (EC) 781/2005 sets out baselines for X-­ray equipment performance, with the specific intent to promulgate performance standards for all kinds of standard equipment at use in aviation security screening. ECAC and the ICAO have similar security standards and protocols in 2320/2002 and the tenth revision of Annex 17 respectively, and both have parallel auditing programs. The Commission and the ICAO undertook negotiations to resolve this potential for competing standards and inspections, which are ongoing but involve the acceptance by the ICAO of European audit results. However, as below, the standards established by the European Union are part of a wider global network. Two issues between European and Canadian transportation security agencies demonstrate the dynamics of the North Atlantic AVSEC field.

Liquids and hold baggage Two chief security risks threaten this system, setting aside safety issues that have not yet been securitized: criminality and terrorism. Criminality is usually dealt with through policing agencies, customs and immigration

68   M. B. Salter officials, or private airport security. For theft, smuggling, or fraud, criminal investigation, surveillance, and community policing work equally well at the airport. Terror attacks themselves, once instigated, at the airport are met by specially trained paramilitary or police squads. But there is another kind of serious security theater at airports that generates little scholarly or policy analysis but is the focus of public debate: security screening. Security screening is designed to detect, deter, and interdict current and future attacks. Screening of hold baggage, passengers, and non-­passengers (that is, flight crew, mechanics, and those concerned with airport works who have access to the airside of the terminal) is not usually handled by the police, falls under different legislation, and uses different techniques. Screening is perceived as a lower-­intensity policing function: like building security or CCTV monitoring, it does not require a deep knowledge of law or investigative techniques, and can be done effectively and efficiently by private contractors. Security screening at Canadian airports, for example, is handled by private security subcontractors through CATSA. The strategy of third-­party contracting was challenged and debated during the mandated legislative review of CATSA in 2006, but both CATSA and the screening companies made a successful case for the retention of the practice (Canadian Air Transport Security Authority Act Review Secretariat 2006). This system of subcontracting is also used in France and Spain, and in numerous newly acceded EU countries. The conservative Heritage Foundation (2001) details how the major European hubs, including Heathrow, Paris-­Charles de Gaulle, Frankfurt, Amsterdam, and Gatwick (and many others), all use private contractors for passenger and baggage screening. Canadian airports were privatized in 1996, and the federal police (RCMP) ceased to be responsible for national airport policing. This is not to say that visual screening is a cognitively simple task; it is quite the opposite. Image discrimination, and particularly maintaining concentration to detect the extremely unlikely image of a prohibited item within a repetitive environment, where there are enormous pressures of time and speed, is very difficult (Schwaninger et al. 2004). Para-­security agencies are also writing the security rules for screening activities. This field does not solely comprise state agents, or even state agents and their private subcontractors; regional organizations, technology vendors, and industry associations also participate in the constitution of acceptable and best practices. Liquids Pre-­board passenger screening (PBS) involves the use of X-­ray, pat-­down, and explosive-­detection equipment on the passenger and his or her immediate carry-­on luggage before the passenger enters the so-­called sterile zone of the airport, where he or she will have access to planes. PBS has evolved in response to the changing nature of threats to civil aviation, as has its placement in the airport, starting right at the boarding gate,

North Atlantic aviation security   69 moving to chokepoints in the terminal (at the ends of piers), and finally to the contemporary mode of large stations processing all passengers. The primary tools of PBS – the archway and hand-­held metal detector – have not changed fundamentally since the 1960s, although new technologies such as millimeter wave scanners or backscatter X-­rays, which produce fine-­grained, high-­resolution images of passengers, and walkthrough explosive detection devices are being adopted in American, European, and Canadian airports. One of the major post-­9/11 changes to the PBS regime has been the introduction of the liquids ban and liquids restriction in response to the alleged plot of 10 August 2006 to use liquids to create in-­flight explosives, launched from Britain but attacking planes headed for Canada and the United States, and gives us a clear picture of the shape and dynamics of this field. The chain of events: British police identify that the plot is quickening and move to intercept the alleged terrorist cell. They notify British Airport Police and the British Airports Authority, which institute new screening procedures totally banning all liquids. British airports, and Heathrow in particular, are thrown into disarray. Heathrow routinely operates at 98 percent capacity or above, and so any change in the screening or security procedures has knock-­on effects for the efficiency of the system. British police send information of that threat to police, security, and transportation authorities globally. In Canada, Transport Canada is the ministry responsible for aviation security, although CATSA also receives information about the threat. CATSA and its contractors, however, cannot act without clear regulation or instruction from Transport Canada. This is not to imply that this move did not happen quickly in the Canadian case, by all reports. Transport Canada, along with other major players, decided to completely ban all liquids on flights, causing much economic hardship for duty-­free sales in airports and inconvenience for passengers. The complete ban was necessary because, since liquids had not previously been perceived as a threat, there was no off-­the-shelf technology available for wide-­scale (or even limited-­scale) implementation to test liquids for the dangerous combination.5 While a large number of companies have rushed to fill this market through the development of new technologies, the simple human technology of screening and rejection was far simpler. By September, however, faced with pressure from the industry, air carriers, airport retailers, and (particularly business) passengers, the regulations were relaxed, at first in Canada and then in Europe. The ICAO was able to promulgate new standards on the restrictions of liquids in carry-­on items only in 2007. The new limit on liquids, gels, and aerosols allowed in cabin baggage derives from a technical standard promulgated by Israeli airport authorities.6 The relaxing of limits in the Canada–United States sector before the United Kingdom and European Union represents a difference not only in risk assessment but also in the influence of the United States over Canadian aviation security policy. Because the vast majority (by value

70   M. B. Salter or by volume) of Canadian air traffic is destined for the United States, much of the Canadian market is dependent on American standards, as we shall see below in relation to hold baggage screening. Hold baggage screening Hold baggage screening (HBS) attempts to detect explosive devices and other prohibited items in checked-­in luggage before it is loaded onto the plane. The screening of luggage presents a similar difficult problem: not simply the logistics of sorting millions of pieces of differing size and composition within an extremely short time span, but also the task of screening millions of images for prohibited items. The same cognitive challenges presented at PBS are present for the evaluation of HBS images: it is extremely difficult to maintain a high degree of attention to repetitive and diverse images with an extremely low “hit” rate, and the images themselves are very difficult to identify.7 For modern airports the screening of luggage is a major logistical and security challenge that involves complex systems. With the introduction of radio-­frequency identification (RFID) systems, which are being trialed at several large airports, authorities are able to track baggage as it moves through the system, but such tracking is not yet widely implemented. To accomplish facilitation of sorting and provide security, modern systems include in-­line processing – that is, the installation of X-­ray and CT scans along the conveyor belts that transport bags. Canada was an early adopter of intense passenger baggage screening and passenger–bag matching, after the Air India disaster in 1985. Following the Pan Am 103 Lockerbie disaster, these standards were promulgated worldwide. Again, we see that states are the norm leaders: the United Kingdom implemented the standard in 1998; ECAC required 100 percent HBS by European partners in 2002 (including the late adopters Germany, France, Belgium, and the Netherlands); the ICAO instituted a 100 percent hold baggage screening requirement in 2006, as part of the tenth revision of Annex 17. In the British and Canadian cases the requirement was imposed by the transport department, rather than the security ministry. Bags have a barcode, according to a standard set by IATA, and progress through a five-­level screening process. At each level the degree of screening and the screening technology used increase in resolution and capacity. For example, the first level is an X-­ray integrated into the system, but by level 4, bags are diverted from the main baggage handling system for enhanced CT scans; level 5 involves a hand search of the baggage. A consensus on the standards and processes of HBS does not tell the whole story. Even though Canada, the European Union, and the United States agreed on the standard, the process, the technology, they have fundamentally different appetites for risk. American authorities screen every bag with CT scans, whereas EU and Canadian authorities use elevated screening only if anomalous or suspicious items are detected. At an

North Atlantic aviation security   71 international AVSEC conference an American official publicly voiced extreme frustration with the different understandings of risk: “When Europeans say only 2 percent of baggage was subject to the best kind of screening, that does not make me sleep better.” The same frustration is expressed at Canadian regulations. The Canadians have adopted a European approach of sorting and risk management. As a consequence, luggage originating in Canada that is transshipped within an American airport undergoes HBS during transfer (often causing delays). Even within the European Union–Canada field the Americans play a strong role, because the security standards of the receiving state are as important to the network’s viability as the standards of the sending state. Air routes are negotiated on a bilateral, or at best regional, basis, and it is the transport ministry, often in collaboration with the police, that is responsible for accepting the security standards at foreign destinations. Both of these approaches to risk management (total screening as against screening by risk) have both a managerial and a security logic: the unacceptability of a successful terror attack, and thus a detection system failure, is common, but the policy to achieve that goal efficiently is contested. The security discussion happens through transport ministries, screening contractors, and technical firms. The technology providers set the limits of the possible – but the very numbers, statistics, or indicators that are advertised for particular equipment or systems are always viewed with great skepticism by government officials, who themselves have no reliable methodology for evaluating the rate of successful detection or flow-­ through. This uncertainty at the heart of the field, in terms of measurement and risk appetite, serves to define the core beliefs of the professionals of aviation security. Even as there is no consensus, the limits of the knowable and the political processes of negotiation between public/ private and between national communities help to define the central problematic of the AVSEC field: a Gordian knot of efficiency and effectiveness within an environment of high uncertainty. Within the European Union–Canada AVSEC security field there have been two key points of conflict. The questions of liquids restrictions and hold baggage screening demonstrate something neglected within the literature on security fields: the lack of consensus on norms and practices may be a source of political conflict, but it works to strengthen the perceptions, practices, and actions within the field. Furthermore, the complicated chain of regulation, contracting, and performance of screening functions strengthens the case for examining AVSEC as a field rather than isolated national cases or focusing entirely on the (always late) international scene. In other words, the conflict over how best to manage risk in the cases of  liquids and HBS served to reinforce the broad consensus over risk management, to facilitate wider dialogue over particular technologies (with private and public actors), and to incorporate more actors into the security field.

72   M. B. Salter

Conclusion This chapter has made three broad points. First, it has shown the applicability and utility of Bigo’s concept of the field of security professionals, which in the AVSEC case exceeds traditional divisions between domestic and international, and public and private. Second, it has demonstrated that security functions are being performed and regulated by para-­security agencies, including private contractors, transport ministries, and industry associations. This may not be problematic in and of itself, but the protection of rights and liberties, which has become a necessary and integral part of the work of official policing agencies, is absent in these para-­security agencies. Liberties and rights are understood by these agencies and companies in terms of customer service, value for money, and legislative requirements – with the end-­user and service provider often quite distant from any accountable agent of the state. Third, we have seen in the case of liquids and HBS that peripheral conflict over implementation of particular norms, policies, or practices serves to strengthen the cohesion of the field itself, reinforce its terms of expertise within the community, and widen the membership. Policy differences and tension can have the (perverse) effect of reinforcing the shared consensus on the constitution of the problem and the range of potential solutions.

Notes 1 Transportation Security Administration (2007) “Layers of security: What we do.” Available at: www.tsa.gov/what_we_do/layers/index.shtm (accessed 1 January 2009). 2 Bruce Schneier (2006) “Airport passenger screening: Schneier on security: A blog covering security and security technology” (23 March). Available at: www. schneier.com/blog/archives/2006/03/airport_passeng.html (accessed 1 July 2006). 3 There is a notable absence of political non-­governmental organizations, save for civil liberties groups or advocates of refugees and migrants. 4 This is demonstrated also by the use of Accenture and other consultancies for the processing of border information (Amoore 2006). 5 European regulators hope to lift the liquids restrictions in 2010, only after the wide-­scale roll-­out of detection technology. 6 The difference between metric and imperial systems also plays a role. In the United States the limit is 3 ounces of liquids, gels, etc., whereas the EU and Canadian standards are metric and the limit is 100 millilitres, which is actually 3.4 ounces. 7 The industry is moving towards the adoption of a “threat image projection” system that artificially imposes threat images from a stored library onto real bags to increase the hit rate, incorporate training into the performance of screening, and find metrics for evaluation of screening.

5 Tracing terrorists The European Union–Canada Agreement on Passenger Name Record (PNR) matters Peter Hobbing Introduction Enhancing border security in support of the global war against terrorism is very much in vogue, particularly the control of air passengers. We feel at the mercy of ever-­changing security measures; while we have become accustomed to endless queues and baggage prohibitions of all sorts in terms of scissors, miniature knives, and bottled liquids, which are felt as a direct assault on our everyday life, we show much more patience towards intrusions into our privacy. Transmission of airline passenger data to security services goes widely unnoticed, and only privacy commissioners and other civil liberties watchdogs complain. The European Union– Canada Agreement on Passenger Name Record (PNR) Data of 2005 is different from the norm: deservedly, it holds the reputation of a well-­balanced instrument respecting the interests of citizens. Yet rather than serving as a model for future instruments, the agreement runs the risk of being scrapped on the next possible occasion. A close look at the four EU–US PNR agreements, rapidly revised between 2004 and 2008, reveals the opposite tendency, away from data protection and towards an unconditional tightening of controls. This chapter evaluates the extent to which privacy considerations have been respected by the agreements. It is important to examine these vital issues on the basis of the 2005 European Union–Canada Agreement, in part because it is undoubtedly the least-­ contested international instrument in the field. This gives us a sense of where the normative consensus and policy practices converge. It is precisely because this agreement is subject to less public security and less scholarly attention than its EU–US counterparts that it deserves serious analysis. European Union–Canada relations on the matter of PNR present a highly valuable research topic providing clues to all the strategies and tools available in airline security. On the one hand, the current European Union–Canada Agreement stands out from other agreements by its measured and legally balanced approach, which left it practically unchallenged by the usual criticism and gave it the aura of a model instrument. On the

74   P. Hobbing other hand, the 2005 Agreement – after a temporary extension of validity in 2008 – will definitely be renegotiated in the summer of 2010, most probably in view of its adaptation to stricter international standards as they have become common during the past few years. With the public security climate definitely in favour of tightened security, there are continued tendencies to cut back privacy standards. The February 2008 EU border package borrowed a number of discomforting features from the US toolbox in border security. If the United States invites the Eastern European EU member states to join the visa waiver programme (VWP) at the price of abandoning established EU PNR standards, one must be aware that that change might also affect forthcoming EU–Canada negotiations. This chapter examines (1) the metamorphosis of PNR airline data from a commercial facilitation device to a widely recognised tool of counter-­ terrorism; (2) the extent to which the current use of this tool is acceptable, especially in terms of privacy protection; and (3) the practical benefits obtained from its use.

PNR data in aviation security and border control Aviation has been the fastest-­growing transport mode: its advance from the first powered flight in 1903 to the operation of the first commercial passenger line took just 11 years. The real boom occurred worldwide after the Second World War, when the annual passenger volume rose from nine million in 1945 to 311 million in 1970 (International Civil Aviation Organization 1970). After some slowdown in the 1970s owing to the first oil crisis, the pace accelerated again, mostly thanks to deregulation and privatisation of carriers, reaching 1.2 billion passengers in 1992 (International Air Transport Association 2007). Transatlantic routes grew steadily, with the annual passenger volume between the European Union and the United States reaching 50 million in 2007, making it the largest international air transport market by far. And its size is expected to expand by another 50 per cent, thanks to the recent EU–US open skies agreement (EurActiv 2007a; European Commission 2008a). Similar negotiations are under way, under the heading of “Blue Sky”, between the European Union and Canada – equally a market with a clear upward trend. In 2006, with more than 6.7 million one-­way passenger trips, the European Union was Canada’s second-­largest bilateral air market after the United States (Transport Canada 2007a). The management of such traffic volume requires a high degree of facilitation and coordination. Whereas in the 1930s, cooperation among airlines in organising networks and performing a correct repartition of air fares in the case of multi-­sector trips (revenue allocation) relied on more or less hand-­knitted formulas, by 1960 the airline industry had to take advantage of modern information technology to ensure smooth travel operations in a widening market. The PNR system cast essential data elements about individual travellers into a concise format

Tracing terrorists   75 that could easily be exchanged among airlines and other organisations linked to the system. It was therefore no surprise that law enforcement agencies – following the rise of aircraft hijacking in the 1970s and 1980s – started to show a vivid interest in accessing the data that had been gathered on airline passengers. The history of airline passenger data can be subdivided into three phases: (1) the pre-­electronic “pioneer” age; (2) advanced technology for travel facilitation purposes; and (3) post-­9/11, dual exploitation for travel and security purposes. In 1946 the era of automated booking started with the electromechanical Reservisor installed by American Airlines, while in 1953 Trans-­Canada Airlines tested a computer-­based system with remote terminals. It took until 1959 to set up the first modern computer reservation system (CRS), SABRE, which was able to conduct reservation storage and retrieval operations as well as transactions involving the services provided by various carriers. Besides the CRS, initially run by the airlines themselves, there are now large global distribution systems (GDSs) selling tickets for multiple airlines (Amadeus, Galileo, SABRE, Worldspan), which are used for bookings by travel agents or even travellers by means of travel websites. Each booking conducted by these systems creates a basic PNR file containing the following five items: (1) passenger name(s); (2) contact details; (3) ticketing details; (4) the itinerary of at least one sector; and (5) the name of the person making the booking (International Civil Aviation Organization 2004a:  2). Just as with an interlocking puzzle, further elements may be attached to it such as additional itinerary “legs”, and even hotel and car reservations. If passengers require flight services provided by different airlines in order to reach their destination (“interlining”), reservation information in the form of copies of the original “master” PNR will be transmitted to the other airlines and stored in their respective CRS/ GDS. Beyond the minimum, PNR files may contain further information required by the airlines and the travel agent to ensure efficient travel, including fare details; the form of payment used; further contact details, such as telephone contact numbers at a home address and intended destination; age details if relevant to the travel (unaccompanied children or elderly passengers requiring assistance); frequent flyer data; special service requests (special meal requirements, seating preferences and other similar requests); and other special instructions (comments that are passed on to ground staff to enable them to assist passengers). Designed to “facilitate easy global sharing of PNR data”, the CRS/GDS companies willingly comply with the growing interest by hotels, car rental companies, and other members of the travel/tourism branch to be included in the system. Thus, the number of users has become just as evolutionary as the list of data items added to the PNR record. It is no surprise that PNR also arouses the interest of government security agencies. Aviation has always been considered a sensitive security issue. The terrorists used three fuelled aircraft as guided missiles to destroy ground

76   P. Hobbing targets in the landmark events of 9/11. Beyond the technique of the terror assault, the attacks also instigated a shift in terms of responses to the threat of hijacking: reactions resulted first in a number of technical measures to address the specific risks that had emerged during the events. Before 9/11 the recommended response was for the crew inside the airplane to obey the hijackers’ demands so as to safeguard the passengers and buy time; since then the policy has been to prevent access to the cockpit and pilots. Air passengers become increasingly subject to preventive measures such as the interdiction on carrying anything remotely resembling a weapon, or being generally excluded from boarding airplanes (“no-­fly lists”). The events also revealed a long list of vulnerabilities in global transportation and border control systems, especially with regard to the supervision and enforcement of visa and passport requirements. According to the findings, at least two of the hijackers used altered passports, one . . . entered with a student visa but never showed up for class, three stayed in the US after their visa had expired, and several purchased fraudulent documents on the black market that primarily services illegal immigrants. (Koslowski 2006: 89) With closing the loopholes in pre-­9/11 border control systems in mind, the US government concluded that PNRs – together with numerous other measures as part of the post-­9/11 revolution in border control – were invaluable tools for investigating and thwarting terrorist attacks. Airline data quite obviously exercise a strong attraction to crime and terrorism investigators as well as policy makers. How does law enforcement access and exploit such data? One should distinguish between two types of passenger data requested from airlines: PNR and advanced passenger information (API). The API data collection system is nearly fully automated: since the data currently required by the ICAO standard are in principle limited to information contained in the machine-­readable zone of passports, it is sufficient that the passport be scanned at the airport check­in counter. The data are thus immediately available for use by the advance passenger processing (APP) system, which will run checks against security and intelligence watch lists connected to the system. Also known as the “board/no-­board” and “red light/green light” system, the APP transmits the data to border control agencies prior to flight departure and receives in turn a directive for each passenger either permitting or denying boarding (International Civil Aviation Organization 2004b).1 In the case of Canada the API system is PaxIS (Passenger Information System), in which the data are transmitted to the Canadian authorities only after the departure of the flight (International Civil Aviation Organization 2003). In the ideal case, API data can be directly retrieved from the machine-­ readable part of a passport plus the general flight-­related data that are

Tracing terrorists   77 anyway in the airline computers. Biographic elements (name, nationality, date of birth, etc.) are of evident interest to investigators as they enable the identity of a person to be directly established. The PNR system is entirely different, and its added value for security purposes is not quite as obvious. PNR data collection as developed by air carriers to match their own commercial needs hampers the simple exploitation for enforcement purposes in various ways. There is a lack of uniformity of PNR lists and airline databases. ICAO standards require PNR to contain just a minimum set of five elements, necessary to complete a booking. All the remaining fields (up to 55) have been added according to the individual needs of airlines and their partners (International Civil Aviation Organization 2004a: 2). The lists used by different CRSs or GDSs frequently contain the same data fields but under different names and listed in a different order. Sometimes fields are split into two, or, conversely, several fields are regrouped under one heading, which seriously hampers the smooth comparison and evaluation of records collected by the airlines. The striking variety of such lists is also illustrated by the three EU instruments so far existing (the 2005 Canada Agreement as well as the 2004 and 2007 US Agreements): none of them are alike regarding terminology and sorting order. The data collected are chiefly commercial. Many fields are of a more technical nature (e.g. seat number and ticket number) and do not reveal any security-­related features, at least not at first sight. The spontaneous interest of investigators mostly turns to so-­called open fields – Special Service requests (SSRs), Other Service Information (OSI), and “general remarks” containing references to special dietary preferences, health needs or similar elements that in turn may reveal racial or ethnic origin, political opinions, religious or philosophical beliefs, etc. However, such sensitive data whenever found in these fields should be seen as off-­limits for security staff. All that the PNR can lawfully deliver does require a screening of the technical data items in the hope of establishing patterns and matches with specific crime- or terrorism-­related data collections. There are two methods of data transfer from the airline industry to security authorities: pull versus push. PNR processing proves to be more laborious and complex owing to a number of factors mentioned in more detail above. Furthermore, companies handling PNR data at the airline or distribution system (GDS) level have neither the skills nor the interest in performing the filtering of passenger data at the behest of the security services. Especially in the early days of PNR exploitation for security purposes, it became almost a standard that air carriers left the filtering to the government authorities in charge, granting them direct access to their computers (the “pull” method) rather than sorting out the relevant data themselves and transmitting them to the authorities (the “push” method).2 In the past, US-­based airlines simply gave their database passwords to US Customs, which allowed them to directly extract (pull) all the PNR

78   P. Hobbing data without previous filtering (Koslowski 2006: 97). A still greater risk lies in providing access to the departure control system, as this system concerns data not confined to an individual flight; it comprises the entire set of data held by the air carrier (Electronic Privacy Information Center 2007a). The pull method has in the meantime been recognised as a clear violation of privacy rights in terms of the OECD guidelines of 1980 (principles of necessity and proportionality; European Data Protection Supervisor 2007). It is not sufficient for the foreign security authority (in the case of EU–US relations, the US Customs and Border Protection) to commit itself to deleting the “surplus” data at a later stage. Appropriate protection of passenger interests requires that such data be filtered before and not after their transmission to a third country. If the push method has thus been identified as the only acceptable option in the transmission of passenger data (ibid.: para. 98), its full implementation still poses considerable difficulties. There are still complaints from the airlines that push systems would be too expensive (International Civil Aviation Organization 2004a:  4); also, US security authorities continue to favour direct “extraction” of data from airline sources, to keep the data selection under their immediate control. The appropriate exploitation of the passenger data obtained represents in a way the ultimate leg for coming full circle: according to risk analysis-­based security concepts, individual findings that may appear meaningless when seen as isolated events might suddenly unleash their full potential when put in combination with items found elsewhere. Such cross-­checks are rather complicated when performed individually but their efficiency increases with the degree to which the system becomes automated.

PNR in the Canadian context Major systems in the sense of watch lists, risk profiling and screening engines used for routinely scrutinising PNR data are the following. The PaxIS system, created in 2002 in the follow-­up to the Canadian Anti-­ Terrorism Act of 18 December 2001,3 provides an automated risk assessment of pre-­arrival data transmitted by air carriers to the CBSA through electronic data interchange, e-­mail and the Internet (Treasury Board of Canada, Secretariat 2005). PaxIS deals with the API and PNR in absolutely the same manner: as the system does not include a “no-­fly” option, not even API data need to be transmitted before the plane departs – they need only be transmitted within 15 minutes before landing in Canada. All that PaxIS does in this context is a pre-­arrival targeting of travellers who are “recommended” for secondary inspection upon arrival (Canada Border Services Agency 2008b). Technically speaking, PaxIS – on the basis of previous API and PNR data contained in the system – flags risk passengers with at least one risk element in their record, namely those “who reach at least one national security threat threshold” (ibid.). This risk score is of a

Tracing terrorists   79 merely indicative nature; the ultimate decision on whether and how to conduct the secondary inspection is taken by the national or regional risk assessment officers. Like the European Union–Canada Agreement, the PaxIS risk assessment and targeting system has evoked very little concern among passengers, privacy authorities, or non-­governmental organisations (NGOs). Best practices that might explain this lack of concern include the absence of fully automated mechanisms such as no-­fly orders in combination with unreliable watch lists; a common-­sense adjustment of the automated PaxIS risk score by the targeting specialists of the National Risk Assessment Centre (CBSA); full transparency of the screening and targeting procedures employed; access to redress procedures for the passengers affected;4 and continuous improvement of the PaxIS system rather than frequent system change. The satisfaction rate among users and officials concerned has been exceptionally high: unlike in the United States, there has been no outcry for reform by either passengers or government commissions, which would provoke a need for radical reforms.5 However, another, more recent aspect of Canadian threat prevention has attracted much less applause. Since 18 June 2007, Canada has operated the Passenger Protect programme with a no-­fly mechanism at its core. The new rules, adopted as government regulations (with no involvement of Parliament) under the Aeronautics Act and the authority of the minister of transport, foresee the no-­fly option for individuals who are involved or suspected of being involved in a terrorist group and who can be reasonably suspected to endanger the security of any aircraft; convicted of one or more serious and life-­threatening crimes against aviation security; or convicted of one or more serious and life-­ threatening offences and who may attack or harm an air carrier, passengers or crew members.6 As an exceptional measure of protest, the privacy commissioners of Canada adopted a joint resolution claiming that the new mechanism violated legal provisions (Office of the Privacy Commissioner of Canada 2007b). Canadian privacy commissioners were very disappointed that they were not even heard by the government during the planning stage or later with their critical remarks or suggestions contained in the resolution.7 This is “a Transport Canada not a CBSA program”, so one should not draw any conclusion about a general change of attitude in border matters.8 PNR data on their own cannot achieve a significant enhancement of airline or border security. Even within the (small) sector of screening and targeting passengers, the PNR needs to be embedded in a network of links to other data and human resources. Policy makers find themselves ever more challenged by complying with the contradictory targets of a maximum of mobility on the one hand and a maximum of security on the other.

80   P. Hobbing Since traditional border policies, controls based on thorough and time-­ consuming physical checks, clearly cannot achieve complete security, information technology and automation are often seen as the solution. The IT approach promises to transform borders into insurmountable obstacles for any illegal traveller or migrant while facilitating the bona fide passenger. It is also part of the risk management approach to prevent the system from being overburdened by too many “difficult” cases awaiting clearance right on the border, which explains the tendency to delocalise borders. On the critical side the perfect border as envisaged is costly in financial and human resources as well as entailing sacrifices in terms of civil liberties. Also, there are considerable doubts regarding efficiency – that is, which of the changes envisaged can really deliver the promised results. The following section outlines major solutions proposed under the auspices of smart borders and extra-­territorial controls in order to obtain a clearer picture of the context in which PNR data circulate. The United States set the pace back in the 1990s when it started to introduce US-­VISIT, the first “automated entry–exit system”, originally conceived for immigration purposes to detect visa over-­stayers (US Department of Homeland Security 2007a). The system secures the identity of the visitor by biometric identifiers (fingerprints and a digital photo) entered into an automated identification system (IDENT). At exit the identity of the traveller is again checked by means of comparison with the data stored in IDENT.9 The US-­VISIT/IDENT system provides, by the way, for a far-­ reaching interoperability with the databases managed under the aegis of the Department of Homeland Security (DHS). Biometric exit controls are facilitated by automated, self-­service kiosks that are integrated with the airline check-­in procedures. The system functions in so far as it includes – in principle – all travellers, no matter whether they are subject to visa obligations; the former privilege of the so-­called visa waiver countries was abandoned in 2004.10 The only privilege that remains for VWP countries is that their citizens do not have to undergo the costly and time-­consuming visa application procedures at a US consulate back home. The only remaining exemptions from the US-­VISIT system are valid for Canadian citizens in general and certain groups of Mexicans. Within the European Union, entry and exit movements are currently covered in a fragmentary fashion: the Schengen Information System (SIS) contains data on certain persons to be stopped at the border (e.g. persons requested for extradition, suspected of crime, or unwanted in the territory of a member state) whereby the SIS II generation will allow identity checks on the basis of biometric information (facial photograph and fingerprints).11 The Visa Information System (VIS) will hold biometric data (facial photograph and ten-­digit fingerprints) on persons having previously lodged a visa application (EurActiv 2007b), whereas EURODAC contains digital fingerprints to identify asylum seekers and irregular border-­crossers.12 Although SIS II and VIS share a common technical

Tracing terrorists   81 platform, there is so far no interoperability between them or with EURODAC (Hobbing 2007).13 In early 2008 the European Commission presented its vision of a future European entry–exit system (European Commission 2008b). It proposes to introduce a fully fledged entry–exit system based on (1) the registration of movements into and from EU territory of all non-­EU nationals;14 (2) the granting of registered traveller status to low-­risk travelers, whereby they benefit from an automated border check; and (3) an automated border control system to manage the entry and exit of both non-­EU nationals and EU citizens. The database would include biometric data of the travellers, and, in the case of “over-­stayers”, transmit automated alerts to competent authorities. The reception of these ideas has been mixed, with critics pointing to certain discrepancies between alleged benefits of the expanded border control system proposed and the inconveniences in terms of fundamental privacy risks associated with such large-­scale data collection (Guild et al. 2008; Geyer 2008). The streamlining strategy accompanies attempts to reduce the control burden at territorial borders by so-­called forward tactics. Delocalization relocates the relevant controls to foreign territory. This is also done within a general risk management strategy, keeping “undesirable elements” away from domestic territory and facilitating safe, known travellers. The most common extra-­territorial processes include visas and electronic travel authorisations (ETAs), which allow travellers to board the plane only when in possession of the authorisation (already practised in Australia and now being considered by the European Union and the United States). The outpost strategy also surfaces to counter migratory pressure by so-­called offshore humanitarian processing centres operated by the European Union (in North Africa) and Australia (in Nauru and Vanuatu). The drafting of PNR legislation involves a number of legal and ethical issues of particular sensitivity, two of which will be raised here. Koslowski pointed to a surprising contrast (and link) between the well-­known toughness of US border policies and a lesser-­known reluctance to establish alternative control mechanisms within US territory. As much as Americans are willing to support rigid controls at their external borders, they show a deeply rooted mistrust towards any form of internal identity checks, notably ID cards, which exist in most European countries. Because of this well-­established internal ID system, Europe feels less governmental need to introduce stringent border mechanisms. In Europe, legal immigrants as well as European citizens routinely register with the police when they move to a new address and carry ID cards that the police may ask to see at any time. There are also checks at the workplace, work permits are required and enforced, and employers will be tightly controlled. EU countries “strictly enforce their migration laws within their countries, while there is very little internal enforcement within the US.”15 By contrast, once migrants have crossed the border in the United States, they will rarely be stopped for ID control. Thus, border and immigration control strategies

82   P. Hobbing vary according not only to different legal environment but also to political cultures: European countries are willing to accept a national ID card system, whereas it is completely unacceptable in the American scene. Transatlantic policies dialogues must take these different political cultures seriously. In 2007 the Commission extended its scope of policy reflection to include a scheme for exploiting PNR data. The Commission proposal in question is still under consideration at the Council and European Parliament levels; but given the current trend towards tighter security approaches in Europe, it can be expected that the EU PNR scheme will be operational in the not too distant future.

Comparing the European Union–Canada and European Union–United States PNR agreements Although all current privacy legislation goes back to the OECD “Guidelines on the Protection of Privacy and Transborder Flows of Personal Data” of 1980,16 national and regional implementations diverge widely in terminology and structure (Shimanek 2001). In the absence of any clear-­ cut pattern of rules in the guidelines themselves, the various implementation instruments excel each other in presenting new interpretation modes, notably (1) redrafting the principles, (2) reassigning elements from one principle to another, (3) modifying names or labels of principles, and (4) completely reshuffling the structure. In view of this Babylonian “confusion of tongues”, there is first of all a need to find some pragmatic criteria for weighing the different privacy-­related comments and evaluations. The Article 29 Data Protection Working Party (hereafter Art. 29 WP) provided detailed opinions on all the EU PNR instruments discussed above, and it is the most appropriate to follow their analysis of the European Union–Canada Agreement. Canadian privacy commissioners also refer to fair information principles, practices, and global privacy standards, including those of the EU nomenclature. The Art. 29 WP, with its opinions, exercised a decisive influence on the outcome of the European Union–Canada PNR negotiations.17 The standard examination scheme employed by the Working Party – as referred to in Opinion 3/2004 (Art. 29 WP 2004a) – uses fair information practices.18 The European Union–Canada Agreement of July 2005 A “model” among PNR instruments, the 2005 European Union–Canada Agreement sets a strikingly “good balance between security requirements and the data protection standards”,19 the result of close scrutiny exercised by the EU data protection authorities. The Art. 29 WP delivered two detailed Opinions (3/2004 and 1/2005; Art. 29 WP 2004a, 2005) on the level of protection granted to PNR data in Canada in addition to an

Tracing terrorists   83 opinion by the European Data Protection Supervisor (2005a) on the proposed agreement as such. Other bodies have not engaged to the same extent: the European Parliament rejected the agreement for the formal reason that the new instrument should not be concluded before the outcome of the European Court of Justice procedures on the EU–US instrument was known (European Parliament 2005). Members of the European Parliament conceded, however, that content-­wise the Agreement represented an “acceptable balance” (ibid.). The initial comments on the Canadian adequacy situation were still rather critical – hardly different from those issued on previous EU–US negotiations – but the tone changed decisively with the progress of negotiations and the improvements conceded by the customs and border authorities. Privacy is an important pillar of the legal order and may be subject to restriction only if a similarly important interest is at stake (Art. 29 WP 1998). In the case of PNR the value at stake is normally the fight against terrorism, a sufficiently developed counterweight since it represents “both a necessary and valuable element of democratic societies” (Art. 29 WP 2004b). Yet here, terrorism does not stand on its own; it is combined – just as in the case of the 2004 European Union–United States Agreement – with the much wider field of “terrorism-­related and other serious crimes, including organised crime, that are transnational in nature”.20 This wording is in sharp contrast to the Commission’s Decision 2006/253/EC on the adequate protection of personal data transferred to the CBSA (henceforth “Adequacy Decision”), which solely mentions the Community’s “commitment to supporting Canada in the fight against terrorism”.21 The formula chosen seems to strictly limit the purpose of the use of data and their onward transfer. Data protection supervisors warn that adequacy findings are snapshots that are clearly subject to change (European Data Protection Supervisor 2005a: para. 10). Besides the option of an ad hoc suspension of data flows in the case of major changes, any such arrangements should be time-­ limited (Art. 29 WP 2005: s. 3). This is best done by means of a sunset limitation bringing the adequacy finding and thus the agreement to an automatic end if not renewed within a given time period (Art. 29 WP 2004a: s. 3). The 2005 Agreement fully complies with this requirement by foreseeing (1) in its Art. 5(2) that the obligation of air carriers to transmit PNR data to Canadian authorities ceases to exist with the expiry of the Adequacy Decision, and (2) in Art. 7 of the Adequacy Decision that the Decision expires after 3.5 years if not extended beforehand. A continuous monitoring of the Agreement and its operation is ensured by the Joint Committee under Art. 6 of the Agreement, which is in charge of settling possible disputes (Art. 7) and organising the joint reviews (Art. 8). Both the European Commission and the EU data protection authorities have expressed their satisfaction that PNR data transferred from EU air carriers to the CBSA will be

84   P. Hobbing processed for a specific purpose and subsequently used or further communicated only insofar as this is not incompatible with the purpose of the transfer. In particular, PNR data will be used strictly for purposes of preventing and combating: terrorism and related crimes [along with] other serious crimes, including organised crime, that are transnational in nature.22 Doubts remain, however, about the extent to which such a wide formula may be considered an effective “purpose limitation”: one might just refer to the initial comments by the Art. 29 WP, with the criticism that these purposes are too widely defined, and in particular go well beyond the purpose of fighting acts of terrorism. Automatic access by customs and law enforcement authorities to personal and commercial data contained in airline passengers’ information constitutes an unprecedented derogation to the right to collect data for commercial purposes and should only be justified on the basis of very serious concerns.23 Between the first and the second intervention by the Art. 29 WP, the original text was amended only in so far as the transnational element was added as a further condition for the use of PNR data. The Canadian authorities have not delivered the “clear and limited list of serious offences directly related to terrorism” required by the Working Party, nor have they provided any confirmation that the serious crimes at stake have a “clear relationship with terrorism”.24 This, however, changes nothing about the ambiguity of the term “serious crimes” for which the Canadian authorities wish to use PNR data; it is therefore hard to understand where the sudden satisfaction of the Art. 29 WP stems from. As with most categories, comments are broadly positive regarding the data quality and proportionality criterion. When the Commission’s Adequacy Decision claims full success in all major items negotiated with the Canadian authorities, it meets no opposition by data protection authorities. The particularly lengthy list of 38 data categories25 initially required by the CBSA was reduced to 25, more specifically by eliminating so-­called open categories that could reveal sensitive information on the passengers. Remaining doubts by the European Data Protection Supervisor concerned categories 10 (frequent flyer information) and 23 (APIS information), as such data could still concern sensitive aspects of behaviour – but were considered “not serious enough to require renegotiating the Agreement” (European Data Protection Supervisor 2005a, s. 4.2). A major achievement was the exclusive adoption of the push method, thus allowing airlines to keep control over the data transfer.26 Finally, yet importantly, as a result of their own painful experience (see the Maher Arar case) the Canadian authorities subscribed to two crucial commitments: (1) to apply no change

Tracing terrorists   85 to the PNR data obtained, and (2) to collect additional data to supplement PNR data only through lawful channels (European Commission 2005c: 16th recital). Such precautions help to avoid false positives, which are mainly attributed to the poor data quality of enforcement databases and watch lists. While approving in principle the Canadian system of graded access during successive retention periods (in 0–72 hours, direct access to the full name record by customs or immigration officers; from 72 hours to the end of two years, anonymised towards most officials except intelligence officers; from three years to the end of six years, the personalisation data are accessible only in very exceptional cases), the Art. 29 WP objected to the “rather long” period during which personalised data items remained accessible. Data should remain personalised only during the initial period following entry into the territory (Art. 29 WP 2004a: s. 5.5). After considerable concessions by the CBSA, the maximum retention period was reduced from six to 3.5 years, with the name data being accessible after the initial 72-hour period only in very exceptional circumstances.27 As a primary element of transparency, the Art. 29 WP requested the Commission to include a “full picture of the relevant Canadian regulatory framework . . . as an annex to any Commission Decision” (Art. 29 WP 2004a: s. 5). Although this formal requirement was not complied with, a concise description of the Canadian regulatory framework is contained in the Working Party’s Opinion 3/2004. In basic terms, the API/PNR programme was set up in 2001 by the predecessors of the CBSA under the Customs Act (Bill S-­23) and the Immigration and Refugee Protection Act (IRPA). Section 107.1 of the Customs Act together with s. 148(1)(d) of the IRPA allowed the government, by means of the Passenger Information (Customs) Regulations, to require the provision of API/PNR data prior to arrival in Canada. The IRPA as amended by Bill C-­17 allows for information-­sharing arrangements with other Canadian agencies. Under the auspices of transparency the CBSA also committed itself to provide information to travellers concerning the purpose of the transfer and processing, and the identity of the data controller.28 Furthermore, the Commission’s Adequacy Decision provides clear instructions as to the circumstances under which the data flow to Canada is to be suspended by member states (European Commission 2005c: Arts. 3 and 4). EU data protection authorities praise the technical and organizational security measures taken by Canadian authorities29 in order to avoid data leakages. There has been no complaint in this regard (European Data Protection Supervisor 2005b: s. 2). While the Canadian system of providing redress procedures to data subjects has been considered exemplary right from the start, initial criticism sharply denounced the exclusion of foreigners not resident or present in Canada from this mechanism (ibid.: s. 2). The CBSA has therefore agreed, in section 31 of the commitments, to allow EU residents to initiate a complaint through their national data protection authorities, which was considered a satisfactory solution (Art.

86   P. Hobbing 29 WP 2005: s. 3.6.1). It is underlined by the EU data protection authorities that the agreed redress procedures – like all the other commitments made by the Canadian authorities – are based on legally binding engagements, which distinguishes them positively from similar arrangements taken with the United States (European Data Protection Supervisor 2005a: s. 4.1, 18). In addition, Canadian legislation provides for criminal and other sanctions in the event that the commitments are not respected. Finally, the privacy commissioner is empowered under the Privacy Act to commence an investigation in respect of the disclosure of personal information.30 The issue of onward transfers as regulated by the CBSA again meets with full approval by the EU data protection authorities (DPAs),31 since, according to the commitments, (1) transfers or disclosures will never be made in bulk but decided on a case-­by-case basis; (2) there will be no online access granted to other authorities; and (3) disclosures will depend on the conditions that (a) they are relevant to the other agency, (b) they respect the purpose limitation referred to above, and (c) the recipients undertake to afford the same protection.32 Similar safeguards apply to the disclosure to other countries.33 The only doubt that remains over this construction concerns the imprecise purpose limitation raised above. Vague terms such as “serious crimes”, with their strong risk of diverging interpretations, are quite likely to hamper the effective protection of privacy interests, especially when data flows occur at the international level. Comparative overview of other PNR instruments A comparison between the European Union–Canada Agreement and other transatlantic instruments provides additional clarity as to the quality of this instrument and identifies current tendencies in surveillance practices. The contrast could hardly be more striking: the European Union–United States Agreement of 2004 stands out by the sheer number of critical comments it has attracted. Parliamentary bodies such as the UK House of Lords warn against dangerous trends developing in PNR negotiations with the United States.34 A much larger group of public institutions, data protection authorities, and media feel irritated by the greater ease in restraining civil liberties and “breaking with democratic traditions” (Cameron 2007). The official European Commission report on the first joint review complained about a lack of US cooperation, notably that access to certain control records had been restricted by the DHS for reasons of secrecy (European Commission 2005a:  6). The compliance problem of the 2004 agreement is substantial and significant: commitments by the US side35 to comply with the privacy rules failed in roughly two-­thirds of the items (14.5, i.e. 66 per cent).36 By way of comparison, the Canadian commitments had been deemed appropriate in practically all areas with a low failure rate of just 1.5 (7 per cent) items of non-­compliance.37

Tracing terrorists   87 Although there was formal compliance with the transitional character of adequacy findings, the first joint review, held in 2005, revealed practical difficulties in verifying data routines, notably because (1) certain records were denied to the review team for reasons of secrecy, and (2) it was technically impossible for the US Customs and Border Protection (CBP) to identify complaints or requests relating to EU PNR data (European Commission 2005a; Guild and Brouwer 2006). The United States has accumulated by far the greatest amount of experience in the automated screening of airline passengers. Over the years, various names have surfaced, such as the Computer-­Assisted Passenger Prescreening System (CAPPS), CAPPS II, the Automated Targeting System (ATS), and, most recently, Secure Flight. At the same time, even experts admit that many of the details remain unknown. Some systems were abandoned (CAPPS I and II) owing to excessive error rates, but one can just puzzle over which system is currently operational; it is apparently not even certain whether “ATS is a predecessor or part of the Secure Flight program” (Rötzer 2007). The purpose limitation principle was violated in several respects, notably by (1) the ambiguous purpose description “use for law enforcement purposes” (Art. 29 WP 2004b: s. 5E), and (2) the use of blanket clauses allowing the forwarding of data (a) to any authorities, including foreign ones, with “law enforcement functions”38 or (b) “as otherwise required by the law” (ibid.: s. 35). Specifically, harsh criticism concerned the undeclared use of PNR data for mass data processing under targeting or profiling systems such as CAPPS II, ATS, and Secure Flight. CAPPS I and II Like all its successors, the original CAPPS (first implemented in the late 1990s)39 served to target potential terrorists by checking their PNR data against the Transportation Security Administration’s (TSA) terrorism watch lists,40 whereby passengers selected for special checks (“selectees”)41 became subject to additional luggage control to detect possible explosives. CAPPS fell into disgrace after 9/11 when it became known that several of the suicide hijackers had actually been selected by the system but that the controls were not carried out. CAPPS II, launched in 2003 with the express backing of the USA PATRIOT Act, extended checks to all passengers, irrespective of whether they had checked-­in luggage. Run by a government agency (the TSA) rather than commercial carriers as before, the new system consisted in running an expanded selection of PNR data against government records and, furthermore, private-­sector databases. The results in terms of a “risk score” were displayed on the boarding cards (green = “no threat” = no additional screening; yellow = “unknown or possible threat” = additional screening; red = “high risk” = no fly). CAPPS II was cancelled in the summer of 2004, mainly owing to a devastating report

88   P. Hobbing by the US General Accounting Office (2004). Specific criticism was directed against the high error rate affecting the watch list, with prominent victims such as Senator Edward Kennedy (Electronic Privacy Information Center 2007b), the absolute lack of transparency as to the establishment of the list, and the employment of doubtful private information resources. The passengers concerned had neither access to the data nor ways to challenge an unfavourable risk designation (Greenemeier, 2004). Automated Targeting System (ATS) While the public still speculated about a future CAPPS III system, the DHS CBP had already extended its ATS, originally conceived to “target ocean-­going cargo containers for inspection”, to include travellers. Its new function was discovered only in November 2006, when the DHS published a “Notice of Privacy Act system of records”42 requesting exemption from crucial provisions of the Privacy Act of 1974 (Electronic Privacy Information Center 2007d). Again criticism was overwhelming: not only were the ATS terrorist risk profiles to be “secret, unreviewable and maintained by the government for 40 years”, but there were also technical deficiencies haunting the ATS even in the performance of its limited container-­related tasks. These deficiencies resulted in low marks (“C−/ D+”) in a 2006 scrutiny report by the House Homeland Security committee and made it appear entirely unqualified to handle a still greater amount of data (Electronic Privacy Information Center 2007d). It was felt irresponsible to allow the ATS to “mine a vast amount of data to create a ‘risk assessment’ on hundreds of millions of people per year, a label that will follow them for the rest of their lives, as the data will be retained for 40 years” (ibid.). Secure Flight Almost simultaneously with the ATS announcement, the DHS presented its new Secure Flight programme43 to achieve uniform pre-­screening of passenger information against federal government watch lists for domestic and international flights. In its screening routine, Secure Flight intended to identify “suspicious indicators associated with travel behavior” in passengers’ itinerary PNR data (Electronic Privacy Information Center 2007b). Because of the numerous security vulnerabilities detected by government reports as early as 2006 (Privacy International 2007), including “significant weaknesses” in the terrorist watch lists available,44 it seems that the official operation of the Secure Flight programme would remain grounded until 2010. Public trust in the watch lists had additionally been undermined by reports that air marshals were subjected to a “quota system in reporting terrorist profiles”.45

Tracing terrorists   89 The Art. 29 WP (2004b: s. 5C) disapproved of the list of 34 data categories containing sensitive items such as special passenger needs or preferences, the retention of the outdated pull method allowing the CBP to access airline computers,46 lack of reliable mechanisms to block access to sensitive data (ibid.: s. 5D). The reduced retention period of 3.5 years (instead of seven years as initially proposed) was welcomed but not accepted as a definite solution (ibid.: s. 5F ). The PNR evaluation system enjoys various exemptions under the Freedom of Information Act 1966, which may work against the data subject when the latter seeks access to his or her own record – in particular, when the disclosure would “interfere with the enforcement procedures” or “disclose techniques or procedures” employed by the system.47 Rectification under the 1974 Privacy Act is still reserved to US nationals and residents, whereas it is uncertain whether administrative rectification or redress procedures proposed will work in practice (Art. 29 WP 2004b: s. 5J.3). Serious shortcomings concerned restrictions on onward transfers, specifically the absence of a list of public bodies entitled to receive the data, and blanket clauses in sections 29, 34, and 35 of the CBP Undertakings, which give wide discretion in overriding the privacy protection principles in general and in the present Agreement in particular. The CBP may, at its discretion, forward PNR data to government authorities (including foreign ones) “with counter-­terrorism or law enforcement functions” (s. 29). Nothing impedes the use or disclosure of PNR data (1) for the protection of vital interests of persons, in particular “significant health risks” (s. 34), and (2) “in any judicial proceedings or as otherwise required by law” (s. 35). The interim European Union–United States Agreement of 2006 The surprising annulment of the 2004 Agreement by the European Court of Justice decision of 30 May 2006 provoked a chain reaction of undesirable effects not at all intended by the European Parliament, which had challenged the instrument.48 Most of all, the Court’s assumption that the case had to be assessed solely according to criminal law criteria deprived PNR processing of the privacy protection mechanism foreseen by Directive 95/46/EC, including the supervision by the Art. 29 WP. Second, EU negotiators had to accept that “things had changed in Washington during the last couple of years” and the United States was no longer willing to enter into lengthy privacy debates.49 As a result, the 2006 interim agreement, hastily concluded to avoid interruptions to air traffic, was marked by a drastic cutback of safeguards. The 2004 US Undertakings were no longer valid but had to be read “in the light of subsequent events”. The US side unilaterally imposed important extensions of the system to cover additional passenger data, introduce new purposes such as the prevention of threats to health, and foresee routine onward transfer within a new

90   P. Hobbing information sharing environment (ISE). The relatively short 3.5-year retention period was cancelled. This new approach initiated by the Baker letter set the tone not only for the duration of the interim 2006 Agreement but also for the time after it ended. If the 2004 Agreement appeared backward in comparison with the European Union–Canada instrument, it is now likely to emerge as a relatively safe and solid text, with a much higher privacy profile than all that comes after. The European Union–United States Agreement of 2007 Most importantly, the 2007 European Union–United States Agreement has been stripped of all procedural safeguards in terms of adequacy decisions and the involvement of the European Parliament, Art. 29 WP, or the European Data Protection Supervisor. The agreement also eliminated those interactive and negotiation-­related elements that in the past had led to lengthy bargaining between the parties. Above all, this applies to the joint review mechanism, which the US delegation had perceived as “extremely cumbersome”.50 Reviews would now take place “periodically” (instead of annually) and with the participation of only those officials or services deemed “mutually acceptable” (US Department of Homeland Security 2007a: article X), thus excluding, inter alia, DPA expertise and oversight as one of the “main pillars of effective protection”.51 From a procedural point of view, it is remarkable that, instead of negotiating amendments, the DHS will in the future just “advise” the European Union of any changes affecting the agreed purposes or other passages of the statement (US Department of Homeland Security 2007a: s. I). In “exceptional cases” or “emergency circumstances” (largely not further specified) the DHS reserves the right to unilaterally suspend certain provisions or safeguards concerning data transfer to foreign governments without ensuring comparable data protection; DHS access to PNR data not found on the agreed list, including sensitive data; and denial or postponement of data access to data subjects as normally granted by the US Freedom of Information Act. On top of this, the DHS assurances, modest as they are, may not even be legally binding according to US law, because they might not be published in the US Federal Register (Art. 29 WP 2007, s. 2). When the European Commission and the DHS proudly announced that the number of data elements listed had been reduced from 34 to 19, this seemed like good news. In reality the new numbering was based on data groups (instead of individual elements). Moreover, since new elements had even been added, the list increased from 34 to at least 37 elements covered. Contrary to previous promises, the DHS continues to require, in exceptional cases, additional data from airline computers as well as exercise control over the set-­up of push mechanisms; observers wonder how this

Tracing terrorists   91 might technically work without employing the traditional pull method (Art. 29 WP 2007: ss. 5, 7). According to the new rules, the basic period is increased from 3.5 to seven years while adding another eight years during which the data remain “dormant” (US DHS letter 2007: s. VII). The result is a “highly worrying” 15-year retention period (Art. 29 WP 2007: s. 9). The rights of data subjects remain vague, not least owing to the uncertainty about the legal character of the “assurances” and whether the latter confer formal rights or not (European Parliament 2007a: s. 6). As a positive step, the DHS extended administrative Privacy Act protection to non-­US citizens and residents (US DHS letter 2007: s. IV). Onward transfers of data are facilitated by two changes: the widened scope of acceptable purposes, which means that a considerable number of additional agencies may have a legitimate interest in accessing PNR data; and the abolition of the case-­ by-case requirement for such transfers. This might mean that PNR data could now be transferred in bulk format. Fears voiced by critics regarding unilateral action by the United States were realized in the immediate follow-­up to the conclusion of the 2007 instrument: by letter of 30 July 2007, the DHS requested the European Union to agree that all documents related to the negotiation of the agreement “be held in confidence for at least ten years after entry into force of the agreement”. In its reply to the DHS, the Council readily confirmed that “the European Union shares your understanding regarding the confidentiality of the negotiation process” (Statewatch News Online 2007c). On 15 August 2007 the DHS announced a change to US privacy provisions having an important impact on the protection granted to airline passengers. The DHS, as well as other agencies sharing its data, were given exemptions from allowing access to data held on “entry processes”, which includes PNR data (Statewatch News Online 2007a). This definitely confirms the impression that with the annulment of the 2004 Agreement in May 2006, the European Union has lost considerable momentum in steering PNR discussions with the United States. Bilateral arrangements between the United States and certain member states In early 2008, US security needs were invoked on yet another front, namely towards EU member states mainly from Eastern Europe not yet included in the visa-­free travel arrangements with the United States. These states were offered prospects of becoming part of the VWP in return for certain bilateral concessions, including the provision of PNR data beyond the 2007 requirements (e.g. regarding passengers not landing in but flying over the United States, and non-­travellers who are allowed beyond departure barriers to help elderly, young, or ill passengers to board aircraft flying to America) (Traynor 2008). This move quite naturally conflicted with EU policy interests in maintaining a single negotiation approach with

92   P. Hobbing the United States. All Commission warnings were in vain, however: the Czech Republic, acting as a forerunner (“Trojan horse”),52 signed the proposed Memorandum of Understanding (MoU)53 on 26 February, while others followed in the weeks after (Estonia, Latvia, Lithuania, Hungary, Malta, and Slovakia) (Goldirova 2008b). In terms of a compromise, Brussels resolved the issue by letting the member states strike a deal with the United States on “minor” issues such as the sky marshals and national data exchange, whereas the Commission will remain in charge of the ETA issue (Goldirova 2008a). With the MoU signed, the new member states have entered into considerable obligations without obtaining a definite guarantee that they will soon benefit from visa-­free travel. On the contrary, they will be exposed to practically permanent scrutiny by the DHS as to whether they fulfil expectations in “carrying out the security commitments” (s. A.2 of the Czech Republic–US Agreement of 2008) in question. For the European Union the situation implies a considerable loss of bargaining power in all related negotiations with the United States; the possible “coalition” between the United States and individual member states in counteracting certain EU positions will always be pending as the sword of Damocles over forthcoming transatlantic talks such as the ETA/VWP issue and, of course, the PNR matters that are far from being resolved. A change of approach is urgently needed since the United States seems quite decided to take the argument up to the next level by challenging the principle of data protection as such. According to the DHS Deputy Assistant Paul Rosenzweig, the “EU should reconsider its decision to apply notions of adequacy to the critical area of law enforcement and public safety. Otherwise the EU runs the very real risk of turning itself into a self-­ imposed island, isolated from the very allies it needs.”54 In view of the meagre results recently obtained and the visibly decreasing ability to achieve acknowledged privacy standards, one should ask why EU delegations constantly convey the impression that Europe could not live without such an agreement – no matter how unfavourable the conditions under which it is concluded. Would not Americans suffer as much from such a situation as Europeans? In the end, one could expect that US delegations, when face to face with more determined European counterparts, would rather go for a reasonable compromise than extend the fighting for ever.

Feasibility check: do PNR instruments increase public security? PNR data are but a small wheel in the overall machinery of border protection. By itself, PNR has little inherent intelligence value, and is hardly capable of achieving the most modest operational utility. Still, governments are ready to pay a high price in terms of intrusions into fundamental rights and possible international complications in order to take advantage of this “small but precious pearl” for improving public security.

Tracing terrorists   93 In this section I want to examine the extent to which this element effectively adds to the overall efficiency of entry–exit systems. Governments have not been forthcoming or specific when asked to provide evidence on the value of PNR collection. This may have to do with the ancillary character of such data and the secrecy involved in its analysis, as heard by the UK House of Lords (2007: s. 22). While sympathetic to the need for secrecy surrounding the highly sensitive area of national security, the House of Lords regretted that it had to base its assessment more or less on hearsay evidence. Testimonies could have been given at least in a closed session, as it is an “important principle of democratic accountability that Parliament should be able to reach its own conclusions, and not have to rely on statements from the executive. This would help to secure public confidence” (ibid.). Collateral damages caused by data processing Although accepting that PNR data generally constitute a valuable weapon in the fight against terrorism, the House of Lords specifically pointed to cases that had gone wrong. Alongside the widely known example of Senator Edward Kennedy,55 there was the tragic example of Maher Arar, a Canadian citizen of Syrian origin who spent almost a year in a Syrian prison cell owing to false conclusions drawn from correct PNR data. False positives may arise because of the bad quality of the original PNR record (e.g. misspelled names), but more frequently from careless management of watch lists or no-­fly lists against which PNR data are matched.56 The same applies to situations in which too many authorities are involved in the use or processing of the data or where system changes occur rather frequently. Errors of the above kind are far more frequent under the US system with its swift sequence of newly tested screening or targeting devices, growing number of watch lists, as well as rapidly rising number of agencies with access to the data in question. The more conservative Canadian approach, with its single data system (PaxIS) and less frequent changes in technical and policy matters, appears less vulnerable to such incidents. Since its early days, API/PNR processing had been conceived as a method to ensure a seamless control of entry–exit movements, initially in view of detecting visa overstayers, later for counter-­terrorist purposes under which the knowledge of “who’s in and who’s out” has attained a still greater importance. Yet this vision suffers from a series of technical and organisational difficulties that reduce border officials to sheer despair. This concerns notably the US-­VISIT system with its mission of faultlessly recording entry and exit movements with the help of biometric data. But loopholes are not only found on the “green” and “blue” stretches of the border; the heavily guarded and equipped ports of entry also prove vulnerable for various reasons (Koslowski 2005:  28). The immense volume of

94   P. Hobbing approximately 330 million visa- and US-­VISIT-exempt travellers per year (US and Canadian citizens, as well as Mexican citizens with border-­ crossing cards) presents a perfect environment for unwanted foreigners (terrorist or others) to enter the United States unrecognised and via official ports of entry. The equally enormous volume of daily commuters of up to 150,000 entries and exits per day (San Ysidro, California–Mexico as well as Ambassador Bridge, Michigan–Canada) impedes control measures of beyond 10–15 seconds per car in order to avoid a complete shutdown of the port. The incapacity of technical devices, including those based on radio technology or biometrics, to ensure identity verification represents another weakness. There are easy ways to “fool” radio-­frequency identification border systems as well as digital fingerprint devices (e.g. through “fake fingers”). Experts emphasise that a 100 per cent completion of the system represents, ultimately, a budgetary issue. Are politicians willing to spend immense financial and political capital to overcome the last obstacles? (Koslowski 2005: 63). These lessons should be kept in mind wherever else – in Canada as well as the European Union – the introduction of sophisticated border systems is considered. What is the benefit of investing expensively in a specific link of the chain if other parts will not fulfil the expectations?

Conclusions PNR data are a single link on the long chain of public security. Such data are more discrete than their straightforward analogues such as API, which, thanks to its biographic data, can lead to direct hits and immediate implementation of no-­fly orders. PNR operates more covertly and it requires permanent exchange and matching with other sources to produce significant results – a feature that represents at the same time its strength and its vulnerability. We have seen how the PNR was “discovered” for enforcement purposes and how this facilitation tool eventually became a post-­ 9/11 device to track inclinations towards terrorist behaviour. Such a change of remit has implied several risks: a close neighbourhood with watch lists, targeting engines, and other hardcore investigation devices; routine contact with a multitude of unconfirmed data; and, not least, the natural risk of becoming itself the target of intense scrutiny by privacy watchdogs. PNR itself has suddenly become a threat to fundamental rights in terms of the data mining, mass processing, and other deep intrusions into privacy it involves. The PNR story has thus not been an isolated event but one that fits with overall securitisation strategies (extraterritorial controls, biometric features, a comprehensive system of entry–exit controls, etc.). While transatlantic partners act increasingly in unison in this regard, a historic perspective reveals the extraterritorial aspect – as well as other strategies of  massive border defences – as a specifically North American concept

Tracing terrorists   95 appropriate for common law countries, which traditionally reject the option of ID card-­based controls within the territory. Continental Europeans, with their refined system of ID cards, would actually have much less reason to revert to such cumbersome strategies. When testing the European Union–Canada Agreement and its legal compliance with accepted international standards of privacy protection such as the OECD guidelines and article 8 of the European Convention on Human Rights (ECHR), it has emerged that this instrument justly deserves its reputation as an island of peace in troubled waters: aside from a few partial objections, the overall system has been extremely balanced and has granted citizens appropriate protection and means of redress in case of intrusion. Such a judgement is all the more remarkable as it contrasts strongly with corresponding agreements concluded with the United States. The European Union–Canada instrument has shown an extremely low divergence rate from international standards. The more prudent PNR approach chosen by the European Union–Canada Agreement is also supported by considerations of practicability and feasibility, and cost-­efficiency. Owing to the sunset clauses that are typical of good privacy-­related legislation, the European Union–Canada Agreement is soon due for a complete overhaul. In view of the pro-­security and contra-­privacy tendencies currently visible even in Canada (e.g. the no-­fly provisions under the Passenger Protect Programme) and the European Union (the future entry–exit system), one may doubt whether the balanced approach will survive the review foreseen for the second half of 2008. It would be a pity if the EU–Canada instrument, instead of being a model for PNR legislation to come, were sacrificed to short-­ sighted enforcement considerations.

Notes   1 The US CBP calls this process “AQQ” (APIS Quick Query), leading to a “cleared” or “not cleared” message being sent back for each passenger (Statewatch News Online 2007a).   2 For details, see International Civil Aviation Organization (2004a: 4).   3 See Parliament of Canada, Bill C-­36, Anti-­Terrorism Act (2001) (retrieved from www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Parl=37& Ses=1&Mode=1&Pub=Bill&Doc=C-­36_4).   4 See the CBSA’s Interim Memorandum D1-16-2 (Canada Border Services Agency 2003).   5 Instead, a recent evaluation study has shown that there is a high rate of approval of the six-­year-old system among targeters at the national and regional risk assessment centres (62 per cent and 83 per cent approval, respectively) (Canada Border Services Agency 2008b: 16f.).   6 This is based on sections 4.76, 4.77, and 4.81 of the Canadian Aeronautics Act of 1985 (retrieved from http://laws.justice.gc.ca/en/ShowFullDoc/cs/a-­2/// en).   7 Letter of 5 May 2008 by C. Baggaley, Strategic Privacy Adviser at the Office of the Privacy Commissioner, to the author. He stressed, however, that “very few, if any, passengers have been denied boarding”.

96   P. Hobbing   8 See Salter’s chapter in this volume (Chapter 4).   9 For details, see Hobbing (2007). Exit controls have not been widely implemented, and legislative deadlines ignored because of operational difficulties. 10 The VWP includes the following EU member states: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, the Netherlands, Portugal, Spain, Slovenia, Sweden, and the United Kingdom. 11 Refer to European Commission (2005b). 12 Based on the biometric data stored, it is the first automated fingerprint identification system in Europe and has been operating since 15 January 2003; refer to the European Commission’s website article “ ‘Eurodac’ system”, last updated 10 January 2008 (retrieved from http://europa.eu/legislation_summaries/ justice_freedom_security/free_movement_of_persons_asylum_immigration/l33 081_en.htm). 13 This decision was taken in 2007 when the European Parliament, for reasons of privacy protection, insisted on keeping the systems apart (Ludford 2007). 14 The requirement would at first concern foreigners admitted for a short stay of up to three months (regardless of whether they require a visa!), by far the largest group entering the European Union. Exceptions would be granted to holders of local border permits and national long-­stay visa or residence permits, as well as all those exempted from stamping (pilots, seamen of cruise ships, diplomats, etc.). 15 See Koslowski (2006: 92). 16 See Organisation for Economic Co-­operation and Development (1980). 17 See the letter of 5 May 2008 from the Canadian Office of the Privacy Commissioner (C. Baggaley) to the author, underlining the importance of the Art. 29 WP’s Opinion 1/2005 (Art. 29 WP 2005), all the more so as the Office of the Privacy Commissioner was not invited to participate in the negotiations. 18 See Art. 29 WP (2004a: s. 2 Opinion 3/2004). Article 29 Working Party data protection should be recognised as a fundamental right to the end that any restriction imposed must be carefully weighed to find a balance between security concerns and the civil liberty at stake (Art. 29 WP 2004). Adequacy findings should be of a transitional nature; since threat scenarios in the case of terrorism and transnational crime are rapidly changing, data flows should not be authorised for an undetermined period but made subject to a sunset limitation. Basic data protection principles should be applied (“content principles”) as set out below. 19 See ePractice.eu (2005). 20 See EU–Canada PNR Agreement (2005: 1st recital). 21 See European Commission (2005c: 8th recital). 22 See European Commission (2007c: 15th recital); see also Art. 29 WP (2005), s. 3; and also European Data Protection Supervisor (2005a: s. 4.3). 23 See Art. 29 WP (2004a: s. 6). 24 See the Commitments by the CBSA in the Annex to Decision 2006/253/EC (European Commission 2005c: s. 2). 25 This is a list “well beyond what could be considered adequate, relevant and not excessive”, according to Art. 29 WP (2004a: s. 6.3). 26 See the Commitments by the CBSA in the Annex to Decision 2006/253/EC (European Commission 2005c: s. 7). 27 Ibid., s. 8. 28 Ibid., s. 12. 29 Ibid., ss. 33ff. 30 Ibid., s. 35. 31 See Art. 29 WP (2004a: s. 6.5); see also Art. 29 WP (2005: s. 3.5); and also European Data Protection Supervisor (2005a).

Tracing terrorists   97 32 See the Commitments by the CBSA in the Annex to Decision 2006/253/EC (European Commission 2005c: ss. 12ff.). 33 Ibid., ss. 16ff. 34 See statement by Lord Wright of Richmond, committee chairman, of 13 June 2007, according to which the new PNR Agreement should be clear and unambiguous, and should not allow the United States to amend the undertakings unilaterally (see the CEPS CHALLENGE article, “Lords EU Committee Raise Concerns over Passenger Name Record Agreement with US”, 13 June 2007 (retrieved from www.libertysecurity.org/article1489.html). 35 See the Undertakings of the DHS–CBP of 11 May 2004 in the Annex to Decision 2004/535/EC (European Commission 2004a). 36 This refers to the final comments by the Art. 29 WP (2004b) as laid down in Opinion 1/2004. 37 The calculation is based on compliance with the list of privacy criteria displayed on p. 000. 38 See s. 29 of the Undertakings of the DHS–CBP in the Annex to Decision 2004/535/EC (European Commission 2004a). 39 It was implemented in response to terrorist threats perceived after incidents such as the explosion of TWA flight 800 and the Centennial Olympic Park bombing several days later in 1996. 40 See Privacy International (2007). 41 This relates to those found on the “selectee” list administered by the TSA as opposed to the “no-­fly” one equally managed by the TSA (refer to Privacy International 2007). 42 See US DHS, Office of the Secretary, Privacy Act of 1974: System of Records, Federal Register, 71, no. 212 (2 November 2006) (retrieved from http://edocket. access.gpo.gov/2006/06-9026.htm). 43 See the US DHS press release of 9 August (US Department of Homeland Security 2007b). 44 See Nakashima (2007: A12). 45 For career purposes, “[e]ach federal air marshal is now expected to generate at least one SDR [surveillance detection report on air passengers] per month”. See the Denver News article “Marshals: innocent people placed on ‘watch list’ to meet quota”, 21 July 2006 (retrieved from www.thedenverchannel.com/ news/9559707/detail.html). 46 See Art. 29 WP (2004b), s. 5D; see also the Undertakings of the DHS–CBP in the Annex to Decision 2004/535/EC (European Commission 2004a: s. 9). 47 See the Undertakings of the DHS–CBP in the Annex to Decision 2004/535/EC (European Commission 2004a: s. 38). 48 For details on this phase, see UK House of Lords (2007: 21). 49 See letter from DHS Assistant Secretary Stewart Baker of early October 2006, reproduced as Appendix 7 in the House of Lords (2007) report. 50 Derived from oral evidence by Jonathan Faull, Director General for Justice, Liberty, and Security (JLS), before the House of Lords EU Committee on 22 March 2007 (UK House of Lords 2007: 37). 51 See Art. 29 WP (2007: s. 10); see also European Parliament (2007a: s. 9). 52 See Pospisil (2008). 53 The complete text of the Czech Republic–United States (2008) MoU is avail­ able online (retrieved from www.vlada.cz/scripts/detail.php?id=31921). 54 See the statement reported in November 2007, Statewatch News Online (retrieved from www.statewatch.org/eu-­dp.htm). 55 See Goo (2007). 56 See Nakashima (2007); see also Art. 29 WP (2004b: 13).

6 The global governance of data privacy regulation European leadership and the ratcheting up of Canadian rules Abraham Newman The end of the last century saw a dramatic turn in the global governance of personal information. In a relatively brief span of three decades, some forty countries adopted comprehensive rules covering the collection and transmission of data for the public and private sector. These rules included the creation of independent regulatory agencies empowered to monitor and oversee their enforcement. The majority of the advanced industrial countries that comprise the Organisation for Economic Co-­operation and Development (OECD) – with the notable exception of the United States – and countries ranging from Argentina to Albania now share a strikingly similar set of regulations, which set a relatively high bar for privacy protection. Surprisingly, the countries that have moved to a comprehensive regime include many jurisdictions that long favored a more limited approach. In these countries, regulations focused on the use of data by public-­sector officials and rarely had a strong independent enforcement mechanism. A limited number of sectors engaged in sensitive activity fell under government oversight but the majority of companies faced self-­regulation or no regulation at all. Eight countries, including major economies such as Australia, Canada, and Japan, have moved closer toward the comprehensive approach. Despite the fact that the digital era raised important motivations for reforming such legislation, regulatory change came with significant political and economic costs. Officials hoping to establish stronger privacy regimes faced tough opposition from firms that grew accustomed to easy access to personal data, and from government bureaucracies that had come to rely on the private sector as their primary source of personal information. The dramatic shift in privacy policy has not been limited to domestic policy reform. Data privacy has also been at the center of a number of international conflicts over the sharing of personal information between major economies and NATO allies. These disputes have included data shared among multinational corporations (MNCs) and government bureaucracies. In some cases these conflicts continue to fester and disturb international cooperation while in others they have been resolved through innovative governance mechanisms.

The global governance of privacy regulation   99 This chapter takes a political economy approach to explain these changes. In short, I argue that the development of pan-­European regulatory capacity within the European Union has shifted the global privacy debate (Newman 2008b). Far more than simply a large economy, the Union has used its expertise and centralized oversight to leverage its internal market at the international level. As a result, it has been able to cajole and persuade other jurisdictions to adopt stronger privacy rules. The European Union rarely dictates policy change in these countries; rather, it alters the domestic political dynamic surrounding reform. It both bolsters the claims of privacy advocates on the ground and shifts the costs to export-­oriented firms of maintaining the status quo. This convergence pressure not only raises global privacy standards but also enables the Union to strike international deals that are compatible with its fundamental privacy principles. To examine this process, the chapter explores Europe’s international engagement in the sphere of privacy. In particular, it traces the role that the European Union played in altering global privacy debates and briefly examines Canadian reform efforts during the 1990s. It then contrasts these interactions with negotiations between the two over the sharing of airline passenger data. The chapter is organized as follows: It first presents background information on differences in privacy regimes across the globe and the diffusion of the comprehensive model. The second section describes the development of European regulatory capacity in the privacy sphere. This is followed by a brief case study of European and Canadian interactions. The fourth section concludes with implications for research on data privacy more generally.

The rise of the comprehensive regime Starting in the late 1960s, democratic countries across the globe confronted the challenges to personal privacy raised by computers. As more and more data could be collected, sorted, and transmitted, civil liberties organizations and privacy advocates emerged that warned against the specter of Orwellian surveillance. Scandals such as Watergate in the United States confirmed these fears and foisted privacy onto the political agenda (Hondius 1975; Bennett 1992; Regan 1995). While academics and policy makers generally agreed on the fundamental norms that should guide such legislation, the ultimate regulations differed on two fundamental dimensions: scope and oversight (Newman 2008b). In a number of countries, such as Germany and France, comprehensive rules were enacted that applied the basic privacy principles to the public and the private sectors. In addition, these countries established independent oversight agencies (i.e. data privacy authorities) that monitored the implementation of these rules. By contrast, another set of countries, such as the United States and Canada, passed legislation that focused

100   A. Newman attention on the public sector and a limited number of sensitive economic sectors such as health or financial information. Additionally, limited systems rarely created strong, independent agencies empowered to enforce their rules. Instead, government agencies and companies often engaged in self-­regulatory systems that attempted to check abusive data use (Schwartz 1996). Differences in privacy regimes, while certainly not the only measure of privacy protection in a society, do shape the collection and transmission of information in an economy and a polity. Take two examples: Mailing lists that are aggregated and sold to companies for marketing are significantly more expensive in countries such as Germany where comprehensive rules reign than in the United States (Turner and Buc 2002). Similarly, there are no private-­sector credit reports in France, while there are some 500 million in the United States. This alters the types of information available both to businesses attempting to segment markets and to governments hoping to rationalize services or monitor citizens. Up through the 1980s these two systems lived in parallel, with rough parity between the jurisdictions supporting comprehensive and limited regimes. But in the 1990s this changed dramatically. In a few short years the number of countries with comprehensive rules tripled while those with limited regimes shrank to a mere handful. The globe entered the twenty-­ first century with a new map of privacy protection (Newman 2008b).

European regulatory capacity and global leadership on privacy The central argument of this chapter is that reforms within Europe have played a central role in changes in privacy regulation globally. Before the Internet revolution had truly hit, European integration increased the transmission of personal information within the single market. The European project required that bureaucracies share detailed personal information about their citizens (e.g. tax data and immigration status) with other jurisdictions. At the same time, it facilitated cross-­border industrial activity, which spurred the transmission of personnel and customer information. Data privacy authorities in a number of early adopter countries became concerned that such cross-­border data transfers would undermine their own authority and force a regulatory race to the bottom within Europe. They therefore developed a pan-­European privacy agenda and pressured their governments to adopt EU legislation. The culmination of this effort was the 1995 European Privacy Directive, which required all member states to adopt comprehensive rules (Newman 2008a). In addition to strengthening member state regulations, the directive contained two other provisions that have had a significant impact globally. Article 25 of the directive prevents the transfer of personal information to countries that fail to maintain adequate privacy safeguards. The European

The global governance of privacy regulation   101 Union makes an adequacy ruling for each country based on its national rules. Data on European citizens is only permitted to go to countries that have received an adequacy ruling. This extraterritorial provision basically transfers the requirements of European law to any MNC that transmits data to its home country. Before a Canadian company, for example, may transfer data about a European citizen from its European operation to its headquarters, the European Union must recognize Canadian privacy protections (regardless of firm policies) as adequate. The Article 25 provision gives the European Union a powerful tool with which to leverage its large market in international privacy debates. While many European countries, such as Germany and France, had strict privacy rules prior to the passage of the EU directive, these rules had relatively less significance for MNCs as they did not combine an extraterritorial element with pan-­European reach. The directive, then, established a political mechanism to signal the costs of diverging from the European model. In addition to centralizing control over market access, the directive created a novel form of networked governance – the Article 29 Working Party (Art. 29 WP) – to oversee the implementation of the directive both at home and abroad (Eberlein and Newman: 2008). The Art. 29 WP is made up of national data protection authorities from the member states and the European Data Protection Supervisor. The Art. 29 WP elects one of its members to serve as chair, and decision-­making within the body is typically driven through a consensus style. The Commission funds and runs a secretariat for the Working Party, including transportation logistics, meeting preparation, and language translation. The Art. 29 WP, then, has a number of resources at its disposal with which to influence privacy debates. As its members are primarily national data privacy authorities, it has tremendous technical knowledge of the area. This makes the Art. 29 WP very valuable to the Commission and other government officials that need information about many of the highly complex issues involving privacy. Additionally, the members of the Art. 29 WP have significant domestic authority that they enjoy due to their role as national regulators. Once the group makes a collective decision, its members can go back to their home jurisdictions and implement it. Finally, the Art. 29 WP has a unique platform as a quasi “European Privacy Agency.” When the network of regulators speaks, its persuasive effect is magnified as compared to when one of the individual members makes a statement. Substantively, the Art. 29 WP has had an important impact on the international evolution of data privacy rules. One of the central tasks of the Art. 29 WP is to advise the Commission on the adequacy of privacy rules in other countries. Its members have reached adequacy recommendations on a number of countries ranging from Switzerland to Canada. They have also failed to provide this recommendation in a number of important cases, such as Australia and the United States. In both cases, the Commission used the lack of an adequacy ruling to spur international negotiations

102   A. Newman (Farrell 2003; Newman 2008b). In addition to advising the Commission, the Art. 29 WP has worked to assist other governments. Through twinning processes, representatives from data privacy authorities have traveled to new member states and applicant countries. Data privacy officials help these countries bolster their institutional infrastructure and highlight areas for reform. Similarly, the Art. 29 WP reviews the laws of other countries and highlights areas of legislative weakness. This then offers a roadmap to adequacy for other jurisdictions. At the same time, members of the Art. 29 WP actively participate in the International Conference of Data Protection Commissioners. In this forum they work to promote an  international agenda that emphasizes strong standards for data protection. Finally, the Art. 29 WP actively monitors and makes recommendations concerning the implementation of the directive. The Art. 29 WP has reviewed and made recommendation on a number of emerging issues that affect the daily operations of public and private sector organizations globally, including RFID technology, online password encryption systems, and computer IP addresses. While many of these recommendations are non-­binding, they shape the policies both of national data privacy authorities and of national courts, which seek guidance on the implementation of the directive. As a result, global companies such as Microsoft, Google, and Yahoo have repeatedly had to confront Art. 29 WP decisions and in many cases have complied with their demands. The example of web browser data retention offers an illustrative case. Many search portals retained data on individual search patterns for years. Over several years the Art. 29 WP developed a recommendation that such data should be limited to six months or fully anonymized (Article 29 Working Party 2008). This led to a round of meetings between the Art. 29 WP and major search firms. As a result of these negotiations, these companies have restricted their data retention periods. It is important to note that the European Union has few tools with which to directly coerce or demand convergence from other countries. Rather, it uses its newly coordinated control over access to the European market to alter the incentives of actors in other markets. In particular, the adequacy clause raises the stakes for MNCs that have offices in Europe and abroad. In addition to any customer information that they may maintain, these firms often have centralized personnel offices that must frequently make use of cross-­border transfers. These companies then become a potential ally to domestic groups that have long been seeking to ratchet up domestic rules. In addition to altering cost–benefit calculations in other countries, the European Union provides a symbol of the workability of comprehensive rules for supporters in other countries (Young 2003). Many international businesses made dire predictions about the ramifications of EU laws for European economies. These, however, have not materialized. Domestic

The global governance of privacy regulation   103 privacy advocates, then, have the European case as a model, which they can hold up as a feasible and practical solution (Bennett 2008). The Art. 29 WP has contributed to this symbolic effect by promoting the European effort in international fora and working with other governments as they reform their domestic institutions. It is important to stress that the European Union cannot force non-­member countries to change their privacy laws. But the directive has coordinated European regulatory capacity in the area of data privacy, and the European Union has used its newly coordinated power and expertise to alter global debates. An interesting knock-­on effect of this general privacy convergence centers on the ability of the European Union now to negotiate with other countries on privacy issues. While many hold up the acrimonious nature of EU–US relations on privacy, institutional convergence has facilitated global negotiations with many others. Institutional reforms, which strengthened the bureaucratic autonomy of data privacy authorities in non-­European countries, offer these jurisdictions a suitable interface through which to interact with Europe. The mere presence of an independent regulator responsible for the domain goes a long way in assuaging European concerns regarding adequacy. Additionally, having a domestic data privacy authority provides a jurisdiction with the required expertise to engage in a dialogue with European officials. Many of the key disputes between the United States and the European Union center on the absence of an institutional counterpart in the United States that understands and can engage with European demands. The implementation of the EU directive threatened flows of data transfers across the Atlantic (Long and Quek 2002; Reidenberg 2000). Multinational firms based in the United States were very concerned about the consequences of a negative adequacy ruling but many domestic companies that did not trade with Europe (including many direct marketing firms based in the United States) did not see any advantage to domestic reform (Heisenberg 2005). Negotiators, however, came to the table with little understanding of policy in the other jurisdictions. Hence, scholars have argued that the protracted negotiations between the United States and Europe necessitated an intensive conversation about the basic issues on the table (Farrell 2003). Starting from two distinct privacy regimes with very different views of how information may be exchanged and collected in the economy, the parties required several years to fully comprehend these differences and then find a mutually acceptable solution. With the passage of the directive in the mid-­1990s, the European Union expanded its global public policy toolkit. In particular, it coordinated regulatory decision making concerning market access, centralized expertise on the issue, and leveraged both of these in negotiations with other countries. While unable to dictate reform or the success of these proposals in other countries, internal changes made primarily to further the single market project altered legislative debates in other countries. The following section briefly traces some of these effects in the Canadian debate.

104   A. Newman

Ratcheting up rules in Canada As was the case with many OECD countries, Canada confronted the data privacy debate in the second half of the twentieth century with the rise of computer technology and government surveillance. After many years of debate, the federal government adopted its Privacy Act, which came into force in 1983. In line with limited rules in the United States and similar legislation under consideration in Australia and Japan, regulation focused on data processing by the federal government. Provincial governments were not directly affected by the legislation but were allowed to adopt their own regulations. Similarly, the bill did not establish comprehensive rules for the private sector. Canada’s legislation did establish a privacy commissioner, whose office advised the government on emerging issues and mediated data disputes, but the agency’s scope of activities was confined primarily to the public sector and it had limited enforcement powers (Flaherty 1989). Canada entered the 1990s squarely in the limited privacy regime camp. This policy stance changed rapidly in the second half of the 1990s. In the course of five years, new federal legislation was proposed and adopted. The Personal Information Protection and Electronic Documents Act of 1999 expanded the scope of the privacy regime to include the private sector, enhanced the autonomy of the privacy commissioner, and required that provincial governments adopt privacy rules (Levin and Nicholson 2005). Typical of what is found in federal countries, the new Canadian system has many movable parts. Far from being a centralized structure, as one might find in France, it is much more in line with institutional arrangements in Germany or Switzerland, with provincial data privacy authorities as well as a federal office. Most important for international debates, personal data are generally covered across the economy and society by a similar set of enforceable privacy principles. It is this reform that resulted in the Art. 29 WP finding that Canadian law provided adequate protection and the European Commission finding of adequacy (Article 29 Working Party 2007). Clearly, many factors influenced the reform process in Canada, including the rise of digital technology and internal political dynamics (Bennett and Raab 1997). The focus of this chapter and the larger book project, however, is to take a closer look at transatlantic interaction. In the case of data privacy reform the European Union played a significant role in shaping the domestic Canadian debate (McClennan and Schick 2007). In particular, the coordination of market access at the European level imposed considerable costs to non-­adjustment for export-­oriented firms. Additionally, the European initiative offered domestic advocates of comprehensive rules powerful symbols and justifications for their arguments. The following takes each in turn.

The global governance of privacy regulation   105 Leveraging market access For export-­oriented or multinational firms the prospect of losing access to the European market had a significant effect on the domestic debate. The European Union is the second-­largest trade partner for Canada after the United States. And this does not include the effect on large multinational firms, such as Nortel, that had a physical presence in Europe and needed to transfer both personnel and customer data as part of their daily operations. This led internationally oriented business to be a significant supporter of legislative reform that would promote compliance with EU rules (Ivis 2000). Mike McBane, national coordinator of the Canadian Health Coalition, argued, “At the end of the day, it’s going to hurt Canada trade-­wise. If we don’t level up and harmonize to the European standard, nobody’s going to use Canadian technology” (Akin 1999). The effect of the directive is not just about market size (Shaffer 2000). The majority of the EU countries had already had comprehensive privacy policies in place since the early 1980s (including France, Germany, and the United Kingdom), with little global effect. Additionally, many Canadian firms opposed regulatory reform (McMurchie 1999). But internationally oriented firms understood that they were being scrutinized by the European Union and wanted domestic regulation that would comply with EU demands (Downey 2001). Consolidating regulatory authority at the pan-­European level and coupling it with the power to control market access altered the character of European influence. In addition to the straightforward effect that adequacy rules had on domestic debates, European policy magnified internal differences within Canada, further raising the costs to business of federal inaction. The province of Quebec passed new data privacy legislation in 1994, which expanded protection to the private sector in the province (Laperrière 1999). Many firms and observers feared and speculated that this would provide firms based in Quebec an advantage in the transatlantic relationship (Boufford 1999). If, for example, the European Union found Quebec law adequate but not Canadian law, this could have produced an unequal playing field within Canada. Firms would either have to relocate their headquarters to Quebec or face market exclusion from Europe. The European directive, then, gave legislation in Quebec new meaning that it otherwise would not realistically have enjoyed. Provincial governments, fearing the effects of such an internationally supercharged domestic regulatory asymmetry between Quebec and the other provinces, pushed for federal intervention. European legislation, then, shifted the status quo business environment for multinational and export-­oriented firms. While many of these companies might have previously benefited from the relatively lax privacy rules in Canada, they now risked considerable costs associated with non-­adjustment. As a result, an important segment of the Canadian

106   A. Newman business community saw very little benefit in opposing privacy reform and at times vocally supported new regulatory initiatives that would satisfy European adequacy requirements. Support for domestic advocates At the same time that the European initiative shifted industry position vis-­ à-vis comprehensive rules, Canadian advocates of comprehensive rules received a significant boost. In particular, civil society advocates and the Canadian federal privacy commissioner used the European privacy directive as a justification for Canadian reform. In the most general sense, advocates of stronger privacy legislation used European rules as a proof of concept. If one of the largest economies in the world could adopt comprehensive rules, surely Canada could do so. European efforts bolstered privacy advocates position and became a powerful argument in the face of domestic opposition (Akin 1999). Not only did the European privacy directive have symbolic significance, but also Canadian privacy advocates focused on the potential economic costs to garner support. The Ontario privacy commissioner, Ann Cavoukian, repeatedly invoked the economic harm associated with policy inaction: We’re going to have a nightmare on our hands if this legislation doesn’t pass. We don’t want a trade war on our hands. The absence of data protection for the private sector in Canada can serve as a non-­ economic trade barrier. That’s bad for business and it’s bad for Canada. (McCarten 1999) As has been the case in a number of regulatory sectors, progressive European regulatory initiatives have emboldened supporters of such rules in their home countries. This does not mean that European privacy legislation guaranteed policy convergence across all countries. Clearly, domestic politics and institutions mediate such pressures. A handful of countries, including the United States and South Korea, have resisted full convergence. Even Canada did not simply copy the “French” or “German” model. Instead, it adapted its existing privacy rules to guarantee that the collection and exchange of personal information was generally covered by a clear set of enforceable privacy principles. This, however, does not truly mitigate the significance of European public policy globally as even within Europe, member states are allowed a considerable amount of flexibility in the exact implementation used by institutions in implementing the privacy directive. Most importantly, European action forced the debate onto the policy agenda in most advanced industrial societies. As the Canadian case demonstrates, the European privacy directive mitigated industry opposition and bolstered those pressing for reform. Industry Minister John

The global governance of privacy regulation   107 Manley (1998: 6) summarized the role of the European Union in his justification for the legislation: There is an international movement towards better privacy protection, and Canada cannot be left behind. For example, as I indicated earlier, the European Commission’s data protection directive, which took effect October 25, 1998, can block the flow of personal data to countries without adequate protection. Bill C-­54 meets this challenge for commercial activities and provides Canadian business access to European markets.

The upside of institutional convergence For advocates of strong data privacy rules, Canadian reform held many benefits domestically. But European convergence pressure in the 1990s also offered important knock-­on effects for Europeans in later privacy debates. As new international privacy challenges emerged, Europe was well positioned to strike deals with countries that had already adjusted to the comprehensive system and institutionalized recognizable implementation and enforcement structures. In addition to the explosion of networked data transmission in the 1990s, terrorist attacks at the turn of the millennium raised a host of transnational civil liberties concerns. Increasingly, governments were collecting and exchanging personal data on individuals in other countries. For European governments this posed a considerable challenge, as European privacy laws prevented the transfer of such data to countries that lacked adequate privacy rules. Privacy frequently became embroiled in security debates, with privacy taking the hardest hit. One of the most high-­profile of such conflicts involved the transfer of airline passenger data. After the terrorist attacks in the United States, the United States passed legislation requiring foreign carriers to send detailed passenger records to US Customs prior to landing. Failure to comply would result in a significant fine. As the United States did not have adequate privacy rules, according to the European Union, European air carriers found themselves stuck between European privacy rules and US security legislation. This led to a nearly decade-­long negotiation. Some point to the dispute as a major blow to transatlantic relations as it undermined US faith in Europe’s ability to cooperate on terrorism and tested the European public’s patience with US security demands (Rees 2006; Archick 2006). In an important counterpoint, Europe and Canada quickly resolved a similar policy difference (European Commission 2006b). Facing pressure internally and from the United States, Canada adopted similar legislation requiring the transfer of personal information from foreign air carriers. In contrast, however, to the US–EU dispute, the Canadian–EU Passenger

108   A. Newman Name Record Agreement is held up by European privacy experts as a model for how privacy and security can coexist (Article 29 Working Party 2007). Canadian reforms in the late 1990s played a major role in achieving this outcome. For European data privacy officials, one of the most important concerns centers on the monitoring and enforcement capabilities of foreign regulators. This has repeatedly stymied US–EU negotiations, as the United States does not have an independent and autonomous data privacy authority. In the Canadian case, however, the European data privacy officials hold the Canadian privacy commissioner in high regard. The office regularly attends international meetings, hosting the International Conference of Data Protection Commissioners in 2007. Legally, the office has the authority to monitor safeguards included in the EU–­ Canadian agreement. By contrast, the Article 29 Working Party is skeptical that the US Department of Homeland Security has the expertise or the will to guarantee data on European citizens once it is given to US bureaucracies. The existence of a parallel institutional authority in Canada assuaged European concerns about monitoring and enforcement, and at the same time the expertise of the Canadian privacy commissioner helped inform Canadian negotiations. While the United States often scratches its head at European privacy concerns, Canadian officials have an in-­house expert capable of navigating the policy minefield.

Conclusion Over the past 20 years there has been a remarkable convergence globally around comprehensive privacy rules. Given persistent US opposition and international pressure to reduce regulatory standards in the face of globalization, this outcome is quite surprising. This chapter has argued that the European Union played a major role in this change. In particular, internal reforms governing the single market consolidated pan-­European regulatory capacity and in doing so offered Europe the tools to shift reform debates in many other countries. Leveraging market access, Europe raised the costs to internationally active private actors of non-­ adjustment. Demonstrating the feasibility of the comprehensive model, European efforts offered advocates in other countries powerful symbols and arguments to use in their domestic reforms. Finally, European data privacy authorities used their expertise to evaluate data privacy systems in other countries and offered advice on workable reforms. These efforts have clearly not ended the privacy debate. New technologies, organizational demands, and surveillance efforts raise a constant set of challenges to personal freedom. Nevertheless, a majority of the advanced industrial democracies now have established independent regulatory agencies that are empowered to investigate and monitor breaches of basic privacy principles. This expands the toolkit available to those interested in protecting privacy.

The global governance of privacy regulation   109 For those interested in global governance more generally, the chapter suggests the important role of the European Union (Bach and Newman 2007). In particular, the case underscores the role that internal regulatory institutions play in international negotiations. In a host of sectors, Europe has networks of regulators that can define, monitor, and enforce a set of European rules globally. This provides European negotiators an important advantage in international debates and forces private actors to take European demands seriously. This newfound influence may have long-­term consequences, as demonstrated in the case of the Canadian–EU airline passenger agreement. If Europe is able to promote its rulebook globally, it is then in a privileged position for future negotiations. The United States has benefited tremendously from the long international arm of its domestic neoliberal agenda. With the recent economic crisis and the tarnish that has appeared on this policy program, Europe could benefit globally from the seeds it has sown at home.

7 Made in the USA? The impact of transatlantic networks on the European Union’s data protection regime Patryk Pawlak Introduction1 The strategy of “smart borders” presented by the White House in 2002 assumed that “[t]he border of the future must integrate actions abroad to screen goods and people prior to their arrival in sovereign U.S. territory” (White House 2002). To that aim, the advanced technology was applied “to track the movement of cargo and the entry and exit of individuals, conveyances, and vehicles” (ibid.). The implementation of this policy was pursued in several ways, including the expansion of the US-­VISIT program to new areas, or, most recently, through the establishment of the Electronic System of Travel Authorization (ESTA). The US-­VISIT program, conceived in 1996 as a tool to help identify visa overstayers, was relaunched after the terrorist attacks of 2001 to include travelers’ biometric information, with the objective of checking them against a watch list of known criminals and suspected terrorists. The use of passenger name record (PNR) information was meant to further improve this capacity and to help identify connections between travelers on the same flight who might belong to the same terrorist group. Similarly, the ESTA system is a new pre-­travel authorization program for travelers from visa waiver countries. Submitted information is checked against several law enforcement databases before a person’s departure. The purpose of this new tool is to mitigate security risks associated with the travel of persons who are nationals of visa waiver countries. The US response became to be perceived as not just one of “re-­ bordering” with enhanced border controls (Andreas 2002, 2003; Salter 2005) but one creating wide zones of virtual transnational border control practices that span the globe (Koslowski 2004). According to Guild (2003a), the border assumed “a new sacred symbolism as the line of security.” Effective border controls that did not undermine international trade and legitimate travel could not be achieved without globally implemented instruments (Flynn 2000). Since the Bush administration considered international mechanisms to be too time-­consuming and potentially ineffective,2 it opted for the unilateral adoption of laws. Because of their

Made in the USA?   111 extraterritorial character and broad implications for civil liberties (Guild 2006; Bigo et al. 2007; Tsoukala 2008a), many of those measures raised controversies of a legal and political nature, especially in the European Union. In 2004 the president of the European Parliament, Pat Cox, stated that “[w]hile naturally accepting that the US Administration is perfectly free to exercise its sovereign right to protect its own homeland, both the EU and the US must guard against a new form of creeping extra-­ territoriality” (European Parliament 2006). Measures like ESTA were criticized for reinforcing the idea that “security management is shifting from a state-­based perspective to a more individual-­based focus” (European Parliament 2008: 30). In that context, the issues of data protection and privacy dominated a great deal of the transatlantic agenda. The discussion was initiated by the controversy over the transfer of PNR to the US Customs and Border Protection (CBP) and ensued over the use of SWIFT data for the purpose of the fight against terrorism (Moiny 2005; Scandamis et al. 2007; Hobbing 2008). Currently, the European Union and the United States are considering a way forward, including a conclusion of the EU–US international agreement on data protection. Such an agreement will carry significant consequences for the EU data protection system and the daily life of its citizens, and therefore it is both timely and necessary to reflect on its possible shape. In that context, the evolution of the EU–US data protection cooperation from antagonistic to converging is also worth exploration. Although several authors have addressed the far-­reaching implications of those measures for European citizens and third-­party nationals (Guild et al. 2008), many issues still call for systematic study. The objective of this chapter is to explore the role that the United States plays in the development of the border policies of the European Union. To that aim, it investigates the processes underlying transatlantic cooperation in the field of personal data transfers for security purposes. The chapter argues that the influence of the United States on EU policies was strengthened by the emergence of new actors and informal networks at the transatlantic level. The consequent learning process resulted in an increase in trust and the building of personal relationships between European and American policy makers. This not only made the European Union more open toward American policies but also led to the development of similar solutions in the European context (Argomaniz 2009). Despite numerous controversies, the European Union and United States advanced their cooperation on data exchange. A series of bilateral agreements have been concluded, including the EU–US PNR Agreements of 2004, 2006, and 2007 (Council of the European Union 2004, 2006a, 2007a), the Europol–US Agreement of 2002 (Council of the European Union 2002), and the SWIFT Agreement of 2007 (Council of the European Union 2007c). Furthermore, the discussion about border protection in the European Union increasingly resembles the one at the transatlantic

112   P. Pawlak level. The so-­called border package presented by the European Commission proposes a number of measures similar to those adopted in the United States. For instance, third-­country nationals subject to the visa obligation are already verified in relation to their visa application but in the future they will be checked against the Visa Information System, comprising biometric information. In addition, all persons travelling to the European Union by air will be checked on the basis of their advance passenger information (API). Other new tools currently being debated include facilitation of border crossing for bona fide travelers, introduction of the entry/exit system, and the establishment of the ESTA system. Among those developments, two deserve particular attention: the discussion about a potential international data protection agreement between the European Union and the United States, and the establishment of the EU PNR system. The final report of the EU–US High-­Level Contact Group on Information Sharing and Privacy and Personal Data Protection (HLCG) presented in May 2008 suggested the conclusion of an international agreement that would make it possible to “obtain the recognition of the effectiveness of each other’s privacy and data protection systems for the areas covered by these principles” (Council of the European Union 2008a). While the former exemplifies the progress in EU–US cooperation, the latter shows clearly the extent to which EU internal security policies are influenced by the instruments previously adopted in the United States.

Transnational regulation and socialization processes The literature on norm diffusion suggests that certain norms become generally accepted and persist over time through two major processes: transnational regulation and socialization processes. Transnational regulation refers explicitly to situations where regulatory activity of one actor carries consequences and has implications for third parties. The interconnectedness between actors and their reciprocal interdependence makes them increasingly interested in each other’s policies (Lazer 2001). More specifically, the focus on transnational regulation may stem from several concerns, including the achievement of a competitive advantage or an attempt to avoid a situation where such advantage is gained by the other side (Abbott and Snidal 2001; Lazer 2001), gaining market access and economies of scale (Nicolaidis and Egan 2001), or accessing the information that is spread through numerous informational networks (Lazer 2001; Djelic 2004; Djelic and Sahlin-­Andersson 2007). In the case of international homeland security the major reason for the development of transnational regulation was to avoid regulatory imbalances and the emergence of “safe havens,” which would mean increased insecurity for all parties. Before actors establish personal relationships, they enter into contact with each other through their organizational roles assigned to them on

Made in the USA?   113 the basis of a mandate (Ring and Van de Ven 1994). Organizational roles, at least in the early stages of a relationship, provide information about the behavior of individuals, make it more predictable by constraining it within a mandate, and consequently serve as a basis for development (or not) of personal relationships. With time, these role relationships become more socially embedded (Schein 1970; McGrath 1984). Increased interpersonal interactions help develop positive sentiments over time and thus will have positive effects across groups (Krackhardt and Stern 1988; Nelson 1989). This also creates the opportunity for transgovernmental coalition building, which “takes place when subunits build coalitions with like-­minded agencies from other governments against elements of their own administrative structures” (Keohane and Nye 1974). Eventually the process of socialization results in the gradual deepening of personal relationships and psychological contracts. Personal relationships play a particular role in situations of enhanced uncertainty and dynamism. Trust underlying such relationships allows for faster adaptations and greater flexibility owing to the possibility of individuals “transcending their organizationally specified roles” (Ring and Van de Ven 1994: 104). Trust is related to the belief in others’ goodwill (Ring and Van de Ven 1992), which develops through frequent interactions with others and through a consequent development of personal relationships. With time, informal agreements may be translated into formal agreements that will either mirror the informal ones or include new, extended provisions (Ring and Van de Ven 1994). Formalization does not preclude a formal agreement to mirror what has been established informally. It is supposed to provide the basis for operation of those organizational representatives who will assume the responsibility for networking at a later stage. This does not mean, however, that formalizing such rules automatically guarantees that the network will continue its operations without any distortions. It might happen that successors in the network will interpret its establishing rules in a different way than its founders, which may result in frictions and distortion of network activities. Therefore, Ring and Van de Ven suggest that when the temporal duration of interorganizational relationships is expected to exceed the tenure of agents, informal understandings and commitments should be formalized.

Socialization and internalization through transatlantic networks The use of personal information for security purposes and the protection of such information became the most controversial and most debated issues in transatlantic relations. Some of the major points of divergence stemmed from differences in approaches to the treatment and transmission of personal information. In the European Union the system of data protection derives from the rules of Continental law and frames the right

114   P. Pawlak to privacy as a fundamental human right. The United States, on the other hand, treats personal information as a commodity, and the right to privacy is protected by common-­law mechanisms. The transnational nature of the US homeland security regulations and their coercive mechanisms (such as fines or refusal of landing rights for the air operators in case of the PNR transfers) compelled the European Union to adjust its policies to bring them into line with those of the United States.3 The enhanced cooperation between European and Amer­ ican officials that developed on the occasion of numerous bilateral contacts has eventually led to the European Union’s embracing of some normative principles underlying the United States’ policies. The following sections focus on the development of informal executive networks and their impact on transatlantic and European homeland security. In particular, they show how the transatlantic debate about data protection provided an impulse for building personal relationships, spreading informal understandings, enhancing psychological contracts, and eventually the internalization of the US norms by European policy makers. The cases of the EU–US PNR negotiations, the development of the EU PNR, and the recent conclusions reached by the HLCG on data protection provide rich data to demonstrate the evolution and impact of these pro­ cesses at the transatlantic level.4 The beginning of enhanced EU–US cooperation: the PNR Agreements The 9/11 Commission Report stated clearly that [T]argeting travel is at least as powerful a weapon against terrorists as targeting their money. The United States should combine terrorist travel intelligence, operations, and law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility. (National Commission on Terrorist Attacks upon the United States 2004: 385) To that effect, the 2004 Intelligence Reform and Terrorism Prevention Act called on the Department of Homeland Security (DHS) to establish mechanisms that would make it possible “to compare passenger information for any international flight to or from the United States against the consolidated and integrated terrorist watch-­list maintained by the Federal Government before departure of the flight” (Congress of the United States of America 2004: s. 4012 (2)). On the basis of the Aviation and Transportation Security Act of 2001, the United States requested all airlines with flights arriving at or departing from US airports to submit the PNR. In order to ensure higher compliance, airlines that failed to comply could be fined up to $6,000 per passenger and be denied landing rights.

Made in the USA?   115 The American legislation in question undermined the EU data protection laws, in particular its Data Protection Directive (DPD) of 1995, which constitutes the backbone of EU activities in this area (Council of the European Union 1995). According to article 25 of the DPD, any transborder transfer of personal information is allowed only if a third country provides an “adequate level of protection,” comparable to the European one.5 Since there was no such decision regarding the US data protection system,6 any transfer of passenger data should be considered illegal. Caught between two legal systems, the airline industry insisted that the European Union and the United States find a solution that would ensure legal certainty for air operators (Pawlak 2007b). At the same time, the European Parliament and the Article 29 Working Party on Data Protection (Art. 29 WP) expressed several doubts about many aspects of a potential agreement, including its objective, the quantity of data to be collected, the data retention period, and the lack of means of extrajudicial appeals (European Parliament 2003). The broad implications for transatlantic trade and tourism caused the European Commission to adopt a more moderate approach. The main challenge for the European Commission and the Council was to find a solution to legal problems posed by the US-­originating regulation. In the case of PNR the major issue was to provide legal certainty for the airlines operating transatlantic flights and ensure that in the future similar regulations will be discussed well in advance. To that end, both sides agreed to establish the High-­Level Political Dialogue on Border and Transportation Security (PDBTS), where various aspects of new policies were supposed to be discussed. Eventually, in 2007, a EU–US PNR deal was concluded, after the annulment of the 2004 agreement by the European Court of Justice and the expiration of the Interim agreement of 2006.7 Information exchange and relationship-­building within informal networks The bilateral cooperation between the European Union and the United States has developed in the framework of the New Transatlantic Agenda of 1995, which, through the system of summits, Senior-­Level Group meetings, task forces, and civil society dialogues, was expected to provide a suitable environment for the advancement of transatlantic relations. The membership in those bodies was mostly limited to diplomats and trade specialists from both sides, with the ad hoc presence of specialists in other areas if the agenda of a meeting so required. The growing external exposure of what had once been internally oriented agencies and services (in the United States these were Customs and Border Protection, and the Department of Justice) resulted in the emergence of new actors and their constellations. Currently, the issues related

116   P. Pawlak to the fight against terrorism are dispersed in the European Union between several institutions and Directorates-­General (DGs) within the European Commission, including DG Justice, Liberty, and Security (DG JLS), DG Transportation and Energy (DG TREN), DG Taxation and Customs Union (DG TAXUD), and DG External Relations (DG RELEX). Although some of them had acted at an international level in the past (DG TAXUD, DG TREN), the scope of their activities was rather limited. Similarly, DG JLS had developed international expertise in the context of previous enlargements, but it was mostly the focus on the fight against terrorism that put it under the spotlight and contributed to the most dynamic growth of its external activities. Gradually, a small task force established to prepare third countries for the EU membership became an extensive policy unit.8 Nowadays, all DGs involved in various aspect of internal security issues have units dealing explicitly with external relations and individual officers responsible only for contacts with the United States (which used to be the domain of DG RELEX). With time, a predominantly diplomatic representation in the meetings started causing uneasiness among homeland security professionals (whom I call “securocrats”; Pawlak 2009b), who questioned the qualifications of trained diplomats in areas of law enforcement, counter-­terrorism, etc.9 As the agenda started to increasingly include homeland security issues, these fora became overcrowded and ineffective (Pawlak 2007a). Their formality and structure of membership led “securocrats” to establish their own specialized, more informal bodies,10 with the objective of ensuring that people doing conceptual thinking on each side actually talked to each other (ibid.). The emergence of networks with more organizational and cultural homogeneity between European and American officials provided a new dynamism at the transatlantic level and proceeded simultaneously with inter-­organizational rivalries and conflicts (Pawlak 2009b). In 2004 the PDBTS was created, mostly as an early warning mechanism whereby controversial legislation could be discussed it gave rise to conflicts. The initiative came from the homeland security professionals, who, constrained by the existing diplomatic channels, felt the need to move their cooperation beyond the frames of diplomatic “talk shops” and instead focus more on results (Pawlak 2007a). Since the PDBTS was created outside the formal EU institutional framework it was able to develop flexibility in terms of its format, membership, and functioning. Furthermore, because it did not constitute a part of a formal negotiation process but rather was a forum for exchange of information, the PDBTS allowed for franker discussions. As Jonathan Faull said during the press conference after the first meeting of the PDBTS, its participants had deliberately decided to avoid the usual pleasantries and long speeches and reading of documents which everybody should have read, no doubt, has read anyway. But we got down to brass tacks very quickly.

Made in the USA?   117 These are issues of the greatest importance for the security of citizens of the European Union and of the United States. (United States Mission to the European Union 2004) Several rounds of meetings in the framework of PDBTS have proven a good opportunity for European and American policy makers not only to resolve the ongoing problems but also to learn more about each other and exchange information, and consequently have contributed to the building of trust and relationships.11 Psychological contracts based on trust: the evolution of the Commission adequacy decision and the undertakings of 2004 Since transfer of data to the US authorities constituted a breach of the EU data protection laws, the only option for the European Commission was to establish whether or not the US data protection system was “adequate” in comparison to the European one and, if it was, only then give the green light to the airlines. This task was difficult, not only because of differences between European and American approaches to data protection but also because of the whole transatlantic context. One of the problems that emerged at the transatlantic level in the post-­ 9/11 context was a limited trust between policy makers on the two sides and the role of emotions in the process. When asked about most challenging aspects of transatlantic homeland security cooperation, one of the European officials suggested that “people’s reciprocal fears, interests and emotions are important and need to be taken into account. They definitely do not make things easier. [. . .] Homeland security is more than business and profits. That is why it is more challenging.”12 Initially, the presence of new actors at the transatlantic level proved difficult – mostly because of the fact that for many of them it was the first time they had met.13 However, the cultural and organizational proximity among some individuals very soon led to the emergence of new coalitions, most notably between internal security officials. The progressive emergence of trust and relationships between them allowed participants to move beyond the formality of international law instruments. The issue was complicated because from the beginning the data protection authorities in member states and the European Parliament took a very strict stance on the US requirements. In one of its early opinions the Art. 29 WP expressed the view that “it does not seem acceptable that a unilateral decision taken by a third country for reasons of its own public interest should lead to the routine and wholesale transfer of data protected under the directive” (Article 29 Working Party 2002). In the same opinion, it was argued that because the data forwarded by airlines related to identifiable physical persons and were processed by airlines within the European Union, they were protected by the provisions of the Data

118   P. Pawlak Protection Directive (95/46/EC), and therefore the access to passenger data violated the EC Regulation on computer reservation systems (CRS) as well as the 1995 Data Protection Directive.14 Criticism was also expressed toward the purpose and proportionality of the measures adopted. While data protection authorities recognized the need to combat terrorism, they have also underlined that “the respect for fundamental rights and freedoms of the individuals including the right to privacy and data protection must be ensured” (Article 29 Working Party 2001).15 Therefore, in June 2003 the Art. 29 WP reiterated that “the legitimate requirements of internal security in the US may not interfere with these fundamental principles” (Article 29 Working Party 2003). Given such extensive opposition, the adequacy finding decision of the European Commission (European Commission 2004a) was a surprising move. The additional safeguards that US Customs and Border Protection (CBP) was asked to provide suggest that this decision was politically motivated rather than based on an objective assessment. Even more interesting is the evolution of this “paralegal” instrument from the Undertakings in 2004 (US Department of Homeland Security 2004), to the Letter to the Council Presidency and the Commission from the DHS in 2006 (Council of the European Union 2006b), to the US Letter to the European Union accompanying the agreement of 2007 (Council of the European Union 2007b). The final outcome of the 2004 negotiations was puzzling because it was a hybrid composed of a rather loose international agreement and a very detailed set of Undertakings in the form of a political commitment rather than a legally binding document. Given that the most controversial provisions of the whole package were incorporated in the Undertakings (i.e. use of PNR, data requirement, storage or method of accessing data), it was surprising that the European Union agreed to such a weak form. According to the text, the Undertakings are a unilateral declaration by the CBP that it will follow certain principles and rules with regard to treatment of the PNR data. Thus, the Undertakings were a complementary act with the objective of providing additional guarantees for the European Union. The final outcome, although slightly uncomfortable for lawyers and unsatisfactory from the international law perspective, was considered a necessity from the political perspective.16 During the PNR negotiations in 2006 and 2007, provisions similar to those in the Undertakings were included in the format of letters “from the US to EU.” Since the legal basis for the agreement was moved from first to third pillar (i.e. put beyond the scope of the EU Data Protection Directive and hence not subject to the adequacy finding procedure), such an exchange of letters was meant to serve as a commitment by both sides to respect each other’s data protection regime. In the response from the European Union to the United States we read:

Made in the USA?   119 While taking note of the content of your letter, we wish to reaffirm the importance that the EU and its Member States attach to respect for fundamental rights, in particular to the protection of personal data. The commitments of DHS to continue to implement the Undertakings allow the EU to deem that, for purposes of the implementation of the Agreement, it ensures an adequate level of data protection. (Council of the European Union 2006c) This reliance on soft modes of regulation rather than on formal legal arrangements is an interesting and important development. The informal psychological contracts increasingly complemented or substituted for the formal contractual safeguards in what can be interpreted as a sign of increasing trust among parties. For instance, the director of the DG JLS, Jonathan Faull, commenting on the PDBTS, observed: There is no doubt that we share one hundred percent the same objectives in making our borders secure, making our transport systems secure and in striking the right balance between the security measures and the rights of the individual and the protection of data. Those are our objectives. I think they are absolutely common. We have different legal systems, different political structures, so the way we get there are not always the same. But the more we talk to each other, the more likely it is that we will find common paths to that common destination. (United States Mission to the European Union 2004) Similarly, a former US Secretary for Homeland Security, Tom Ridge, reflected on these developments in the following way: “What I have discovered is that when we sit down, make our case, discuss, negotiate finding a common solution of mutual benefit, we’ve made a lot of progress” (United States Mission to the European Union 2004). Some officials also believe that the fact that “those on the top are having better contacts between themselves and are more open to pragmatic discussion”17 has helped to transform the American “bunker mentality”18 into a more open one. Beyond formal relationships: enhancing the EU–US data exchange cooperation The importance of the role of this dialogue and the personal relationships that were established between officials from each side of the Atlantic cannot be overestimated. Personal relations “make a really great deal” and help to “push things forward.”19 Their role has been acknowledged at the highest political levels.20 Personal and informal relationships that developed between European and American officials through participation in the same fora created the environment for more informal discussion about transatlantic data exchange and data protection. Dialogues and

120   P. Pawlak interpersonal relationships also had an impact on building a common understanding and empathy between officials involved in the process. Similar objectives were behind the creation of the High-­Level Contact Group on data protection (HLCG). Established by the decision of the EU–US Justice and Home Affairs Ministerial Troika on 6 November 2006, the HLCG started its work as an informal high-­level advisory group bringing together EU and US policy makers (i.e. senior officials from the Commission, the Council Presidency supported by the Council Secretariat, and the US Departments of Justice, Homeland Security, and State). DG JLS, represented by both security and data protection specialists, was the leading actor on the EU side. The HLCG was intended to provide a broader reflection on methods that would allow for effective law enforcement cooperation while at the same time ensuring a high level of data protection. It was an opportunity for European and American policy makers to enhance their reciprocal understanding of each other’s working methods, progress toward “common principles,” and eventually establish “an effective regime for privacy and personal data protection” (Council of the European Union 2008a). A set of core privacy and personal data protection principles was identified as early as the first meeting of the group, on 26 February 2007, and another informal expert group was established with the objective of developing agreed definitions of those principles (ibid.). Operationally, the EG and the HLCG relied mostly on videoconferences and electronic transfers of documents. Draft documents were exchanged between both sides ahead of videoconferences and then thoroughly discussed. Political leaders endorsed the final report of the HLCG at the EU–US summit in 2008. The history of the HLCG would be incomplete without mentioning the role that individuals and personal relationships between EU and US officials played in the creation of this group. The HLCG emerged from the PDBTS as a new, even more specialized body. The idea came from a former official at the US Department of Justice based in Brussels, Mark Richard, and was implemented thanks to his close relationship with Gilles de Kerchove at the Council Secretariat. They were both involved in negotiations of the PNR agreements and in the SWIFT case. They also both agreed that many problems during the process arose from the participants’ limited knowledge about each other’s data protection systems rather than from the differences between them.21 Therefore, the establishment of an informal group was “an attempt to take privacy out of the negotiation context and try to look at issues objectively.”22 This forum bringing together data protection specialists from both sides of the Atlantic operates beyond any formal institutional mandate and relies completely on psychological contract between its members. The emergence of personal relationships among officials led to two noteworthy developments at the transatlantic level. First, a traditional

Made in the USA?   121 division line between the European Union on one side and the United States on the other has faded and evolved toward a more complex set of functional dichotomies between the legislative and executive branches or between diplomats and security professionals. The differences in approaches and objectives between those groups have sometimes provided a new dynamics for transatlantic relations, as was the case with the EU–US PNR Agreement. More importantly, the emergence of the PDBTS as a new body in the EU–US policy-­making architecture and a resulting shift from formal negotiations context to a more informal and less transparent environment have strengthened the objections of those stakeholders who were denied access to the process. The dynamics resulting from the conflicts surrounding the process has eventually impacted the final policy outcome, which in the case of the EU–US PNR Agreement was moving the agreement from the Community first pillar – as was the case for the PNR I Agreement – to the third pillar – as is the case for the PNR III Agreement (Pawlak 2009a). Personal ties between policy makers from the two sides have also contributed to the surfacing of issue-­based transatlantic coalitions where each side supported the other in their domestic struggles. For instance, European officials talked to the US Congress, presenting the arguments supporting the position of the DHS,23 while the DHS talked to member states and the European Parliament, presenting arguments in support of Commission or Council positions. Second, personal relationships between EU and US officials have had an impact on the development of particular legal and policy instruments. The reliance on soft regulation with flexible interpretation and “paralegal” frames in cases of great importance and sensitivity, such as personal data exchange, undoubtedly represents an interesting development. Internalization of US norms: the European Commission’s proposal for the EU PNR system Several months after the conclusion of the EU–US PNR Agreement, the European Commission presented the framework decision proposal to establish the EU PNR system as a component of the EU anti-­terrorism package (European Commission 2007a). The introduction of the EU PNR system was discussed in the multidisciplinary group on organized crime, and the most recent version of the proposal, incorporating the findings of the Slovenian and French presidencies, was presented on 23 January 2009 (Council of the European Union 2009). This initiative was puzzling, given several European objections to a similar instrument implemented in the United States. The analysis of the proposal and the process toward its adoption suggests that this development can be interpreted as internalization of the US norms by European policy makers.

122   P. Pawlak First, it is noteworthy that the rationale for the EU PNR system provided in the proposal is mostly internal24 and includes no reference to the American PNR system or similar systems being established worldwide; only reference to the International Civil Aviation Organization (ICAO) and the International Air Transport Association (IATA) is made. Such an approach clearly suggests that the Commission was trying to avoid any association with the US PNR initiative in order to reduce internal opposition in the European Union. The linkage between the EU and the US PNR systems would be more difficult to make if it were not for a surprising similarity between the Commission proposal and the provisions of the EU–US PNR Agreements (see Table 7.1).25 Throughout the process of the EU–US PNR negotiations, major controversies were related to the purpose of the agreement, a retention period, redress mechanisms, and transfers of sensitive data.26 The European Commission initially subscribed to many of these criticisms but during the negotiations it softened its positions and recently proposed a very similar solutions to be introduced as the European PNR system. Although the process and the content of the European system differ from the American one, the final outcome is still very similar to the final PNR agreement negotiated with the United States in 2007 (Table 7.1). On many occasions the scope of the European provisions goes even further than that of the EU–US PNR Agreement, which may suggest that the Commission used the momentum provided by the EU–US negotiations to advance its own controversial measures (Bigo and Carrera 2007). Apart from content issues, the approach adopted by the European Union is very “American.” One of the major criticisms raised by the European side in the case of the EU–US PNR negotiations was a unilateral approach by the United States and a lack of consultation. However, while aware of international implications of the system, the European Union has not undertaken discussions with its international partners. While the intensive dialogue continues with developed countries such as the United States, Canada, and Australia, very little discussion is taking place between Europeans and addresses of these instruments in Eastern Europe or in Africa.

Conclusions The focus of this chapter was on informal transgovernmental networks and data protection exchange within the transatlantic context. However, one needs to keep in mind that this is only part of the picture. Similar networks have been established between officials dealing with customs security (the Joint Customs Cooperation Council) and transportation security (the Transportation Security Cooperation Group, TSCG). The idea behind the TSCG was mostly for each side to inform each other in advance about planned initiatives and take actions jointly. As a con-

Made in the USA?   123 sequence, EU and US officials visit airports on both sides of the Atlantic in order to learn how each side operates and eventually to develop mutual trust and recognition of standards.27 In addition, there are several other, more informal networks between Europol and FBI officials, between CBP and Frontex staff, or between law enforcement officers at operational levels. Given the sensitivity of the issues, the development of such informal channels is not surprising. The intelligence cooperation between countries is primarily based on such initiatives. But what does it mean for the policy-­making process? As has already been indicated, most of those networks include only representatives of the executive, with very limited access for legislative and data protection bodies. The most recent developments in EU–US cooperation on data exchange confirm general trends identified in this chapter. First, we observe the proliferation of informal networks between American and European policy makers. These networks operate beyond any legal mandate provided in the treaties, and their operations are based on informal relationships between individuals. This is best expressed in the introduction by the Czech presidency to the HLCG final report: “The Presidency would like to highlight that this draft final report as such is not a report by the Council or by the European Union, but by the High Level Contact Group.” Hence, if the HLCG does not represent the Council or the European Union, whom does it speak for? And what is the significance of its conclusions? The implications of those networks for the EU homeland security policies cannot be overestimated. While the implications of transnational regulation are rather straightforward and can be identified rather easily, the processes of trust building and learning in those networks are much more difficult to observe. Therefore, they require more careful investigation. On the one hand, they provide the opportunity for exchange of information and learning, which makes any discussion “more fair intellectually.”28 On the other hand, they affect the European Union’s internal organization, its working methods, and its approaches to policies,29 and hence need to be scrutinized. As this chapter has demonstrated, informal policy-­making structures at the transatlantic level play an increasing role, a sign of integration progressing outside any official framework. The process suffers from a lack of transparency and doubtful legitimacy. While it is understandable that some issues need to be discussed behind closed doors, the level of secrecy and the obstacles to obtaining any information are difficult to justify. It is possible that, as policy makers claim, the informality and flexibility of transatlantic networks allows working toward more innovative and possibly more efficient solutions. But because of the extensive scope of homeland security policies and their implications for individuals, the information provided to the public should be more detailed rather than fragmented and imprecise.

PNR I

Preventing and combating terrorism and related crimes; Other serious crimes, including organized crime, that are transnational in nature; flight from warrants or custody for the crimes described above.

Customs and Border Protection (CBP) will not use “sensitive” data from the PNR, as described below. CBP will implement an automated system that filters out and deletes certain “sensitive” PNR codes and terms which CBP has identified in consultation with the European Commission.

3.5 years: if not manually accessed during that period of time, the data will be destroyed. 11.5 years: if accessed, the data will be transferred to a deleted record file where they will remain for 8 years before being destroyed.

Issue

Purpose

Sensitive data

Data retention time

EU PNR Preventing detecting, investigating and prosecuting terrorist offenses and serious crime. It is applied to air transportation only but member state authorities may expand it to other areas (point 7a). No risk assessment criterion should be based on sensitive data, but this does not exclude their collection. However, Passenger Information Units (PIUs) may exchange such data among themselves. 6–10 years: 3 years after the data’s transfer and a further period of 3–7 years in archives. After that period, data should be deleted from the database.

PNR III As in PNR I. PNR may be used where necessary for the protection of the vital interests of the data subject or other persons, or in any criminal judicial proceedings, or as otherwise required by law. The Department of Homeland Security (DHS) employs an automated system that filters out those sensitive PNR codes and terms and does not use this information. Unless the data are accessed for an exceptional case, the DHS promptly deletes the sensitive EU PNR data. 15 years: after 7 years the data will be moved to dormant, non-operational status. Data in dormant status will be retained for eight years.

Table 1  Treatment of passenger name record data: comparison of PNR I, PNR III, and the EU PNR proposal

Access: Yes but conditional. Redress: CBP will undertake to rectify data at the request of passengers and crew members, air carriers or data protection authorities (DPAs) in the EU member states (to the extent specifically authorized by the data subject), where CBP determines that such data are contained in its database and a correction is justified and properly supported.

No: CBP shall, strictly on the basis of reciprocity, encourage US-based airlines to cooperate.

Redress mechanism

Reciprocity

Source: Venice Commission (2006: 11).

34

Number of data items

Yes, if conditions are met, including: purpose, adequate level of data protection, etc. In addition, in some instances there is no need for adequacy.

Access: Yes, but member states may adopt legislative measures restricting access to information where it may be. Rectification and erasure rights are provided but no particular body appointed as the one to deal with such requests. The data subject must have the right to seek judicial remedy for any breach.

Extended administrative Privacy Act protections to PNR data stored in the Automated Targeting System (ATS) regardless of the nationality or country of residence of the data subject. Access and redress: Yes, but conditional.

No: The DHS intends, strictly on the basis of reciprocity, to actively promote the cooperation of the airlines within jurisdictions in the European Union.

As in PNR III

34 (only 19 enumerated explicitly)

126   P. Pawlak

Notes   1 A different version of this chapter has been published as a working paper in the series “Liberty and Security in Europe” of the Centre for European Policy Studies in Brussels.   2 Interviews with US officials, Washington, DC, March–July 2007.   3 Ikenberry and Kupchan (1990) call this process “external inducement.” Socialization through external inducement takes place in two stages. The hegemon manipulates the preferences of elites in a secondary state through coercion (i.e. economic and military incentives) and then, after the secondary state has adjusted its policies to bring them into line with those of the hegemon, the normative principles underlying the hegemon’s policies are embraced by the elites. Ikenberry and Kupchan (ibid.) refer to it as the “acts before beliefs” scenario, where norm change (cooperation through legitimate domination) follows the policy change (cooperation through coercion).   4 For a slightly different treatment of those cases, see Argomaniz (2009).   5 The list of derogations is covered by article 26 of the DPD.   6 As a matter of fact, only three countries and three British dependent territories have qualified for an adequacy finding decision by the European Commission: Jersey (2008), the Isle of Man (2004), Argentina (2003), Guernsey (2003), Canada (2002), and Switzerland (2000).   7 For more details about these agreements, see Guild and Brouwer (2006), Argomaniz (2009), and Hobbing (2008).   8 For more on development of the external dimension of justice and home affairs policies, see Pawlak (2009a) and Alegre (2008).   9 One of them asked rhetorically, “Do diplomats understand anything about security?” Interview with a European Commission official, EU delegation, Washington, DC, February 2007. 10 It is noteworthy that the United States is the only major partner of the European Union with which there is no overlapping legal framework to regulate the relationship. Both the New Transatlantic Agenda and most recent developments take place on the basis of political declarations, with the exception of sectoral EU–US international agreements. Still, bodies such as task forces or high-­level dialogues exist and are managed with a limited basis in the EU Treaties. 11 Interviews with European and US officials, October 2006–July 2007. 12 Interview with a European Commission official, DG External Relations, Brussels, October 2006. Similar views prevailed among officials interviewed for the purpose of this research. For instance, another person described the problem in the following way: “Because we are dealing with the US, a lot of debates are rather embedded in a broader political context and therefore become very emotional. The subject as such is already important but emotions involved make the whole issue even more difficult.” 13 One of the US officials, referring to his first experiences with the European Union, commented, “First, it was an educational problem. I came from the Congress and there we were not worried about the EU at all. So we had to learn that the EU can actually be a useful partner and not be seen only as a necessity.” Interview with a former US official, Department of Homeland Security, Washington, DC, May 2007. 14 Ibid. 15 This stems not only from the Directive but also from article 8 of the European Convention on Human Rights and articles 7 and 8 of the Charter of Fundamental Rights of the European Union. 16 Interview with a US official, Department of State, Washington, DC, May 2007.

Made in the USA?   127 17 Interview with a European Commission official, DG Transport and Energy, Brussels, March 2007. 18 Ibid. 19 Interview with a Council Secretariat official, DG Justice and Home Affairs, Brussels, March 2007. For an example of how individuals and broken relationships may have a negative impact on socialization and the relationship at large, see Pawlak (2007a). One of the officials, for instance, mentioned that “the attitude” toward Europeans was expressed, among other ways, by conducting negotiations in very limited spaces and “terrible” conditions. 20 Interview with a European Commission official, DG External Relations, Brussels, October 2006. 21 Interview with a US official, Department of Justice, Washington, DC, February 2009. 22 Interview with a US privacy officer, Department of Justice, Washington, DC, April 2007. 23 The debate about the HR 1 Act assuming 100 percent screening of containers is a very good example. 24 The Hague Program and the extraordinary Council meeting of 13 July 2005 are mentioned as two moments when the Commission was called upon to establish a European PNR system. 25 Most of the differences can be explained by the complexity of the European Union decision-­making procedures and the fact that various countries insisted on different provisions being inserted. Hence, for instance, the data retention period may vary from six to ten years. 26 Sensitive data are data that may reveal racial or ethnic origin, or religious beliefs, the transfer of which as a matter of principle is prohibited by Directive 95/46/EC. 27 Interview with a European Commission official, DG Transport and Energy, Brussels, 14 March 2007. 28 Interview with a former US official, Department of Homeland Security, Washington, DC, April 2007. 29 For the impact of the internal European debate about the EU–US PNR agreement on the balance and the context of EU counterterrorism policies, see Pawlak (2009a).

8 Norms and expertise in the global fight against transnational organized crime and terrorism Amandine Scherrer

Introduction The intensification of expert-­level exchanges on the international stage (within, for instance, the European Union, the Organisation for Economic Co-­operation and Development (OECD), the United Nations, or the G8) in the area of justice and police cooperation has led to the establishment of professional networks of expertise that regularly bring together officials from justice and home affairs (JHA) departments. These exchanges have led to an impressive elaboration of best (or good) practices, codes of conduct, or similar instruments such as guiding principles or recommendations. Police, judicial, and intelligence cooperation is deemed to be the core of the fight against criminal matters, be they “serious,” “organized” crimes, or participation in terrorist activities.1 How do these best (or good) practices or guiding principles circulate, and when does that lead to homogenization, harmonization, or standardization?2 What are the practices, within international institutional arenas, that must connect questions of rational governance, risk management, and national/international security? Contemporary analysis of the international dynamics of policing has been fragmented between disciplines. The study of international policing is a well-­established subfield of criminology and sociology (Ericson and Haggerty 1997; Sheptycki 2000, 2002; Beare 2003; Shearing and Johnston 2003). Some security studies scholars, also identified with the international political sociology (IPS) perspective, have also examined transnational crime and its control at a global level (Bigo 1996, 2006a; Bigo and Tsoukala 2008). Some authors have tried to adopt interdisciplinary approaches, notably in transnational policing and international crime control strategies (Nadelmann 1993; Anderson et al. 1995; Edwards and Gill 2003; Andreas and Nadelmann 2006). Securities studies, international relations, comparative criminology, and sociology thus offer the most promising perspectives, perspectives that are often complementary. Scholars belonging to this group have questioned the historical and social construction of the alleged threat of transnational crime and/or terrorism at global level, and share a relatively close understanding of the influence of

Norms and expertise   129 the social environment of anti-­crime strategies and practices. However, as with much interdisciplinary work, there is no consensus on the appropriate methodology, epistemology, or even ontology to study these international fields of practice. A focus on actors elaborating these norms can represent an appropriate effort to clarify these logics of production, diffusion, and promotion. Such a research methodology reconciles critical criminologists and sociologists investigating the international environment (Sheptycki 2007). This means, of course, getting out of libraries and taking the risk of encountering some difficulties and obstacles in gathering information on individuals who, most of the time, are quite reluctant to share their professional and personal experiences. Establishing biographical trajectories is not an easy task, especially when dealing with individuals who are involved in the study of anti-­crime policies or law enforcement, or are intelligence-­services professionals for whom secrecy and confidentiality are routine business. ­Nevertheless, current research on the EU field of security, for instance (Challenge 2005), and my own research on the G8’s Experts Group on transnational organized crime (TOC) and terrorism (Scherrer 2009), provide an innovative research agenda and ask preliminary questions: Who are these experts who decide on best practices and recommendations? What are their socio-­professional backgrounds? What is the nature of the best practices and similar instruments, such as codes of conduct or guiding principles, that these experts are promoting in the global fight against organized crime and terrorism? The nature and status of these instruments certainly deserve full attention. These instruments can be assimilated as soft law mechanisms, as they do not have any legally binding force. As conceptualized by Snyder, soft law designates “rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects” (1993: 198).3 As such, do these types of instruments have an impact on international cooperation? Why have they become so commonly used in international negotiations? Accounts of norms producers are certainly helpful in explaining the dynamics of the adoption of international norms at the international level in this sector. Closer attention to the nature of these international instruments of regulation, as well as an analysis of their pro­ cesses of promotion and dissemination, is indeed crucial in this attempt to highlight the transnational transmission and circulation of norms in the global fight against transnational organized crime and terrorism.

The study of international expertise: who are the norms producers for which norms? A common model in International Relations to explain international expertise and its influence on political decisions is the perspective focusing on “epistemic communities.” Epistemic communities are usually

130   A. Scherrer defined as “a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-­ relevant knowledge within that domain or issue-­area” (Haas 1992: 3). Several scholars have convincingly challenged this epistemic community-­ based approach, stressing that it gives a false picture of homogeneity that minimizes the importance of social dynamics and social logics within a group of actors (Dezalay and Garth 2002). Following Pierre Bourdieu’s concept of habitus, an international political sociology approach underlines the set of acquired patterns of thoughts, behavior, and taste, which constitutes the link between social structures and social practices (Bourdieu 1977). By focusing on actors who are deemed to be “experts,” a more sociological approach stresses the importance of taking their careers, social capital, and institutional positioning as a starting point in order to determine how they operate as a group and the symbolic effect they have on political decision makers. Adopting such a theoretical framework adds a new dimension to the concept of expertise. Experts are not only providers of technical information; they also have the power to shape the understanding of, and to constitute beliefs on, specific topics. The norms they are producing are therefore never neutral and reflect these beliefs. Using a sociology precisely inspired by the work of Pierre Bourdieu, a focus on security professionals (Bigo 1996, 2006a) thus invites us to compile a “biography” of professionals belonging to this field. Such a biography can be undertaken by using ethnographic tools, such as semi-­structured interviews and qualitative methods of analysis. Of course, as many scholars who have taken a research posture characterized by in-­depth fieldwork underline, ethnographic investigation is not an easy task, especially when dealing with international groups of actors (Sheptycki 2002). The international dimension certainly generates more difficulties, in terms of traveling, of time, of languages and cultural differences. Such “uprooted” research is certainly demanding, but is greatly needed in the understanding of the setting of norms production and diffusion. Our case study in this chapter focuses chiefly on an underinvestigated and underevaluated international group of experts on transnational crime and terrorism, the G8 Lyon/Roma Group. The study of the Lyon/Roma Group is indeed challenging. The Lyon/ Roma Group is utterly opaque. Analyzing it is thus extremely complicated insofar as none of its meetings are made public, there are no official documents available showing the content of such meetings, and the group keeps no centralized records. So, piecing together its meeting schedule, finding out what was on the agenda of those meetings, and gaining an overview of the group’s work is a seemingly impossible task. The only references to the Lyon/Roma Group in existence are those that appear in the G8 official communiqués and declarations, none of which gives specific details of its nature or role within the G8. Lastly, for those who wish

Norms and expertise   131 to know who these so-­called experts are, the task is made all the tougher because simply trying to identify them – find out how many there are, their names, where they come from, and what institution they work for – is a long-­term project. Nevertheless, official documents, internal documents (obtained not without some difficulty), and interviews with some of those involved in the Lyon/Roma Group have provided valuable information sources. Given the extreme secrecy surrounding it, that unveiling is inevitably incomplete but nevertheless sufficient to form an important addition to what is known about its structures and actors and the way it operates (Scherrer 2005, 2009). Even if it has not been possible to produce an exhaustive biography of all of the participants in the Lyon/Roma Group because of the great secrecy that surrounds both the group itself and the experts involved, it has been possible, among some of them, to identify some points of convergence and similarity – in particular, their professional skills, their familiarity with international dynamics, and their position on the international stage. Hence, ethnographic inquiry certainly makes it possible to collect interesting data, to understand the modus vivendi and modus operandi of a social group, and eventually to give a detailed account of who these international “norms entrepreneurs” (Finnemore and Sikkink 1998: 897) on the international stage are, how they interact collectively, and how their collective involvement produce norms and standards. The extension of the G8 agenda since the end of the 1980s, notably on international security issues, has led to the intensification of expert-­level exchanges over these questions within the G8 system. In the fight against terrorsm and organized crime, the G8 countries set up a Group of Experts in 1995: the Lyon Group. A separate Group of Experts, the Roma Group, was also founded in the 1980s. After 9/11 the Lyon and Roma Groups merged, becoming known as the “Lyon/Roma Group.” My analysis of the G8 Lyon/Roma Group is based partly on official documents but mainly on interviews with some of its key expert members.4 The Lyon/Roma Group gathers together experts who are all civil servants from the bureaucracies of G8 members, mainly from ministries of justice, ministries of foreign affairs, and law enforcement and intelligence agencies. These experts meet three times a year and their mandate is to prepare and coordinate high-­level official meetings, more specifically the annual G8 Interior and Justice ministerial meetings. After 1995 the Lyon Group structured its activities into four main subgroups: Police Cooperation, Judicial Cooperation, Cybercrime, and Migration. The new Lyon/Roma Group has kept the same structure, but in 2001 a fifth subgroup was added, known as the Intelligence Practitioners’ subgroup, which is mainly a gathering of G8 intelligence-­services officials. This new structure has led to considerable changes in the socio-­professional distribution of the expertise provided. According to my interviews, before 9/11 there were roughly equal numbers of officials from justice, foreign affairs, and law enforcement

132   A. Scherrer services and agencies, but I have had access to a list of all the Lyon/Roma Group delegates in 2005 and it is clear from the document that the interior, police, and intelligence services officials made up more than 70 percent of each delegation. Simply put, the demographics have changed and the actual professional make-­up of the organization has changed. A rather striking element emerges from my interviews with some of these international experts. As most international meetings are gatherings of civil servants from member states, one might have expected that consensus among these experts would be hard to reach, because of the pursuit of national or professional interests. As mentioned above, and in the specific case of the Lyon/Roma Group, interior, police, and intelligence-­ services officials constitute the majority of the Experts Group. This socio-­professional distribution of the expertise provided give less room to actors coming from the judiciary, and provides an explanation as to why more preventive and proactive strategies have been adopted by the G8 Group after 9/11. More precisely, the Lyon/Roma Group has, since 2003, focused on “best practices” with regard to the development of biometrics and their use in travel documents,5 the enhancement of special techniques of investigation,6 the sharing of information and databases, including DNA information,7 and the protection of migration procedures.8 It also appeared clearly during my interviews that the civil servants belonging to justice departments were sometimes uneasy with the type of tools and instruments promoted during these meetings. The increasing number of preventive and proactive strategies adopted by the Lyon/Roma Group has created a feeling of discomfort among many officials worried about the legal application of these international standards. Many of the officials from the justice sector I have met did indeed recognize that the current fight against terrorism has allowed most of the expert groups working at the international level to give legitimacy to some procedures that would previously have encountered many obstacles, specifically when it comes to the respecting of civil liberties and individual privacy. The legally dubious nature of these advocated practices as regards to the rule of law – in the field of the control of migration, the protection of borders, the surveillance of communication, movements, and travels – has been convincingly analyzed in many studies on the European Union, the United States, or Canada, and in particular for scholars who have challenged the idea of a necessary balance between liberty and security (notably in the CHALLENGE Network). In the case of the G8, one could argue that G8 countries are democratic, and therefore that there is no need to worry. But one should always keep in mind that the logics of suspicion and exception that prevail now in the “war against terrorism” (Guittet 2004, 2008) often lead to illiberal practices, even in liberal regimes, as Bigo and Tsoukala suggest (2008). These logics are particularly reinforced when it comes to the “usual suspects” in the fight against crime and terrorism: the refugee, asylum seeker, the migrant, the minorities in a given

Norms and expertise   133 society (Bigo and Guild 2005). For instance, in 2004 under the US presidency of the G8, the above-­mentioned G8 experts examined the asylum application and adjudication processes in their states for the purpose of identifying vulnerabilities and preventing abuse of those processes by terrorists.9 Some of their recommendations are quite explicit concerning this situation of exception and suspicion. For instance, the first two recommendations clearly encourage the sharing of asylum-­related information with another state, including criminal histories of asylum seekers, even though such information is normally kept confidential under the general principle of asylum confidentiality. The next recommendation even encourages G8 countries not to consider consent of the applicant as a basis for disclosure of information about the applicant. As stated, “Consent should not always be a prerequisite for sharing information to identify persons involved in terrorism.” Despite the discomfort described earlier among some officials faced with such encroachments on the rule of law, the necessity for such proactive and preventive instruments, even if they are legally doubtful, is justified by all of the actors from both judiciaries and police by invoking the concept of emergency.10 In face of such a threat, the “we need to act fast” argument prevails and legitimizes the bypassing of legal constraints. The imperative to combat terrorism has thus clearly left its imprint on the recommendations put forward by the Lyon/Roma Group. The fact that the views of the law enforcement experts prevailed over those of the justice-­sector experts prompted very little discussion among the actors. As one of the experts from the Intelligence Practitioners Subgroup bluntly put it, The G8 is not a human rights forum! OK, we’re nevertheless supposed to act in line with domestic legislation but it’s not up to us to deal with those matters. As for us – and we are the right ones to do it – we discuss how we can be effective, full stop. (Interview with the author, Paris, 2006) So, according to this expert, caution and compliance with the rule of law must come second to creating tools that can be put into practice without its being questioned whether they are legitimate. Politics and a belief in urgency supplant the broader and more complex questions of the legality of the methods employed and their legitimacy. There must be no challenging of the development of these proactive, preventive police and intelligence measures, but rather a kind of race against the clock in the face of a protean enemy that comprises a mixture of organized crime, illegal immigration, and terrorism. The Lyon/Roma Group therefore constitutes a good example of how social space is structured by the interplay between actors’ habitus and the field of professionals they belong to (illusio of the actors, as Bourdieu

134   A. Scherrer suggested). The existence of a field necessarily includes struggles and battles within the field, and constantly involves arbitrations between various options, interests, and understandings. This relation between agents and structure is precisely the prior mechanism of production of the social world (Bourdieu 2000). The role here of the socio-­professional distribution of the expertise provided is central to an understanding of the change in the orientation of the Lyon/Roma Group and the setting of renewed agenda and priorities, explained by constant struggles, contestations, confrontation, or non-­resistance among social actors belonging to a common structure. Indeed, as Mary Douglas reminds us, “institutions cannot have minds of their own,” and even if there has to be some thinking and feeling alike among members in order for it to be possible to talk of a “group,” just because it is legally or socially constituted “a group cannot be said to behave – still less to think or feel” (1986: 9). In this regard, considering “best practices” as the result of a consensus among the actors to facilitate action and cooperation on the field within the Lyon/ Roma Group must not be seen solely as the choice of a group of actors independently of the structure in which they interact. Beyond a perspective in terms of rational choice, the elaboration of best practices reflects both the specific nature and structures of G8 meetings (not formalized or formally institutionalized), and the effectiveness of these soft-­law-type instruments as a form of regulation. Established social ties, shared understandings, and a common sense of belonging channel the actors’ behavior and constantly reinforce the structure of the group as a group, and, moreover, create networks of settings for deliberations and mutual learning.11

Promotion, socialization, and dissemination The imperative of cooperation is made concrete, or real, through a proliferation of best practices and similar soft-­law-type instruments at the global level as well as in hard policies and laws. However, soft instruments have become important tools of cooperation and regulation at the global level (Lascoumes and Le Galès 2004), and instead of inscribing laws and judicial rules, these kinds of instruments prescribe standards of behavior and professional norms. Thus, it would be counterproductive to consider these “best practices” and recommendations as harmless because they are only declarative. These norms do have an impact even in absence of coercive tools. This impact should be considered in terms of dynamics of norms of socialization, institutionalization, and habitualization (Risse and Sikkink 1999). As was mentioned earlier, it would be simplistic to consider these soft instruments to be the result of quiet and undisputed diplomatic negotiations among experts at an international level. Those instruments (recommendations and best practices) are the result of exchanges among professionals sharing different interests. As such, the consensus they reach in the elaboration of international guidelines reflects the lowest common

Norms and expertise   135 denominator among actors from different professional and national backgrounds. Paradoxically, one of the major effects of these soft instruments is that their informal characteristics render them highly and quickly exportable. They are precisely conceived as ready-­to-use guidelines. Interestingly, one of the G8 judicial experts we have met stated: Of course we would face problems of legal interpretations if we were to go further into details in these general recommendations. But in the G8 experts group, the task is to reach consensus around general principles and guidelines that can be applied in many different countries. (Interview with the author, London, 2006) Action, in this quotation, comes before the law. Thus, an interesting research hypothesis might be that best practices and recommendations constitute one of the most efficient tools in terms of promotion and diffusion of norms at the international level. The efficiency and speed with which jointly agreed tools for combating transnational organized crime and terrorism can be introduced can indeed be largely explained by the few constraints involved in drafting principles and best practices that are very general. As has been noticed by several scholars, there is in soft-­lawtype instruments in general a striking discrepancy between the flexibility of their use and their power of action and influence (Chatzistavrou 2005; Jacobsson 2004). Indeed, soft-­law-type instruments provide guidelines, not uniform rules. Therefore, each state, or group of professionals, is encouraged to experiment on its own and to shape solutions that fit its social, structural, and historical contexts. Moreover, action through the use of soft law is free from parliamentary and judicial scrutiny; as such, soft-­lawtype instruments can be both effective and quickly implemented. As noticed by Brunsson and Jacobsson (2000), the emergence of groups with authorized expert knowledge creates standards and indeed has its dangers in terms of depoliticization, technicialization, and regulation without responsibility. The best practices elaborated by the Lyon/Roma group’s actors thus reflect more of a baseline consensus that can then be disseminated. Within this specific expert group the strategy for harmonizing criminal justice and law enforcement matters consists of establishing best practices, policy principles, and recommendations, all of which may be seen as soft law instruments that are not binding on member states. This strategy is not surprising if the hybrid nature of the G8 is borne in mind: the G8 is not an institution in the legal sense of the term and it is therefore not within its remit to adopt legally binding instruments. However, to explain the preference given to soft-­law-type instruments in terms of structure is not sufficient. The adoption of best practices or their equivalent should in fact be interpreted more as the easiest way of responding to the challenge posed

136   A. Scherrer by the fight against TOC and terrorism – specifically, as described earlier, when it comes to legal definitions and a legal framework of proactive and preventive practices. The elaboration of best practices is the cheapest and most consensus-­based strategy and also the least precise. Preference has been given to an approach that seeks to make judicial and police cooperation easier without having to enter into the detail of legal instruments. The drafting of best practices and policy principles is thus the modus operandi of the Lyon/Roma Group subgroups and, again, is both the actors’ choice and a necessity resulting from the structure. Examination of public policy tools at international level shows not only that there has been a change of direction on the part of states with regard to the management of international affairs but also that this needs to be recontextualized by considering the frames of reference being used by the actors who are responsible for developing them. The working framework being proposed here is an invitation to pay more attention to the instruments themselves and reconstruct their historicity, their cognitive and normative content, the networks of actors who develop them, and the effects they produce. Rather than being reduced to its “pure technical rationality” (Lascoumes and Le Galès 2004: 13–14), an instrument cannot be dissociated from the agents who put it into use and carry on developing it. From this perspective, public policy instruments should be seen as “bearers of values, nurtured by interpretation of the social and specific ideas about the method of regulation envisaged” (ibid.: 13). This preference for developing less binding instruments (by setting out best practices and recommendations) and the way in which the Lyon/Roma Group operates clearly mirror the logics of action found in international cooperation. Within the framework of the activities of the Lyon/Roma Group and its subgroups, the drafting of best practices shows the flexibility of the experts’ work as well as the desire to achieve consensus between the delegations; in this sense, the shift from being a think tank to being a forum for the technological putting into practice of that thinking via the development of jointly drafted best practices strongly suggests a method of working that encourages, informs, and communicates. Any analysis of this shift should not content itself with simply identifying the technical choices the actors make; it should also take account of the particular beliefs and perceptions that lie behind those choices. The best practices and recommendations developed by the Lyon/Roma Group thus provide a frame of reference for both the Group actors and their administrations, as well as for a much broader set of recipients. However general and imprecise these international cooperation instruments may be, they go well beyond the simple collection and comparing of information. The Lyon/Roma Group experts draft the so-­called G8 norms in advance; their work is then endorsed and legitimated at the ministerial meetings of interior and justice ministers and at summit meetings of heads of state and government, and is the source of the norms for fighting TOC and terrorism produced by the G8. The members of the

Norms and expertise   137 Lyon/Roma Group can therefore be called norm entrepreneurs, and the group’s role is what causes them to emerge. Indeed, guidelines for international regulation promoted by the Lyon/Roma Group experts certainly lead to cognitive and normative processes in which confidence building, exchanges of experience, and deliberation play a critical role. As Kerstin Jacobsson (2004) underlines in her study of open methods of coordination (OMCs) in the European Union, these soft-­law-type instruments of regulation create meaning and a common understanding, and are strongly related to social practices; soft law is followed because social activities establish causal linkages and guidance for future action. The task of disseminating the norms developed by the Lyon/Roma Group is amply facilitated by the fact that the G8 meetings are ideal for diffusing messages on the international stage. The Lyon/Roma Group, which gathers together high-­ranking officials from four EU countries (Germany, the United Kingdom, France, and Italy), one influential Asian country (Japan), North American countries (the United States and Canada), and Russia, constitutes an exceptional platform of communication, socialization, and promotion. Furthermore, the involvement of other bodies in the G8 process, especially that of the European Union or of Interpol, is also all too often forgotten. Since 1977, in fact, the president of the European Commission has been invited to attend G8 summits, and the president of the European Council was invited for the first time in 1982. The European Union is the ninth de facto member of the group; it sends a delegation to all summits and ministerial meetings and participates in the preparatory process. A delegation from JHA, these days called JLS (justice, liberty and security), thus systematically has observer status at meetings of the G8 justice and interior ministers as well as at meetings of the Lyon/Roma Group. Moreover, representatives of Interpol are regularly invited to G8 meetings. That the G8 plays an important role in the elaboration of international norms against TOC and terrorism can be supported by several arguments. As an example, the experts interviewed advanced two main arguments: on the one hand, the G8 countries have weight and prestige when it comes to improving international cooperation; on the other, the G8 is an ideal position to ensure that information is circulated, thereby fostering multilateral exchanges. Those who took the first position pointed to the increase in expertise that accrues from coordinating eight significant countries. For example, one expert said: [T]he G8 has helped to keep things moving where international cooperation is concerned, and the job is not yet done. The G8 is useful because it puts forward normative principles, normative courses of action. The countries in question are also the ones that have the greatest technological capabilities and so are able to develop coherent principles that can help other countries. (Interview with the author, Paris, 2006)

138   A. Scherrer The second argument portrays the G8 as being the only forum that allows dialogue to take place between countries or institutions that do not often meet at a multilateral level. The G8 is thus said to be “the only organized mechanism between the EU and the United States; it allows the United States to have messages passed on.”12 For another expert, “the G8 creates a bridge between the United States and the EU.”13 Another said: The G8 is one of the only frameworks that allow multilateral relations with the Americans. The United States does not devote much attention to the UN; for them it is easier to form partnerships, like those it has with the G8 countries. The G8 is good for that, too. (Interview with the author, Paris, 2006) These experts give the impression that the G8 is the best forum for fostering multilateral cooperation, that it is the communication platform of choice, and moreover that it has matchless expertise at its disposal. While it may be an exaggeration to claim that the G8 and its experts have played a decisive role in the international mobilization against terrorism since 2001, it nevertheless has to be said that the G8 system has been fully involved in that mobilization. An element that certainly helps to explain how the G8 norms are disseminated is the fact that the Lyon/Roma Group actors often hold many different positions on the international stage. Most of the actors interviewed participate simultaneously in working groups that are similar to the Lyon/Roma Group within the United Nations, the OECD, the European Union, and even the Organization of American States. The Lyon Group experts are therefore mobile and move from one forum to another. While this multi-­positioning undoubtedly deserves further clarification and research, the aspects brought to light here show that these state officials, who have been designated as experts, move to and fro between the different debating arenas within which principles, norms, and rules are developed – international regimes in the classic Krasnerian sense (Krasner 1983). This circulatory effect makes any attempt to determine the respective shares of influence in establishing these international regimes difficult. It does show, however, why international guidelines for combating TOC and terrorism have developed along similar lines. The multiplication of international meetings favors interactions, and gives roots to a horizontal negotiation space that allows its participants to socialize beyond national bureaucracies and boundaries. These experts are all civil servants in their respective administrations, and most of them have gained legitimacy and carrier recognition from their participation in international-­level meetings. Indeed, all of them gain “expert” status from their participation in the international negotiation process. The very nature of the issues at stake (transnational crime, terrorism), their routinization on international agendas, and the cooperation imperatives that have emerged from political

Norms and expertise   139 discourses have multiplied justifications for such “expert” meetings. Civil servants have now become “crime technicians,” sometimes by accident (because they were occupying specific posts in their administrations, providing them invitations to such meetings), sometimes because their hierarchy recognizes their specific skills. As mentioned, G8 experts meet three times a year within the G8 system; some of them gather again within EU delegations, in the case of those who are also members of the European Union, in OECD delegations, or UN delegations. Throughout my interviews it was clearly demonstrated that this community of experts dealing with transnational crime is indeed a small world and that most of them know each other very well, since they meet a couple of times a year at international meetings. This mobility and these frequent interactions between high-­profile civil servants at the international level undoubtedly favor transfers and sharing of knowledge and know-­how, and facilitate the circulation and promotion of norms.

Conclusion Savoir-­faire (knowing how to do), savoir-­dire (knowing what to say), and faire-­savoir (making it known) – these three expressions succinctly sum up what the G8 experts do, the role they play on the international stage, and the self-­representation of their task. Best practices and recommendations are not legal norms, but we should have no illusions about the authority behind them or their normative scope. Though not binding from the viewpoint of statute law, they are nevertheless dynamic regulatory instruments and most definitely the driving force behind the marked increase in norm production at international level. Their nature, dissemination, and circulation all contribute to the homogenization of international rules in that they are quite clearly not legally binding and therefore very easy to export. Therefore, in order to understand more clearly the nature of best practices at the international level and their effects on the harmonization of law enforcement and intelligence practices, a focus on actors elaborating these norms is essential in, first, the understanding of logics of professional dynamics of actors involved in norms elaboration and, second, the analysis of norms circulation, diffusion, and promotion.

Notes   1 The extent to which transnational organized crime and terrorism have been merged in official discourses and public policies raises important questions about the construction of a global threat and its effects on cooperation imperative. However, this aspect will not be discussed here. For convincing analysis of such matters, see Naylor (2002, 2006) and Chocquet (2003).   2 The term “standardization” here is directly inspired by Nils Brunsson and Bengt Jacobsson (2000), who thoroughly analyzed standardization processes as a mode of regulation.

140   A. Scherrer   3 Even if the term “soft law” is usually defined as being opposed to “hard law,” several scholars have convincingly pointed the need to transcend the “hard/ soft” law debate in order to understand governance. See, for instance, Trubek and Trubek (2005) and Morth (2004).   4 Interviews were conducted between 2003 and 2007 in France, Belgium, the United Kingdom, and Canada.   5 G8 Recommendations on Transnational Organized Crime (2002).   6 Recommendations on Special Investigative Techniques and Other Critical Measures for Combating Organized Crime and Terrorism (2004).   7 Recommendations for Tracing Networked Communications across National Borders in Terrorist and Criminal Investigation (2002); Principles on the Availability of Data Essential to Protecting Public Safety (2002); G8 Statement on Data Protection Regimes (2002); Data Preservation Checklists (2002); Law Enforcement Record Preservation Checklist (2002); Recommendations for Sharing and Protecting National Security Intelligence Information in the Investigation and Prosecution of Terrorists and Those Who Commit Associated Offenses (2004).   8 Statement of Principles to Protect Asylum Processes from Abuse by Persons Involved in Terrorist Activities (2004).   9 Ibid. 10 This notion of emergency, a “state of emergency” in the war on terror, has been thoroughly investigated and discussed within the CHALLENGE Network. See Walker (2004), Jabri and Walker (2004), and Didier (2004). 11 These policy networks and the creation of cognitive consensus through soft law instruments and their effects on member states’ behavior have been well studied by scholars focusing on models of regulation adopted by the European Union. For instance, methods such as the open method of coordination (OMC) used in the European Employment Strategy have been investigated from a sociological point of view that focuses on the practical effects of shaming, diffusion, deliberation, learning, and networks. See Trubek and Trubeck (2005), Jacobsson (2005), and Morth (2005). 12 Interview, February 2006, Paris. 13 Interview, March 2006, London.

9 The accountability gap Human rights and EU external cooperation on criminal justice, counter-­terrorism, and the rule of law Susie Alegre Introduction The cross-­border nature of the security issues covered by EU justice and home affairs (JHA), namely immigration and cross-­border crime, has meant that the extension of such cooperation beyond the borders of the European Union to third countries and international organizations was a logical step in ensuring the effectiveness of enhanced internal cooperation. The Union cannot act alone to combat the international phenomena of illegal migration, terrorism, and organized crime. To ensure its internal security, it is imperative that it engage with other countries and regions to improve security globally. But while the European Union formally recognizes that there cannot be security in the absence of freedom and justice guaranteed by the rule of law, it is far from clear how it can guarantee that the problems of human rights violations in the countries it cooperates with do not undermine the Union’s avowed commitment to human rights within its own borders. The European Union is obliged to engage with the respect for human rights and the rule of law in the third countries it cooperates with, and this chapter outlines some of the particular human rights problems that arise out of cooperation in the fields of criminal justice and counter-­terrorism. In addition to the difficulties involved in cooperating with third countries, as the European Union expands its competences and presence on the ground through rule-­of-law missions in third countries, the question of accountability for human rights violations by EU personnel and partners in third countries becomes pressing. While the recent European Court of Justice (ECJ) judgment in the case of Kadi concerning the legality of EU implementation of UN terrorist listing and asset freezing measures gives some hope that EU courts will find ways to guarantee human rights in relation to European Community matters. This chapter will study the issues around the lack of a formally binding human rights framework in the EU context and its implications for the effective protection of human rights.

142   S. Alegre

General framework Article 6 of the Treaty on European Union (TEU) states that: 1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member states. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member states, as general principles of Community law. Those founding principles manifest themselves in a number of ways in the framework for EU cooperation with third countries. On the one hand, the European Union pushes human rights issues to the fore in its negotiations with third countries and uses the improvement of human rights protections as a lever in discussions on a wide range of issues, including trade and support in counter-­terrorism. On the other hand, EU external cooperation in the field of JHA, including the particularly sensitive area of counter-­terrorism, can touch on some of the most fundamental elements of human rights protection such as the prohibition on torture in relation to exchange of evidence and the transfer of persons. External cooperation in JHA therefore engages the need to protect human rights in the actions of the European Union as well as an active impulse to promote human rights externally for the greater security of citizens within the Union. Article 51 of the Charter of Fundamental Rights of the European Union provides that “the institutions and bodies of the Union [. . .] shall respect the rights, observe the principles and promote the application thereof.” It does not exclude any policy areas, or include any institutional frameworks in which the charter would not apply.1 Although the charter is not binding and the hold-­ups over the Lisbon Treaty push it farther into the future, it does provide the basic human rights blueprint for the EU institutions and their activities, and should be applied across the board, including in external activities relating to JHA. Article 11 of the TEU sets out the objectives of the European Union’s common foreign and security policy: 1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:

• t o safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,

The accountability gap   143



• to strengthen the security of the Union in all ways, • to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders, • to promote international cooperation, • to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.

The last objective, “to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms,” is clearly relevant when the European Union is cooperating with third states in relation to JHA matters. When the European Union cooperates externally on JHA issues, it needs also to take on board the human rights responsibilities of member states under the European Convention on Human Rights (ECHR). In the case of M. & Co. v. Germany (1990),2 the European Commission on Human Rights (ECommHR) found that “the transfer of powers to an international organization is not incompatible with the Convention provided that within that organization fundamental rights will receive an equivalent protection.” This means that in order to be able to act on behalf of member states in external cooperation in a way that will not undermine their obligations under the ECHR, the European Union will have to ensure that it provides equal or equivalent protections to those provided by the ECHR. The effective interruption of the process of ratification of the Lisbon Treaty following the Irish referendum3 has put a halt to the process of EU accession to the ECHR whereby the EU institutions would have been bound by the ECHR in the same way that member states are, thus removing any question of a lack of equivalent protection in the European Union. The legitimacy of EU actions, in particular in relation to the agreement of treaties and activities externally, is dependent upon adequate human rights protections. Now that the Lisbon Treaty is in force, therefore, it is time to explore the practicalities of EU accession to the ECHR without further delay. While the jurisdiction of the ECJ on criminal justice issues has been expanded by the Lisbon Treaty, the transitional provisions and limitations relating to external relations issues may mean that the impact of the recent judgment in the Kadi v. Council of the EU (2008) case concerning EU implementation of UN sanctions on individuals and organizations suspected of terrorism is limited. In that case, the Court found that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect

144   S. Alegre fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. (Kadi v. Council of the EU 2008: 285) This judgment, however, is limited to Community acts and would not have been possible in relation to acts of the European Union in its broader activities of criminal justice and external cooperation.4

Promotion of human rights as an element of EU JHA external cooperation Fundamental rights are one of the core elements of the area of freedom, security, and justice and one of the issues covered within the JHA portfolio by Directorate-­General (DG) Liberty, Justice, and Security. Despite that, however, effective work on fundamental rights in the broader context of JHA is very limited. The Commission progress reports on the implementation of the strategy for the external dimension of JHA5 contains a section on fundamental rights protection. In 2006 this section, however, contained only two points: a reference to the establishment of the EU Agency for Fundamental Rights (FRA), due to start work on 1 January 2007, and a reference to the fact that the Commission had flagged the effective protection of children’s rights as one of its priorities in 2005 and issued a communication to that effect in July 2006.6 In 2008 the references were again to the FRA, to a seminar on racism, xenophobia, and anti-­Semitism in the context of European Union–Israel talks and consultations on human rights with Russia. As has already been pointed out, the FRA has had its mandate restricted to dealing with areas of Community competence, which means that, while it may address issues relating to asylum and immigration, even if it stretches its mandate it will not be able to have a strong voice on issues relating to criminal justice, counter-­terrorism, or external cooperation, or, presum­ ably, to assist the European Union in developing technical assistance for third countries in this area. The other points raised have little impact on the day-­to-day issues around external cooperation on criminal justice and counterterrorism. The FRA’s work is generally restricted to working on the 27 member states, although it is open to participation by candidate countries as observers (Turkey, Croatia, FYRoM – the former Yugoslav Republic of Macedonia), after a decision of the relevant Association Council. The Council may also invite the western Balkan countries (Albania, Serbia, Bosnia and Herzegovina, and Montenegro), once they have concluded a stabilization and association agreement with the European Union, to participate in the Agency as observers (followed by a decision of the relevant Association Council).7 This limited geographical remit, however, will not

The accountability gap   145 provide much assistance for cooperation with key geographical areas such as the EuroMed region, Central Asia, and beyond. In relation to children’s rights, while this is clearly an important area globally, again it is not an area that will have an enormous impact in relation to international cooperation in criminal justice except in the exceptional cases where international cooperation involves juvenile justice. There is a mention that the Commission has undertaken “to promote relevant international human rights instruments in the political dialogue with third countries and use its policy instruments and cooperation programs to address children’s rights worldwide,” but it seems that human rights in general have fallen off the page. Serious external cooperation on the issues of freedom, security, and justice requires a credible approach to human rights as the backdrop for all cooperation. One of the difficulties in pushing forward this approach is the weakness of fundamental rights within the institutions with regard to the respect for human rights within the European Union. In the absence of developments on procedural rights for suspects and defendants8 for the Union itself, for example, it is difficult to see how the European Union can push for genuine implementation of fair trial rights in its dealings with third countries. In a sense it is the internal weakness in JHA rather than the lack of will to address human rights externally that undermines the ability of the Union to promote human rights in its external cooperation in this field.

Human rights issues arising out of EU JHA external cooperation As well as the promotion of human rights as a part of EU JHA external cooperation, a number of ways in which the European Union cooperates with third countries raise human rights questions that engage the negative responsibility of the Union and its member states not to engage in activities that violate human rights. The EU Network of Independent Experts on Fundamental Rights produced a helpful thematic comment on fundamental rights in the external activities of the European Union in the fields of justice and asylum and immigration,9 highlighting the issue. This chapter focuses on the field of criminal justice and cooperation against terrorism rather than asylum and immigration, and so will be restricted to underlining the most important human rights themes in that field. It is clear that fundamental rights must be a key consideration in the activities of the European Union in this field. The fact that member states hand over competence to the European Union to engage in activities such as concluding international agreements does nothing to remove member states’ own human rights obligations. The European Court of Human Rights (ECtHR) has stated that

146   S. Alegre [w]here States establish international organizations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organizations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. (Waite & Kennedy v. Germany 1999: 67) It is crucial, therefore, that the possible human rights problems inherent in cooperation on JHA issues are addressed in relation to all of the European Union’s external cooperation activities. As the EU Network of Independent Experts has stated, It is indeed important that when the EU takes action on behalf of its member states in certain areas of external action linked to issues of justice and home affairs, this does not lead to a lowering of standards in respect of fundamental rights, despite the fact that the Union is not linked internationally to the same international instruments for the protection of human rights that are presently binding on the member states. The emergence of an external dimension of Union policy in the areas of justice and home affairs is today leading to a debate on the demarcation of the respective responsibilities of the European Union and the member states at the international level with respect to the observance of fundamental rights. There is a risk that the Union and its Member States will offload the responsibility to one another, so that eventually neither the Union nor its member states consider themselves obliged to take this responsibility. (2004: 13) Human rights issues arise in a number of different ways in relation to cooperation with third countries in the field of criminal justice. Exchange of information One of the main ways in which police and judicial authorities cooperate with each other to combat international crime, including terrorism, is through the exchange of information, whether that is intelligence information or evidence for the purposes of prosecution. Depending on whether EU agencies or member states are providing that information or evidence or receiving it, the following human rights issues, among others, arise.

The accountability gap   147 Prohibition on torture For EU member states or agencies receiving information or evidence, the question of provenance is a crucial one for the protection of human rights. If there is a risk that information provided from third countries may have been extracted through torture or ill-­treatment, that information will be inherently unreliable and to use it would undermine the jus cogens absolute prohibition on torture. This kind of information cannot be relied upon in trials and therefore does not assist in bringing effective prosecutions. The 1987 UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment prohibits the use of evidence extracted through prohibited treatment except in proceedings against the alleged perpetrator of torture. This applies whether or not the alleged torture was perpetrated by the authorities of the state in which proceedings are going on and whether or not those proceedings are criminal in nature. The then Council of Europe Commissioner for Human Rights put it very succinctly: “Torture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose – the former can never be admissible in the latter” (UK Report by Álvaro Gil-­Robles, Council of Europe Commissioner for Human Rights, 4–12 November 2004 (CommDH(2005)6)). This statement was in response to proceedings in the United Kingdom that challenged the use of information obtained by the UK government from Uzbekistan which the government sought to rely on in closed proceedings before the Special Immigration Appeal Commission as part of deportation proceedings (A. (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department 2005).10 That case highlighted a number of the difficulties involved in cooperating with non-­EU member states where there is a risk that information has been extracted through ill-­treatment. These are issues that will affect all EU member states that cooperate with third countries, whether with intelligence, police, or judicial authorities. It may also impact on EU agencies such as Europol and Eurojust. While the answer to the question of how such information must be treated seems, on the face of it, to be clear – torture evidence can never be adduced in judicial proceedings – the means of identifying information as such, and the way in which such information should be treated when it is not intended ultimately to be used in judicial proceedings, remain complex. The absolute prohibition on torture is one of the most fundamental principles of human rights and is crucial to the protection of human rights globally. The international framework established to prevent torture recognizes that by using information extracted through torture, a state effectively condones the use of torture even if it does not engage in torture itself. As the European Union develops the external dimension of JHA cooperation, an examination of the issues relating to handling information

148   S. Alegre and evidence from countries where torture is widespread should form a key part of that development. A serious and detailed consideration of this matter combined with a drive to provide technical assistance to support the abolition of torture and ill-­treatment in countries with which the European Union seeks to cooperate would be a useful way for the external dimension of JHA to assist both in the improvement of criminal justice cooperation and in the promotion of human rights globally. Any EU guidelines, or conclusions on this issue, however, must be clearly aimed at supporting the global prohibition on torture, rather than finding a way to bypass it in the short-­term interests of international cooperation against terrorism. All developments in this field should be aimed at stamping out the practice of torture and cruel, inhuman, and degrading treatment globally rather than finding ways to accommodate such practices in the supposed interests of security. An additional issue arises where a state or agency provides information that ultimately leads to the ill-­treatment of an individual. This issue arose in the case of Canada providing information to the United States in relation to Maher Arar (Arar v. Ashcroft 2006) and ultimately providing compensation for his subsequent rendition and torture as part of the CIA rendition program. This may have implications for EU member states and agencies that share information with third countries and may ultimately find themselves liable to compensate individuals for resulting breaches of their human rights. Fair trial The provenance of evidence from third countries used in judicial proceedings may have an impact on the right to a fair trial of defendants facing prosecution within the European Union. The procedures around the admissibility of evidence vary from one member state to another but all EU member states are obliged to exclude evidence extracted through torture and inhuman and degrading treatment.11 It is less clear, as yet, how violations of other rights, such as the right to private life, can affect the admissibility of evidence and the ultimate fairness of proceedings but this is an issue that needs to be borne in mind where evidence is obtained in third countries. The death penalty The death penalty has now been abolished in the European Union following the entry into force of Additional Protocol no. 13 to the ECHR on 1 July 2003. This position is confirmed by article 2(2) of the EU Charter of Fundamental Rights. There is a danger, in providing evidence to third countries, however, that that evidence may be used in proceedings against a person who is at risk of

The accountability gap   149 the death penalty. This possibility weakens the stand of the European Union against the death penalty. In negotiations with the United States on the EU–US agreement on mutual legal assistance, the issue of the death penalty was not dealt with head-­on, even though a number of member states will not provide evidence that may lead to the imposition of the death penalty. As the EU Network of Independent Experts points out, it is regrettable that this issue was not addressed more directly in the agreement (EU Network of Independent Experts on Fundamental Rights 2004: 24). As the death penalty is now prohibited across the European Union, it is perhaps time for the Union to consider prohibiting mutual legal assistance with third countries where such assistance may lead to the imposition of the death penalty and incorporating this principle into the agreements that it concludes. Data protection Data protection has been a particular sticking point in agreements between the European Union and the United States. Discussions have resulted in a final report by the EU–US High Level Contact Group on Information Sharing and Privacy and Personal Data Protection12 presented at the EU–US summit on 12 June 2008. This report has been criticized by commentators: [T]he scope would cover “any criminal offence” however minor. There is no guarantee EU citizens will be informed that data and information on them has been transferred to the USA or to which agencies it has been passed or give them the right to correct it. Moreover, the agreement would apply to individual requests and automated mass transfers and allow the USA to give the data to any third state “if permitted under its domestic law”. It would be good to say that the USA must guarantee the same rights to people when personal information is transferred between EU states but this would be meaningless as the Council is about to adopt a Framework Decision which gives individuals few if any protections against misuse and abuse. (Tony Bunyan, Statewatch (http://www.statewatch.org/), Statewatch News Online, June 2008) The Final Report clearly demonstrates the problems of external cooperation in JHA and the dangers inherent in agreements that result in an extremely lop-­sided approach to cooperation. An example of this can be found in the definition of the scope of the discussions which would apply to exchange of information for “law enforcement purposes” and the very different meanings given to “law enforcement purposes” depending on which direction the information is passing over the Atlantic (Council of the European Union 2008a).

150   S. Alegre This difference in concept of the very scope of the negotiations calls into question the possibility for any serious discussion of common ground. Again, however, the low standard of protections agreed on internally regarding data protection in the third pillar dictates the dilution of protections in the external dimension. Extradition and deportation Extradition and deportation to countries outside of the European Union is another main element of cooperation between EU member states and third countries. The transfer of persons from one state to another engages human rights protections where there is a risk of a violation of human rights. The seminal case of Soering v. UK (1989) established the need for a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights [. . .]. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbor the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application, in extradition cases [of the European Convention on Human Rights]. (Soering v. UK 1989: 89) The ECHR went on to clarify that the Convention would not prevent cooperation between states provided that such cooperation did not interfere with any specific Convention rights (Stocké v. Germany 1989: 167–169; Ocalan v. Turkey 2003: 88). The rights issues most commonly engaged by extradition or deportation include prohibition on torture, the death penalty, the right to a fair trial, and the right to family life. The prohibition on torture is absolute, and the EU Charter, article 19.2, confirms the principle of non-­refoulement (i.e. denying states the right to return refugees to areas where they would be in danger) and the effect of the prohibition on the death penalty in the European Union: “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” In a series of cases the ECtHR has elaborated on the practical effect of this principle, culminating in the case of Saadi v. Italy (2008), where the court clearly rejected arguments for a balance to be struck between the prohibition on torture and the interests of national security, and clarified the parameters of the prohibition on

The accountability gap   151 torture in cases of extradition or expulsion, strengthening the absolute prohibition on torture. This case has clarified the practical effect of the prohibition on refoulement under the ECHR as reflected in the EU Charter. This is therefore the standard by which EU member states and, by extension, the European Union is bound. In this sensitive and difficult area the ECHR is the appropriate body for setting the legal parameters while the European Union is the appropriate body to see that these parameters are respected with regard to EU external cooperation in the field of justice and home affairs. In Italy, trials are currently under way of Italian officials13 who colluded in the abduction of Abu Omar from Milan by CIA officials. This case will highlight the criminal law implications for EU member states and agencies that cooperate with third countries in circumstances that may give rise to torture or other prohibited ill-­treatment. Also in relation to CIA renditions, Sweden has been found to have violated both the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention Against Torture (UN CAT) through assisting US and Egyptian authorities to deport two men to Egypt (Agiza v. Sweden 2005; Alzery v. Sweden 2006). The question of EU member states’ involvement in CIA renditions has also given rise to investigations in Poland and Spain. Also, as a result of evidence arising from High Court proceedings in the United Kingdom concerning a request for disclosure of evidence relating to the ill-­treatment of Binyam Mohamed (R. (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs 2008), a former UK resident currently held in Guantánamo Bay, the UK Home Secretary has referred the matter to the Attorney-­General (Reprieve 2008) for a decision as to whether or not proceedings should be brought for illegal activities on the part of UK security services and US interrogators during Binyam Mohamed’s questioning in Pakistan. This case highlights the risks of cooperating with third countries in counter-­terrorism. It remains to be seen whether or not it will be resolved in a way that assists in combating impunity for human rights violations. The issue of extradition to a country where there is a risk of the death penalty most commonly arises in relation to the United States. While the Soering judgment (Soering v. UK 1989), which involved possible extradition to the United States for murder, did not prohibit extradition on the basis of the right to life and the prohibition on the death penalty but rather on the basis of the inhuman and degrading treatment that would arise from the death row phenomenon, it is accepted that with the entry into force of Protocol 13 to the ECHR, extradition to a risk of imposition of capital punishment would no longer be permissible from an EU country in any event. In order to address the concerns of many member states and to reflect the European Union’s position on the death penalty, the EU–US extradition agreement14 states, at Article 13:

152   S. Alegre Where the offence for which extradition is sought is punishable by death under the laws in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this Article, it shall comply with the conditions. If the requesting State does not accept the conditions, the request for extradition may be denied. National laws on this point vary across the European Union but, while this formulation may be seen as “a slight improvement on the existing bilateral treaties and on the practice followed by the different member states” (EU Network of Independent Experts on Fundamental Rights 2004: 24), it is regrettable that the obligation reflected in the EU Charter and arising out of the ECHR and its case law is not more clearly stated. As the EU Network of Independent Experts on Fundamental Rights has pointed out, “Although the extradition agreement refers to the possibility for a State to refuse extradition as a mere faculty, this should be considered as constituting an obligation on its part.” The Soering case (1989) established that a flagrant denial of justice through a violation of the right to a fair trial as protected by article 6 of the ECHR could also prevent an extradition.15 The EU–US extradition agreement does not deal with this issue directly but simply includes a mention in the preamble that the agreement is concluded by the parties “mindful of the guarantees under their respective legal systems which provide for the right to a fair trial to an extradited person, including the right to adjudication by an impartial tribunal established pursuant to law.” The Network of Independent Experts points out that [t]hese formulations remain exceedingly vague and ambiguous. In the absence of an explicit reference to the standards of a fair trial or to fundamental rights, – and the exclusion of any form of judicial cooperation in criminal matters or extradition if this leads to or contributes to a violation of these standards – any person facing prosecution does not know precisely enough the extent of the guarantees that they have, and the obligations of member states of the EU with which they are requested to cooperate remain uncertain. (EU Network of Independent Experts on Fundamental Rights 2004: 22) This situation is of particular concern given the risk of people being subjected to trial by special courts and military tribunals in the prosecution of

The accountability gap   153 terrorism charges in the United States. The UK House of Lords Select Committee on the European Union recommended the practice of requiring an assurance that the extradited person would be tried before a normal federal or state court in cases where there was a risk that a trial by military or other exceptional court might be an option under US law (House of Lords 2003: 12). While such a practice may be followed by EU member-­state courts concerned about possible breaches of the right to a fair trial, it is unfortunate that the European Union did not, again, take the opportunity of explicitly establishing human rights obligations that apply to all EU member states in an agreement with a third country on cooperation in criminal justice. Other rights, such as the right to family life, are also engaged by the extradition or expulsion of people to third countries, but such qualified rights are unlikely to weigh heavily in a decision as to whether or not to extradite in cases involving serious crimes. The right to family life is more relevant in cases where the proportionality of an expulsion is in question. Given the Commission’s commitment to the rights of children and the recent ECtHR case of Maslov v. Austria (2008), which found that an exclusion order on a juvenile was disproportionate, this could be an area where the European Union should seek to establish standards relating to the treatment of juvenile offenders. The right to an effective remedy One of the fundamental difficulties in international cooperation on JHA issues is how to guarantee the right to an effective remedy across jurisdictions with different levels of protections of human rights and through different layers of international responsibility. The principle of non-­refoulement is such a key element of the prohibition on torture because the nature of the potential violation is so grave that, if it were to be allowed to happen, the consequences would be so profound that no remedy could be genuinely adequate. The development of law relating to the extra-­territorial application of human rights obligations in general is moving very quickly on an international level and in national jurisdictions. This is an extremely complex area that is evolving in fits and starts and leaves the protection of individual rights in this field in a very uncertain situation which, at least at the EU level, merits consideration and clarification. This is particularly important in relation to EU external cooperation in criminal justice involving European Security and Defense Policy (ESDP) rule-­of-law missions and the deployment of EU personnel in third countries. The right to an effective remedy for violations of human rights obligations is crucial to ensuring that rights are real and effective, not illusory or theoretical (Airey v. Ireland 1979: 24). The UN Human Rights Committee, in its General Comment 31 on the nature of the general legal obligation imposed on the states parties to the ICCPR,16 has clarified that:

154   S. Alegre 15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person [. . .] It could be argued that those persons affected by international cooperation in criminal justice and counter-­terrorism measures are a category of persons who are particularly vulnerable as the practicality of recourse to justice and effective remedies to vindicate their rights is severely curtailed by the complexity of international and institutional law and practice. Cooperation between the European Union and third countries is particularly susceptible to this problem. The type of redress that is normally available within the Union includes the ability to take cases for violations of human rights ultimately to the ECtHR and, in certain cases, to take challenges to the ECJ. However, cooperation with third countries – in particular, countries that are not signatories to the ECHR – leaves a person with no clear and practical avenue through which to seek redress for human rights violations arising out of such cooperation. The difficulty of the absence of practical judicial remedies in relation to the EU institutions is exacerbated by the fact that little political accountability exists in relation to third countries should human rights violations occur. Within the Council of Europe, political accountability can be pushed in the Committee of Ministers, and within the European Union itself, article 7 of the TEU provides a mechanism through which to take action where there is a clear risk of a serious breach of the principles of the European Union in a member state. Many third countries, including the United States,17 with which the Union enjoys very developed cooperation in this field, are not politically accountable in any international forum. In addition to standard criminal justice cooperation, the European Union is involved in rule-­of-law activities in third countries as well as military and naval missions. The existence of such missions raises further questions regarding the right to an effective remedy and the way in which responsibility for human rights protections is enforced in practice. UN Human Rights Committee General Comment 31 states:   4. [. . .] Although Article 2, paragraph 2, allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty [. . .] 10. . . . This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory,

The accountability gap   155 regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-­keeping or peace-­enforcement operation. (UN Human Rights Committee 2004) This would appear to clarify the position regarding international missions and the obligations of the ICCPR, but the way that international human rights obligations are enforced in practice has been called into question by recent national and regional jurisprudence which cries out for a clearer framework to protect individual rights. Europe The ECtHR has found through a series of judgments that the ECHR does have extra-­territorial effect but has not established a clear line as to how that effect is engaged and in what circumstances. In the case of Bankovic (2001)18 the court appeared to limit the extra-­territorial application of the ECHR. This case involved NATO aerial bombing of Serbia and it was taken against ECHR signatory members of NATO for breach of the right to life of people killed during that bombing in Serbia, which was not then a party to the ECHR. The court found, in that case, that although NATO was engaged in aerial bombing, it did not have effective control of the territory and that therefore the ECHR did not have extra-­territorial effect in these circumstances. In the case of Issa (2004)19 the court held that a state might also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter state. Accountability in such situations stemmed from the fact that article 1 of the ECHR could not be interpreted so as to allow a state party to perpetrate violations of the ECHR on the territory of another state which it could not perpetrate on its own territory. This clearly establishes the principle that the ECHR should be read so as to prevent states acting in a way incompatible with the Convention merely because they are acting outside their territory. In relation to detention on the high seas, in the case of Medvyedev v. France (2008) the ECtHR found that the ECHR did apply in relation to detention on the high seas. As part of an international operation against drug trafficking, the French authorities were informed that a ship was likely to be carrying significant quantities of narcotics. In consequence, the maritime authorities apprehended it on the high seas in the waters off Cape Verde, then towed it to Brest harbor in France. The applicants claimed to have been the victims of an arbitrary deprivation of liberty on account of being detained on board the ship for 13 days under the surveillance of the French armed forces, then held in police custody – two days

156   S. Alegre for some of them, three days for the others – on their arrival in Brest. Relying on article 5.1 (right to liberty and security), they complained that that deprivation of liberty had been unlawful, particularly in the light of international law. Under article 5.3 (right to liberty and security) they also complained that they had waited 15 to 16 days to be brought before “a judge or other officer authorized by law to exercise judicial power.” The court found a violation of article 5(1) in that the detention had not been made in accordance with a procedure prescribed by law. They did not find a violation in relation to the delay, however, as they recognized the exceptional circumstances of the situation and the impracticality of bringing the men before a judge. This case highlights the legal black hole that EU member states’ navies may be operating in when arresting people on the high seas but confirms that the ECHR will apply in such cases. In May 2007, however, a decision from the ECtHR appeared to make an exception in cases where member states were acting under the auspices of the UN.20 The joined cases of Behrami and Saramati (2007)21 concerned allegations of violations of the ECHR by peacekeeping forces from Norway and France operating as NATO Kosovo Force (KFOR) in Kosovo under United Nations Security Council Resolution 1244. The first case concerned a failure to clear up cluster bombs left after NATO bombing, resulting in loss of life, which was alleged to be contrary to article 2 of the ECHR, and the second concerned an alleged violation of article 5(1), the right to liberty, due to an arrest by a Norwegian commander acting as part of a multinational force whereby Mr. Saramati was detained for six months without trial as he was believed to be a threat to national security. In this case the court found that the United Nations had acted by delegating its powers to “willing organizations and member states” but concluded that the UN Security Council had retained ultimate authority and control over the mission even though operational authority was delegated. As a result, the court found that KFOR was exercising powers that had been lawfully delegated under chapter VII of the UN Charter and that therefore the alleged conduct had been the responsibility of the United Nations rather than of Norway and France. On the basis of this finding, the court held that it could not review such conduct. As one commentator has put it, The obvious concern about the decision of the Grand Chamber of the ECtHR in Behrami/Saramati is that it might undermine the accountability of troops operating abroad that can be established through international human rights law. Such political accountability as there may be for the UN through the Security Council is no substitute for legal accountability under international human rights law. Either the approach taken in Behrami/Saramati, and perhaps the whole delegation thesis, has to be re-­examined, or the accountability mechanisms of the UN have to be radically, and speedily, overhauled. (Starmer 2008)

The accountability gap   157 The European Union, in its developing practice of deploying civilian and military missions abroad, needs to ensure that there is no accountability gap in relation to human rights protections involving EU personnel or the actions of third-­country partners such as Canada. The best way of filling the accountability gap would be for the Union to accede to the ECHR, thereby making EU institutional actions directly justifiable in the ECtHR. The United Kingdom Two recent UK cases22 involving the extra-­territorial application of the Human Rights Act 1998 in the context of Iraq are worthy of note in this regard, though they provide a far from clear line. The first, Al Skeini (2007),23 concerned six Iraqi civilians allegedly killed by UK troops in southern Iraq. The majority of the House of Lords in this case found that the Human Rights Act applied to the legal systems of the United Kingdom but put an obligation on public authorities to act compatibly with the Human Rights Act and protect ECHR rights even when their actions were outside UK territory. The majority held, however, that the extent of that obligation would only apply where the United Kingdom had sufficient control over an area to make it possible to secure Convention rights in that area and therefore found that the Human Rights Act applied only to the one person who died in a detention unit on a UK military base and not to innocent bystanders caught up in shooting when UK forces were under attack. The House of Lords thus made it clear that the Human Rights Act has extra-­territorial effect but took a very limited approach to the scope,24 perhaps for fear of opening the floodgates of litigation in the United Kingdom in the absence of a clear line from Strasbourg.25 The second, Al Jedda (2007),26 addressed the question of whether the United Kingdom was responsible for a violation of the right to liberty as protected by article 5(1) of the ECHR for its use of internment in Iraq. The House of Lords found, in this case, that the responsibility for actions carried out subsequent to UN Security Council Resolution 1546 was attributable to the United Kingdom or the United Nations.27 It found, however, that the right to liberty as protected by the Human Rights Act 1998 was qualified in this case by the operation of articles 25 and 103 of the UN Charter as UK forces were then operating as part of a multinational force. By Resolution 1546 the Security Council gave the multinational force “authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution.” One of the letters annexed to the resolution stated that the force might undertake internment where “necessary for imperative reasons of security.”28 These two cases demonstrate that, at least in the United Kingdom, human rights protections apply extra-­territorially. The limited scope of application of those protections and the subjugation of human rights

158   S. Alegre protections to the international security imperative, however, is worrying in relation to accountability and the right to an effective remedy as guaranteed by the ICCPR and the ECHR. Canada29 In Canada, in March 2008 a court30 found that the Canadian Charter of Rights and Freedoms did not apply to individuals detained by the Canadian forces in Afghanistan. This case was brought by Amnesty International Canada on the basis of allegations that individuals who had been detained by Canadian forces had been handed over to the Afghan authorities and had thereafter suffered ill-­treatment contrary to the prohibition on torture and cruel, inhuman, and degrading treatment. The judge found that the agreement between the Government of Canada and the Government of Afghanistan concerning the deployment of Canadian forces applied international law (the judge specified international humanitarian law rather than human rights law) and Afghan constitutional law to this situation but that the Canadian Charter of Rights and Freedoms did not apply. The judge herself noted that the scope and enforcement mechanisms for the protection of international human rights law are weaker and more limited than those provided by the Charter and she voiced concern about the position that while the Canadian authorities could take action after the fact against members of the armed forces mistreating detainees under their control, they could not take preventive action as they could have done had the Charter been applicable. Notwithstanding her concerns, however, she felt that detainees did have rights conferred on them by the Afghan Constitution and by international law, in particular international humanitarian law. This judgment raises deep concerns about the way in which Canada makes its international human rights obligations practical and effective by providing accessible remedies in its activities overseas. It builds on an earlier Supreme Court judgment (R. v. Hape 2007)31 which established that the Canadian Charter did not apply to the activities of Canadian law enforcement authorities engaged in collecting evidence in the Turks and Caicos Islands. These two judgments give cause to consider how human rights protections can be guaranteed in the context of international cooperation with Canada on criminal justice issues and in the context of Canadian involvement in EU rule-­of-law missions. Canada is generally considered as a country that shares the European Union’s values on human rights. In the light of the evolution of Canadian law in relation to the non-­application of human rights obligations to Canadians acting outside of Canada, this assumption needs to be reconsidered if EU member states are to be sure that they are fulfilling their own obligations when they cooperate with Canadian personnel and armed forces in the context of EU missions.

The accountability gap   159

Conclusions on human rights in the external dimension of JHA The increased use of EU international missions, including rule-­of-law missions, requires accountability for human rights violations by EU member states and third-­country partners such as Canada that are involved in such missions. EU Status of Mission Agreements with host countries establish extensive diplomatic immunity for mission members, exempting them from local jurisdiction:32 [T]he jurisdictional immunities granted to ESDP missions and their personnel may have implications for the protection of fundamental human rights, above all the right of private individuals in the host state to have their civil rights and obligations determined before a court or tribunal in accordance with Article 6(1) of the European Convention on Human Rights (ECHR), assuming that the Convention applies to them. The right to access courts or tribunals enshrined in Article 6(1) of the ECHR is not absolute, but may be restricted subject to certain conditions. First, it may not be limited in such a way or to such an extent that its very essence is impaired; secondly, the restrictions in question must pursue a legitimate aim and a reasonable relationship of proportionality must exist between the means employed and the aim sought to be achieved. (Sari 2008: 80) The complex institutional and legal status of EU missions under the ESDP, combined with the rapidly evolving discourse in international law on the extra-­territorial effect of human rights law, in particular where states are operating in a multilateral context, leaves individual human rights unprotected in practice. Ironically, there is a serious risk that EU rule-­of-law missions may themselves be above the law in relation to effective human rights mechanisms. As the European Union extends its activities in the external dimension of JHA, arguably taking legal personality upon itself in the conclusion of agreements with third countries, such as the EU–US agreements on extradition and mutual legal assistance,33 the need for a mechanism to ensure the accountability of EU institutions is becoming urgent. In the light of this accountability gap, now that the Lisbon Treaty has come into force allowing for EU accession to the ECHR but pending such a decision, the European Union needs to make it clear that member states acting on behalf of the Union on missions in third countries continue to be fully bound by their obligations under the European Convention on Human Rights. If the European Union hopes to promote human rights and the rule of law across the world, it needs to set its own house in order and ensure that its missions in third countries and on the high seas are part of the solution, not part of the problem.

160   S. Alegre

Notes   1 See EU Network of Independent Experts on Fundamental Rights, “Thematic Comment No. 2: Fundamental Rights in the External Activities of the European Union in the Fields of Justice and Asylum and Immigration in 2003,” 4 February 2004.   2 European Commission on Human Rights, M. & Co. v. Germany, Admissibility decision of 9 February 1990 (13258/87; D&R 64,138). See also EU Network of Independent Experts on Fundamental Rights “Thematic Comment 2” (note 1).   3 See statement by European Commission president José Manuel Barroso following the Irish referendum on the Treaty of Lisbon, Brussels, 13 June 2008.   4 See case C-­355/04P, Segi and Others v. Council of the EU, judgment of 27 February 2007.   5 Progress Report on the Implementation of the Strategy for the External Dimension of JHA: Global Freedom, Security and Justice, SEC(2006) 1498, 16 November 2006, and “Report on the implementation of the ‘Strategy for the Implementation of the External Dimension of the JHA: Global Freedom, Security and Justice’ for the year 2006,” Doc. 15001/06, 20 November 2006, considered at the 2768th Justice and Home Affairs Council Meeting, Brussels, 4–5 December 2006. Second Progress Report: SEC(2008) 1971, 27 May 2008.   6 COM(2006) 367, 4 July 2006.   7 http://fra.europa.eu/fra/index.php?fuseaction=content. dsp_cat_content&catid=45f1665036644#6.   8 See discussions around the stalled proposed Framework Decision on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings, e.g. Commission Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM(2003) 75 Final.   9 EU Network of Independent Experts on Fundamental Rights, “Thematic Comment No. 2” (see above). 10 A. (FC) and others v. Secretary of State for the Home Department [2005] UKHL 71. 11 See article 15 of UN CAT and see ECtHR Jalloh v. Germany, judgment of 11 July 2006, application no. 54810/00. 12 9831/08, Brussels, 28 May 2008. 13 On 4 March 2008, Italy’s Constitutional Court rescheduled the hearing in this case for 8 July. See further Amnesty International, “Europe: Victims of rendition and secret detention still seeking justice,” EUR 01/012/2008, available at www.amnesty.org/en/library/asset/EUR01/012/2008/en/eb9fbda6-42ae11dd-9452-091b75948109/eur010122008eng.html. 14 Agreement on Extradition between the European Union and the United States of America (see above). 15 In a number of cases before the UK courts, they have found that it would be impossible to deport or extradite a person where there was a real risk that evidence extracted from a third party by prohibited ill-­treatment would be admissible in a trial against them, e.g. Ramda, R. (on the application of ) v. Secretary of State for the Home Department [2002] EWHC 1278 (Admin) (27 June 2002) and Othman (Jordan) v. Secretary of State for the Home Department [2008] EWCA Civ 290 (9 April 2008). 16 CCPR/C/21/Rev.1/Add.13, 26 May 2004. 17 See JUSTICE Briefing on Extradition to the United States, July 2003 (retrieved from www.justice.org.uk). 18 Admissibility decision of 12 December 2001, application no. 52207/99. 19 Judgment of 16 November 2004, application no. 31821/96.

The accountability gap   161 20 See Starmer (2008) for a full discussion of the implications of these judgments on the accountability of forces deployed under the auspices of the United Nations. 21 Admissibility decision of 2 May 2007, application nos. 71412/01 and 78166/01. 22 A third case is currently under appeal to the Court of Appeal following a ruling from the High Court that the Human Rights Act and the ECHR obliged the United Kingdom to protect the right to life of soldiers serving in Iraq even when they are off-­base: Smith, R. (on the application of ) v. Assistant Deputy Coroner for Oxfordshire & Anor [2008] EWHC 694 (Admin) (11 April 2008). 23 (Al-­Skeini and others) v. Secretary of State for Defence (The Redress Trust and others intervening) [2007] UKHL 26, [2007] 3 WLR 33 24 Preferring the approach in Bankovic (see above) to that in Issa (ssee above); per Lord Rodger at paras. 75–81; Lord Brown at paras. 124–131, Baroness Hale at para. 91. 25 It could also be said that ECtHR reluctance to apply the ECHR extra-­ territorially is likewise a fear that the floodgates would open on extremely politically sensitive areas. For full analysis, see Feldman (2008). 26 R. (on the application of Al-­Jedda) (FC) v. Secretary of State for Defence [2007] UKHL 58. 27 See Starmer (2008) for an in-­depth analysis. 28 See Times Law Reports, 13 December 2007. 29 These judgments will be dealt with in more detail elsewhere in this series. 30 Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of Defence Staff for the Canadian Forces, Minister for National Defence and Attorney General of Canada 2008 FC 336. 31 2007 2 SCR 292. 32 For a full discussion of Statement of Mission Agreements and Status of Forces Agreements, see Sari (2008). 33 Extradition Agreement between the European Union and the United States (see above).

10 The role of NGOs in the access to public information Extraordinary renditions and the absence of transparency Márton Sulyok and András L. Pap Introduction In this chapter we will set out a comprehensive overlook of the regulation regarding the access to public information in Hungary and Romania, using the case of extraordinary rendition to highlight the role of NGOs in monitoring governments prone to secrecy. The term “extraordinary” or “irregular rendition” refers to a variety of practices, mostly by the US authorities, that involve the transfer of individuals from one country to another without any form of judicial or administrative process such as extradition. These practices, usually carried out in secret, include transferring “war on terror” detainees into the custody of other states, assuming custody of individuals from foreign authorities, and abducting suspects on foreign soil (Amnesty International 2006). The phenomenon provides a new angle and an additional degree of importance to state transparency, an issue that bears special significance in post-­transitional societies, the newborn democracies. We will examine some of the initiatives NGOs have started or fostered in response to this assault on fundamental freedoms, and make policy recommendations for increased transparency and regulations that allow public access to information. We make three arguments: first, that freedom of information rights are central to constitutional democracies; second, that NGOs play an important role in being watchdogs of governments (particularly in new democracies which have a political culture of secrecy); and third, that regulations should respect this role of NGOs. These recommendations are based on a comparison of regulations and NGO activity in Hungary and the surrounding new democracies, a comparison that also highlights the dilemmas of the relationship between public interest pressure groups and regulations.

Political and socio-­legal background Within the context of an information society, and revolutionary innovations in communications technology, we must admit that the traditional

NGOs and public information   163 top-­down model of state governance is obsolete, particularly within the European Union. A network of public, private, national, regional, and international authorities all control the flow of data, and provide unique dilemmas in the regulation of access to public information; for this chapter, we define public information as any information that is or will be made public in the interest of the public and with regard to the service of the public interest, other public information, and public policy information. We argue that this new system does not necessarily favor transparency. There is a growing crisis of public confidence in government, stemming from an ever-­increasing democratic deficit in the European Union and its member states because (1) the line of accountability between individual, state, and region is not clear; and (2) the European Parliament is the forum that represents in its constituency the citizen’s vote in the European Union, but the decision-­making body is the European Commission, which is a forum separated from the voters, given that it consists of members from the ministerial level of the member states. The traces of this deficit may be most perceptable at the national level: citizens lose trust in central administrations and decision makers owing to lack of a clear interface that provides a connection between the individual and a responsible authority. Improved models of cooperation and a better public understanding of regulation are necessary in this complex environment. The importance of geographically and legally determined state borders has diminished in the face of global networks of information exchange, economic patterns, and multi-­scalar regulations; in short, a traditional legal framework does not apply to the concept of global society. While still nascent, the concept of global citizenship may resist these trends, because the traditional relationship between the state and the citizen is changing fundamentally. There is a fundamental barrier to unrestricted access to public interest information: data retention is controlled by centralized state agencies.1 Societal and political interests groups fight every day for access to piles of information that is segregated, sorted, and stored in dead ends of the information superhighway, on both the national and the international level. Information is sorted by state interests, and not the public interest. The information that NGOs wish to rightfully access is of or for public interest (even if personal data are concerned in some cases as well). Even if NGOs’ initiatives in the field of access to public information do not find significant recognition by the judiciary,2 there is both national and international regulation providing for the right to access public information. In 1981 the Council of Europe adopted the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, and in 2000 the European Council meeting in Nice adopted the Charter of Fundamental Rights of the European Union, in which chapter 2 article 11

164   M. Sulyok and A. L. Pap defines freedom of expression and information as the right that includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The protection of individuals against the abuse of administrative power and the assurances necessary to provide them the rights fundamental to their existence are both conditions of utmost importance in a democratic society: access to such information is an accessory to evolve the performance of fundamental rights. As Tóth argues, “civil and political scrutiny cannot operate without publicity, right to free press, and obtaining information in the public interest” (2007: 9). What is true about the access to public interest information in general is made extremely clear in the case of state security policies and extraordinary renditions. Extraordinary rendition is the policy of “the transfer of an individual suspected of involvement in terrorism, captured and in the custody of American officials, who is sent to another country often for interrogation sometimes facing torture there” (Dutheillet de Lamothe 2006: 1). Despite the mounting proof of complicity of European nations with the American policies of extraordinary rendition, there is growing public resistance to this practice, particularly in the name of human rights. Watchdog NGOs try to formulate internationally binding guidelines in the course of protesting the widespread practice of renditions. The primary aim of this chapter is to provide samples from national legislation and practical experiences in terms of publicity and access to public information, and to present and evaluate reluctant state (agency) strategies in the disclosure of classified (i.e. secret data) based on compelling security interests. This contributes to a growing debate about the invocation of security justifications for extraordinary policies, and also corrects a bias toward Western European cases.

Freedom of information Freedom of information means having “the right to inspect official documents” and the State being unable to “hide its operations from society” (Majtényi 2001). In other words, the opportunity to “somehow access files of public interest kept by the government” (ibid.) is embedded in freedom of information. We agree with Majtényi, who declares, citing Council of Europe Recommendation 854 on the disclosure of government documents and freedom of information, that no parliamentary democracy can function without properly informed citizens.3 Majtényi is a prominent commentator on Hungarian data protection regulations and a former parliamentary commissioner for data protection and freedom of information; he argues that Hungary’s national data protection legislation follows the Canadian model: “Beside Canada, Hungary is unique in the degree to which the protection of personal data within its borders is linked with the constitutional values of freedom of information” (ibid.).

NGOs and public information   165 Extraordinary rendition cases and the war on terror As part of the changes brought about by the collapse of the Eastern bloc – the structural adjustments caused by the doctrine and institutions of international neoliberalism – we see the emergence of principles of good governance, including transparency and greater access to public information. However, the degree to which these principles of accountability and openness are achieved varies dramatically from one state to another.4 The invocation of security is extremely powerful, from a governmental or bureaucratic point of view, in defining certain information classified or as state secrets, which worsens an administrative system’s natural tendency to be secretive. The scale and nature of terrorist threats, and transnational counter-­terrorism efforts, exacerbate this dynamic (Grammatikas 2006). These tensions between secrecy and transparency undisputedly emerge when NGOs attempt to get access granted to information about suspects and high-­value detainees involved in the extraordinary rendition procedures. The threshold of suspicion for extraordinary rendition may be low, and might be a mere intuitive leap in a remarkable percentage of the cases made by law enforcement based on sometimes fuzzy intelligence information under the pretext of preemptive prevention in counter-­terrorism efforts.5 State agencies are reluctant to share the grounds for their actions with those who become involved, with the information on which those actions are based referring merely to compelling security reasons. We would now like to separate the definition of “rendition” from that of “extradition,” which has its established meaning and international framework in the form of bi- or multilateral extradition treaties and is used as a legal assistance measure in international criminal law. Several European countries have recently acknowledged (or the preponderant evidence revealed pointed to) their participation in illegal transport of detainees or the existence of secret CIA-­controlled detention facilities on their soil, although only Bosnia and Herzegovina accepted formal responsibility for involvement in extraordinary rendition activities.6 The reports of Dick Marty and Giovanni Claudio Fava, Members of the European Parliament (MEPs), and the Parliamentary Assembly Council of Europe (PACE) Committee7 investigated in detail CIA involvement in illegal prisoner transports, so-­called “stop-­overs,” and other activities related to extraordinary renditions throughout Europe. Tóth discusses this matter in terms of EU member states in great detail and comes to the conclusion that on the basis of the findings of the reports, it is “less probable that certain governments or secret services could not have been aware of actions going on in their own territories or airspace” (2007: 6). In addition to the Hungarian case, this chapter will examine the Romanian regulation, where – as the PACE investigation revealed – prisoners were held illegally in foreign-­agency-financed detention centers referred to as “the black sites” (Amnesty International 2006).8 This

166   M. Sulyok and A. L. Pap comparison frames the wider question of the problems of transparency and security in new democracies. While a common refrain is invoked by state authorities (“desperate times call for desperate measures”), how often do NGOs get involved? In Hungary there has been only one case in which an NGO acted as a policy advocate and litigant in terms of access to public information in a rendition case. In this chapter we will provide our best efforts to examine the underlying causes of this phenomenon (or lack of a phenomenon) as well.9 In order to outline the conflicts between state secrecy and freedom of information, we summarize, in what follows, the legislatory framework for the protection of classified data and the right of access to public interest information.

The Hungarian model Originally, article 10 of the European Convention on Human Rights (ECHR), which originated in 1950,10 referred to the freedom of (access to) information as “an integrated part of the freedom of expression with formalities, conditions, restrictions that shall be necessary in a democratic society.” Hungary became such a democratic society after the “Transition”11 in 1989. The current Hungarian regulatory framework derives from the paramount law of the country: Act XX of 1949 (hereinafter, the Constitution).12 Principles of the Constitution Section 2.1 of the Constitution declares that Hungary is a democratic constitutional state and section 8 deals with the protection of and respect for fundamental rights, while section 61 contains the provisions concerning the accession and dissemination of public policy information as a fundamental right. The outline of the rule, which is distinct from provisions for the freedom of the press, is that everyone has the right to freely express his opinion, and furthermore to access and distribute information of public interest. [. . .] a majority of two-­thirds of the votes of the Members of Parliament present is required to pass the law on the public access to information of public interest. The two-­thirds rule was given emphasis here, and a brief discussion of it is worthwhile because: •

It signifies that laws regulating public information and access thereto are deemed as of utmost importance to Hungarian legislators – hence the qualified majority rule set out as the condition of their enactment.

NGOs and public information   167 •

The difficulty of reaching consensus in such grave and essential matters may also stem from it. In a practically bipartisan system such as that of Hungary, the opposition’s and the governing party’s interests often collide, to the extent that the existing issues or surfacing flaws of the regulatory framework might not be resolved easily or quickly.

We shall particularly emphasize the importance of information rights. As the European digital rights umbrella NGO points out, “the right of individuals to have access to the retained data is a constitutional right in Hungary. In theory, all citizens can – under certain conditions – acquire [retained] information if they have been subject to secret service investigation.”13 Freedom of information statutes Act LXIII of 1992 on the protection of personal data and the disclosure of information of public interest14 (hereinafter FOIA) and Act XC of 2005 on the Freedom of Electronic Information15 (hereinafter FOEIA) should now be examined as foundations of the current regulatory framework. While some argue that this new regime elaborates rules in the furtherance of the basic principles set out in the Constitution, critics claim that these two laws represent a radically liberal policy framework. Majtényi argues that the Hungarian model is a “rather common-­sense solution [as in the enactment of] a single law to regulate freedom of information in conjunction with the protection of personal data” (2001). The Preamble of the FOIA refers to the above fundamental rights as “having regard” for the protection of personal data and to the access to information of public interest. The FOIA constructs a “rigorous dichotomy” (Majtényi 2001) between personal data and data of public interest (which are not the same thing as public data), as explained below. In the FOIA’s terminology, “public information” refers to any known fact, data and information, other than personal data, that are managed by the State or a local public authority or agency or by any other body attending to the public duties specified by law (including those data pertaining to the activities of the given authority, agency or body), irrespective of the method or format in which it is recorded, and whether autonomous or part of a Study. (FOIA section 2, subsection 4) Furthermore, the FOIA specifies another type of public information. “Public information subject to disclosure” is to mean “any data, other than public information, that are prescribed by law to be published or disclosed16 for the benefit of the general public” (FOIA section 4, subsection 5). When we

168   M. Sulyok and A. L. Pap consider public information that is to be deemed subject to disclosure, we have to refer to section 19, subsections 4 and 5 of the FOIA: Unless otherwise prescribed by law, the personal data of any person acting in the name and on behalf of the agencies [. . .] to the extent that it relates to his duties, and the personal data of other persons performing public duties shall be deemed public information subject to disclosure. [. . .] Unless otherwise prescribed by law, any data, other than personal data, that is processed by bodies or persons providing services prescribed mandatory by law or under contract with any governmental agency, central or local, if such services are not available in any other way or form, to the extent necessary for their activities shall be deemed public information subject to disclosure. This comprehensive list should limit the applicability of the disclosure regulation. But the FOIA also contains the concept of “disclosure by transmission” in its General Provisions, which refers to “making data available to a specific third party” (FOIA chapter i, section 2). In the following, the language of the Act is inconsistent because it defines “third party” as “any natural or legal person or unincorporated organization other than the data subject, the controller or the processor.” Public information disclosure has not been as free as could reasonably be expected since the formation of this policy, despite the small changes that have been made. Several NGOs, among others the Eötvös Károly Institute, founded and headed by László Majtényi, routinely research and monitor compliance with these regulations. Beyond the small changes that have already been made, this chapter presents the “big steps” as well: the activities and role-­playing of this organization and the NGO movement to promote access to information will be further discussed later on. The third type of information that is subject to disclosure with limitations defined in the FOIA is “personal data.” The FOIA (section 2, subsection 1) defines personal data as any information relating to an identified or identifiable natural person (hereinafter referred to as “data subject”) and any reference drawn, whether directly or indirectly, from such information. In the course of data processing, such information shall be treated as personal data as long as the data subject remains identifiable through it. In addition to this, in connection with personal data the FOIA specifies “special data” concerning, for example, criminal records or criminal offenses. Personal data are the only type of data that are not covered by the original definition of public information: “any known fact, data and

NGOs and public information   169 information, other than personal data.” There is an obvious dichotomy in the regulation: “Under Hungarian law, any information that is not personal in nature and is controlled by a state or local government authority must be considered data of public interest” (Majtényi 2001: 159). In terms of personal data the FOIA states: “Where it serves the interest of the public, free access to particular personal data may be ordered by law as defined therein” (chapter ii, section 3, subsection 4). The consent of the data subject to grant access to particular personal data in cases different from the above is not presumed by law, meaning that allowing access to specific personal data is strictly contingent upon the explicit written permission of the data subject – that is, the person in connection with whom the data in question are registered or processed. Chapter II of the FOIA deals with access to public information, and lays out the rights of individuals and the duties of public agencies. We specify the most important two of these. Public organs17 are bound by law to regularly publish by electronic means20 or otherwise make available [. . .] all information of import concerning their competence, jurisdiction, organizational structure, professional activities, the evaluation of such activities (including their effectiveness), the categories of data they process, the legal regulations that pertain to their operations, and their financial management. The manner of disclosure and the data to be disclosed may be prescribed by legal regulation. (FOIA section 19, subsection 2) Furthermore, public organs shall allow free access to the public information they have on files to any person, excluding those labeled state or service secret by an agency vested with proper authorization, or if classified [. . .] under treaty or convention, or if access to specific information of public interest is restricted by law in connection with defense; national security; prevention, investigation, detection and prosecution of criminal offences; central financial or foreign exchange policy; external relations, relations with international organizations; a court proceeding or administrative proceeding. (FOIA section 19, subsection 3) The FOIA’s section 2, subsection 13 deals with the “blocking of data,” meaning actions that make it difficult for citizens or NGOs to effectively be able to obtain or use information. “[P]reventing – permanently or for a predetermined period – the transmission, access to, disclosure, adaptation or alteration, destruction, deletion, alignment or combination, and the use of data” are considered to be actions that constitute blocking. This list of certain types of factual conduct that result in denying, limiting, or

170   M. Sulyok and A. L. Pap obstructing access to information covers a large scale of activity specifically applied by state agencies and tries to give a comprehensive outline of what action is considered as hindering the fundamental right to access. As can be seen from the time condition that was included in the regulation,19 state agencies are seemingly exempt from liability in cases where they reach a discretionary decision denying access based on compelling security interests lacking expressly stated further and adequate grounds; moreover, such decisions tend to constitute barriers to access which are not necessarily permanent but are effective for a period that was set out without predetermination and without consideration of public interest. Last but not least, we shall also briefly discuss the notion of “data management,” which embodies all of the activities discussed hitherto. It is defined in the FOIA as any operation or set of operations that is performed upon data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, deletion or destruction, and blocking them from further use. Photographing, sound and video recording, and the recording of physical attributes for identification purposes (such as fingerprints and palm prints, DNA samples and retinal images). (FOIA chapter 1, section 2) Otherwise, the FOIA sets out two conditions for the supply of information to the general public: accuracy and speed. The speed requirement is of pivotal importance in the information age, so now let us turn our attention to the examination of the rules set out in the Freedom of Electronic Information Act, which concerns the questions of the freedom of electronic information.20 The FOEIA in section 1 sets out the purpose of the regulation: “accurate and quick provision of information via electronic means in a way that ensures continuous and free accessibility of data for anyone without any obligation of personal identification or compliance with procedures requesting data.” In its interpreting provisions (article 2, subsection 2) the FOEIA extends the scope of application to “data of public interest” and to “data that is public in the interest of the public” as well. We want to emphasize the difference in the language of the two Acts, for it might lead to misunderstanding. “Public information subject to disclosure” applied by the FOIA is similar in scope to “data that is public in the interest of the public” in the FOEIA, while the FOIA’s “public information” is closer to “data of public interest” included in the FOEIA – basically meaning that information of the latter kind is to be made public for the benefit of the general public. Though interest and benefit are not equal concepts in a legal sense, the FOEIA states in the aforementioned article that “[t]he provisions hereof concerning data of public interest shall also

NGOs and public information   171 apply to data that are public in the interest of the public.” In this way, the FOEIA eliminates one aspect of the distinction between these two kinds of data in terms of publication. The language applied in the FOEIA does not reflect a positive obligation on the part of public organs to make the information accessible. A more proactive wording, such as “data that was made public” and “with regard to the interest of the public,” would reassure the public that the practices of FOEIA would match its constitutional aims. First, such a wording of the article in question would more effectively emphasize the obligation of public organs to actively contribute to the furtherance of information rights by publishing and making available all information that should be public as regards the public interest – that is, all public policy information. Second, such a wording would provide NGOs sufficient means to file claims with the court effectively if information rights related to public data were to be infringed. Another important semantic difference between the FOIA and the FOEIA concerns how that information is made public. What the FOIA defines as “disclosure,” the FOEIA specifies in its article 2, section 1c under a different name: “publication”,21 meaning “making the data specified herein accessible to anybody, in a digital form or on an Internet homepage, without restrictions and free from charges.” A totally radical approach to the problematic of disclosure can be brought into play by asserting that disclosure justified by national security interests can sometimes, in itself, be a violation of rights. To uphold this theory we must bear in mind cases where granting access to an enormous amount of unsorted personal, sensitive data constituted a violation of fundamental rights in the furtherance of state interests that generally limit information rights by refusing access. People throughout Europe were scandalized when the SWIFT Centre in Belgium undertook a mass transfer of classified data to the United States for counter-­ terrorism purposes without first specifying limitations concerning the period for which the transferred data would be accessible, or any related restrictions.22 Several international watchdog organizations such as Privacy International filed complaints asserting information rights violations related to the case.23 Part II of the FOEIA contains the word “obligation” to define the duties of the organs specified to make electronic disclosure of public information. Article 3, section 1 gives a non-­exhaustive list of public organs that are bound by law to disclose data specified on the disclosure lists.24 However, the agencies specified do not include the secret services or any similar organs of national security. Moreover, article 3, section 2 states that “other agencies” can decide, at their own discretion, whether they render data public or not. In terms of extraordinary renditions, this discretionary opt-­out can seriously impede the ability to access information. The pertinent part of the FOEIA regarding the disclosure lists declares:

172   M. Sulyok and A. L. Pap (1) The agencies specified in Article 3,1–3 (hereinafter collectively: public sector bodies) shall – in relation to their operations – publish the data specified in the Annex to this act (general disclosure list); (2) Other data to be published may be specified by relevant legislation with respect to certain sectors and/or types of public sector bodies (specific disclosure list); (3) The head of a public sector body – after asking for the opinion of the commissioner for data protection – as well as relevant legislation may specify additional categories of data to be published, for public service organisations, for agencies controlled or supervised by them or to specific parts of such agencies (individual disclosure list). (see FOEIA, article 6, sections 1–3) In connection with this, article 3, section 7 makes it clear that the content of the so-­called disclosure lists is not limited (i.e. it fulfills the guarantee requirements), and other data may be disclosed electronically as well. Apart from these basic terms, the Act further summarizes the requirements of the publication and the accessibility of data as precise, timely, ongoing, and authentic. As article 4, sections 1 and 2 state, (1) The head of the data owner agency that is under obligation to disclose data shall provide for the precise, timely and ongoing disclosure – transmission to the data publisher – of the data specified in the disclosure lists referred to in Article 6; (2) The data publisher shall be responsible for the publication, ongoing accessibility, authenticity and regular updating of the data received from the data owner.” (FOEIA article 4, sections 1–2, emphasis added) We now present an analytical recommendation pointing out potential possibilities for revision in terms of the above article. We start from the hypothesis that the data processor and data publisher are separate organs to which different obligations are assigned, as literally follows from the text of article 4 above. That drawn as a partial conclusion, we must see that these separate organs will not necessarily have the same interest (and therefore responsibility) in the authenticity of the data published. Data publishers will not be solely held liable for the authenticity of the data, owing to the fact that reluctant state agencies “have more to gain” from “gradually authenticating and updating” the data they transmit for publication if it comes to compelling state interests and the protection of the success of the investigation. The data publisher will be solely responsible for publication; but further joint liability of the data owner and the data publisher will be set forth in terms of review and updating, and most importantly in connection with the authenticity of the data provided based on the above assertions. Our recommendation is: “The data publisher shall be responsible for the

NGOs and public information   173 publication and continuous accessibility of the data; the data owner and data publisher shall be jointly responsible for the joint and regular review and updating of the data and for the authenticity of the data provided.” Even if it is only in the context of electronic means for the purposes of the FOEIA, such a wording of article 4 could provide NGOs with a much clearer outline of the responsibilities relating to publication, doubling the safeguards of the regulation with the introduction of the above joint liability for the authenticity and regular review. This would create adequate assurances that NGOs would be able to petition more fora in terms of requests in the enforcement of publication. This way, figuratively speaking, NGOs could more efficiently affect their side of the “disclosure tug of war” between reluctant state agencies and the public. The regulation defines the review of public accessibility of information as “ongoing”; however, this time frame is indeterminate, ambiguous, and inadequate: it does not create a concrete and solid obligation in terms of publication and disclosure on the side of public organs. Protection of classified data statutes The current regulatory framework for the protection of classified data was adopted by Act LXV of 1995 (hereinafter SA).25 Decision 34 of 1994 of the Hungarian Constitutional Court had held that the former, state-­party regulation concerning state secrets was unconstitutional, based on their test in connection with the rule of law following from the complex principle of the constitutional state.26 The Preamble of the SA makes it clear that it wishes to introduce limitations on the public availability of data to the extent that is necessary for the sake of a more effective fulfillment of public duties. There are three levels of secret classification in the Hungarian model: state secret, official secret, and service secret. Classified data are defined in the SA as data, speech, or an object that contains a state or service secret. In case of state and service secrets, disclosure of classified data before the end of the effective period of the classification threatens the compelling state interests of Hungary, such as national security, national defense, and criminal investigation and crime prevention. “State secret” means any data in terms of which if (1) the disclosure, (2) the illegal obtaining and use, (3) the transfer to unauthorized persons, or (4) the prevention of the entitled (authorized) persons from access occurs before the termination of the effective period of the classification, the interests of the Republic of Hungary may be damaged or endangered. The SA contains 90- and 50-year effective periods in terms of data’s classification as a state secret, although there are certain exceptions of 10- to 15- or 25-year periods in terms of a state secret in the realm of police power. An official secret is basically any data that are obtained or handled in  proceedings conducted by officials of public administration and

174   M. Sulyok and A. L. Pap government (public servants) and are classified explicitly as such by law, requiring an elevated level of secrecy from those concerned. The provisions governing the protection of official secret are included in several Acts dealing with administrative proceedings and the collection, processing, and transmission of data falling under the scope of official secret. A service secret, as defined in the SA, refers to any data that relate to the working order of the state or public organizations and if disclosed, illegally obtained, used, or transferred to unauthorized persons before the termination of the effective period of the classification would hinder the exercise of the tasks and competence of those organizations. The SA holds that the data classifier27 may, upon request, grant access to the data requested. Obviously, compelling state interests prevent access petitions in almost every case, as the current regulation places the decision on access within the discretionary competence of reluctant data classifiers, such as secret service agencies. But these agencies are not only reluctant to reveal essential information for public interest, but as a general attitude. As Tóth argues in terms of extraordinary renditions, these agencies need not necessarily be “transparent, [but] the methodology and legal instruments regarding control of foreign agencies and operation of international networks of security services is still missing” (2007: 17). Concerning domestic agencies, however, a significant compromise was born, embodied in the peculiar result of the collision of state and public interests in the access to secret service held information about their personnel and investigations: Act III of 2003 on the Disclosure of the Secret Service Activities of the Communist Regime and on the Establishment of the Historical Archives of the Hungarian State Security.28 Its preamble declares: The Parliament wishes to facilitate the familiarisation with the activities of the state security services of the past regime and with the information compensation of the victims. With a view to this, in order to guarantee the right of those concerned to the information self-­ determination and to enforce the constitutional right to getting acquainted with the data of public interest – in consideration of the constitutional interest linked up with the sovereignty and the guarantee of the constitutional order of the Republic of Hungary, as well as of the national security interests of the constitutional state. This introduction adequately summarizes the requirements in an information society, but such a regulatory framework for the present system is currently unimaginable.

Practical issues in public access to information Tóth argues that “[a]dequate democratic control on executive power, including security services, is a requirement of constitutionalism and rule

NGOs and public information   175 of law, which are common values in the EU” (2007: 9) The freedom to access information is thus a pivotal feature of the rule of law and the protection of fundamental rights in the Hungarian legal system. Moreover, “adequate democratic control on executive power” can come to fruition only through solid and enforceable fundamental rights and transparent government. Having surveyed the regulation of Hungary in terms of access of public information, we set out the main barriers that prevent and impede individuals and NGOs from fully enjoying their fundamental rights: (1) the regulation of state secrets, (2) the rules of classification, and (3) the vague definitions and conceptual flaws in the current freedom of information regulations. The Office of the Parliamentary Commissioner for Data Protection and Freedom of Information is sometimes unable to gain access to certain files as a result of these barriers. We will examine below the proposed re-­ regulation of data accessibility. But since we have just mentioned another efficient tool for the protection of fundamental rights, we would like to briefly summarize the institution of the Parliamentary Commissioner and his or her rights and duties in Hungary. Parliamentary Commissioner for Data Protection and Freedom of Information The third layer of protection – after having discussed the constitutional and statuory measures that provide for information rights safeguards – is represented by the institution of the Parliamentary Commissioner for Data Protection and Freedom of Information. This was originally the position held by a personal aide (counselor) to the king in eighteenth-­century Sweden.29 It is a role that stems from the Enlightenment and the system of checks and balances. For general reference the holder of this office is often referred to as an “ombudsman.” In international best practices, ombudsmen need not be appointed by a legislature; they may work for a variety of institutions: a corporation, a newspaper, a city (for the general public) appointed by a mayor like the executive ombudsman; or even an NGO. Majtényi argues that the peculiarity of the Hungarian model is that the Commissioner also lobbies for the recognition of the freedom of information, and this way becomes an “NGO-­like” institution in terms of the Commissioner’s main objectives (2001). In Hungary, ombudsmen are “elected by a majority of two-­thirds of the votes of the Members of Parliament, based on the recommendation made by the President of the Republic” pursuant to the article 32b of the Constitution. Generally, anyone has the right to initiate proceedings by the ombudsmen. However, an “information ombudsman” does not explicitly appear in the Constitution, or in Act LIX of 1993 specifying the general rules for the election and procedure of parliamentary commissioner for

176   M. Sulyok and A. L. Pap civil protection of rights, but the Constitution says: “The Parliament may also elect special Ombudsmen for the protection of individual constitutional rights.” The Parliamantary Commissioner for Data Protection and Freedom of Information (hereinafter Commissioner) is that special ombudsman who shields the individual constitutional right relevant to this study: the freedom of information. The FOIA contains provisions for the election of the Commissioner, who is usually charged with the representation of the interests of the public by investigating malfeasances in connection with constitutional or fundamental rights, and with addressing complaints reported by individual citizens. The Commissioner can offer recommendations for consideration or give opinions, albeit lacking authoritative decision-­making power.30 If a request for information is denied, the citizen can opt to petition for an inquiry by the Commissioner, who then issues a recommendation relating to the official findings during the investigation. These recommendations have no legally binding effect, but because the social and political position of this institution is high in Hungary, the inspected agency often adheres to the recommendations. The second path of individual claimants could be the judicial path by filing a lawsuit. In this way the Commissioner can shape the current legal environment. According to the regulation currently in force, the Commissioner has the right to examine the classification of data as well, for example the decision to make particular data classified or secret. If the Commissioner finds no grounds for data being classified or secret, he can order the alteration or even abolition of the classification. The recommendations of the Commissioner have no legally binding power, but they do have administrative force pushing agencies to accept them or, if there is disagreement, to go to court to uphold the classification by way of verdict. The judiciary, as can be seen, is an important weapon in the hands of public organs as well. The role of the judiciary in information rights protection The role of the judiciary in fundamental rights protection is also relevant in the practice of access to information. Individuals and NGOs can file lawsuits in court if their requests for access to public information are denied. The role of judges, as the second type of personal gatekeepers of such information rights, is quintessential to the correct functioning of the democratic system. We will examine in detail the role of the courts in connection with the activities of Hungarian NGOs later on.31 Judges have a pivotal role in the access to public information, although the current Hungarian framework does not provide the best solutions in terms of regulation. Arising from this, we shortly have to discuss the problems arising from a distorted interpretation of the judicial independence requirement in the Hungarian constitutional state.32 Several complaints filed with the Commissioner deal with the denial of access to public data

NGOs and public information   177 by courts. The main conclusion of the investigations conducted was that data processed by courts could be accessed or otherwise transferred only if anonymized, which infringes the unrestrained access to information on the part of clients or the parties to a trial. The Constitutional Court set out some guidelines in this matter in its Decision 6/1998 (III. 11), which dealt with questions of state secret-­related restrictions on access to information arising from an ordinance issued by the ministries of the interior and justice.33 During the examination of the constitutionality of the ordinance, which was petitioned for by a trial judge, the court held that the practice followed in cases involving state secrets is in conflict with the right to a fair trial (due process) in criminal proceedings, for it harmfully affects the equality of the litigants and the right to protection. Now that we have comprehensively examined the constitutional, statutory, and institutional framework for the protection of classified data and the freedom of information in Hungary, we would like to present and survey certain aspects of such regulations in Romania as well, which is also a newborn constitutional state. Through the following paragraphs, wider conclusions will be drawn from a broader prospect of the regulatory framework in Central and Eastern Europe. Below, we briefly introduce the legislation of Romania, a comparable case that differs from Hungary, to understand how new constitutional states face and solve the increased need of the public to access public information.

The Romanian model Romania adopted its laws concerning questions of freedom of information and classified information after 2000, but its Constitution states the right to access information of public interest in its Article 31: [A] person’s right of access to any information of public interest cannot be restricted. The public authorities, according to their competence, shall be bound to provide for correct information to citizens on public affairs and matters of personal interest. The right to information shall not be prejudicial to the protection of the young or to national security. The rules of free access to public interest information are further set out in Law 544 of 12 October 2001 (hereinafter: RFOIA).34 Law 182 of 12 April 2002 contains the provisions on the protection of classified information (hereinafter: RSA).35 The RFOIA declares that free and unrestrained access to information of public interest shall be the rule and limitation of access shall be the exception, as freedom of information constitutes one of the fundamental principles of the relations between persons and public authorities. Furthermore, it provides for the need for the publication of a register of

178   M. Sulyok and A. L. Pap documents of public interest. However, as a study of Romanian e-­government pointed out, few public agencies excel in the provision of high-­quality and timely information to the public.36 The freedom of information legislation is very ambiguously construed in Romania owing to its relatively limited scope of application. As Bjola points out, public access to information in Romania is [B]asically conditioned on holding Romanian citizenship and requesting public information that does not pertain to a loosely defined set of exemptions (i.e., national defense, public security etc.). Hence, the law of classified information becomes critically important for ensuring a fair and effective access to public information. (2002: 30) In contrast to the Hungarian “common-­sense solution” (Majtényi 2001)37 that regulates freedom of information and protection of personal data in one law, in Romania the two laws – the RFOIA and the RSA – together form a complete and functioning framework for the protection and freedom of information. Oddly, the RFOIA, which came into force one year earlier than the RSA, defines “information of public interest” but contains no explanation of, and attaches no meaning to, “information.” Public interest information is defined as “any information regarding or resulting from a public authority’s or a public institution’s activities, irrespective of the support, or the form, or the mode of expressing the information” (RFOIA chapter 2, article 1, subsection B). On the other hand, we do find a definition of “information” in the 2002 RSA: “any document, data, objects or activities, regardless of the form, way of rendering or circulation.” In addition to this, “classified information” is defined in the RSA as “information, data, documents of interest for national security which must be protected due to the levels of importance and to the consequences deriving for disclosure or unauthorized dissemination” (chapter 1, section 2, article 15, subsection a). Further examining the provisions of RFOIA, in chapter 2, section 1; 4–7, Common Provisions, we come across a list similar to the Hungarian legislation, detailing the duties binding public organs in providing access to public interest information. Article 12 in the same chapter and section contains a list of exceptions for purposes of national security or defense, which count as classified information and thus are governed by the RSA.38 The interpretative general provisions of the RSA state that the law cannot be construed “in the sense of restricting access to information of public interest or [. . .] contrary to the Constitution and other international documents that Romania ratified or is a party to and which refer to the right to receive and impart information” (chapter 1, section 1, article 3). The RSA lays out the main objectives for the protection of classified

NGOs and public information   179 information and also for the protection of classified sources that provide such information.39 The protection that is introduced for the sake of “development of information systems and of classified information transmission security” represents a new area for secrecy law. To reach these goals, chapter 1, section 1, article 5 of the RSA lays out a structure for access to classified information: (1) exclusive distribution to authorized viewers; (2) identification of risk factors, including circumstances and persons that “can endanger security of classified information”;40 (3) system security; and (4) physical protection.41 The RSA further declares that organs that “possess or use such information shall keep a registry of authorizations.” There is no requirement for review regarding the classification itself. The only review mandated is the re-­verification of authority that must occur every time information is requested. Classified information is divided into two categories: state secret and official secret (RSA, chapter 1, section 2, article 15, subsections d–e). State secret information refers to any information that concerns national security, whose disclosure could jeopardize national security and the country’s defense, and official secret information is any information the disclosure of which would prejudice the interests of a public or private legal person. This contrasts with the Hungarian regulation, the SA, in which only the protection of the state and service secret is governed; an official secret has different fields of protection and is governed by different specific rules. Under the Hungarian system, data will be classified as an “official secret” only when statutory provisions explicitly require a secrecy obligation pertinent to specific duties specified by law. Under the Romanian model the first category – that is, “state secret information” – is “information that concerns national security, whose disclosure could jeopardize national security and the country’s defense” (RSA, chapter 2, article 17). The law contains a 14-part list of different kinds of information that pertain to the category of state secret. The list is broader than the one in the SA. Among the final provisions of the law, the government is required to establish the classification of state secret information and detail provisions on access to classified information. If we compare these two Romanian laws, the RSA contains an explicit “antagonist” of the freedom of information system that was provided for in the RFOIA. A “national system of protection of information” expressly appears in the text of the RSA, a solution that seems to be unique in policies pursued by newborn democracies. The contradiction between the two systems – secrecy and freedom of information – is codified. This explicit difference is absent from the Hungarian regulatory provisions, although it can obviously be construed as implied. Law 677 of 2001 makes it possible for individual claimants to access and correct personal information held on them by public or private bodies, and has been amended in relation to cross-­border data transfers and other recent international developments. In 2005 the National Supervisory

180   M. Sulyok and A. L. Pap Authority for Personal Data Processing was established with Law 102. This law requires that all data protection investigatory files kept by the ombudsman are now to be collected under this Authority. Romania also adopted Law 506 of 2004 on the processing of personal data and the protection of privacy in electronic communications. We can conclude from this comparison that the regulations in the two countries are fairly similar, but there are discrepancies in the categorization of classified data – absent the third type – and the definitions of information relating to public interest differ in the wording. The current regulatory framework in Romania has changed several times because of the activism of NGOs. These NGOs formed an informal coalition based on their own respective agendas to influence state policy more efficiently. In brief, the significant results are: (1) the enactment of the law pursuant to lobby activity; (2) a broad definition of public authority; (4) the achievement of a unique rule having the person as the beneficiary of the rights and not the citizen; and (4) the formulation of propositions for a strict system of sanctions. The following sentence may clearly summarize the goals of NGOs in a process that is or can be as politically interlocked as the legislation relating to the freedom of information: “The situation asks for a continuous effort in monitoring the lawmaking process and in sanctioning any attempt at restricting the free flow of information.”42 The success of NGOs in Romania suggests new ways of understanding the role of NGOs in Hungary: did they have the same success, and was this success due to coalitions or strategic action?

Brave new world? Intended changes to the Hungarian framework There is and has been significant effort on the part of the Hungarian government to change the pertinent freedom of information legislation. Until January 2006 the enactment of the new Act on classified information seemed to be proceeding smoothly, but one issue raised by public pressure groups in the end led to the preparation of a whole new regulatory system. In order to avoid misunderstanding, we wish to distinguish references to the first draft legislation on classified information (hereinafter: Proposal) from references to the second draft (hereinafter: Bill). The former dates to December 2005 and the latter to September 2007.43 Since there were no penal amendments attached to the Proposal, public concern arose primarily from fear of the restriction of the freedom of the press. NGOs were active as policy advocators in this process. Given that the necessary modified criminal provisions were not included in the Proposal, journalists disclosing classified or secret documents could have been subject to imprisonment, which obviously constituted clear and convincing

NGOs and public information   181 evidence of the obstruction (infringement) of the freedom of the press. At that time, several trials were pending on such charges, even with the intervention or support of some NGOs. Three NGOs – the Hungarian Civil Liberties Union (HCLU), the Protect the Future Centre, and the Press Freedom Centre – intervened in the legislative process and criticized the intended legislation, demanding that the government revoke the Proposal and compile a completely new measure. Here we have a clear example of the significant and successful impact of NGOs on the regulation of access to information. The basic concerns of NGOs with regard to the Proposal which led to the drafting of the Bill are as follows: • • • • •

• • •

Lack of public debate before submission of the Proposal to the Parliament.44 Lack of consultation with NGOs expert in the fields of freedom of the press and access to public information. More restrictive provisions in the Proposal resulting from the contribution of “professional bodies” (i.e. secret services). A threat to media and journalists arising from the lack of necessary review or amendment of pertinent criminal provisions regarding sanctions of imprisonment. Failure to fulfill the requirements of the constitutional right of an individual to access data held on them. The Proposal would have made the decision on making such data public discretional for the state; there was no obligation. Questionable time limits for the release of secret information.45 Lack of regulation requiring reasons for the classification of certain data. Classification criteria colliding with the “necessity and proportionality” test created by the Constitutional Court. The Proposal contained provisions that were intended to enable classification of all international affairs-­related data (without regard to international conventions), which clearly infringes the right to access public policy information.

In addition to this, the NGOs protesting the Proposal compiled a list of 13 malicious effects, of which we would like to emphasize the following: if the legislation set out in the Proposal were to be introduced, people would have been hindered in gaining information on alternative ways of modernizing central administration, on national economic strategies, and on preparation of the budget, and they would have been barred from “demand[ing] an amount of legality of widespread police raids.”46 Calling into question the legality of certain police or law enforcement actions is one of the most powerful tools by which watchdog civil interest groups and NGOs can challenge abuses of state power. By being granted unconditional and unrestricted access to information within the purview of law

182   M. Sulyok and A. L. Pap enforcement agencies (especially secret services), NGOs, and indirectly the people, could assert the necessary civil control over the use or misuse or abuse of police power, which is one of the most important guarantees of the rule of law and a democratic constitutional state. The renewed regulations set out in Bill T/614747 on the Protection of Classified Data could be the biggest leap toward an increased level of transparency in the central administration.48 The revisited regulation of state and service secret is based on civil rights movements and NGOs arguing that the current framework does not live up to the standard of a democratic constitutional state as set out in the Constitution. Several petitions were filed by numerous pressure groups and NGOs in Hungary to prevent drafts from entering into force, up to this point with significant success. Again, we have clear evidence of the impact of NGOs on setting the legislative agenda through public pressure: the Proposal was defeated, and the new Bill was debated. In terms of the Proposal, most of the NGOs’ claims were based on conceptual problems in the draft that could have resulted in clear infringements of democratic principles and guarantees in a constitutional state; for example, the draft definition of “secret” did not meet basic democratic standards. In the following, first and foremost we outline the principles laid out in the Bill as an answer to the NGOs’ assertions that the Proposal infringed the basics of the rule of law: • • • • •

necessity and proportionality, which are connected to accepted information principles; need to know, which means only those who indispensably need classified data for the fulfillment of their duties in the state or public sector gain access; confidentiality, which excludes unauthorized access to classified information; inviolability, which means only authorized persons have the right to destroy such data; availability, which signifies the need for constant access by those authorized to use or access classified data.

Should NGOs try to access such data, they could be barred on the grounds, in addition to “security reasons,” that they do not have duties in relation to the public sector.49 NGOs are nowhere authorized either to access or to use any kind of classified information on the basis of their activities or basic functions. Thus, one of the real effects of this Bill is to prevent NGOs from having access; this can be construed as an attempt by the government at retribution for the successful blocking of the Proposal by NGOs. Second, the Bill defines two tiers of classified data, separating national and foreign classified data. The draft language concentrates on any “national classified data,” the publication, unauthorized access, accessibility

NGOs and public information   183 (or making these possible), and unauthorized modification or use of which would constitute danger or harm to the protected public policy within the interval of the effect of classification. The definition of “foreign classified data” is much broader: the proposed concept includes transferred data, under any international treaty or convention, as well. Access by international organizations, organs and institutions of the European Union, member states representing the European Union, or other contracting states as part of a classification procedure is limited. Section 2 (5) of the Bill contains a list of protected public policies, among them the sovereignty and the constitutional order of Hungary and national security, defense, law enforcement, and police powers of the state. The same section contains a list of prohibitions of classification, and in connection with this it defines, in section 3 (5) of the Bill, the enumerated cases when data are to be classified. As an active policy advocacy NGO, the HCLU has welcomed the decision on re-­regulation. It had, in the past, criticized the former regulation of the SA in terms of secret designation. The HCLU pointed out the main achievements of rethinking the concepts of secrecy. It welcomed the Bill because it offers the possibility of judicial review in terms of the classification procedure and establishes new guarantees in reassuring the protection and classification of data as secret. The HCLU was happy to see that the means of the Commissioner were to be extended in terms of classified data; for example, the deadline for the action by the addressee of the recommendation is 60 days in the Bill, broadening the means applicable by the Commissioner. It is essential to remark here that a clearance-­ level rule is set out in the Bill, as well in terms of the Commissioner or its affiliates, conducting the investigation in case of classified data. With this basic guarantee in the protection of classified data, the Bill also lays down the principle that classified data cannot impede the Commissioner or the office’s investigations. However, the responses to the revisions were not without serious criticism. The HCLU recommended important changes:50 •

•

The criminal sanctions for the abuse of classified data should be changed, on grounds of being outdated and disproportionately limiting and restricting the fundamental rights related to information based on the goals set forth in the Preamble to the Bill and to further the protection of the specific fundamental rights mentioned therein. The conceptual flaws and inadequacies in the regulation of the classification procedure should be revised as being in infringement of basic principles of the constitutional state, most importantly the rule of law and the necessity and proportionality principles. The creation of an informational compensation system is recommended, which should be made available to anyone subject or having been subject to data processing in terms of classified data. In addition,

184   M. Sulyok and A. L. Pap

•

• •

• •

the HCLU stressed the importance of constant monitoring and screening of the classification practice by an independent body or person having adequate means to the extent necessary to sufficiently prevent injustice (obviously other than the already existing Commissioner and the associated infrastructure). The enumeration of data subject to classification is missing, therefore the guarantees formerly provided in order to protect information rights are heavily degraded. This field, if unregulated, provides opportunity to the data classifier to classify data without reason and legal basis. In connection to this, the criteria set forth as regards the prohibition of classification are insufficient.51 Joint and conjunctive control mechanisms of classification should be set out as a basis for invalidating a classification if one of the conditions is not met. The effective period of the classification set forth in the Bill (15 and 30 years) is unreasonably long and is not in conformity with international trends. (The HCLU offers the US, Mexican, Macedonian, and Albanian systems as examples, with terms of 10–12 years.)52 Furthermore, the HCLU pointed out the vagueness of the rules set out for the legal reasoning behind classification and the fact that there is no deadline specified that would bind the data processor. A public registry should be opened to monitor and track the conditions (and their fulfillment) necessary to the classification of data, and to control the necessity for review of classifications.

The HCLU further argued that the current regulation intended to govern judicial review is not sufficient. The regulation, if passed without the suggested changes, would open the possibility of classifying data in cases where it otherwise would be unreasonable to do so. As regards the present situation concerning classified data, the HCLU points out that in 2006 the Supreme Court ruled on the subject of the duties of the National Security Office53 and concluded that it has no legal duty at all to inform the public about classified data whose classification period had expired, so the public is obstructed in access to such data as a whole. According to the media, the exact number of cases pertinent to the field of data classification handled by the HCLU is unknown, but 36 lawsuits have already been filed with the court in relation to issues of data protection and access to public data. In Hungary, though not in the form of an informal coalition, as in the case of Romania, NGOs achieved significant success in shaping the legal environment of freedom of information, and the ruling regime was forced to rethink the principles of the pertinent regulation. Further adaptation of certain international trends is still essential to facilitate transformation of the domestic regulatory framework according to international experiences and best practices. Having summarized the current “in-­between”54

NGOs and public information   185 state of the Hungarian regulatory framework and having brought attention to the stages of transformation already made in the system, in the next section we should like to ask and answer the following questions: How do the NGOs intend to obtain information on extraordinary renditions and similar intelligence-­based actions, for example secret service investigations, if indeed they intend to do so? To what extent can they be deemed effective policy advocacy organizations in Hungary?

The lack of government transparency: the case of extraordinary rendition As was mentioned above, extraordinary rendition is used to describe the extra-­judicial transfer of a person from one state to another, particularly with regard to the alleged transfer of suspected terrorists to countries known to torture prisoners or to employ harsh interrogation techniques that may rise to the level of torture. This new potential source of infringement of human rights and the rule of law provides additional weight to the traditional importance that state transparency and access to public data play in the democratic process – and the issue also serves as a litmus test for the attitudes and capabilities and of state and civil actors. Although in this chapter our analysis focuses on NGOs, the case study also highlights important features of the state actors’ approach to the question. The NGOs’ impact is twofold: First of all, they serve as a very powerful source of information, enhancing awareness-­raising and initiating public debate on issues formerly unknown. The mere fact that “black sites,” kidnapping, and rendition became public put political pressure on governments to uphold the rule of law. The role of human rights NGOs is also significant in the investigation of rendition cases, as they have the capacity to obtain interviews from victims of rendition, to release statements from former detainees, and also to demand information on secret operations. Aircraft known to have been used by the CIA for rendition have made thousands of flights into and out of European airports and airspace since October 2001. Allegations of secret CIA detention facilities in Eastern Europe first emerged in November 2005 in the Washington Post. Other media and Human Rights Watch later identified Poland as one of the countries hosting CIA “black sites.”55 International NGOs International human rights NGOs such as Amnesty International and Human Rights Watch provide vivid examples of how crucial a role civil initiatives can play in combating grave violations of human rights. The case of extraordinary rendition is particularly interesting, because here both the essential tool and the obstacle lie in the process of making information on secret government operations accessible. Protests and inquiries

186   M. Sulyok and A. L. Pap from international organs such as the European Parliament and the Council of Europe, in particular the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (PACE), have been preceded by media and NGO reports. Amnesty International has played a leading role in formulating minimum human rights standards on rendition for governments, including a list of recommendations. Besides formulating international standards, international NGOs may also be involved in national litigation: they can represent clients and issue public statements.56 For example, in 2005 Amnesty International interviewed three Yemeni men who had been held in the secret CIA location, who had alleged that they were detained in Europe. Former detainees from other countries have since provided similar accounts.57 Amnesty International reports six specific cases involving 13 individuals and details the involvement of European states – ranging from allowing CIA flights heading for rendition circuits to use European airports and airspace to hosting secret detention centres, or “black sites.”58 Amnesty also called on the government of the United Kingdom to provide all information it has to the lawyers for Binyam Mohamed, a former UK resident imprisoned at Guantánamo Bay, so that Amnesty can show that he has been a victim of torture and other ill-­treatment in the US-­led programme of renditions and secret detention.59 The organization also urged the Polish government to initiate a full, independent, impartial, and effective investigation, adequately resourced and able to establish whether or not there was a CIA detention facility on Polish soil, and, if so, the arrangements under which it operated.60 Similarly, Human Rights Watch called on the Italian government to seek the extradition of 26 American CIA agents implicated in the 2003 abduction and alleged torture of Egyptian cleric Hassan Mustafa Osama Nasr, also known as Abu Omar. What, then, about the Hungarian case? NGOs in Hungary According to interviews with the representatives of the three most important and influential human rights NGOs relevant to the issue (the Hungarian Helsinki Committee, the HCLU, and the Eötvös Károly Institute), a small steps policy can be defined. The Hungarian Helsinki Committee (HHC; in Hungarian, Magyar Helsinki Bizottság), a member of the International Helsinki Federation for Human Rights and the European Council on Refugees and Exiles, was founded in May 1989 and its mission is threefold: to monitor the enforcement of human rights enshrined in international human rights instruments, to provide legal assistance to victims of human rights abuses by state authorities, and to inform the public about such violations. The HHC promotes legal education and training in fields relevant to its activities, both in Hungary and abroad. Its main areas of activities center on

NGOs and public information   187 protecting the rights of asylum seekers and foreigners in need of international protection, as well as monitoring the human rights performance of law enforcement agencies and the judicial system. One of its major foci is on the conditions of detention and the effective enforcement of the right to defense and equality before the law.61 The Hungarian Helsinki Committee runs a Human Rights Legal Counseling Office, a Police Cell Monitoring Program, a Prison Monitoring Program, a Model Legal Aid Board Project, and a Project for Effective Legal Counseling for Those in Need of International Protection. The Hungarian Helsinki Committee has been the implementing partner of the UN High Commissioner for Refugees (UNHCR) in coordinating a countrywide lawyers’ network for asylum seekers and refugees since March 1998. It runs a Refugee Law Clinic and, in cooperation with the Access to Justice project of the Public Interest Law Initiative, Interights, and the Bulgarian Helsinki Committee. The Helsinki Foundation for Human Rights in Poland runs an Access to Justice Project in Hungary. The HHC is also involved in a project that involves the development and implementation of a methodology in Hungary to examine the enforcement of the constitutional principle of equality before the law. The Hungarian Helsinki Committee is also active in advocacy before international human rights organizations, including the United Nations Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, and the European Court of Human Rights. The aforementioned Eötvös Károly Institute (EKINT) was founded in January 2003 by the Soros Foundation in order to establish a novel, unconventional institutional framework for shaping democratic public affairs in Hungary. EKINT pursues three different types of activities, and therefore addresses three different types of audiences. Through issuing positions on current political issues, hosting conferences, and authoring various publications and announcements, it seeks to reach the general public directly. It aims to foster a higher level of legal awareness among the echelons of government and society at large, optimally even influencing political decisions. Second, it turns to political decision makers indirectly by drafting specific policy proposals, concepts, and background studies, with a view to representing a constitutional, liberal perspective in regulatory issues and marshaling arguments for action plans conceived in a kindred spirit. Third, the Institute engages in conducting long-­term surveys and studies investigating the condition of certain institutions of the democratic republic, such as the courts, the municipalities, and the law enforcement agencies, and of certain public services, including education, health care, culture support, etc.62 The Institute is deeply committed to privacy protection: its founder president previously served as the first Parliamentary Commissioner for Data Protection and Freedom of Information, and its staff party consisted of data protection advisers and freedom of information specialists. EKINT has played a major role in bringing about legislation regulating electronic freedom of information, from raising the idea

188   M. Sulyok and A. L. Pap through the elaboration of the legislative concept and the actual work of codification, to the final voting in Parliament. By monitoring compliance, the Institute assesses the experiences accumulated since the adoption of these provisions. The Institute regularly issues communiqués and positions protesting non-­transparent governmental practices and encourages the government to broaden access to the national data resource, defined as information generated in the public sector that is not by default freely available for general use. Even though the EKINT is not a human rights advocacy group per se, it still often makes its voice heard over controversial human rights issues. The HCLU63 is a non-­profit human rights watchdog NGO established in Budapest in 1994. It is a law reform and legal defense public interest NGO in Hungary, working independently of political parties, the state, or any of its institutions.64 Its activities involve data protection, freedom of information, drug policy, HIV/AIDS and health-­care issues, and fundamental rights. The HCLU has fairly broad experience in seeking judicial warrants to disclose public data. The only rendition-­related activity was performed by the HCLU, which requested the National Security Committee to disclose the minutes of its opening session in November 2005, where representatives of the secret service were called in for a hearing in relation to secret CIA operations in Central and Eastern Europe.65 The session was of particular importance since a Bill on the amendment of the Criminal Procedure Code was also debated there. The parliamentary committee did not react in any way to the written requests of the NGO, which consequentially filed a lawsuit. After having received the judicial notice, the Committee finally agreed to hand over the requested documents. Although no substantial investigation or even debate followed the rendition-­related hearings (there was no evidence raised to imply that Hungary was involved in such activity), the case is curious in several aspects. It is noteworthy that it is a parliamentary committee (presided over by an opposition MP) that refused to disclose its minutes, despite the fact that its session was not held in camera, and Parliament had already passed a law that requires all committee minutes to be posted on the Parliament’s website (although the law was not yet in force). A similar scenario followed in 2008 when the HCLU requested the annual reports of the secret services as submitted to the National Security Committee of the Parliament. The Minister of Defense agreed, albeit reluctantly, to disclose the report of the military secret ser­ vices, while the chairman of the parliamentary committee firmly rejected the request and the Minister for Civilian Secret Services cooperated only after judicial proceedings had been initiated.66 Looking at the case law of the HCLU’s strategic litigation, we see rather surprising examples of opposition to the making of public data available upon request. One of the HCLU’s cases concerned the Government Control Office, created to combat state corruption, which simply refused

NGOs and public information   189 67

to release one of its reports. Another case was brought against the prime minister of Hungary, who announced in the media that a group of constitutional law experts had prepared a draft on possible amendments of the Act on Freedom of Assembly. However, the Prime Minister’s Office refused to disclose the document on the grounds that its public discussion would be premature. The HCLU has started a legal procedure for the disclosure, following which it turned out that no expert group had ever been formed and no study had been produced, hence the court dismissed the HCLU’s petition.68 In a similar case the Ministry of Justice and Law Enforcement refused to disclose the draft of a proposal for a new Constitution. The court of first instance ruled for the HCLU; but the appellate court reversed, holding that early stages of legislative planning need not be public. On procedural grounds, as an extraordinary judicial remedy, the Supreme Court quashed both judgments.69 These cases do not even touch on sensitive issues where one could see why the government would have a vested interest in secrecy (even in a new democracy). The HCLU has fought more than a dozen court cases over access to public data, a number of which involved denied requests from secret service law enforcement agencies.70 Let us look at some of the most notable cases: Act C of 2003 on Electronic Communications contained data retention provisions which were challenged in the Hungarian Constitutional Court as having erected serious barriers to the exercise of information rights, for example freedom of information, freedom of the press, and privacy. The HCLU filed a complaint alleging that retention of personal data “for stock” (i.e. unlimited use by certain “special agencies”) was questionable, given the lack of previously defined particular purposes. In a highly publicized case in 2006 the HCLU requested data of public interest on video surveillance systems being operated in Budapest. Upon refusal, a suit was filed against six local government districts. On receiving the judicial notice, one district complied and the other five lost the case in the first instance. Two appealed and won in the appellate court, and thus managed to withhold data on the whereabouts of closed-­circuit television (CCTV) camera recordings.71 On appeal, however the Supreme Court held for the plaintiff and ordered the police to disclose the location of all CCTV cameras, along with statistics on their efficacy.72 The HCLU brought a number of other cases regarding other internal regulations against the national police chief. In another case the National Security Office refused to disclose a list of those documents whose classification (as state secrets) had expired or had been withdrawn. The court of first instance denied the HCLU’s request, the appellate court reversed the decision, and the Supreme Court again ruled against the HCLU, upholding the secret service’s denial of requests on the grounds that the selection of such data would put a serious burden on the services. The judgment has had the result of excluding the classification practices of the secret services from public review. Another interesting case revealed that NATO standards on

190   M. Sulyok and A. L. Pap information handling are frequently used by Hungarian national security services as a cover to circumvent Hungarian data privacy standards or secrecy rules. Both the first- and the second-­instance courts rejected the HCLU’s claims, despite the fact that the legal reasoning was based on NATO sub-­legal standards and not on the Hungarian FOIA. Following this, the HCLU turned to the Constitutional Court for constitutional review; the case is still pending. It seems to be the case that not only is the state reluctant to disclose public data of its own volition, but even public pressure seems to be insufficient to push it into doing so, and it is necessary to use litigation as a last resort. It is rather peculiar that even some political instruments (such as a parliamentary committee or opposition parties) that are constitutionally designed to assist initiatives revealing information on how the state and the government conduct daily business choose to ignore or even oppose these claims. Some of the strategic litigation cases even turn to absurdity. For instance, the HCLU had to sue the Constitutional Court for not disclosing a petition sent by a Member of Parliament seeking the constitutional review of a provision of the criminal code. The court, in line with the Constitutional Court (the ultimate guarantor of fundamental rights), was of the opinion that cases initiated by Members of Parliament amount to private data and are to be exempt from disclosure. The case reached the Supreme Court, with the HCLU’s requests being denied in all fora.73

Conclusions Two important conclusions can be drawn from our research: First, in the absence of specific complaints, reports, or allegations on extraordinary rendition having taken place in Hungary, no specific inquiry or campaign has been initiated by any of the NGOs. Potent and influential as they may be, national human rights NGOs in Hungary, and most likely in other new EU member states with a similarly fairly recent political transition behind them, are also overburdened and underfinanced, and thus rarely have the capacity to react spontaneously to new phenomena that do not form part of one of their ongoing projects. Despite its well-­established practice in national litigation and policy advocacy, along with numerous successful representations before the European Court of Human Rights, because no client in a particular case raised such concerns, the Hungarian Helsinki Committee did not have the capacity or the incentive to launch any form of inquiry into the question of “rendition.” Similarly, active and influential in access to data issues as it is, EKINT identifies itself as a research center, not a watchdog organization, and, lacking outside initiatives (and resources), also refrained from getting involved in the issue. Its director informed us that EKINT would only request public data from government agencies to support research findings, not for litigation or policy advocacy.

NGOs and public information   191 The only rendition-­related case brought by the HCLU brings us to our second conclusion: access to public data is particularly important in societies where there is a historically rooted reluctance on the part of the state to open itself to public scrutiny, especially if it is combined with a lack of understanding of the weight transparency has in the democratic process, another phenomenon that can be observed when it comes to both the general public and – to judge by the inconsistency of decisions demonstrated by the unusually large number of reversals on appeals – unfortunately often the courts as well. This is alarming, because experience has shown that the practice of refusing to deliver public data is widespread not only among the secret services and law enforcement agencies (where covert operations would justify a certain degree of secrecy), but also among other completely civilian branches of government. The obvious reason why this is the case is of course related to the presented flaws of the regulatory framework, and erroneous decisions and exigent circumstances of the past, mostly in terms of data classification, owing to the fact that it was in the interest of the ruling regime to keep as many secrets as possible, and it had the will to do so. These traditions in the regulation of state secrets are all parts of the burdensome heritage left behind by the former, narrow-­minded state-­party mentality in Hungary. We agree with Tóth in arguing that the major and basic motivation for secrecy is that “the enemy must not know what we know” (Tóth 2007: 21). But then, if a procedural layer builds up around this principle as a side effect – excluding the public identified as the enemy in this particular context – it constitutes a primary source of conflict in a democratic society that should, no matter what, meet the requirements of transparency. The primary needs of the present information age can be complied with only by the premeditated and conscious reinvention of governing principles that pertain to the management of classified information. Reevaluation of conventional national as well as global security policies is indispensable, too, owing to the geopolitical and geostrategic metamorphosis of the globe, without bringing further limitations and restrictions of access to what otherwise is, according to the law on “free information,” in the interest of the public. Following this path, clearly marked by the “information superhighway,” a major achievement would be the creation of genuine freedom of information that would generate further evolution and open new possibilities for joint efforts and cooperation in our globalizing world with the participation of, and for the benefit of, all the European nations that were reborn as democratic constitutional states. From a historical standpoint, however, we could argue on theoretical grounds that a system of freedoms could be founded upon the distrust of government and a severe crisis of confidence. The founding fathers of the United States, all of them foreign colonists, had the clear intent – as written in the Declaration of Independence and also in the Constitution – of limiting the powers of the federal government and resolving emerging

192   M. Sulyok and A. L. Pap issues by sharing powers between the people and the states. They wanted to put the accent on their individual freedoms, based on their own contemporaneous agendas. Following this logic, a similar system of checks and balances should be able to provide a framework for conflict resolution in the European Union, taking national interests and present agendas into consideration in the course of applying unconventional and transformed governance mechanisms. Clark and Ansay (2002) identify four main factors as part of the original vision of the Founders that led to the US Constitution as it is today, namely liberty, distrust of government, tolerance, and optimism. This vision is relevant to the present study as follows. In a European Union that is on its way to building Unity out of Diversity, with perhaps a federal system to follow sometime in the not so distant future, these factors must also be taken into consideration when planning future frameworks for cooperation. The present EU-­27 is on its way to establishing a system of governance similar to the original overseas example; some people think there could ultimately be a United States of Europe. Bearing that prospect in mind, we have to touch upon the question of diversity in the European context, as it is currently the most notable feature of the Union. The member states significantly differ in linguistic, cultural, legal, social, and other aspects, a fact that obviously translates into the need for a common denominator that will nevertheless retain the benefits of difference. What the leaders of these nations will have to decide soon enough is whether they accept this Diversity and agree to set the common goal of building Unity out of it. Then this Unity will be of no less value than the blessings flowing from Liberty and Tolerance. Only then can a path be set “in order to form a more perfect Union”74 and to secure the blessings of fundamental rights, as was the primary goal of America’s founding fathers. Apart from these utopian ideals, a set of much more tangible purposes for the future should now be elaborated in a broader, more practical approach: (1) The watchdog role of NGOs and other pressure groups needs to be reinforced and supported at both a national and an international level, either by inventing new frameworks for financing such bodies or by rethinking the existing models. (2) Efforts need to be made to supraand transnationalize initiatives taken by such organizations as part of the joint efforts of cooperation mentioned above. (3) In order to prevent further cases of severe violations of fundamental rights, such as extraordinary renditions, the basic ideas of freedom of information laws need to be revisited in the form of widespread public debate, leading to (4) the awakening and activation of individuals and private practitioners who are in fact the real “technicians of the law.” In this way the traditional top-­down, command-­and-control state could be transformed into a more modern bottom-­up, cooperate-­and-control governing system for the benefit of the public. In a state that is prone to

NGOs and public information   193 secrecy in the pursuit of its own safety, NGOs as enhanced models of civil and political cooperation can lead by example and set the pace of transition into a governance system that builds from the bottom up in resolving policy conflicts such as the collision of public and state interests regarding freedom of information. The framework of an NGO is to the greatest extent fit for such a purpose, based on its interconnectedness with a large range of societal interest groups and the policy-­making contributors of a nation’s leadership as well, as shown by our evaluation of these aspects of the Hungarian and Romanian models for NGO participation. As a closing argument, the quintessential role of the judiciary must be emphasized once again. An active and legally conscious judicial system is pivotal in such a structure as well, for it controls the people’s Distrust of government. It was originally so intended by the founders when they enacted the protections of checks and balances in American democracy. By granting fundamentally political freedoms, among which we can mention the right to free expression and the right to petition, we can conclude that judges indeed have a quintessential role in the furtherance of individual rights and control by the state. The same needs to be true for the flow of information and freedom of information.

Notes   1 Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006 concerns questions about the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks. It is an amendment of Directive 2002/58/EC.   2 The role of judges and courts in the advancement and promotion of information rghts will be discussed later.   3 The Parliamentary Assembly of the Council of Europe adopted, on 1 February 1979, Recommendation 854 (1979) on access by the public to government records and freedom of information, recommending that the Committee of Ministers should “invite member states which have not yet done so to introduce a system of freedom of information, i.e. access to government files, comprising the right to seek and receive information from government agencies and departments, the right to inspect and correct personal files, the right to privacy, and the right to rapid action before the courts in these matters.”   4 A global survey of access to government information laws was conducted in 2006 by Privacy International. To study in detail the contemporaneous situation in Hungary, see www.privacyinternational.org/foi/foisurvey2006part1.pdf. The governing framework has undergone no material changes since the year of the survey.   5 One of the methodological or epistemological problems in studying the extraordinary rendition program is the secrecy that surrounds it, and the lack of public sources.   6 A comprehensive summary (listing all countries allegedly taking part in such activities) of EU involvement is set out in the European Parliament Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (2006/2200(INI) – P6_TA-­PROV(2007)0032).

194   M. Sulyok and A. L. Pap For further reports and studies of alleged CIA rendition activities throughout the respective member states, see www.statewatch.org/rendition/rendition.html or, for example, Kagel (2007: 8), www.liberty-­human-rights.org.uk/pdfs/policy06/ jchr-­extraordinary-rendition-­submission.PDF (on UK involvement in general), www.statewatch.org/news/2007/aug/scotland-­reprieve-report-­involvement.pdf (on Scottish involvement), and www.statewatch.org/news/2008/oct/eu-­ciaportugal-­reprieve.pdf (on the submission to the Portuguese inquiry in April 2008).   7 PACE is the Legal Affairs Committee of the Council of Europe Parliamentary Assembly, which initiated and approved the reports of the investigations led by MEPs Marty and Fava. The committee has no power to force European countries to act on the report’s findings; it assesses and reveals the problems that exist. The reports and the relating working documents are available in full at www.assembly.coe.int. On 16 November 2006, two working documents were presented by the PACE Committee: Working Document no. 7 on “extraordinary renditions” and no. 8 on the companies linked to the CIA, aircraft used by the CIA and the European countries in which CIA aircraft have made stopovers. The 7 February 2007 presentation of Working Document no. 9 on certain European countries analyzed during the work of the Temporary Committee followed. Note also Resolution 1507 (2006), Recommendation 1754 (2006), and Resolution 1562 (2007): second report, all on alleged secret detentions and illegal transfers of detainees involving Council of Europe member states.   8 The term “black sites” is used in classified documents and refers to a CIA-­run system of covert prisons.   9 See the discussion of the strategic litigation of Hungarian NGOs. 10 An English text of the Convention is available at www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf. 11 Transition: the political regime change in Hungary that resulted in the fall of the socialist state-­party era in 1989. Hungary became a republic on 23 October 1989. 12 In Hungarian: A Magyar Köztársaság Alkotmánya, abbreviation Alk. The official English translation of the Act can be found on the website of the Hungarian Constitutional Court: www.mkab.hu/en/enpage5.htm. 13 www.edri.org/edrigram/number4.17/hungary. 14 In Hungarian: A személyes adatok védelméro˝l és a közérdeku˝ adatok nyilvánosságáról, abbreviation Avtv. 15 In Hungarian: Az elektronikus információszabadságról, abbreviation Eisz. 16 In this context the word “disclosure” implies the act of making the information available. 17 Referred to as “agencies” in the FOIA, Sec. 19, subsec. 1: “State or local public authorities and agencies and other bodies attending to the public duties specified by law.” 18 Publication by electronic means is governed by the FOEIA. 19 “[P]ermanently or for a predetermined period.” 20 The pertinent part of the preamble setting out the goals for the legislation reads as follows: “In order to ensure the operation of the rule of law enshrined in Article 2 (1) of the Constitution and to enable the exercising of the basic right concerning access to information of public interest and the right to disseminate such information as provided for by Article 61 (1) of the Constitution, in concert with the provisions laid out in Article 19 of Act LXIII of 1992 [. . .].” 21 As the form of making data available, see the meaning of “disclosure” in note 16. 22 We will later examine one case when we discuss the strategic litigation of Hungarian NGOs where retention of data without previously defined purposes and limitations constituted a cause of action.

NGOs and public information   195 23 www.iht.com/articles/2006/06/26/news/intel.php, www.usatoday.com/money/ industries/banking/2006-06-22-bank-­records_x.htm. The text of the complaint that was filed to the contemporaneous Hungarian Parliamentary Commissioner for Data Protection and Freedom of Information, Attila Péterfalvi, is available at www.privacyinternational.org/issues/terrorism/swift/hungary.pdf. 24 See FOEIA, article 6. 25 In Hungarian: Az államtitokról és a szolgálati titokról, abbreviation Ttv. The Act was based on the guidelines for legislation set out by the Hungarian Constitutional Court in its Decision 34/1994 (VI. 24.). 26 Decision 34/1994 (VI. 24), published in vol. 68/1994 of the Hungarian Official Journal (Bulletin). 27 The National Security Office, a reluctant data classifier, has gone through changes in the past few years, after the Transition. For comprehensive information about the structure of Hungarian national security in the ten years following the Transition, see Szikinger (1999). The system described by Szikinger remains essentially unchanged. 28 The Act is available in English at www.th.hu/html/en/acts/ABTL_4_2003_evi_ III_tv_e.pdf. 29 See “Ten Years of Ombudsmen 1995–2005,” whose introduction briefly mentions the Swedish roots of the institution. The study is available as a bilingual (Hungarian/English) document at www.obh.hu/obh_10_jubileum.pdf. For more detail on the origins of parliamentary ombudsmen, see the history of the institution available from the website of the Swedish parliamentary ombudsman at www.jo.se (under General Information/History). 30 The following account of the duties and means of the Hungarian Commissioner is based on Majtényi (2001). 31 See the account of the strategic litigation of Hungarian NGOs. 32 Note that the Hungarian courts play a significant role in editing the decisions that are to be made public through legal databases, an activity that often results in the blocking of data that should be in the public domain. For example, the names of the parties in trials are edited and the decisions are abridged or summarized if published or otherwise made available electronically. 33 Published in the Hungarian Official Journal (1998), vol. 18. 34 Official publication in Monitorul Oficial (Official Gazette), part 663, 23 October 2001. 35 Official publication in Monitorul Oficial, part 248, 12 April 2002. 36 See Bjola (2002) 37 See Majtényi (2001). 38 Contrary to the Hungarian rules, the Romanian language uses the designation “information” rather than “data.” 39 The authorities that affiliated in the creation of national standards concerning the protection classified information were the Romanian Intelligence Service, with the consent of the National Authority for Security. (These are explicitly named in the RSA.) 40 Note that “can” is a more explicit usage than is usually found in legislative wording, such as “may” or “might.” 41 This layer of protection was later amended with legal protection, protection by procedural measures, and the protection of personnel with specified access to classified information. 42 Extract from a presentation by Ioana Adavani, “Freedom of Information in Romania: The Role of NGOs,” available at http://info.worldbank.org/etools/ library/latestversion_p.asp?objectID=35795&lprogram=1). 43 For detailed information on the first draft, please consult www.ecln.org/docbin-­2006/HCLU-­aug-06.pdf, but excerpts will be discussed later on.

196   M. Sulyok and A. L. Pap 44 Note that Act XI of 1987 on legislation (in Hungarian: A jogalkotásról, abbreviation Jat.) no longer contains binding provisions in terms of public debate concerning the terms of intended legislatory drafts. This is important because an explicitly granted opportunity for the public control of legislation is essential to the correct functioning of a constitutional state in an information society, where public interest pressure groups should have certain specified rights to influence policy in areas relevant – primarily and for the purposes of this study – to their information rights. The reason behind the acceptance of such regulation was that the regime-­changing legislature after the 1989 “Transition” wanted to suppress remaining traces of the former communist regime, and wanted to limit the possibilities for criticizing decision making via public fora, which was indeed a common policy-­influencing “mechanism” formerly used by trade unions. 45 The general limit for releasing secret information was reduced in the Proposal to 80 years from the former 90 years. With regard to state secrets it was raised to 60 years from 20 years. 46 www.ecln.org/docbin-­2006/HCLU-­aug-06.pdf. 47 The general debate of the draft was initiated on 29 September 2008 and closed on 20 October 2008. The draft lost the support of the opposition party and its enactment is doubtful for the moment. The status of the draft is pending. 48 www.jogiforum.hu/hirek/18728 (in Hungarian). 49 Let us clarify that NGOs, as public interest pressure groups, stand for better access to rights and justice for society – that is, “the public” – so their duties are indeed public, even though they are not connected – in the strict, literal sense of the word – to the public sector. 50 The following are based on the views of the HCLU on the Bill (NB: the second draft legislation on classified data), available at www.tasz.hu/files/tasz/imce/ TASZ-­29color_0.pdf (in Hungarian). 51 The only boundaries welcomed by the HCLU are (1) a list of public interests that can be shielded by classification, and (2) an examination of content in terms of data subject to classification with regard to public interest in the access to information and in the classification of such data. 52 Implementation of such rules would provide opportunity to easily render certain data “secret,” which could infringe the public’s vital rights to information. 53 A summary of the case can be found at www.origo.hu/itthon/20080924-nemzetbiztonsagi-­hivatal-nem-­titkos-iratok-­pert-vesztett-­a-tasz.html (in Hungarian). 54 The status of the secret regulation is questionable for the moment. It is “in between” because the debate on the Bill has closed, and the initiative has lost the support of the opposition party. Further activity by NGOs is needed to raise public awareness of the question and to resuscitate the political will to resolve the problems that have recently arisen. 55 See www.amnesty.org/en/library/info/POL30/003/2006. The regulation concerning classified data in Poland will be analyzed in a later section. 56 See, for example, Amnesty International’s project on the issue. 57 See www.amnesty.org/en/library/info/POL30/003/2006. 58 See also www.amnestyusa.org/document.php?lang=e&id=ENGUSA20080904002 and www.hrw.org/english/docs/2008/04/16/usint18540.htm. 59 See www.amnesty.org/en/for-­media/press-­releases/uk-­must-provide-­informationrendition-­disappearance-torture-­20080829. 60 See www.amnestyusa.org/document.php?lang=e&id=ENGNAU200809125935. 61 See www.helsinki.hu/eng/indexm.html (in Hungarian). 62 See www.ekint.org/ekint/ekint_angol.head.page?nodeid=27. 63 In Hungarian: Társaság a Szabadságjogokért (TASZ).

NGOs and public information   197 64 See http://tasz.hu/en/about-­us. 65 See www.tasz.hu/hu/perek/informacioszabadsag/9 (in Hungarian). 66 See www.tasz.hu/hu/informacioszabadsag/katonainemzetbiztonsagi (in Hun­ garian). 67 See www.tasz.hu/hu/informacioszabadsag/96 (in Hungarian). 68 See www.tasz.hu/hu/informacioszabadsag/84 (in Hungarian). 69 See www.tasz.hu/hu/informacioszabadsag/apvzrtLB (in Hungarian). 70 For example, see http://tasz.hu/hu/informacioszabadsag/87 (in Hungarian). 71 See http://tasz.hu/files/tasz/imce/fovarosibirosag_itelet_20070606.pdf (in Hungarian). 72 See www.tasz.hu/hu/informacioszabadsag/80 (in Hungarian). 73 See http://tasz.hu/hu/informacioszabadsag/33 (in Hungarian). 74 Excerpt from the Preamble to the Constitution of the United States of America.

11 Replacing and displacing the law The Europeanization of judicial power Antoine Mégie

Introduction This chapter aims to analyze the consequences of the social and political process of Europeanization on the design of European judicial power. The creation of arrest and judicial execution mechanisms at the European level represents an important aspect of the European security field. In that field, which is characterized by a multiplicity of political, social, and judicial entities, the most central instruments of judicial cooperation are the Eurojust unit and the European Arrest Warrant (EAW). Eurojust was created in 2001 and constitutes the first European judiciary unit to be in charge of coordinating and promoting cooperation between member states for criminal justice (Mangenot et al. 2004). Eurojust fulfills a unique role as a new permanent body in the European legal area. Its mission is to enhance the development of Europe-­wide cooperation on criminal justice cases. The College of Eurojust is now composed of 27 national EU members, the majority of whom are prosecutors (Mégie 2007). The EAW, which came into effect on 1 January 2004, is a fundamental legal instrument for enforcement and the harmonization of criminal justice system within the European Union. It is defined by three characteristics that constitute the principle of mutual recognition in criminal justice cooperation (Peers 2004). The first confers the duty of the requested state to execute another member state’s judicial authority’s decision. This decision is communicated in compliance with minimum formal requirements that are specified in the EAW official form. The second characteristic of the mutual recognition principle is that the requested state cannot refuse the recognition and the execution of the foreign decision. As in the EAW Framework Decision, refusal is limited to cases (articles 3 and 4 of the EAW Framework Decision1) when proceedings in the executing state have been barred for reasons of amnesty; when a previous conviction or acquittal for the conduct has given rise to the foreign decision under the notion of ne bis in idem, meaning that no one should be tried twice for the same offense; when the criminal prosecution of the requested person is

Replacing and displacing the law   199 statute-­barred according to the law of the executing member state and the acts fall within the jurisdiction of that member state under its own criminal law; or when the requesting state is exercising extra-­territorial jurisdiction over conduct that has already occurred in the executing state. Finally, the third and probably the most controversial element of the mutual recognition measures is the effective removal of the “dual criminality” requirement (Mitsilegas 2006). This legal principle means that the crime for which the person is accused has to be identified and recognized by both the requesting country and the state that is being asked to arrest and return the alleged criminal. This principle has been abolished for 32 serious categories of offenses through the new European procedure of surrender. In these cases the EAW has to be executed even if the definition of the offense and the corresponding prison sentence are not the same within the member states. This long list of offenses (article 2) includes, for example, participation in a criminal organization; trafficking in human beings; sexual exploitation of children and child pornography; terrorism; illicit trafficking in arms, ammunition and explosives; corruption; fraud (including fraud pertaining to the financial interest of the European Union); money laundering; and counterfeiting of money. The dual criminality principle still applies for offenses that are not in this list. Drawn up and negotiated before 9/11, these two legal instruments were even adopted in the name of the “global campaign against terrorism” just after the bombing attacks in New York (Bigo et al. 2008b). Such political adoptions have important consequences for the legal form of these new mechanisms, the study of which allows the exploration of the constitutional ramifications of counter-­terrorism policies in the European democracies. It shows how the European Union modified part of its legal approach in the name of the fight against terrorism, and what happened when the law at that level was displaced and replaced. This chapter is structured into three sections. The first describes the principal social and political dynamics structuring the Europeanization of judicial cooperation. This focus is essential to the understanding of the formal and normative forms of the European judicial area. The second section deals with how the implementation of EAW and the Eurojust unit was characterized by institutional and judicial reformulations with regard to the legitimacy issues. Finally, in a third section I will analyze the extent to which these new mechanisms have brought about evolutions to Justice both in terms of territory and in its relationship to Law.

A pragmatic and negotiated process by production of judicial regime The European construction in judicial matters is the outcome of a combination of political events, shared political outlooks on fighting transnational crime, and the European institutional configuration. Such a

200   A. Mégie configuration is characterized by competition and collaboration between the national authorities, the European Council, and the European Commission. Analysis of the specialization and the expertise of both the high civil servants and the judges involved in the judicial cooperation during the 1990s reveals the link between the policy stream (common ideas within the community of public policy) and the political stream (choice of the various institutional actors) (Kingdon 1984). These professional actors play an important role as political entrepreneurs at the crossroads of the national and transnational legal processes (Bigo 2005). The orientations of these professionals of law (Vauchez 2008), who favor a pragmatic and operational approach to judicial cooperation, are at the basis of projects such as the Eurojust unit and the EAW. The sharing of an operational approach to judicial cooperation in the name of the necessity of fighting criminality (Den Boer 2002; Gilmore and Mitsilegas 2007) has a strong influence on the organization of the EU judicial regime. An understanding of these social and cognitive interactions is essential to analyze the organizational and normative design of the European judicial regime (Mégie 2006). Added to the events of the international and European political agenda, political negotiations are focusing on the adoption and implementation of measures of arrest and punishment. Meanwhile, a global legal approach guaranteeing also the rights of the defence is most often blocked. The example of EAW illustrates this institutional and political dynamic. In response to the terrorist attacks of 11 September 2001, European governments promptly decided to introduce new extradition and surrender procedures. Under pressure from member states to hasten the discussions, the European Commission project concerning the rights of the defense was marginalized in order to reach political agreement (Mégie 2006). As we will see in the next section, those political and legal choices caused resistance on the part of national courts with regard to the new instrument’s normative form. A better understanding of the social and institutional relations that led to the creation of the Eurojust unit and the EAW reveals also the investment of an increasing number of actors in the realization of a European judicial area (Commaille 2007). In this perspective the judicial field is characterized by both competition and collaboration among numerous actors holding different standpoints. In this environment, state authorities are the main actors in the intergovernmental European security field. The standpoints they defend in diplomatic discussions are the outcome of complex and heterogeneous national interplays (De Maillard and Smith 2007). The place of the judiciary in the configuration and balance of each institutional and political national setting, for example in relation to the police, is an important variable for each country. Unsurprisingly, the structure of the national organization has direct consequences for European

Replacing and displacing the law   201 negotiations, as testified by the declarations of one civil servant: “[T]hese different decisions are the result of struggles of influence inside the states between different departments.”2 Within the European configuration the General Secretariat of the Council of the European Union (GSC) plays a central role during the decision-­making process in judicial matters. In opposition to police cooperation, the GSC deploys a genuine strategy of institutional leadership by capitalizing on its members’ numerous legal and institutional assets (Mangenot 2006). Owing to its institutional position, at the heart of intergovernmental negotiations, the GSC can hence resort to different repertoires of participation. Within the GSC the unit in charge of judicial cooperation becomes more and more crucial as an actor that suggests new options and new political agendas. It also embodies a broker between the governments in time of negotiations. Because of privileged relations with some national permanent representations, the members of the GSC know the main objectives of the governments and anticipate the limits and opportunities in negotiations. Hence, as highlighted by one of its members: [W]e are in both a privileged and a difficult position. We cannot oppose the will of the states. We have to find a middle ground in order for negotiations to progress, while simultaneously handling the aims of each one of them with care. If we are heading for confrontation we risk losing our legitimacy. (Interview with the author, 2004) The GSC laid the foundations for the first discussions and propositions concerning the Eurojust unit. This importance is confirmed by the agenda set out during the Tampere summit. A last example reveals the extent to which the GSC’s role is central. Although the Commission first made the EAW proposition after 9/11, the final framework decision of 13 June 2002 was substantially rewritten by the Belgian presidency in close coordination with some members of the GSC. Yet the role of the GSC has varied with time and some of its propositions have not led to concrete results. Finally, it is interesting to evoke the absence of legislative powers (European and national) during the decision-­making process of the European judicial norms. This marginalization may be explained by the legal, political, and social elements at stake in the European security field (Bigo and Guild 2002). Although it has only an advisory role, the European Parliament tries to assert itself in the field of judicial cooperation through statements on issues to do with budgetary control and on frauds concerning Community interests. Hence, like the European Commission, the European Parliament has supported the institutional and legal development of the European Anti-­Fraud Office (OLAF ) and the Corpus Juris (an EU-­wide system of criminal justice) project in favor of a European prosecutor. Following

202   A. Mégie this strategy, Members of the European Parliament (MEPs) who specialize in judicial cooperation issues have strongly criticized the creation of the Eurojust unit and refuse to support the project. These MEPs justify their position by saying they consider the new European judiciary unit too dependent on national governments. Moreover, the European Parliament has asserted itself through fundamental rights issues in the field of judicial cooperation. Thus, this institution’s position can be interpreted as an attempt to distinguish itself from the European Commission, which is more focused on repressive procedures. Through this differentiation the European Parliament tries to legitimize its participation in the European security field. This strategy is reinforced by the fact that the Parliament’s institutional position in the European decision-­making process is simultaneously strengthened (for example the European Parliament recommendation to the Council on the evaluation of the EAW in 2005). The national parliaments are also absent from the European decision-­ making process. However, this observation may from country to country. In the French case there is a proliferation of parliamentary reports on issues related to European judicial cooperation. These reports mostly remain confidential and have a very limited political or legislative impact. Only a narrow group of MPs try to promote them. Faced with omnipotent government services, French MPs have a very limited impact on the definition of the national standpoints at the European level. The French example is typical of the situation in most of the member states. The British example is, however, relatively exceptional. Indeed, British MPs play an important role in the definition of the national positions. Through their numerous reports and published studies, the British Houses of Parliament contribute to the political and technical aspects of European negotiations. Hence, British MPs are both individually and collectively involved in issues of security. The example of the report on procedural rights in criminal prosecutions, written by the European Union Committee of the House of Lords, is revealing in this regard. It clarifies the House’s position on the implementation of the principle of mutual recognition in the context of the EAW.3 As I have highlighted, the national legislative bodies are – except in the British case – virtually absent from the process of definition of member states’ positions. This is all the more true in that since the Treaty of Amsterdam they have been deprived of an important part of their prerogative on the control of European decisions. The legislative ratification procedure of European decisions has indeed been circumvented by the fact that the framework decision has become the privileged form of inter-­state agreement. Hence, while the creation of Europol was ratified by each single national parliament, the framework decisions on the Eurojust unit and the EAW involved only the governments. The argument about the need for swiftness and flexibility that underlay the framework decision as a legal form prevailed over the arguments regarding legitimacy and legislative control.

Replacing and displacing the law   203 Thus, the social and institutional dynamics of Europeanization has created an accumulation of cooperation mechanisms, producing uncertain legal trends within the European judicial area (Domenach 2006). Hence, as opposed to the representation of a progressive formalization and homogenization of the rules of the European Union, European judicial cooperation is mainly characterized by informal and heterogeneous practices of cooperation between the different mechanisms: the European Anti-­Fraud Office (OLAF ), Eurojust, the Liaison Magistrates, Europol, national judges, and the European Judicial Network (EJN).4 In this configuration, the implementation of the EAW and the Eurojust unit has to be defined as a social and normative process of redefinition and legitimization in relation to the resources and constraints of the actors (Padioleau 1982).

Implementation of the new judicial mechanisms between redefinition and legitimization The exclusion of the European and national legislative actors that characterizes the construction of the European judicial area is accompanied by a marginalization of the powers of the judiciary. The national constitutional courts, like the European courts, have no direct decision-­making powers on judicial cooperation issues. This absence of competence in the third pillar raises the issue of the constitutional control of the European judicial mechanisms in criminal affairs. However, the national constitutional courts have asserted their authority through the EAW. The legal decisions taken at the national level illustrate how the national courts expressed their power on judicial questions at the European level. While the new extradition mechanism speeds up the surrender procedure (Blekxtoon 2005), the national courts have identified legal problems (Martin 2006): mutual recognition issues, the competence of national courts, and finally the absence of precise rules defining the rights of the defense.5 The Polish Constitutional Court was the first to declare EAW unconstitutional in reference to its criminal procedure code. On the basis of article 31(3) of the Polish Constitution, the new European extradition procedure was declared incompatible since it allowed the surrender of Polish nationals. For this reason the EAW is suspended pending a constitutional reform. On 7 November 2005 the Supreme Court of Cyprus reached a similar conclusion and declared the national legislation implementing the EAW to be unconstitutional. The most significant decision is probably the one taken by the German Federal Constitutional Court on 18 July 2005. The case concerned Mamoun Darkazanli, who has both Syrian and German nationality. Darkazanli was to be extradited to Spain on the basis of an EAW related to a counter-­terrorism case. Prompted by his lawyer, the Constitutional Court declared the German European Arrest Warrant Act unconstitutional and

204   A. Mégie suspended it. That decision was based on the fact that the national government did not implement the EWA Framework Decision according to standard procedure. This decision concerns in particular the question of fundamental rights. In fact, in order to respond to the European framework decision on the EAW, the German government adopted an administrative procedure before the definitive execution of an EAW. This administrative procedure was considered unconstitutional because of its lack of respect of the fundamental right of access to justice as stipulated in article 19(1) of the German Constitution. Lastly, the case of the Belgian Constitutional Court is interesting because of its decision to use the procedure of article 35 of the Treaty on European Union (TEU). Through this appeal the Belgian Constitutional Court requested the Court of Justice of the European Communities to pronounce it on the EAW Framework Decision’s validity concerning the exclusion of the traditional dual criminality’s requirement. After two years, on 3 May 2007, the European Court of Justice (ECJ) considered the exclusion of the traditional requirement of dual criminality to be in accordance with the non-­discrimination and legality principle (Sarmiento 2008). Few national decisions refer to other judicial precedents. In such a context the sociological hypotheses about the “dialogues” between national jurisdictions in the construction of European law (Alter 1996; Burley and Mattli 1993) could be interesting for the future. In these constitutional conflicts created by the EAW in the Polish, German, Cypriot, Czech, Belgian, and British cases, the national courts requested a new definition of the EAW as regards its national implementation. It should particularly address the issues of the internal jurisdictions’ powers and the respecting of fundamental rights. At the same time, the national courts legitimize the normative design of the new European extradition and surrender procedures. This normative and social process of redefinition and legitimization occurs in the position of Canada’s Supreme Court concerning the new national counter-­terrorism Bill, C-­36. On 18 December 2001 the new Canadian Anti-­Terrorism Act, also called Bill C-­36, was adopted, just three months after 9/11. Like the EU member states that adopted the EAW and the European Action Plan to fight against terrorism, the Canadian government decided to assert its reaction and diplomatic position in the new international coalition against terrorism. In this political environment the new Canadian Anti-­Terrorism Act is legitimized as a direct response to the terrorist threat, but also to US and UN requests. Canada was the third country, after the United States and Great Britain, to adopt new counter-­terrorism measures after 9/11. Faced with the urgency of the situation, the Canadian government asked Parliament to expedite its study of the legislation. A deadline for the passage of Bill C-­36 was imposed, namely mid-­December 2001. In regard to what were thus exceptional legislative procedures it was difficult for the legislative power to assess the legal provisions of the new legislation

Replacing and displacing the law   205 thoroughly. The adoption in such a short period of time was possible thanks to the unanimity of all the Canadian political parties. Indeed, apart from the New Democratic Party (NDP), all parliamentary groups pronounced in favor of the new Anti-­Terrorism Act. The legislative debate only focused on the necessary limit to the reach of these new measures in the time. To legitimate this political approach, the principle of an evaluation was privileged within the Senate and the House of Commons at the end of three years. The Department of Justice justified this adoption process in regard to the delay of 90 days fixed by the UN Security Council within Resolution 1373, adopted on 28 September 2001. Moreover, in order to justify this delay the government rejected the first report of the Senate Special Committee on the Anti-­Terrorism Act; nevertheless, the Senate adopted it unanimously on 22 November 2001. This senatorial report expressed serious reservations about the provisions of Bill C-­36, particularly with regard to the general principles of rights. The international level appears to be regarded by the liberal government as an important tool of legitimization, however. In general, members of the Canadian government and the Parliament who supported Bill C-­36 justified these new and stronger measures through the context of the international fight against the threat of terrorism. This approach was testified to in 2005 by the declaration of Irwin Cotler, the former Minister of Justice and Attorney-­General of Canada, during the review of the provisions and operations of the Anti-­Terrorism Act: In brief, we are not dealing here with your ordinary or domestic criminal but with the transnational super terrorist. We are not dealing with ordinary criminality, but with what have been called “crimes against humanity” — not with your conventional threat of criminal violence, but with a potential existential threat, albeit, I hope, never to be realized by the whole human family. We are dealing with what might be called “Nuremberg crimes” and “Nuremberg criminals.” That is, with what has been termed hostis humani generis: The enemies of humankind. In that sense, the domestic criminal law due process model, standing alone, is not sufficient, for the juridical war on terrorism cannot be fought by one country alone. Accordingly, the international criminal justice model finds expression in Bill C-­36, in our anti-­terrorism law, not only in the domestic implementation by Canada of the 12 anti-­terrorism issues specific conventions but also in the implementation of the undertakings mandated by the UN Security Council Resolutions. In sum, the Anti-­Terrorism Act is intended not only to mobilize the domestic legal arsenal against international terrorism, but to help build and strengthen the international mechanisms to confront the new supranational terrorism.6

206   A. Mégie These political and cognitive logics are the same as the approaches that have legitimized the adoption of the European cooperation mechanisms such as the Eurojust unit and the EAW. This convergence process between Canada and Europe is not limited to the agenda-­setting and decision-­ making processes. In public policy design (Bennett 1992) the convergence is also present at the level of the political and judicial tools. The definition of “terrorist activity” in the Canadian Anti-­Terrorism Act and the counter-­ terrorism tools for security, intelligence, and law enforcement agencies favor a prevention and preemption approach, like the measures adopted at the European level (Mégie 2009). For example, there is a common European concept of terrorist offenses adopted within the European Action Plan to fight against terrorism, and Bill C-­36 introduces the similar offense of “knowingly participat[ing] in, contribut[ing] to or facilitat[ing] the activities of a terrorist group.” The official objective of preventing terrorists from finding refuge in more lenient countries results in political will: In a word, in determining the justificatory basis for Bill C-­36, Parliament had recourse to comparative anti-­terrorist legislation in other free and democratic societies such as the UK, the US, Australia, France, Germany and the like. [. . .] The importance of this and the experience gained from it was not only to appreciate what other free and democratic societies were doing, but also to appreciate that all other free and democratic societies had enacted or were in the process of enacting anti-­terrorism legislation. The purpose of these enactments, looking at their “travaux préparatoires” in the various countries that enacted them, was to protect those societies and allow them to remain free and democratic.7 Following its adoption, Bill C-­36 went through a reformulation due to numerous interventions and legal mobilizations. The Bar of Quebec as well as the Canadian Bar Association (CBA) issued reports and press releases to review this new anti-­terrorism measure. These actors explained that certain tools and procedures were dangerous for the fundamental values that define the Canadian Criminal Code. According to these associations, the introduction of the Anti-­Terrorism Act in the Criminal Code created great incoherence and confusion within the existing texts of national law (Ronald et al. 2001). If the associations of lawyers were critics, the legal position of the Supreme Court fluctuated between redefinition and legitimization, just as did national European courts in relation to the EAW. The decision of 11 January 2002 rendered by the Supreme Court of Canada in the case Suresh v. Canada was interesting. If the appeal had been launched before 11 September 2001, the decision would have been rendered after the adoption of Bill C-­36. In that case the Supreme Court

Replacing and displacing the law   207 would have been forced to consider the constitutionality of such legislation through the relation between the international conventions and the Canadian Charter of Rights. While recognizing the importance of the fundamental values of freedom contained in Canadian Charter, the Supreme Court legitimized the new anti-­terrorism law and proclaimed the importance of referring to the international legal frame. This position found a concrete illustration in the Mohammad Momin Khawaja case. Khawaja was the first person accused under Bill C-­36. At the beginning of the process the Supreme Court of Ontario ruled that the presence of “religious motives” in the definition of the law concerned with terrorist activity was inconsistent with the religious freedoms guaranteed by the Canadian Constitution. The Supreme Court of Canada confirmed this appeal decision in regard to the religious motivation aspect. As a result, the Supreme Court legitimized Bill C-­36 and proclaimed the necessity for a new legal frame. In the case of the Eurojust unit, its implementation is also characterized by a search for legitimacy so as to assert its institutional and judicial role within the European security field. For these reasons, Eurojust seems likely to develop its activities of collecting judicial information. As highlighted by a judge belonging to the unit, “that would allow us to show that we can be useful.”8 Through the adoption of rules of procedure concerning the treatment and the protection of personal data by the Council, on 24 February 2005 Eurojust established an autonomous system of management of files (the Case Management System). The system’s purpose consists in securing exchanges of judicial information between the members of Eurojust and the national judicial authorities. The implementation of the EPOC-­II project, in November 2005, following on from the EPOC-­I project of 2004, constitutes the technical support of this broadening of Eurojust’s field of competence in a context in which Europol is simultaneously expanding its activities in the field of data collection. In this context, the control of information is certainly one of the main contentious areas between these two units. On the institutional level, relations remain very distant despite numerous legal dispositions and political declarations calling for strengthened cooperation. As admitted by a member of Eurojust, “the agreement that we signed with Europol in 1994 does not make cooperation compulsory. Each organization has stuck to its position and has wanted to safeguard its powers and fields of competence.”9 Eurojust’s official aim is to assert itself in the field of counter-­terrorism, as well as in the field of data collection. In the post-­9/11 context the handling of counter-­terrorism cases allows the Eurojust College to legitimize its action in relation to the other national and European units. As such, the logic of “jurisdiction shopping” is clearly claimed in the name of efficiency. In spite of the European Framework Decision, implemented just after the Madrid bombings in 2004, there are still significant differences with regard to judicial infractions of terrorism within member states. Hence, the absence of harmonization may put the European legal system

208   A. Mégie in jeopardy. In fact, the choice of a specific national jurisdiction, and also a specific state, could have important consequences related to procedure, due process, or sentencing.

The evolution of Justice: its territories and its relationship to Law Understanding the dynamics characterizing the process of Europeanization makes it possible to explain how Justice evolved in its spatial dimension and its relationship to Law. Through the implementation of the Eurojust unit and the EAW, the territories of legal action have been reshaped. The Europeanization of the judicial power came with the emergence of various concepts of “European space” that legitimized the adoption of new mechanisms of cooperation. Both the mobilizations and the projects for strengthened judicial cooperation introduce variable geometry approaches to European judicial space. The definition of this concept is at the heart of the struggles between projects promoting an intergovernmental approach and those favoring a community approach. According to the promoters of the intergovernmental method, it is necessary to build a “European judicial space” that is defined by the 25 territories in accordance with “strengthened” transnational cooperation. As opposed to these approaches, the basic idea promoted by those in favor of the community perspective is the concept of a “European judicial space” through the logic of harmonization. This logic strives for the standardization of the national systems and the creation of a European legal territoriality. The adoption of the Eurojust project and the rejection of Corpus Juris in favor of a European prosecutor suggest that the logic of convergence is usually preferred over harmonization (Paris 2006). This leads to contentious relations between institutions that are structured according to logic of convergence, on the one hand, and those that are structured following the logic of harmonization. Thus, such a configuration characterizes the institutional conflicts between OLAF, Eurojust, the Liaison Magistrates, and Europol. In this regard the fact that there are currently only agreements and memorandums “devoid of any meaning”10 between these institutions is revealing. There is competition on the respective fields of competence of the different cooperation mechanisms. In some cases one mechanism can prevail over another, as was the case for Eurojust vis-­à-vis the European Judicial Network (EJN). As explained by a French magistrate, “Eurojust has bought up the EJN. They have succeeded in having its headquarters moved to The Hague. In fact, it was trying to create confusion in order to legitimize itself.”11 Another example is also illustrative of this kind of conflict: besides the construction of the Eurojust unit, since 2000 OLAF has hosted a unit of magistrates in charge of judicial investigations dealing with frauds concerning Community interests.

Replacing and displacing the law   209 This clearly displayed strategy of “judicialization” adds to the existing factors of competition between the units. Nevertheless, the implementation of the Eurojust unit and the EAW means a transnational extension of the national judicial powers. The participation of the French judges from Eurojust in criminal affairs referring to one or several other states illustrates the transnationalization of judicial national power, which nevertheless remains entirely dependent on the decision of the foreign national judges. For example, in a Belgian extradition procedure a judicial decision taken by an Italian court took on an authority legally equivalent to that of a decision taken by a Belgian judge. The implementation of new transnational judicial mechanisms means a deep transformation of the traditional territories of Justice. Beyond such legal mechanisms the most important issue remains the level of mutual confidence between the national judicial authorities. In this new judicial territory the institutional and practical relations between Eurojust and national judges are essential features. The national judges also appear in the European judicial field as holders of “material power.” Research carried out in sociology of law sheds light on the importance of judges in the construction and the development of “the legal” at the European level. It is usually assumed that the symbolic use of “the legal” is still the prerogative of governments and legislators. However, judges are pivotal to a large extent to its technical dimension as operators. This aspect can be seen in cooperation mechanisms such as Eurojust unit. It has been admitted by Eurojust’s representatives that their institution can become permanent and produce concrete outcomes only if national judges resort to it. Hence, the standpoints of the national professionals vary between learning and resisting. Along with the obstacles related to cognitive issues (language, knowledge of foreign legal systems, etc.), structural factors also seem to be crucial in the analysis of the logics of resistance. In the case of French judges, Europe appears as a far-­removed and complex issue. Therefore, the judges are reluctant to make use of the instruments of cooperation such as Eurojust. Indeed, these instruments do not, according to them, correspond to their objectives of efficiency imposed by their national system. Hence, it seems that personal and informal relations remain the judges’ preferred mode of action when dealing with a transnational affair (Mégie 2007). Mutual confidence is at the heart of the exchange of information and people between the national jurisdictions. From this perspective the development of a high standard concerning the protection of individual rights represents a key issue in the coming years. In the case of the Europeanization of the judicial power, the second dynamic that reshaped Justice involves the relationship between Justice and Law as reference elements and instruments of action. The adoption of judicial mechanisms is the outcome of a process of negotiation characterized by a pragmatic approach in which the rules of organization are

210   A. Mégie usually preferred over normative contents (Lascoumes 1990). This legal and political orientation has led to the construction of a European judicial space in which the objectives of cooperation and the procedural norms seem to have prevailed. This logic leads to a definition of the procedures of cooperation while the fundamental rights issues are, at least initially, still peripheral. This is suggested by the example of the Eurojust unit, the EAW, and the uncertain adoption of the Charter of Fundamental Rights in criminal affairs. The instruments that are strengthening the organization of the cooperation are privileged because their adoption does not transform national judicial systems. The refusal to set in motion the harmonization project (harmonization of judicial procedures in criminal affairs, Corpus Juris, the institution of a European chief public prosecutor) illustrates this approach, which results in part from a desire on the part of national executive and legislative authorities to protect their authority in criminal matters. The normative overlap, flowing from the complex social and political interplays at the heart of the European decision-­making process, has important legal repercussions. In a context where the dominant discourse of European judicial cooperation’s main actors focuses on security, it seems that the fundamental rights issues have become marginal (Guild 2005). A statement made by a member of the GSC bears witness to this: We have always thought that the one goes with the other, and this is not only for the European Arrest Warrant. There has to be a minimum of standard procedures and we have been pleading this cause for years now, notably in the context of the principle of mutual recognition. We have been asking for this for four or five years, but it is extremely difficult. In order to have a harmonization of criminal law, it suffices to determine what is condemnable and what is not. In contrast, for procedural law everything gets mixed up and we have extremely heterogeneous systems. Even the small suggestions made by the Commission create huge problems. (Interview with the author, 2004) The example of the European Commission shows similar patterns. As testified by an official of the service in charge of justice, liberty and security, during a seminar, “There was such a pressure on the part of the member states to increase the pace of the discussions that we haven’t been able to defend our position and propositions concerning the rights of the defense.”12 This consensus, in particular during the negotiations, results in the introduction of foreign judicial elements in the national orders. In the case of the EAW, these integrations are made of heterogeneous modalities, depending on the countries. In certain cases, such as in Germany or

Replacing and displacing the law   211 Poland, such transposition is opposed to national constitutional principles. In a more general way the focus on the “organizational” dimension of the judicial power means that the legal bases governing the judicial cooperation are adopted a posteriori to justify and legitimize already existing practices. This approach rests on the idea that judicial coherence will develop through daily practices. The operational dimension is promoted as the main objective with regard to the legal coherence of the norms in the logic of “law in action.” Because of this process, we can see a concurrency between on the one hand “law in books,” which asserts the power of universal rules in relation to the substantial Law, and on the other hand “law in action,” where the main objective is procedural justice, in which means and procedures prevail (Commaille 2007). The transformations of justice’s territories and the relationship to law at European level characterize the phenomenon of détraditionnalisation of justice, which means the redefinition of the relations between Justice and Politics within our democracies (Beck 1999).

Notes   1 http://eur-­lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:190:0001: 0018:EN:PDF.   2 Interview with a former member of the General Secretariat of the Council of the European Union, February 2001.   3 First Report of the Session 2004–2005, HL Paper 28, § 6; available at www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/28/28.pdf.   4 For a description of the actors and agencies in the European security field, see Bigo et al. (2008a).   5 For an exhaustive study of the national courts’ decisions, see Guild (2006b).   6 Proceedings of the Special Senate Committee on the Anti-­Terrorism Act. Meeting of 21 February 2005, available at www.parl.gc.ca/38/1/parlbus/ commbus/senate/com-­e/anti-­e/02eva-e.htm?Language=E&Parl=38&Ses=1&co mm_id=597.   7 Ibid.   8 See http://eurojust.europa.eu/press_releases/annual_reports/2005/Annual_ Report_2005_EN.pdf. 9 Interview with a member of Eurojust, May 2005. 10 Interview with a European civil servant, a member of the unit of magistrates of OLAF, March 2004. 11 Interview with a French judge working for the services of the Ministry of Justice, May 2004. 12 Statement of a representative of the General Direction (JLS) during a seminar on the European Arrest Warrant, Centre for European Policy Studies, Brussels, 13 February 2006.

12 Transjudicial conversations about security and human rights Audrey Macklin

Introduction Human rights jurisprudence in the post-­9/11 era provides a handy frequency for tuning into transjurisdictional conversations between national and transnational courts. The stark challenges to the rule of law posed by counter-­terrorism initiatives have dislodged North American, European, Australian, and New Zealand judges from the more comfortable task of refining existing rights protection regimes within their respective constitutional frameworks. Issues that would have scarcely been debatable two decades ago – including freedom from torture, secret trials, and indefinite detention – have moved from the margin to the center of legal debate. The role of the judiciary as conscience and constraint on the exercise of power by democratically elected officials has simultaneously grown more salient and more controversial. Given this shifting legal landscape, many courts look to the dicta of other courts and to the practices of other states to draw inspiration, guidance, and both positive and negative examples. References by one court to another jurisdiction may relate to the interpretation of analogous constitutional provisions, the approach by another court to an international legal norm binding on both states, or an alternative legislative model that responds to a government’s legal claim that no viable alternative exists to the rights-­restricting course of action it has taken (McCrudden 2000; Provost 2008; Slaughter 2003). Scholars evaluate this general trend differently. Some hail transjudicial communication as the establishment of an epistemic community promoting a globalized rule of law through a converging elaboration of fundamental human rights norms. Others caution against judicial borrowings that tend to be unreflective, haphazard, self-­serving, and insufficiently attentive to legal context and culture. To the bemusement – and amusement – of outside observers, some US jurists and scholars are locked in a peculiarly instrumental battle that pits exceptionalists against imperialists. The former abjure the importation of any foreign influence into US courtrooms that might corrupt American judicial reasoning. The latter counter

Transjudicial conversations   213 that the capacity of the United States to exert influence around the world through the force of its jurisprudence is jeopardized by the diminishing regard by other courts for decisions by US courts. This, they believe, is driven by petulance at US courts’ lack of reciprocity. In other words, US courts should cite foreign judgments more often so that foreign courts will pay more attention to US jurisprudence.1 In the specific domain of counter-­terrorism and national security, at least one additional incentive exists for the sharing of ideas between courts. Global networks of government actors are busy cooperating, collaborating, and exploiting opportunities for transnational coordination through joint or coordinated military, intelligence, surveillance, transport, communication, financial- and law enforcement activities. US legal scholar Anne-­Marie Slaughter (2004a: 1–2) draws attention to the operation of these global governance networks post-­9/11 as follows: Consider the examples just in the wake of 11 September. The Bush administration immediately set about assembling an ad hoc coalition of states to aid in the war on terrorism. Public attention focused on military cooperation, but the networks of financial regulators working to identify and freeze terrorist assets, of law enforcement officials sharing vital information on terrorist suspects, and of intelligence operatives working to preempt the next attack have been equally important. Indeed, the leading expert in the “new security” of borders and container bombs insists that the domestic agencies responsible for customs, food safety, and regulation of all kinds must extend their reach abroad, through reorganization and much closer cooperation with their foreign counterparts. And after the United States concluded that it did not have authority under international law to interdict a shipment of missiles from North Korea to Yemen, it turned to national law enforcement authorities to coordinate the extraterritorial enforcement of their national criminal laws. Networked threats require a networked response.2 One of most striking features of the post-­9/11 legal environment is the mobilization of international institutions in the service of bringing direct pressure to bear on states to adopt counter-­terrorism policies, practices and laws. Beginning with Security Council Resolution 1373 and radiating downwards through the UN bureaucracy and outwards to national and supranational bodies, evidence of Slaughter’s networked response appears abundant. However, if she is correct that that global terrorism constitutes a “networked threat” requiring a “networked response” by states, perhaps states’ responses warrant “networked scrutiny” by courts. After all, extraordinary rendition, ghost prisons, and the exploitation of Guantánamo Bay’s anomalous legal status arguably illustrate the ugly and extra-­legal underside of inter-­state cooperation and coordination.

214   A. Macklin Beyond these specific uses of extra-­territoriality, states have certainly looked to one another in devising mechanisms for dealing with security risks that deviate from human rights protections that have been more or less taken for granted in the criminal sphere for decades. In the face of these developments, international law scholar Eyal Benvenisti (2008a, b) identifies an emerging “transnational coalition of national courts” that is both actively resisting the attempt by governments to constrain judicial authority to review the legality of executive action, and challenging the balance between liberty and security struck by governments through the various counter-­terrorism measures. According to Benvenisti, national courts cross-­reference policies and practices of other states against those of their own government, with a view to determining which measures are least restrictive of human rights. They also consult shared international norms (and interpretations of those norms) in their assessment of the legality of domestic law. Benvenisti (2008a) advances the counter-­intuitive hypothesis that coordinated deployment of these strategies actually gives national courts more space and legitimacy to challenge executive action. In his view, a coordination of outcomes across jurisdictions provides a response to the claim that any individual national court risks turning their states into “a haven for terrorists” through its invalidation of a given law, and may also “thwart international pressure on their governments not to comply with the courts’ rulings” (ibid.: 32). The objective of this chapter is to narrate an exchange of transjudicial communication between the Supreme Court of Canada and the European Court of Human Rights (ECtHR) (with interventions by the UK House of Lords) in relation to a central component of the domestic legal regime of dealing with non-­citizens who allegedly pose a threat to national security. I do not contend that this episode is representative of how courts engage in comparative or international legal analysis in general or in the field of counter-­terrorism in particular. However, I do argue that tracing the progress of this strand of counter-­terrorism jurisprudence suggests that Benvenisti’s otherwise excellent account, while attractive and perhaps cogent as a general theory, makes two assumptions that seem unwarranted, at least in the context of between Canada and the European Union. First, he supposes that courts accurately represent the practices of other states. Second, he presumes some consistent and principled rationale animating the choice to cite and engage with the practices or jurisprudence of other jurisdictions in this field. At the same time, Benvenisti’s explanation of the legitimating function of relying on another state’s practice may assist in understanding certain legal and policy outcomes.

The stakes Reaction to the events of 11 September 2001 quickly exposed states’ frustration with the apparent inadequacy of existing legal regimes for

Transjudicial conversations   215 categorizing and containing the emergent figure of the global terrorist. International humanitarian law was pressed into service through the rhetorical invocation of the “war on terror”; penal law was revised to define and criminalize terrorism; and migration law was deployed to repel the non-­citizen terrorist by ejecting him from the territory. Yet each of these stratagems proved inadequate to the task assigned it by political actors. The “war on terror” metaphor has been strained well beyond its breaking point, and the fiasco of Guantánamo Bay instantiates that collapse. The criminal law in common law jurisdictions veers dangerously toward the creation of a status offense – the existential crime of “being” a terrorist. Still, the entrenched procedural and evidentiary protections available to accused prove difficult to circumvent, even in the name of national security confidentiality. Thus, criminal prosecutions for terrorism are seldom pursued. Immigration law – the least versatile and least apt of these legal instruments – frequently emerges as the first and last resort of most states. Immigration law is least versatile because it applies only to non-­citizens. Notably, the United Kingdom has attempted to finesse this limitation by amending nationality law to permit revocation of UK nationality from dual citizens in order to bring their legal status into alignment with the normative disavowal of the citizenship of so-­called home-­grown terrorists. Accordingly, these citizens thereby become the objects of exile, albeit under the formal guise of deportation. Migration law is least apt for resolving global terrorist threats because its remedy – transfer from the territory of one state to another – presumes the very parochialism that global terrorism ostensibly renders dangerously obsolete. That is not to deny that terrorism has a migration aspect, but rather to dispute the assumption that terrorism is a problem that migration law can solve. If terrorism indeed transcends borders, deportation merely displaces the problem, and may even enable its practitioners to advance their reprehensible agenda from elsewhere. Given these apparent disadvantages, why the resort to migration regulation as the favored response? As a branch of administrative law dealing with a literally disenfranchised group (non-­citizens), courts have historically permitted legislators to do to non-­citizens under the rubric of immigration law what would have been unthinkable to inflict on those accused under criminal law. Deportation is insistently characterized as something other (and lesser) than punishment; thus, the procedural, evidentiary, and even carceral protections guaranteed under common law and constitutional law in the criminal context are denied or circumvented in immigration law. Put bluntly, the operating assumption of the state is that it is easier to deport than to prosecute. Immigration law thus emerges as the first resort of states looking to rid themselves of troublesome people who happen to be foreigners. One cannot but suspect a certain disingenuousness about what states of the global North really seek to achieve through deeming non-­citizens as security risks for purposes of deportation. Can it really be that in the

216   A. Macklin post-­9/11 climate these states are indifferent as to what the state of citizenship does with or to a deportee who is handed over to authorities with the label “terrorist” virtually stamped on his forehead? In principle, the consequences of expulsion are as follows: The alleged terrorist walks free and unmolested by authorities of the receiving state; the person is arrested and tried according to law for some terrorism-­related offense allegedly committed in the receiving state; or he is taken into detention as a putative terrorist and – and what? Interrogated, tortured, detained indefinitely – or simply disappeared?

The cases Four cases form the primary material for analysis: Chahal v. United Kingdom, Suresh v. Canada, Saadi v. Italy, and Charkaoui v. Canada. The timing of these cases in relation to world events is noteworthy: Chahal was argued and decided under the European Convention on the Promotion of Human Rights and Fundamental Freedoms (European Convention) by the ECtHR in 1996. Suresh was argued before the Supreme Court of Canada in May 2001, but the judgment was released in January 2002. Charkaoui and Saadi date from 2007 and 2008 respectively. Although arising in different states, the context is roughly similar across jurisdictions: The executive identifies a non-­citizen as a risk to national security. He is taken into detention where he remains, usually for years. An administrative process, sometimes subject to judicial supervision, reviews the determination of the executive according to a deferential standard and/or a standard of proof lower than required for a criminal conviction. The ability of the person concerned to participate in the process, to know the case against him, to be represented by counsel, and to challenge the evidence against him are each restricted on grounds of national security confidentiality. If the designation of the person as a risk to national security is upheld, he becomes deportable, at least in principle. At this point, Canadian and European jurisprudence diverge on the issue of whether deportation of a non-­citizen to a place where he faces a substantial risk of torture always and necessarily violates fundamental human rights. In Canada the foundational human rights instrument is the Canadian Charter of Rights and Freedoms. Although many other rights (equality, freedom from cruel and unusual treatment, the right not to face arbitrary detention) are implicated, most of the jurisprudential heavy lifting with respect both to process and deportation is performed by section 7, which declares that “everyone has the right to live, liberty and security of the person, and the right not to be deprived thereof except in accordance with fundamental justice.” The European Convention deals with the procedural dimensions as potential infringements of the right against arbitrary detention (articles 5.1 and 5.4), while the decision to deport is

Transjudicial conversations   217 analyzed in terms of article 3’s protection against torture or inhuman or degrading treatment or punishment.

The process: national security confidentiality versus the right to know and respond to the case against you Karamjit Singh Chahal, originally from India, lived in the United Kingdom on an indefinite leave to remain. In 1985 and 1986 he was detained but released without charge under the Prevention of Terrorism Act of 1984 for his activities in connection with the International Sikh Youth Federation (ISYF ). In 1986 he was convicted and served a nine-­month prison sentence for assault charges arising out of a mêlée outside a Sikh temple in London (Chahal v. United Kingdom 1996: 39).3 On 16 August 1990, Chahal was taken into detention for purposes of deportation. The Home Secretary had decided that “his continued presence in the United Kingdom was unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism” (Chahal v. United Kingdom 1996: 25).4 The ordinary right of appeal against a deportation order was abrogated where the order is based on national security. Instead, the affected person could make oral or written representations to an independent, three-­member, security-­cleared quasi-­ judicial advisory panel composed of a High Court judge, a former president of the Immigration Appeal Tribunal, and a person experienced in analyzing intelligence. The Home Secretary had to disclose the evidence upon which he based his decision to the advisory panel, but retained sole authority to decide what evidence and sources would be disclosed to Chahal. Nor would Chahal be entitled to representation by legal counsel, or to know the advisory panel’s non-­binding recommendation to the Home Secretary regarding deportation. The Home Secretary affirmed his initial decision to deport Chahal, and advised Chahal that the Indian government had assured the Home Secretary that Chahal “would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities” (Chahal v. United Kingdom 1996: 25). Judicial review by the High Court and the Court of Appeal were dismissed. Lord Justice Nolan’s ruling anticipates the Supreme Court of Canada’s judgment in Suresh by holding that there may very well be occasions when the individual poses such a threat to this country and its inhabitants that considerations of his personal safety and well-­being become virtually irrelevant. Nevertheless one would expect that the Secretary of State would balance the risks to this country against the risks to the individual, albeit that the scales might properly be weighted in favor of the former. (Chahal v. United Kingdom 1996: 41)

218   A. Macklin The muted concern expressed by the English Court of Appeal about the weighing of national security against torture was voiced against a background of limited judicial authority to actually supervise the Home Secretary’s balancing exercise. The courts did not have access to the classified information upon which the Home Secretary made his decision. The English courts more or less conceded rather than contested this obstacle by admitting that judicial scrutiny “may be defective or incomplete if all the relevant facts are not before the court” (Chahal v. United Kingdom 1996: 41) but that “in any event, the judicial process is unsuitable for reaching decisions on national security.”5 By the time the case reached the Grand Chamber of the ECtHR, Chahal had been in detention for about six years. The process by which he was determined to constitute a security threat (including his lengthy detention) and the decision to deport were each subject to scrutiny. The tension between protection of national security confidentiality and the right to know the case against you (audi alteram partem) was and remains a recurring feature of migration regimes across jurisdictions. A breach of procedural fairness strikes at the core of the rule of law’s commitment to fair process. The ECtHR clearly struggled with the absence of disclosure to Chahal of the evidence supporting the terrorism allegations against him, while acknowledging both the exigencies of national security confidentiality and the ECtHR’s institutional responsibility to extend a margin of appreciation to individual states’ policy responses. The ECtHR turned to submissions made by a group of human rights NGO interveners6 about a Canadian process that, in principle, mediated the tension between confidentiality and disclosure in a preferable manner. Apparently basing its description on the interveners’ submission, the ECtHR depicted the Canadian system in the following terms: Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarizing, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-­cleared counsel instructed by the court, who cross-­examines the witnesses and generally assists the court to test the strength of the State’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant. (Chahal v. United Kingdom 1996: 144) This Canadian model offered the ECtHR something that, in the lexicon of  Canadian constitutional jurisprudence, constituted a less restrictive

Transjudicial conversations   219 alternative to the United Kingdom’s rights-­infringing practice: “This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice” (Chahal v. United Kingdom 1996: 131). One can recognize in the ECtHR’s account of the Canadian practice a template for the special advocate model adopted by the United Kingdom in response to Chahal, as set out in the Special Immigration Appeals Commission Act 1997.7 This citation of the Canadian model as a factor in the Chahal decision, followed by the adoption of a similar approach by the United Kingdom, might offer a salutary illustration of a transnational governance network with synergistic judicial and policy components, but for one detail: The Canadian model described in Chahal did not exist. No Federal Court judge ever performed the function ascribed to it by the ECtHR. Or, to be more accurate, the process that bore most similarity to what the ECtHR summarizes was performed at the time by the Security Intelligence Review Committee (SIRC), a body tasked with overseeing the operation of the Canadian Security Intelligence Service (CSIS) (Rankin 1990; Thwaites 2004; Forcese and Waldman 2007). The SIRC was staffed by security-­ cleared Governor-­in-Council appointees who were regarded as prominent individuals, at least some of whom had direct past experience in matters of security and intelligence. In the mid-­1990s, if the Minister of Immigration and the Solicitor General of Canada formed the opinion based on intelligence and/or law enforcement data that a permanent resident (roughly equivalent to a non-­ citizen with “indefinite leave to remain”) posed a threat to national security, a report would be issued to the SIRC. The SIRC would then investigate the report and provide the Cabinet with a reasoned conclusion about “whether or not a [security] certificate should be issued.” A security certificate declared an individual to be a threat to national security or public safety, operated as a non-­appealable deportation order, and circumscribed the scope and capacity of the Federal Court to judicially review the legality of the deportation.8 The SIRC operated at arm’s length from the CSIS, which typically generated the information upon which the report was based. The SIRC did possess statutory authority to access the information upon which the government relied in issuing its report, and to subpoena witnesses and documents. On its own initiative the SIRC devised an adversarial adjudication process for investigating and assessing the credibility of the report issued to it. A key feature of the process was the mechanism for ensuring that the evidence relied upon by government was subject to rigorous scrutiny and cross-­examination, without thereby placing national security in jeopardy. The solution was to engage security-­cleared SIRC counsel who, in effect, fulfilled some of the tasks that counsel for the affected party was precluded

220   A. Macklin from performing because of national security confidentiality.9 Hearings before the SIRC are conducted largely in camera and in the absence of the named person or his counsel. The role of SIRC counsel as not-­quitesurrogate advocate for the affected party became salient in this context. One task for SIRC counsel was to obtain as comprehensive a summary of the case as possible for the person concerned and his counsel. The natural predilection of the CSIS (as with all intelligence agencies) was to strenuously resist disclosure to the maximum extent. SIRC counsel would negotiate disclosure with the CSIS from a position of expertise, and test the CSIS to ensure that non-­disclosure to the person concerned and his counsel in each instance was specifically justified and warranted. The SIRC Rules of Procedure (devised by the SIRC) granted the SIRC discretion in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected to determine if the facts of the case justify that the substance of the representations made by one party should be disclosed to one or more of the other parties.10 In practice, consultation with the CSIS director, combined with negotiation and the search for consensus on disclosure of information to the named person and his counsel, seems to have permitted the attainment of a modus vivendi with respect to disclosure of information to the affected party and his counsel.11 The second critical function performed by SIRC counsel was to cross-­ examine CSIS and other government officials in the course of hearings in camera (where the person concerned and his counsel were excluded) in order to test the quality of the evidence against the named person. A former SIRC counsel adviser described his role as follows: The Committee’s counsel is instructed to cross-­examine witnesses for the [Canadian Security Intelligence] Service with as much vigor as one would expect from the complainant’s counsel. Having been present during the unfolding of the complainant’s case, the Committee counsel is able to pursue the same line of questions. In addition, however, since Committee counsel has the requisite security clearance and has had the opportunity to review files not available to the complainant’s counsel, he or she is also able to explore issues and particulars that would be unknown to the complainant’s counsel. (Rankin 1990: 184) While SIRC counsel were emphatically not in a solicitor–client relationship with the named person, they could and did meet with that individual and his counsel before and after they were apprised of confidential, inculpatory information from the government. Obviously, SIRC counsel must

Transjudicial conversations   221 be vigilant so as not to reveal (even inadvertently) any secret information. According to Forcese and Waldman (2007: 9), [e]ven with this restriction, one of SIRC’s outside counsel told us that this questioning, done in an oblique manner to avoid involuntary disclosures of secret information, is central in unearthing potentially exculpatory information and observed that some cases at least have turned on information obtained from the named person in this manner. This truncated summary suffices to demonstrate the inaccuracy of the portrait painted of the Canadian practice by the Chahal court. It also indicates the similarity between the SIRC committee process and the special advocate model ultimately introduced in the United Kingdom. However, Canada’s 2001 Immigration and Refugee Protection Act, passed in the wake of 9/11, abolished the SIRC’s authority to review the designation of permanent residents as threats to national security. Instead, ministers could sign a security certificate, the named person would be detained, and the Federal Court would eventually review the security certificate on a standard of reasonableness. Non-­citizens no longer had the benefit of the SIRC committee’s scrutiny of the government’s case, and were left only with the less scrupulous and more secretive Federal Court review. The Federal Court review virtually required the judge to conduct an in-­ camera (secret) hearing in the absence of the named person or his counsel. The judge would authorize a summary of facts to be disclosed to the person named in the certificate, and that would be all the information available to the named person and his counsel. Without an analogue to SIRC counsel in the room, it fell to the Federal Court judge to test the quality of the evidence against the person named in the security certificate. Anecdotally, immigration lawyers familiar with both systems indicated that judges of the Federal Court were relatively inexpert and more deferential to the government in comparison to the SIRC with respect to matters deemed subject to national security confidentiality. The summaries made available to the named person were, in practice, prepared by the government and approved by the judge, meaning that they contained only the information that the government wished to disclose. This was the legal scheme in effect at the time of the Supreme Court of Canada’s 2007 judgment in Charkaoui. By this point, the Supreme Court of Canada had already declared in Suresh that deportation to torture was generally prohibited under section 7 of the Charter, except in unspecified exceptional circumstances. The process by which persons named in security certificates were detained without review, and the Federal Court’s review of the reasonableness of the security certificate itself, were subject to constitutional challenge. The Supreme Court of Canada judgment deflected consideration of the legislative and empirical reality that the

222   A. Macklin Immigration and Refugee Protection Act permitted indefinite detention. The Supreme Court of Canada did confront other issues, including the breach of fundamental justice entailed by judicial review of the security certificate, wherein a Federal Court judge was authorized to rely upon evidence withheld from the named person which, in the opinion of the judge, was relevant but should not be disclosed because it might be injurious to national security or to the safety of any person. It was the sole responsibility of the judge to test the credibility of the secret evidence on his or her own, by putting questions to government counsel and witnesses. This task was wholly incongruous with the traditional role of the neutral and passive judge in the common law world, as Federal Court Justice Hugessen lamented in a speech excerpted in the Charkaoui judgment: We do not like this process of having to sit alone hearing only one part, and looking at the materials produced by only one party [. . .] If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-­ examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do that. [. . .] [W] e do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. (Charkaoui v. Canada 2007: 36) The Supreme Court of Canada ultimately validates the apprehensions of Justice Hugessen about the inadequacy of the existing scheme: Under IRPA’s certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is serious in itself. It also underlies the concerns, discussed above, about the independence and impartiality of the designated judge, and the ability of the judge to make a decision based on the facts and law [. . .] Ultimately, the judge may have to consider information that is not included in the summary [provided to the named person]. In the result, the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said. (Charkaoui v. Canada 2007: 54–55)

Transjudicial conversations   223 As in Chahal, the availability of less restrictive alternatives to the breach of fundamental justice entailed by the existing scheme played a significant role in leading the Supreme Court of Canada to the conclusion that the status quo was not “demonstrably justified in a free and democratic society.”12 Justification requires that the objective sought by the rights infringement be “pressing and substantial” and that the means of achieving it are proportional to the objective. The Supreme Court of Canada had little difficulty declaring that the “protection of Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective” (Charkaoui v. Canada 2007: 68). Its attention turned quickly to surveying other, less restrictive options, including the SIRC process described earlier, which was restricted to permanent residents in 1988 and then abolished altogether in 2001. Notably, the Supreme Court of Canada’s account did not advert to the practice by SIRC counsel of meeting with and interviewing the person concerned before and after counsel viewed secret evidence (Charkaoui v. Canada 2007: 71–76). The Supreme Court of Canada also cited the example of “special counsel” to the Commission of Inquiry in the Actions of Canadian Officials in Relation to Maher Arar (the Arar Inquiry). According to the Supreme Court of Canada, the role of this special security-­cleared counsel was to “act as amicus curiae on confidentiality applications” where the Commission was struggling to balance disclosure to the person concerned and to the public against national security confidentiality (Charkaoui v. Canada 2007: 79). While technically accurate, the Supreme Court effectively overstated the very limited role of this security-­cleared counsel, while failing to mention the far more important role played by general counsel to the Arar Commission, who acted rather more like SIRC counsel. That is to say, Arar Commission counsel were privy to information that was ultimately not disclosed to Mr. Arar or to other witnesses by reason of national security confidentiality, but nevertheless were able to meet with Mr. Arar, pose questions to him, glean avenues of inquiry, and formulate bases upon which to test the government’s evidence, without divulging the content of the secret information. Finally, the Supreme Court of Canada refers to the UK special advocate model. The court traces the influence of the misdescribed Canadian process on the UK system, remarking that the European Court in Chahal was “perhaps referring to the procedure developed by SIRC” (Charkaoui v. Canada 2007: 80). Among the features of the UK special advocate model identified by the Supreme Court of Canada, particular attention is drawn to the provision prohibiting the special advocate from communicating with the person concerned after seeing the protected information, unless the special advocate seeks permission from the Special Immigration Appeals Commission (SIAC), and the Secretary of State has an opportunity to object to the proposed communication before the SIAC decides (Charkaoui v. Canada 2007: 80–81).

224   A. Macklin The Supreme Court of Canada cites the positive academic reception to the special advocate model, while noting that the system has also been subject to criticism for the barriers to communication with the person concerned or his counsel, the inability of special advocates to call witnesses, and the lack of resourcing (Charkaoui v. Canada 2007: 83). Despite these apparent weaknesses, the Supreme Court of Canada concludes by invoking the SIAC’s own favorable commentary on the contribution of special advocates to its own successful operation. It even chided the Canadian government for not explaining to the court why the drafters of the impugned Canadian legislation “did not provide for special counsel [. . .] [as] is presently done in the United Kingdom” (Charkaoui v. Canada 2007: 84). Among the “less restrictive” alternatives canvassed by the Supreme Court of Canada, the UK scheme impaired the rights of the person concerned more than the others, which were domestic and outside the courtroom context. Yet I would suggest that a fair reading of the judgment conveys the impression that the Supreme Court of Canada was signaling its advance approbation not of the available option that impaired rights the least, but rather the most restrictive of those alternatives. This would seem to validate Benvenisti’s hypothesis that judges in one jurisdiction look for “political cover” when striking down domestic legislation by pointing to less restrictive laws in another jurisdiction: if the Supreme Court of Canada endorsed existing UK practice, it could not be accused of making Canada a uniquely attractive haven for terrorists. However, the outcome also hints at the erosion of the principle that violations of rights be justified as the least restrictive possible. Presented with a declaration of unconstitutionality from the Supreme Court of Canada, plus a survey of less intrusive alternatives, the Canadian government ultimately and predictably responded by introducing legislation that more or less replicated the salient features of the UK special advocate model. By the time the Canadian special advocate legislation (Bill C-­3) was introduced, in mid-­October 2007, the UK special advocate system had been “road-­tested” more extensively and scrutinized more carefully against this experience. In July 2007 the UK House of Commons and House of Lords Joint Committee on Human Rights (Nineteenth Report) issued its latest report on, inter alia, the special advocate system. The committee interviewed four special advocates about their experience. The Joint Committee described their evidence as “most disquieting” (UK House of Commons and House of Lords Joint Committee 2007: 192). The major flaws identified by the special advocates were, first, government resistance to full disclosure to the special advocate of the entire file (including both inculpatory and exculpatory information) and, second, the practical inability of special advocates to consult and question the person concerned after the special advocate viewed the secret evidence.13 Both of these constraints limited the ability of the person subject to a control order to know the case against him and to respond to it. The Joint Committee discussed

Transjudicial conversations   225 at length the impediments that the existing regime erected to a fair hearing for the person named in control order (ibid.: 195–209). It concluded as follows: After listening to the evidence of the Special Advocates, we found it hard not to reach for well-­worn descriptions of it as “Kafkaesque” or like the Star Chamber. The Special Advocates agreed when it was put to them that, in light of the concerns they had raised, “the public should be left in absolutely no doubt that what is happening . . . has absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.” Indeed, we were left with the very strong feeling that this is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against basic notions of fair play as the lay public would understand them (ibid.: 210) In light of the serious concerns harbored by the Joint Committee, their report urged that the UK government impose a clear and verifiable statutory obligation on the Secretary of State for the Home Department to “provide a statement of the gist of the closed material” and to permit the SIAC or a court to balance the public interest in non-­disclosure against the interests of justice in deciding whether material ought to be disclosed. The Joint Committee also recommended, subject to appropriate guidance and safeguards, “relaxation of the current prohibition on any communication between the special advocate and the person concerned or their legal representative after the special advocate has seen the closed material.” Ironically, the Joint Committee drew support for this latter proposal from the similar suggestion made in February 2007 (prior to the Supreme Court of Canada judgment in Charkaoui) by a Special Senate Committee of the Canadian Parliament on the Canadian Anti-­Terrorism Act.14 Despite the analysis, critique, and recommendations regarding the special advocate system contained in the July 2007 Joint Committee Nineteenth Report, on 22 October 2007 the Canadian government introduced Bill C-­3, An Act to Amend the Immigration and Refugee Protection Act (Certificates and Special Advocates). The legislation mimicked the salient features of the UK special advocate regime that had been excoriated by the Joint Committee. On 31 October 2007, about a week after the first reading of Bill C-­3 in the Canadian House of Commons, the UK House of Lords released Secretary of State for the Home Department v. MB (FC) (2007). The House of Lords upheld the control order regime against challenge under the Human Rights Act. Although the Law Lords managed to reiterate the erroneous depiction of the Canadian scheme described in Chahal,15 they also commented in their course of judgment on the potential deficiencies of the special advocate system in the United Kingdom. For

226   A. Macklin instance, Lord Bingham of Cornwall specifically drew attention to the detrimental impact of the special advocate’s practical inability to consult with the person concerned after viewing the secret evidence: In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which it may be impossible to adopt if the controlled person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given. “Grave disadvantage” is not, I think, an exaggerated description of the controlled person’s position where such circumstances obtain. [. . .] [T]he task of the court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person.16 Similarly, Baroness Hale identified the lack of disclosure and the prohibition on communication as barriers to a fair process, and the need for vigilance in challenging the government’s tendency to overclaim the need for secrecy in terrorism-­related cases: Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client’s instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in [legislation], the special advocate should be able to call or have called witnesses to rebut the closed material.17 Notwithstanding the deficiencies in the actual operation of the special advocate model as described in the Joint Committee Nineteenth Report, and the reservations expressed by the House of Lords in MB, Canada’s Bill C-­3 survived two more readings in Parliament, and review by the House of Commons Standing Committee on Public Safety and National Security. It passed into law without substantial amendment in February 2008.18 Like its UK counterpart, it does not impose on the government a duty of full disclosure to the special advocate, and it severely impedes the ability of the special advocate to meet with the person named in the security certificate.19 To recap: In 1996, the ECtHR ruled in Chahal that the UK system for designating non-­citizens as security threats violated basic rights to

Transjudicial conversations   227 procedural fairness enshrined in the European Convention on Human Rights (ECHR). In coming to this conclusion, the ECtHR commended as an alternative a Canadian model that did not exist and had never existed. The closest proxy was a process before an administrative body (SIRC) that exercised only a recommending function, and operated at a stage prior to the issuance of a security certificate that was ultimately reviewable before the Federal Court. The Federal Court process was and remained intensely secretive, provided very little disclosure to the person named in the security certificate or his counsel, involved no special counsel, and effectively relied on the judge to test and assess the need for disclosure and the veracity of the government’s evidence. Following Chahal, the United Kingdom instituted a special advocate model predicated on the non-­existent Canadian precedent. The UK model was arguably inferior to the actually existing SIRC process, but in 2001 that SIRC process was abolished anyway, leaving only the Federal Court review. In 2006 that Federal Court review of security certificates was successfully challenged. The Supreme Court of Canada struck it down as a violation of fundamental justice under the Canadian Charter of Rights and Freedoms, for many of the same reasons that the UK process had been found wanting a decade earlier in the Chahal decision. In the course of coming to its conclusion, the Supreme Court of Canada commended as an alternative the UK special advocate model. Meanwhile, that UK special advocate process was coming under severe criticism by the Joint Committee on Human Rights, and the House of Lords subsequently expressed similar, though more muted, reservations about it. Nevertheless, the Canadian government’s response to the Supreme Court’s decision in Charkaoui was to adopt the UK model. And that is what Canada has today: a special advocate scheme that mimics a deficient UK model that is itself a copy of a non-­existent Canadian precedent. One might describe this outcome as the production of a jurisprudential simulacrum: the manufacture of a real copy of a fictitious original.

The substance: deportation to torture The conversation between the ECtHR, Canada and, to an extent, the UK House of Lords about the process might best be characterized as a transatlantic recirculation of misinformation. The substantive issue that travels along with the procedural one is, of course, the legality of deporting a non-­ citizen designated a security risk to a country where he faces a substantial risk of torture. Given that the prohibition on deportation to torture is explicitly and categorically prohibited under article 3 of the United Nations Convention Against Torture (UN CAT), one might have expected reliance on this common text to signal, in Benvenisti’s words, a judicial “readiness to cooperate,” and insurance against “the future retreat of one of [the national courts] from the shared interpretation” (Benvenisti 2008: 251b).

228   A. Macklin Yet despite international and comparative allies, the Supreme Court of Canada was manifestly unwilling to play on the team. The ECtHR first confronted this question in Chahal in 1996, concluding that article 3 of the ECHR’s absolute prohibition on torture and inhuman or degrading treatment or punishment encompassed deportation by a state party to a non-­state party where the person faced a substantial risk of torture. Although article 3 of the ECHR does not expressly address deportation, the ECtHR interpreted in conformity with the UN CAT provision. In 2001 the Supreme Court of Canada in Suresh addressed the same issue. The unanimous judgment affirmed that Canada is a party to the UN CAT and that article 3 of the UN CAT categorically prohibits deportation to torture, but the Supreme Court unaccountably drew the inference that international law merely counseled but did not mandate a congruent interpretation of section 7 of the Charter: “This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter” (Suresh v. Canada 2002: 76, emphasis added). The Supreme Court offers neither a jurisprudential nor a normative basis in international law or, for that matter, in Canadian constitutional law for these qualifications on the absolute prohibition on deportation to torture.20 The court does quote approvingly from the judgments of Lords Steyn and Hoffman in Re Rehman, in which the Law Lords indicate that a decision to deport must be done on a case-­by-case basis, taking into account the prejudice to national security and the likely consequences of deportation to the person concerned.21 While these quotes might appear to endorse a case-­by-case balancing of national security against torture, Lord Hoffman makes it amply clear elsewhere in his judgment (in a passage not quoted by the Supreme Court of Canada) that he considers the United Kingdom bound by the ruling in Chahal: The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative.22 Although the Supreme Court of Canada does not misquote the Law Lords in a manner comparable to the way in which the ECtHR in Chahal misrepresented the Canadian system, it is arguable that the Supreme Court in Suresh engaged in precisely the sort of tactical “cherry-­picking” that critics of judicial comparativism deplore. To the extent that it uses selective quotations from the Law Lords to insinuate that the Supreme Court of Canada is not alone among its judicial colleagues in other democracies in

Transjudicial conversations   229 balancing national security against torture, the Supreme Court communicates a message that can most charitably be described as ambiguous. The Supreme Court also declined to elaborate on what might constitute exceptional circumstances. The government of Canada, however, has subsequently argued that exceptional circumstances obtain in each security certificate case involving potential deportation to a country that routinely engages in torture.23 Several EU member-­state governments, along with the Canadian government, have devoted considerable energy to securing diplomatic assurances from countries that engage in torture that these same states will not torture the particular individual who is the subject of the assurance. The objective is to reduce the risk of torture from “substantial” to some lesser, legally acceptable, likelihood of torture. For EU governments this would enable member states to deport non-­citizens who are considered security risks without breaching article 3 of the ECHR. For the Canadian government, diplomatic assurances offer an alternative justification for deportation, alongside the assertion of “exceptional circumstances” warranting return to torture. In the wake of the Suresh decision, several European governments seized the opportunity presented by the Supreme Court of Canada to insist that Chahal ought to be reconsidered in light of the “new reality” of the post-­9/11 world. These states contended that the ECtHR ought to abandon its absolutist position and adopt the balancing approach of the Supreme Court of Canada, whereby the danger to national security posed by the presence of the non-­citizen would be balanced against the harm of torture to that person if deported. Between 2006 and 2007, several states petitioned the European Court of Human Rights to revisit Chahal, and human rights organizations intervened in opposition. The parties and the interveners were clearly aware of Suresh, and included reference to the judgment in their submissions in Ramzy . . . The court ultimately replied with its decision in Saadi v. Italy, in which it emphatically upheld article 3’s absolute prohibition on return to torture, and amplified its skepticism about the reliability of diplomatic assurances. The legality of deporting a person to face a substantial risk of torture presents itself as an unalloyed normative question. One’s answer does not depend on empirical data or the weighing of evidence; one may assume that the non-­citizen constitutes a danger to national security and that the risk of torture is substantial. Unlike the process questions discussed above, it does not engage problems of institutional design or selection from a range of policy choices. Nor does it seem affected by the particularities of embedded political, institutional, or legal cultures. Indeed, since all EU member states as well as Canada are bound by the UN CAT, which absolutely prohibits deportation to torture, there exists even greater opportunity for judicial dialogue organized around a common norm. As such, the legality of deportation to torture would seem better suited than the procedural issues – if not

230   A. Macklin ideally suited – to a comparative engagement with ideas and argumentation across jurisdictions. Historical and contemporary precedent invites situating the deportation of security threats somewhere between two existing and illicit state practices, namely disguised extradition and rendition. Deportation of alleged terrorists cannot be assimilated to either, but shares certain features in common with both. Disguised extradition is a familiar and long-­standing device used by states to dispatch non-­citizens who are suspected of crimes abroad to a country with which the sending state does not have an extradition treaty, and/or whose justice systems would not withstand even the limited judicial review that is usually required as a precondition to extraditing a fugitive. Extraordinary rendition is the notorious post-­September 11 United States practice of illegally, forcibly, and extra-­judicially transporting individuals suspected of terrorist links to states where the detainees will likely be subject to interrogation through cruel, inhuman, or degrading treatment or torture. In many instances where states seek to deport people who are allegedly terrorist threats, the human rights record of the receiving country is infamous for documented practices of abuse and denial of basic human rights, including cruel, inhuman, degrading treatment or torture, thereby making the link between deportation and rendition. In some cases, conduct in the country of citizenship is at least one factor leading to the identification of a non-­citizen as a security threat, making the analogy to disguised extradition relevant. This was the case for Saadi, a Tunisian national living in Italy who was tried in Italy for conspiracy to commit acts of terror-­related violence, but also tried, convicted, and sentenced in absentia to 20 years’ imprisonment by a Tunisian military court “for membership of a terrorist organization acting abroad in peacetime and for incitement to terrorism.” Tunisia, however, did not seek to extradite Saadi. Two significant differences between rendition and deportation of security risks warrant mention. First, in Canada and the European Union, deportation of security risks follows some type of legal procedure and in that sense is not extra-­judicial. Second, rendition to torture is occasionally rationalized by resort to the specious claim that interrogation under conditions of brutality will yield the disclosure of vital information that will somehow aid in the “war on terror’ and save innocent lives. Without in any way validating this pernicious and untenable claim, it is worth noting that those who defend the deportation of alleged security threats to face a substantial risk of torture do not even purport to instrumentalize the possible torture of the deportee. Sending states are not looking to extract more information from the person concerned by delivering him to torture. They just want to dispose of him. They cannot claim that no alternative to deportation exists. After all, solutions must be found for citizens who pose the same level of risk, because they cannot be exiled (unless – perhaps – they hold citizenship elsewhere). Whatever weight one attaches to “diplomatic assurances” from the receiving state that the deportee will not be

Transjudicial conversations   231 tortured, it is indisputable that the risk of torture under these circumstances exceeds the risk of torture if the person is not deported at all.24 Simply put, the rationale for deportation to face a risk of torture rests on the tacit claim that state sovereignty resides in the absolute right to exclude the non-­citizen.25 This commitment to sovereignty as the power to exclude is remarkably intransigent and resilient, and in certain respects has survived the remarkable lowering of borders for citizens of member states of the European Union.26 It should not be overlooked that the deferral of the power to exclude from the national to the supranational level represents a contractual agreement between sovereign states, not an agreement between individuals and states, nor a recognition of an individual human right. The right of a state to exclude the non-­citizen remains, but the citizen has been redefined as a third-­country national, or a non-­EU citizen. From this statist perspective the vindication of the sovereign right to exclude the non-­EU citizen demands the subordination of the human right to be free from torture. Once one concedes that similarly risky citizens cannot be exiled, there is nothing on the other side of the balance capable of outweighing the harm of torture, except the brute fact of non-­ citizenship. In this sense, what is ultimately at stake in the debate around the deportability of non-­citizens alleged under immigration law to constitute threats to national security is ultimately the equality of non-­citizens qua human. Indeed, the House of Lords judgment in A. (FC) and others (FC) v. Secretary of State for the Home Department (2004) (the Belmarsh case) brilliantly lays bare the iniquity of discrimination on the basis of citizenship for purposes of indefinite detention.27 Perhaps because the unconditional right to enter and remain is the distinguishing entitlement of citizens, and the absolute right of states to expel non-­citizens stands as its putative obverse, courts have tended to avoid confronting the existential and moral inequality of non-­citizens that subvenes an executive-­driven (as opposed to criminal) process for designating a non-­citizen a risk to national security for purposes of deporting him to a country where he may face a risk of torture. What is stunning about the conflicting judgments from the Supreme Court of Canada in Suresh and the ECtHR in Chahal and Saadi concerning deportation to torture is not what each court says about the other, but rather what the courts do not say. They do not say anything. Suresh does not refer to Chahal. Saadi does not refer to Suresh. It is inconceivable that either court was unaware of the decision of the other. The Supreme Court of Canada in Suresh does cite article 3 of the ECHR when listing the many multilateral instruments prohibiting torture. The ECtHR in Saadi reconsiders (and rejects again) the notion of a balancing test that is central to the Supreme Court of Canada’s decision in Suresh. Yet neither court is willing to explicitly engage with the other’s reasoning qua judgment of another court.

232   A. Macklin With respect to deportation to torture, the ECtHR in Saadi simply reaffirmed its judgment in Chahal: Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule [. . .] It must therefore reaffirm the principle stated in the Chahal judgment that it is not possible to weigh the risk of ill-­treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. (Chahal v. United Kingdom 1996: 80) The sharpest rebuke to the position advanced by the governments (especially that of the United Kingdom as intervener) came from the concurring opinion of Judge Zupancˇicˇ. His remarks harmonize with the anti-­discrimination rationale propounded by the UK House Lords in Belmarsh, and indirectly expose the unarticulated conception of the non-­ citizen that underwrites the Supreme Court of Canada’s willingness to countenance (even hypothetically) his delivery to torture. Judge Zupancˇicˇ states that the only way to avoid the logical necessity flowing from the “categorical imperative protecting the rights of the individual” (Saadi v. Italy 2008: 2) would be “to maintain that such individuals do not deserve human rights . . . because they are less human.”

Conclusion What lessons might one draw from this reading of European and Canadian judgments? The errors of commission manifested by the distorted portrayal of the Canadian process for designating non-­citizens as security threats seem matched by the errors of omission arising from the refusal of the Supreme Court of Canada and the ECtHR to engage one another on the issue of deportation to torture. In the first instance, one can trace the tangible effects of the misrepresentation on the evolution of policy outcomes: the endorsement by one court of another state’s practice as a less restrictive alternative to the status quo becomes the minimum benchmark for subsequent policy. Providing an accurate description of the practice in question seems like a relatively undemanding standard for courts to meet, insofar as it does not call for a translation across legal orders of a distinct and internally complex matrix of doctrine or jurisprudence. In the second instance, one

Transjudicial conversations   233 might simply observe that when courts decline to engage with the reasoning of other courts on normative questions that are eminently portable across jurisdictions, one cannot but question the authenticity of a commitment to the project of transnational judicial cooperation, and the motivation that animates any particular comparative exercise. Perhaps courts are content to borrow analyses that arrive at the same destination as the one the court is already heading toward, but are precluded by a certain judicial courtesy from openly engaging with and criticizing oppositional reasoning of other courts. In other words, maybe courts have elevated to an informal rule of judicial interaction that familiar admonition of mothers around the world: “If you can’t say anything nice, don’t say anything at all.”28 While this may be a fine and honorable adage for guiding daily conduct, it poses the obvious hazard of warping and truncating any meaningful comparative exercise. Is there something specific about the national security context that explains the disquieting features of the cases examined here? Are courts more careful, or nuanced, or principled when making forays into comparative analysis in other domains of law? While my intuition inclines me toward skepticism, a proper answer requires further inquiry. More specifically, it requires accurate and principled comparative research.

Acknowledgments The author warmly thanks Elspeth Guild, Mark Salter, and Rayner Thwaites for insightful, incisive, and constructive comments and suggestions.

Notes   1 For a popular summary of the US debate, see Liptak (2008).   2 See also Benvenisti (2008: 26–27).   3 In 1992 those convictions were quashed by the Court of Appeal (Criminal Division).   4 Chahal thereupon made an unsuccessful bid for asylum.   5 These comments should be read against the more recent boldness of the House of Lords in applying the ECHR protections incorporated into UK law via the Human Rights Act. See, for example, Rehman and Re A.   6 Amnesty International, Liberty, the Advice on Individual Rights in Europe Centre, and the Joint Council for the Rights of Immigrants.   7 Special Immigration Appeals Commission Act 1997 (UK) 1997, c. 68.   8 Until 1988 the SIRC process was available to any non-­citizen. After 1988 (and at the time Chahal was heard and decided) the SIRC review did not apply to non-­ citizens without permanent resident status. In those cases the two ministers would sign a security certificate deeming the person to constitute a danger to national security, and the certificate would go directly to review by a Federal Court judge without any prior scrutiny comparable to the SIRC process.   9 The SIRC employed in-­house counsel, but where particularly aggressive cross-­ examination of government witnesses was deemed necessary, the SIRC could engage outside counsel (with appropriate security clearance) to avoid any apprehension of bias on the part of the SIRC toward CSIS.

234   A. Macklin 10 SIRC, Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function under paragraph 38(C) of the Canadian Security Intelligence Service Act, para. 46(2)(a). 11 Under s. 38 of the Canada Evidence Act. 12 Section 1 of the Canadian Charter of Rights and Freedoms provides that the rights and freedoms set out in the Charter are “subject to such reasonable limitations as are demonstrably justified in a free and democratic society.” 13 The low standard of proof applied by the SIAC was also identified as a significant concern, though this is not distinctive to a special advocate model. 14 Fundamental Justice in Extraordinary Times: Main Report of the Special Senate Committee on the Anti-­Terrorism Act, February 2007, at pp. 35–36 and 42. 15 See, for example, para. 35 (per Lord Bingham), paras. 51–54 (per Lord Hoffman), and para. 81 (per Lord Carswell). 16 MB at para. 35. See also paras. 64–66 (per Baroness Hale: “I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used . . . would be sufficient to comply with article 6 [of the ECtHR]. . . . There is ample evidence from elsewhere of a tendency to over-­claim the need for secrecy in terrorism cases . . . All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in [the special advocate legislation], the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge”.). The MB case was heard just prior to the release of the Joint Committee Nineteenth Report (UK House of Commons and House of Lords Joint Committee 2007). 17 MB at para. 66. 18 The legislation was incorporated into the Immigration and Refugee Protection Act 2001, c. 27, ss. 76–87.2. 19 Immigration and Refugee Protection Act, s. 85.4. 20 See, further, Rayner Thwaites, this volume, Chapter 13, p. 000. Benvenisti (2008b: 18) acknowledges that implementation of a shared international norm in the domestic arena is not unproblematic, but also admits that court can also draw on a medley of tactics to overcome the hurdles if they so choose. 21 Suresh, para. 77, quoting Rehman, per Lord Hoffman, at para. 56 and Lord Slynn of Hadley, at para. 16. 22 Rehman, para. 54. 23 See, further, Rayner Thwaites, this volume, Chapter 13, p. 000. 24 Both the Supreme Court of Canada in Suresh and the ECtHR in Chahal and Saadi expressed considerable skepticism about the reliability of diplomatic assurances. In Saadi the ECtHR even disputed that the assurance from Tunisia constituted an undertaking not to subject Saadi to torture. Suresh, paras. 124–125, Chahal, para. 105, Saadi, paras. 147–149. 25 Cf. Rayner Thwaites, this volume, Chapter 13, p. 000. 26 The apparent encroachments on this principle, whether in the form of the refugee protection or family unity, are notable for the policy backlashes in the form of heightened restrictions on initial access to territory. 27 See, for example, paras. 45–73, per Lord Bingham of Cornhill. 28 The UK House of Lords clearly wrestled with this in R. v. Secretary of State for the Home Department ex parte Adan & Aitseguer (2001). At issue were conflicting interpretations of the United Nations Convention Relating to the Status of Refugees in relation to non-­state actors as agents of persecution. While the House of Lords was evidently reluctant to criticize the restrictive interpretations adopted by French and German courts at the time, Lord Steyn (along with

Transjudicial conversations   235 Lord Hobhouse) finally declared in rather bald terms that “there can only be one true meaning” of an international treaty. The Law Lords’ interpretation was correct and the Germans and French courts were wrong. In a subsequent decision, however, the House of Lords was at pains to minimize the practical impact of conflicting interpretations on the fate of the individual asylum seeker before them. R. v. Secretary of State for the Home Department, ex parte Thangarasa & Yogathas (2002).

13 A coordinated judicial response to counter-­terrorism? Counter-­examples Rayner Thwaites

Introduction The bold claim has been made that national courts have been united in their response to counter-­terrorism. The claim is that courts from prominent democratic states have reacted consistently to counter-­terrorism measures, coordinating outcomes across national jurisdictions (Benvenisti 2008a, b; Benvenisti and Downs 2009).1 This claim is conjoined with another, namely that the availability of identical or similar norms (grounded in international law and human rights law) has facilitated this coordination effort (Benvenisti 2008a: 273; 2008b: 252; Benvenisti and Downs 2009: 66–67). The claim is not simply a methodological one. The coordinated judicial response is presented as benefiting individual liberties (Benvenisti 2008a), domestic democratic processes (Benvenisti 2008b), and the rule of law in the global sphere (Benvenisti and Downs 2009). In this chapter I raise doubts about the suggested phenomenon of a ‘globally coordinated move’ (Benvenisti 2008a: 254) on the part of ‘national courts from prominent democratic states’ (Benvenisti and Downs 2009: 72). Moreover, my counter-­examples are drawn from precisely those cases that are enlisted as examples of this inter-­judicial coordination effort,2 namely the Supreme Court of Canada’s 2007 decision in Charkaoui (Charkaoui v. Canada (Citizenship and Immigration) 2007), and the House of Lords 2004 Belmarsh decision (A. v. Secretary of State for the Home Department 2005).3 Key instances of reliance on comparative authority and international human rights law in Charkaoui (including claims of compatibility with Belmarsh), while not simply decorative, do not maintain the level of consistency between the national courts needed to support claims of an ‘inter-­judicial coordination effort’ in response to state counter-­terrorism measures. In presenting his evidence for judicial cooperation, Benvenisti writes that he can offer only a broad and sketchy outline of the emerging jurisprudence. [The examination] aims, of course, at demonstrating the probability of the thesis, rather than analyzing the specific areas in depth.

A coordinated judicial response?   237 Therefore it focuses more on the means of communication – the increased use of comparative constitutional law and the creative use of international law – than on the specific content of the norms. Further and more intensive research is necessary to explore these and possibly other areas of judicial cooperation more deeply. (2008b: 253) The cases studied in this chapter suggest that when one does focus on the specific content of the norms, the claim that the use of comparative authorities and international law leads to consistent outcomes, rising to the level of inter-­judicial coordination, is placed in doubt. In Charkaoui the Supreme Court of Canada (hearafter the Court) upheld the legality of the indefinite administrative detention of non-­ citizens under the Charter of Rights and Freedoms (hereafter the Charter). In doing so, the Court claimed that its reasoning was consistent with that of relevant authorities from the United States and the United Kingdom, including authorities that considered the application of the European Convention on Human Rights (ECHR). I assess the Court’s claim, in Charkaoui, of consistency with key comparative authorities, which underlies the broader academic claim of an emerging coalition of national courts. To a lesser extent I also critically assess the claim that international norms serve as a valuable coordination tool in this area. At the center of Charkaoui was the question of the authority to hold in immigration detention non-­citizens whom the Canadian government deemed inadmissible on security grounds, but whom it could not remove. For each of the appellants, the government’s inability to remove him arose from a prima facie case that there was a real risk of torture on return to his country of nationality, implicating Canada in conduct contrary to international law, and possibly contrary to Canadian constitutional law. The detainees were caught between the government’s determination that they not be ‘at large’ within Canadian territory and legal constraints on its ability to remove them. The question that arose was the legality of the indefinite detention power claimed by the government. When, and to what extent, was the differential treatment of non-­citizens, with regard to detention, a rightful extension of the government’s power to control the border?4 I introduce the counter-­terrorism measures subjected to legal challenge in Charkaoui and outline the Court’s decision on the legality of those measures. I then develop the features of two competing judicial responses to the indefinite detention of non-­citizens that I call a ‘rights-­protecting’ response and a ‘rights-­precluding’ response. I use the two models of ‘immigration’ detention developed as critical tools in my analysis of the case law. The next section centers on the Court’s claim in Charkaoui of consistency with prominent case law from the United Kingdom and the United States on the duration of legal authority to hold a non-­citizen in ‘immigration’ detention. Contrary to the Court, I argue that Charkaoui is

238   R. Thwaites not consistent with these comparative authorities. The Court in Charkaoui gives legal sanction to the detention of non-­citizens for so long as there is a speculative possibility of removal, while the comparative authorities it cites in support do not. I outline how the Court has also diverged from comparative authority on the question of the legality of deportation to torture. I then focus on the Court’s claim of compatibility with a decision often greeted as an exemplar of judicial confidence in grappling with state counter-­terrorism efforts, the decision of the House of Lords in Belmarsh. Again, I argue that the Court’s reasoning, and the result, is antithetical to the reasoning and result of the House of Lords. The Court’s divergence from the comparative authority it invokes can be summarized as follows: Charkaoui establishes that the administrative detention of non-­citizens is authorized for so long as there is a speculative possibility of removal. This puts the Court at variance with comparative authorities it cites. The Court reasoned that a speculative possibility of deportation remains even where a real risk of torture frustrates that deportation, potentially for the indefinite future, which puts the Court directly at odds with the House of Lords decision in Belmarsh.

Charkaoui: the counter-­terrorism measures challenged and the Court’s response The possibility of the indefinite administrative detention of non-­citizens arises in Canada in the context of a ‘security certificate regime’ that provides for the removal of non-­citizens on security grounds and detention pending removal. The Charkaoui decision was a constitutional challenge to this regime, which was, and is, housed in Part 1, Division 9 of the Canadian Immigration and Refugee Protection Act (IRPA).5 It is a rarely used procedure, activated by a certificate signed by the relevant two ministers stating that a named non-­citizen is inadmissible to Canada for one or more of a range of grounds, including organized criminality, or security (IRPA 2008: s. 77). At the center of the process is usually a risk profile that the intelligence services have prepared on the certified individual. Once signed, the certificate goes to the Canadian Federal Court, where a judge determines whether it is ‘reasonable’ (IRPA 2008: s. 83).6 A judicially approved certificate constitutes an order for removal from Canada (IRPA 2008: s. 80). The IRPA’s security certificate regime permits the minister to detain a non-­citizen on the issuance of a certificate.7 An individual can apply to the Federal Court for review of his or her detention. The IRPA provides that detention is to be continued if the judge is satisfied that release on conditions would be injurious to security, or that the non-­citizen would be unlikely to appear at a proceeding or for removal if he or she were released.8 Under the statute, a finding that release would be a risk to security is a sufficient ground for continued detention. Where that

A coordinated judicial response?   239 determination is made, the only limit on the period of detention arises from the constitutional requirement that detention must be for the purpose of removal from Canada. The Court interpreted this constitutional requirement in such a way as to render it ineffective as a limit on the period of detention. In doing so, it arrived at a result, the legality of the indefinite administrative detention of non-­citizens, that was fundamentally at odds with comparative jurisprudence with which it claimed to be consistent. In Charkaoui the Court heard together three appeals that between them challenged the constitutionality of both the procedures for reviewing the ‘reasonableness’ of a decision to issue a certificate and the procedures for reviewing detention, as well as the regularity of detention review, the nature of detention, and whether the regime discriminated against non-­ citizens.9 These challenges relied primarily on rights provisions under the Charter. The appellants were successful in their challenge to the constitutionality of the procedures, the Court ruling that the existing procedures for review of their certification and detention did not enable the appellants to make an ‘effective challenge’ to those decisions, as required by the ‘principles of fundamental justice’ under s. 7 of the Charter.10 The appellants were, however, unsuccessful in their direct challenge to the constitutionality of the detention, and were unsuccessful in their challenge to the characterization of the detention as ‘immigration’ detention, appropriately confined to non-­citizens. The lack of any temporal limit on detention under the legislation, and the existence of a detention regime confined to non-­citizens, in which dangerousness constituted sufficient grounds for detention, survived challenge. The Court held that such detention did not constitute ‘cruel and unusual treatment or punishment’ such as would violate s. 12 of the Charter and that the detention regime did not discriminate against non-­citizens so as to contravene the equality provision, s. 15.11 It is these latter aspects of the decision, relating to the appellants’ substantive, as opposed to procedural rights, that I discuss in what follows.12

Judicial responses to the prospect of the indefinite detention of non-­citizens This section outlines two judicial responses to the prospect of the indefinite detention of non-­citizens. I contend that these two responses structure the case law on the topic, and indicate the primary line of division between the comparative authorities. These judicial responses are given effect through both statutory interpretation and constitutional reasoning. They implement models of immigration detention which I call, respectively, ‘rights protecting’ and ‘rights precluding’. Both responses rely on the proposition that the legal justification for immigration detention of non-­citizens ‘pending deportation’ is that detention facilitates that deportation. In Charkaoui this is spelled out in the legal requirement that detention be ‘reasonably necessary for deportation purposes’. The judicial

240   R. Thwaites responses are differentiated by what is held to amount to a sufficient connection between detention and deportation in this context. The first set of judicial responses lead to a ruling that there is no legal authority to hold non-­citizens in indefinite administrative detention. This first set implements what I call a ‘rights-­protecting’ model of immigration detention. On this model, the test for what is reasonably necessary for deportation is specified in terms of a ‘reasonable foreseeability’ requirement – that is, there has to be a real prospect of removal in the reasonably foreseeable future. Where a court or independent tribunal determines that this requirement is not met, the connection between detention and deportation is held to be too tenuous to support authority to detain. The model is so named because the reasonable foreseeability criterion assumes that non-­citizens against whom a deportation order has been issued retain a liberty right with weight, against which any power of ‘immigration’ detention has to be justified. And this justification is to be with reference to ensuring the non-­citizen’s presence at the moment of deportation. The rights-­protecting model does not necessarily end the relevant non-­citizen’s vulnerability to removal. It simply maintains that where there is no real prospect of removal, there is no authority to detain. The second set of judicial responses gives legal sanction to the indefinite administrative detention of non-­citizens. This second set of responses implements what I call a ‘rights-­precluding’ model of immigration detention. The rights-­precluding model is satisfied with a much more tenuous linkage between detention and deportation. Under the ‘rights-­precluding’ model, detention is authorized provided that the government is making efforts to remove the non-­citizen, and as long as removal remains a future prospect. A bona fide attempt to remove the non-­citizen is all that is required of the detaining government, which is presumed to be doing its best in a world of complicated international relations. On this model the judicial role in review of administrative detention of non-­citizens is simply to ensure that the government continues to pursue removal in good faith. The rights-­precluding model may also extend to a second justification for indefinite administrative detention, namely that if a non-­citizen against whom a deportation order has been issued cannot be removed from the country, protection of the community suffices to authorize his or her indefinite detention. This second justification for immigration detention is usually downplayed by judges who foreground the first justification, the future possibility of removal. However, the more tenuous the possibility of removal, the more prominent this second justification becomes. Judicial responses conforming to the rights-­precluding model are often ambiguous on the relationship between these two justifications. The model is ‘rights precluding’ in that a government intention to remove the non-­citizen, or the danger the non-­citizen poses, effectively precludes any recognition of a non-­ citizen’s right to liberty. This is sometimes made explicit in statements that assert, in an unqualified way, that a non-­citizen against whom a deportation

A coordinated judicial response?   241 order has been issued has no right to remain, and equate this with the absence of any right to liberty on the part of such a non-­citizen. The rights-­protecting and rights-­precluding models of immigration detention represent two different responses to a situation of uncertainty. The prospects for removing a non-­citizen will often be uncertain. Uncertainty can arise from the need for permission of the receiving state, the need to comply with the legal obligations of the sending state, or a combination of the two. The difference between the models is not that they make different substantive assumptions about the probability of removal. Rather, they make different normative judgments about where the burden of uncertainty should fall. On the rights-­protecting model a court is prepared to order release on the basis that it is not satisfied that there is any prospect of removal in the reasonably foreseeable future. It is possible that circumstances will change such that the non-­citizen will be able to be removed, but in the meantime it is not appropriate that the non-­citizen should bear the burden of that uncertainty. Where the prospects of removal are doubtful, it is the state’s authority to hold a non-­citizen in immigration detention that has to give. The judges whose reasoning aligns with the rights-­precluding model make much of the fact that it is not impossible that circumstances will change such that, even if the present prospects for detention look dim, things may look very different in the future. Until the future possibility of removal is ruled out, there is still a ‘hinge’ between detention and removal sufficient to authorize that detention. The bottom line is that it is for those detained to bear the burden of the uncertainty.

Is indefinite immigration detention justified by a speculative future possibility of removal? In Charkaoui the Supreme Court concluded that the ‘extended periods of detention pending deportation’ authorized under the IRPA ‘do not violate . . . s 12 [of the Charter, the right not to be subjected to cruel and unusual treatment or punishment]’.13 It then stated that ‘these conclusions are consistent with English and American authority’ and continued: Courts in the United Kingdom and the United States have suggested that detention in this context can be used only during the period where it is reasonably necessary for deportation purposes: R v. Governor of Durham Prison, ex parte [Hardial] Singh, [1984] 1 All E.R. 983 (Q.B.) [Hardial Singh]; Zadvydas. (Charkaoui 2007: para. 124) The consistency with the cited authorities claimed by the Court here does not survive scrutiny. Hardial Singh and Zadvydas v. Davis both implement the rights-­protecting model of immigration detention, while Charkaoui implements the qualitatively distinct rights-­precluding model.

242   R. Thwaites The comparison with Hardial Singh In the above quotation from Charkaoui, the Court requires a connection between detention and deportation. The question is, when is detention ‘reasonably necessary for deportation purposes’? Hardial Singh (R. v. Governor of Durham Prison; ex parte Singh 1984) is a short judgment of a single judge in the Queen’s Bench Division, taking up only six pages in the reports. The Hardial Singh principles have, however, become emblematic in the jurisprudence of British14 and other common law courts15 of what I have called a rights-­protecting approach. Mr. Singh was an Indian national who was granted indefinite leave to remain in the United Kingdom, and subsequently convicted in relation to two burglary offences. The Secretary of State deemed his deportation conducive to the public good and a deportation order was issued against him. He was detained under the Immigration Act (UK) 1971, pursuant to a power of detention of an individual against whom a deportation order had been issued, pending his or her removal. The legislative provisions for detention considered in the Hardial Singh case contained no express limitation of time. At the time of judgment, Mr. Singh had been detained under the immigration power for nearly five months. The UK government had not obtained the necessary travel documents from India, and led no evidence that Mr. Singh’s removal was imminent. The judge, Woolf J, found an implied temporal limitation with reference to the purpose of detention. On the basis that the power of detention was for the purpose of facilitating removal, Woolf J held that authority to detain was limited to the period reasonably necessary to facilitate deportation. He went on to state that if there was a ‘situation’ whereby it was apparent that the government would not be able to deport the non-­citizen within a reasonable period, it should not exercise its power of detention (Hardial Singh: 985). The judge put the onus on the government to provide evidence that there was a real prospect of removal within a reasonable time. It was clear that in the absence of such evidence, the judge would order release on the basis that if removal was not a real prospect, the purpose of detention no longer obtained and could not be used to justify that detention. The detention regime given legal sanction in Charkaoui is a long way from that considered legally permissible in Hardial Singh. At the time of judgment in Charkaoui, those named under the Canadian security certificate regime had been in detention, or under an onerous form of house arrest, for many years.16 More importantly, in relation to a number of individuals who had been issued with a certificate of inadmissibility, Canadian courts had made factual findings that those individuals would not be removed within a ‘reasonable’ time.17 If the legal reasoning in Charkaoui was, in fact, consistent with Hardial Singh, this finding would have been treated as establishing that detention was no longer for the purpose of removal and that, accordingly, authority to detain had come to an end.

A coordinated judicial response?   243 It is central to Woolf J’s reasoning in Hardial Singh that the government’s authority to detain depends on its being able to satisfy a court, on the evidence, that there is a real prospect of removal within a ‘reasonable time’. By way of contrast, the Court in Charkaoui held that the future possibility of removal sufficed to authorize detention. But a mere possibility of this type is not susceptible to being challenged on the evidence. In Charkaoui the connection with deportation gets shifted into the endlessly deferred future, freeing the government of time constraints. The legal justification for the Canadian government’s authority to detain rested on the government’s continuing intention that the non-­citizen be removed. The shift from Hardial Singh to Charkaoui is a shift from government authority to detain resting on evidence of a real prospect of the non-­citizen’s removal within a reasonable period, to reliance on no more than the government’s continued intention that the non-­citizen be removed. In Charkaoui the Court retained the formulation contained in Hardial Singh, that immigration detention must be limited to a period ‘reasonably necessary’ for deportation. But it also allowed a speculative future possibility of removal, resistant to falsification on the basis of evidence, to justify detention as ‘reasonably necessary’ for deportation. In so doing, the Court turned the time limit on detention in Hardial Singh, implied with reference to deportation purposes, inside out, allowing those purposes to extend indefinitely into the future. It is a clear consequence of the rights-­protecting model that if there is no prospect of a non-­citizen being removed within a reasonable period of time, then there is no authority to detain him or her under immigration law. Hardial Singh is authority for this proposition. In a series of cases over the past decade, governments have raised the prospect of indefinite immigration detention in circumstances where the government’s ability to remove a non-­citizen is frustrated. These cases, argued before the highest appellate courts in a number of common law jurisdictions, have put pressure on this corollary of the rights protecting model.18 The United States Supreme Court’s decision in Zadvydas, the Court’s decision in Charkaoui, and the House of Lords’ Belmarsh decision, all discussed in what follows, are instances of such cases. The comparison with Zadvydas In the quote from Charkaoui provided above, the Court claimed that its position was consistent with the decision of the United States Supreme Court in Zadvydas (Zadvydas v. Davis 2001). The statute in Zadvydas provided for a 90-day detention period for a non-­citizen against whom a final order for removal had been entered (the removal period). The statutory provisions at issue provided for detention ‘beyond the removal period’ for a broad class of non-­citizens, including those who had violated entry conditions or the criminal law, or whose removal was being sought for reasons

244   R. Thwaites of security and foreign policy. It was the existence of time limits on the government’s power to detain ‘beyond the removal period’ that was in dispute. Zadvydas consisted of two cases, consolidated for argument. The first detainee, Mr. Zadvydas, had lived in the United States since he was 8 years old, and had a substantial criminal record. The government sought to remove him on the basis of that record, but its attempts to do were frustrated as no other country accepted him as a national, or otherwise agreed to receive him. The second detainee, Mr. Ma, had lived in the United States since the age of 7, but after his conviction for a gang-­ related shooting the government sought to return him to Cambodia. A District Court had found there was ‘no realistic chance’ of Mr. Ma being returned to Cambodia, given the absence of a repatriation agreement with that country. The US government argued that it retained authority to detain Mr. Zadvydas and Mr. Ma and that there was no limit on the length of time a non-­citizen could be detained ‘beyond the removal period’. A majority of the United States Supreme Court rejected this contention. The majority ruled that the post-­removal-period detention statute, read so as to ensure consistency with constitutional requirements, implicitly limited detention to the period reasonably necessary to bring about a non-­ citizen’s removal from the United States. The question of statutory authority to detain led, in the light of constitutional demands, to the question of whether the detention period exceeded the period reasonably necessary to secure the non-­citizen’s removal. The majority directed reviewing courts to measure reasonableness primarily in terms of the statute’s basic purpose, namely assuring the alien’s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. (Zadvydas 2001: 699–700)19 In Zadvydas the US Supreme Court directly considered a position closely analogous to that accepted by the Canadian Supreme Court in Charkaoui, and the majority rejected it. The decision Mr. Zadvydas had appealed from, that of the Fifth Circuit, held that his detention did not violate the Constitution because ‘eventual deportation was not “impossible”, good faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review’ (Zadvydas 2001: 685). This description of the Fifth Circuit’s decision reproduces the essential features of the Court’s ruling in Charkaoui. And the US Supreme Court in Zadvydas reversed the decision of the Fifth Circuit.

A coordinated judicial response?   245 The ‘terrorism exception’ in Zadvydas To this point, my account of Zadvydas has omitted comments in the majority judgment that, while made as an aside, addressing circumstances not presently before the court, complicate my characterization of the majority position. The majority expressly allowed for a ‘terrorism exception’. The majority made clear that their ruling that the power to hold a non-­citizen in immigration detention was subject to an implied temporal limitation might not extend to terrorism or other ‘special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security’ (Zadvydas 2001: 696). These comments in Zadvydas clearly bear on the circumstances that were before the court in Charkaoui, and more generally they raise issues about the relationship between the two rationales for detention under the rights-­precluding model, facilitating removal and protection of the community. The suggestion of the Zadvydas majority that ‘special arguments’ might support the preventive ‘immigration’ detention of foreign terrorist suspects cannot be reconciled with the rest of its reasoning. Kennedy J, in dissent, took the majority to task for the incoherence that the ‘terrorism exception’ introduced into its analysis. In my view, Kennedy J correctly characterized the majority’s reasoning: ‘The rule the majority creates permits consideration of nothing more than the reasonable foreseeability of removal’ (Zadvydas 2001: 714). The majority endorsed judicial review of authority to detain with reference to the foreseeability of removal and expressly rejected the proposition that the danger posed by the non-­ citizen was a sufficient ground for ‘immigration’ detention (ibid.: 709). Kennedy J responds to the inconsistency in the majority reasoning by advocating a rights-­precluding approach that embraces protection of the community as a self-­sufficient rationale for immigration detention. He holds that the majority should have reasoned so as to allow for indefinite administrative detention of non-­citizens against whom a final removal order has been issued, a position that would readily accommodate an open-­ended power to detain foreign terrorist suspects. It is worth expanding on Kennedy J’s reasoning, which provides a clear exposition of a judge implementing the rights-­precluding model of immigration detention. In so doing, it outlines the reasoning that underpins a detention regime for terrorist suspects that is confined to non-­citizens, and that confers continuing authority to detain where removal is frustrated. Kennedy J reasons from a much wider conception of the immigration power than the majority, relying explicitly on a protective rationale. He states that ‘the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself ’ (Zadvydas 2001: 713). In the context of the judgment, this is not to say that the risk posed by a non-­ citizen can ground deportation where no equivalent action could be taken

246   R. Thwaites against a citizen posing a similar risk, but that the risk posed by a non-­ citizen can ground his or her detention, where there is no equivalent power to detain a citizen posing a similar risk. The counterpart of this expanded conception of the power to detain non-­citizens is a diminution, to vanishing point, of any right to liberty on the part of non-­citizens. Kennedy J goes on to state, ‘The reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does . . . [the majority in Zadvydas] cannot bring itself to acknowledge this established proposition’ (Zadvydas 2001: 717). In arguing in favor of continuing authority to detain where removal is frustrated, he states: The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens’ return. The risk to the community survives repatriation negotiations. (ibid.: 708) For Kennedy J the underlying proposition is that the community does not have to tolerate the same level of risk from non-­citizens as it does from citizens. Kennedy J effectively reasons from what one academic has called a principle of ‘nationality-­differentiated risk-­acceptability’ (Finnis 2007: 123).20 The inconsistency Kennedy J identifies between the majority’s reasoning and its allowance for a terrorism exception is, in the terms of this chapter, an inconsistency between reasoning that implements the rights-­ protecting model, and a proposal that can only be sustained under the rights-­precluding model. The other way of resolving the inconsistency, contrary to Kennedy J, is to reject the ‘terrorism exception’. If one rejects the stark status-­based distinction between citizens and non-­citizens adopted by Kennedy J, then there is no basis for differentiating between a citizen and a non-­citizen in relation to whom there is no real prospect of removal. Any immigration detention power has to be limited by a ‘reasonable foreseeability’-type criterion, as is the case with the majority in Zadvydas, and in Hardial Singh. In the absence of such a criterion, the connection between detention and removal becomes speculative. The more tenuous the connection between detention and removal, the more reliance is placed on the protective rationale for detention of non-­citizens explicitly adopted by Kennedy J. In Zadvydas the terrorism exception remained irrelevant to the case before the court, and so the incoherence its acceptance would introduce into the majority reasoning, or any judicial response implementing a rights-­protecting model of immigration detention, remained a potential

A coordinated judicial response?   247 future disturbance. But in Charkaoui the terrorism exception was the gist of the case before the Court. The incoherence the exception introduced into the majority reasoning, deferred in Zadvydas, infused the Court’s ruling. In Charkaoui, in contrast to Hardial Singh and Zadvydas, the formulation ‘reasonably necessary for the purpose of deportation’ no longer represented a meaningful purposive limit on the duration of immigration detention. The criterion for judicial review of the connection between detention and removal was weakened dramatically, with ‘reasonable foreseeability’ dropping out of the equation (Bigo and Guild 2007: 116–117).21 The legal position that emerges from Charkaoui effectively replicates Kennedy J’s dissenting position in Zadvydas.22 While the comparative authorities cited in Charkaoui implemented the rights protecting model of immigration detention, Charkaoui itself implemented its competitor, the rights-­precluding model. The Court’s claim to consistency with the comparative authorities was misleading.

Deportation to a real risk of torture The Court’s invocation of Hardial Singh and Zadvydas led them into an extended discussion of a case ‘raising similar issues’: the Belmarsh decision of the House of Lords. The Court’s use of Belmarsh follows the same pattern as its use of Hardial Singh and Zadvydas. The Court claimed that its reasoning was compatible with the reasoning in Belmarsh, but on closer scrutiny the claim of compatibility is unsustainable, papering over a more fundamental divergence in the reasoning on the legality of indefinite immigration detention. The Court did not directly confront the substantive proposition central to Belmarsh, namely that where their removal is barred, the decision to detain only non-­citizens is arbitrary. Indeed, the Court appeared to indicate its assent to this position (Charkaoui 2007: paras. 126 and 130). But it argued that the circumstances presently before the Court could be distinguished from the circumstances in Belmarsh. The Court found that in the cases before it, removal was not ‘impossible’, had not been ‘put off ’ to a degree that broke the ‘hinge’ between detention and deportation, and that the detention regime was not being used to detain the appellants on security grounds (Charkaoui 2007: paras. 130–131). To take these findings in turn, to hold that detention maintains a connection with deportation until the point at which it can be categorically pronounced ‘impossible’ is to adopt a rights-­precluding model of immigration detention for the reasons given in the above discussion of Hardial Singh. The most straightforward reply to the question of whether deportation had been ‘put off ’ is that one of the appellants, Mr. Almrei, had been detained for over five years, and a judge of the Federal Court had made a finding that Mr. Almrei would not be removed within a reasonable time (Charkaoui 2007: para. 102) As discussed in the comparison

248   R. Thwaites with Hardial Singh, to maintain authority to detain in the face of such a finding is again to commit to the rights-­precluding model of immigration detention. The Court’s determination that those certified under the security certificate regime were being held on immigration, not security, grounds is addressed in the comparison with the Belmarsh decision. As is developed in what follows, the distinctions the Court drew between the circumstances before it, and the circumstances before the House of Lords in the Belmarsh case, are unconvincing. The Court gave legal sanction to a regime that was the equivalent of that rejected by the House of Lords in Belmarsh. Suresh To explain the relationship between Charkaoui and Belmarsh, reference has to be made to the 2002 decision of the Court on the legality of deportation to torture, Suresh (Suresh v. Canada (Citizenship and Immigration) 2002). Mr. Suresh was a citizen of Sri Lanka, who argued that he faced a substantial risk of torture if returned there. He argued that s. 7 of the Charter precluded deportation to torture, and further argued that the statutory scheme for deportation on security grounds contained inadequate procedural safeguards against deportation to torture. The Supreme Court held that the statutory provision for deportation on security grounds where there was a real risk of torture was constitutional, but that in exercising his discretion the minister had failed to meet the procedural requirements demanded by s. 7 of the Charter (Suresh 2002: para. 130). The decision to deport was remanded to the minister for reconsideration. The primary aspect of Suresh critical to subsequent jurisprudence on immigration detention is the Court’s failure to rule that s. 7 of the Charter prohibits deportation to torture. The Court gave extensive consideration to Canadian and international authority, and seemed to be reasoning its way toward an absolute prohibition on deportation to torture, only to veer away from this conclusion at the last moment (Suresh 2002: paras. 58 and 78; Roach 2005: 569–572, 575–576). In the result, the Court left open what has been called the Suresh exception, concluding, ‘We do not exclude the possibility that in exceptional circumstances, deportation to torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1’ (hereafter the Suresh exception) (Suresh 2002: para. 78). In its rejection of an absolute bar on deportation to torture under the Charter, Suresh furnishes a stark contrast with the evolving jurisprudence of the ECHR, as constituted by Chahal (Chahal v. United Kingdom 1996) and reaffirmed in Saadi (Saadi v. Italy 2008).23 Suresh furnishes a stark example of two jurisdictions, Canada and the European member states, failing to coordinate responses around a common norm expressed in absolute terms, the United Nations Convention against

A coordinated judicial response?   249 Torture. This episode is a counter-­example to Benvenisti’s claim that for national courts responding to counter-­terrorism measures, ‘international law, as a source of collective standards, becomes a most valuable coordination tool’ (2008a: 273). Suresh has deeper implications for Benvenisti’s thesis. In developing an account of ‘the emerging judicial philosophy concerning the review of counterterrorism measures’ (Benvenisti 2008a: 263), Benvenisti’s third ‘and most far reaching explanation’ for the courts’ assumption of an authority to intervene is their assertion of a role as ‘expert balancers’ (ibid.: 265). Benvenisti clearly presents this explanation for authority to intervene as part of a judicial self-­perception of the courts as guardians of human rights (ibid.: 266–268). But in Suresh it is the Court’s insistence on balancing that qualifies what had, in the European jurisprudence, been treated as an absolute prohibition on deportation to torture. Some rights are unqualified, the prohibition on deportation to torture under the Torture Convention being a clear example. In such instances, holding that the right is appropriately made subject to judicial expertise in balancing weakens, rather than strengthens, the protection afforded by the right. This is what happened in Suresh. In Suresh the absolute prohibition on deportation to torture at international law was treated as no more than a factor to be given weight in the Charter analysis. And under the Charter all rights are potentially qualified by s. 1.24 Arguably, the real legacy of the Suresh exception has been to maintain a connection between detention and deportation so as to allow the detention to be characterized as ‘immigration’ detention. The Court in Suresh sent mixed messages on the possibility of deportation to torture. The Court offered little encouragement for the view that ‘exceptional circumstances’ justifying deportation to torture might ever be made out. Having allowed for the possibility of deportation to torture, the Court emphasized that it was an extraordinary possibility given that ‘torture and violations of human rights [are matters] in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit’ (Suresh 2002: para. 120). In the interval since Suresh there has been no case law development to suggest that courts would ever justify the Suresh exception. In all but one case the Federal Court has quashed ministerial decisions to deport in circumstances where there was a prima facie risk of torture, doing so on administrative law grounds that made it unnecessary to determine whether the Suresh exception was established.25 In the one case where the application of the Suresh exception was considered and determined, a judge of the Federal Court held that the minister could not exercise discretion to deport to torture.26 In summary, the Suresh exception does not in fact lead to deportation to a real risk of torture. Its principal consequence has in fact been to maintain the characterization of detention under the security certificate regime as ‘immigration’ detention. The effect of the Suresh exception on Canadian legal reasoning

250   R. Thwaites is that for as long as the constitutional possibility of deportation to torture remains unresolved, the possibility of deportation remains. This in turn allows for an argument that the indefinite administrative detention of non-­citizens is ‘immigration’ detention and therefore constitutionally permissible.

Does a real risk of torture break the ‘hinge’ between detention and deportation? Belmarsh was a challenge to the lawfulness of the immigration detention of foreign terrorist suspects whose deportation was barred by a real risk of torture on return to their respective countries of citizenship. A majority of the House of Lords held that an absolute prohibition on deportation to torture broke the connection between detention and deportation. This meant that detention could no longer be characterized as immigration detention, but fell to be assessed as a security measure confined to non-­ citizens. For reasons detailed below, a majority of the House of Lords held that there was no rational connection between security objectives and the decision to confine the detention measures to non-­citizens, and that the measures were discriminatory against non-­citizens. In Charkaoui the Court distinguished Belmarsh on the grounds that there is no legal possibility of deportation to torture under the law of the United Kingdom (Charkaoui 2007: paras. 125–126). As such, the detention of non-­ citizens under the legislation considered in Belmarsh ‘lost its character as an immigration provision, and hence constituted unlawful discrimination’ (ibid.: para. 126, and see para. 130). The question is why this serves to distinguish detention under the Canadian security certificate regime. The answer is that in Canadian law the Suresh exception applies, and there is no absolute legal barrier on deportation to torture. The Court’s reasoning in relation to Belmarsh confirms the vital role of the Suresh exception in insulating the indefinite detention of non-­citizens under the security certificate regime from charges that it was discriminatory, and so unconstitutional as in violation of s. 15 of the Charter. In Charkaoui the Court emphasized that the legislation considered by the House of Lords in Belmarsh expressly provided for indefinite detention (Charkaoui 2007: para. 130).27 However, this is not a compelling basis on which to distinguish Belmarsh. To see this, we have to understand why the UK legislation so provided. By articles 3 and 15(2), the ECHR, given domestic effect by the Human Rights Act 1998, provides for an absolute, non-­derogable prohibition on deportation to torture.28 Further, when a non-­citizen’s deportation is precluded by the prohibition on deportation to torture, the United Kingdom’s authority to detain the person is subject to the ECHR’s guarantee, in article 5, of ‘liberty and security of the person’.29 In order to secure the detention of non-­citizens whose removal was precluded by article 3, the United Kingdom entered derogation from

A coordinated judicial response?   251 30

article 5. The legislation considered in Belmarsh was enacted in reliance on this derogation from article 5. It was the existence of an unequivocal legal prohibition on deportation to torture that required the United Kingdom to expressly provide for indefinite immigration detention, supported by derogation. For the Court to focus on the fact that the UK legislation expressly provided for indefinite immigration detention is to focus on a secondary phenomenon. The primary distinction between the two contexts is that in Canada, Suresh establishes that there is no absolute prohibition on deportation to torture. Charkaoui assessed in the light of Belmarsh In failing to overrule the Suresh exception, the Court sanctioned a detention regime that clearly discriminates against non-­citizens, and is best regarded as in breach of the Charter. The central importance of the possibility of deportation to torture can be illustrated by asking what would follow if the Supreme Court overruled the Suresh exception. In my view, Belmarsh would then be persuasive authority that detention under the security certificate regime, in situations where there is no prospect of removal, is unconstitutional. In Belmarsh the House of Lords addressed the substantive legal objections to indefinite detention of non-­citizens in the context of their judgment on two issues. The first was the lawfulness of the United Kingdom’s derogation from article 5. The lawfulness of derogation from the ECHR is assessed against the criteria contained in article 15. In addition to the existence of a public emergency, one of the criteria for a lawful derogation under article 15(1) is that the measures in the derogation be ‘strictly required by the exigencies of the situation’. For our purposes this criterion mandates a legal inquiry analogous to that required under s. 1 of the Charter, where a Charter right is held to have been infringed. The House of Lords also considered the substantive legality of indefinite detention in its judgment on the appellants’ claim that the detention measures were discriminatory under article 14 of the ECHR. The arguments in relation to proportionality and discrimination were two sides of the one coin: “The distinction which the government seeks to draw between these two groups – British nationals and foreign nationals – raises an issue of discrimination. But, as the distinction is irrational, it goes to the heart of the issue about proportionality also” (Belmarsh 2004: para. 132, per Lord Hope). In Belmarsh the majority held that the detention provisions were not ‘strictly required’, and were discriminatory on grounds of national origin. The majority adopted the tribunal’s finding at first instance, that the class of foreign terrorist suspects was only a subset of terrorist suspects in the United Kingdom. On the basis of this finding, the majority held that the class of non-­citizen terrorist suspects was not a good proxy for the class of

252   R. Thwaites terrorist suspects, and that the decision to confine detention measures to non-­citizens was both under-­inclusive and discriminatory. The majority reasoned that if the detention measures, allowing for indefinite and potentially permanent detention, were not required for terrorist suspects who were citizens, they could discern no reason why they were required for those who were non-­citizens. In relation to the decision to confine the measures to non-­citizens, Lord Nicholls stated, ‘[I]n the present case I see no escape from the conclusion that Parliament must be regarded as having attached insufficient weight to the human rights of non-­nationals’ (Belmarsh 2004: para. 81). The House of Lords quashed the derogation order and issued a declaration holding the detention provision to be incompatible with both articles 5 and 14 of the ECHR. These conclusions would be persuasive authority if the Court squarely confronted the issue of a real risk of torture on return to one’s country of citizenship, pervasive in the security certificate context, and closed off the Suresh exception. If the Court acknowledged a prohibition on deportation to torture, this would sever the connection between detention and deportation, so bringing to an end the characterization of detention as immigration detention. It would then be clear that the security certificate regime is in effect operating as a preventive detention regime confined to non-­ citizens (Thwaites 2009: 695–696). Stripped of an immigration rationale, the regime would be exposed as discriminating against non-­citizens, so infringing s. 15, and the inquiry would move to whether it was justified under s. 1 of the Charter. Like the House of Lords, under s. 1 of the Charter the Court would presumably consider security as a possible justification for the detention provisions. Here there would arise issues of rational connection analogous to those considered in Belmarsh. Why are the security detention measures confined to non-­citizens? Even if the Court deferred to the government on the question of rational connection, it would still have to address the question of whether there were more proportionate means for the state to protect itself from terrorist suspects than security certificate detention. Once the Court rejected the characterization of the measures as immigration detention, and entered into a s. 1 analysis, it is likely it would arrive at a result equivalent to that arrived at by the House of Lords, holding that the detention measures were discriminatory in violation of s. 15 of the Charter and could not be justified under s. 1. There is a close relation between the Court’s acceptance that a speculative future possibility of removal was sufficient to maintain the necessary ‘hinge’ between detention and deportation, and the Court’s reliance on the proposition that a real risk of torture does not preclude the possibility of removal. The idea that an absolute prohibition on deportation to torture breaks the necessary ‘hinge’ between detention and deportation relies on the existence of a finite temporal horizon within which the connection between detention and deportation falls to be assessed. A judge

A coordinated judicial response?   253 following the rights-­protecting model of immigration detention unequivocally commits to such a temporal limit. It is always possible that at some future point in time a non-­citizen’s country of nationality may abstain from torture, or that a country other than his or her country of nationality may accept the non-­citizen. Such possibilities might suffice to justify indefinite immigration detention on the rights-­precluding model. By way of contrast, on the rights-­protecting model there would need to be persuasive evidence that this is a real prospect within a reasonably foreseeable period of time, otherwise the connections these possibilities offer between detention and deportation would simply be too tenuous to support continued authority to detain. In practice the Canadian Federal Court has ordered the release of individuals held on security certificates on the second, third, or fourth periodic review of their detention provided for under the IRPA.31 The orders for release have been given on onerous conditions amounting to house arrest. In the judgments granting release, the courts accept the government’s claim that the individuals still pose a threat to national security, but hold that the threat can be ‘neutralized or contained’ by an extensive series of restrictive conditions.32 This reasoning indicates a shift toward what the courts intend to be a less onerous detention regime. The judges acknowledge that ‘[s]tringent release conditions seriously limit personal liberty’, but they are viewed as ‘less severe than incarceration’.33 This practice of release on conditions has, since Charkaoui, been endorsed in the statute (IRPA 2008: s. 82(5)). These Federal Court decisions on release are intended to ameliorate the burden of immigration detention. Whether they do or not is a genuinely open question. One of those against whom a security certificate was issued, Mr. Mahjoub, has been returned to detention at his request, owing to the adverse impact his release conditions were having on his family (Canada (Citizenship and Immigration) v. Mahjoub 2009).34 The onerous conditions imposed on release also leave unresolved the use of the security certificate regime as a ‘mechanism of removal’ in circumstances where there is no real prospect of removal within a reasonably foreseeable time. The question of why a regime depriving individuals of liberty is confined to non-­citizens remains. And for as long as the Suresh exception remains part of Canadian law, those ‘released’ still have to live with the prospect of being returned to torture in their country of nationality. In Charkaoui the Court deferred its decision on the substantive reality before it, a preventive detention regime confined to non-­citizens. The Court opted to avoid setting any firm limits on the government’s freedom of action, neither establishing an absolute prohibition on deportation to torture nor setting any temporal limits on immigration detention. Instead, the Court devoted its energies to assessing and augmenting the procedural rights of those caught up in the security certificate regime, a regime whose ostensible purpose, removal, had, after many years, yet to be

254   R. Thwaites effected.35 The ability of the non-­citizens named under the security certificate regime to challenge the government case was marginally improved as a result of the Court’s ruling in Charkaoui. But in focusing its energies on fixing procedures, the Court avoided addressing the prospect that it was trying to fix an unfixable regime. As stated by a commentator on judicial responses to counter-­terrorism in the United States, ‘To the extent that seemingly fair procedures distract people from unfair substantive outcomes, these uses of procedure may be dangerous . . . the legitimizing role that procedure plays in perceptions of justice may be part of the problem, not the solution’ (Martinez 2008: 1087). The question remains as to why a regime that effectively operates as a preventive detention regime should be confined to non-­citizens. The Court’s response to this question was to maintain that immigration provided the appropriate legal frame for the security certificate regime, on the basis that a speculative possibility of removal is sufficient to characterize detention as immigration detention, where that speculative possibility rests on the possibility of deportation to torture.

Conclusion The Court in Charkaoui abstracted from the reasoning of relevant decisions of the English courts and the United States Supreme Court (Hardial Singh and Zadvydas respectively) until it arrived at a criterion – detention must be ‘reasonably necessary for deportation purposes’ – that was employed in those comparative authorities. But the central legacy of those comparative decisions has been that the proper approach to statutory construction of a power to detain non-­citizens ‘pending removal’ is to read it as limited by the requirement that there be a real, non-­speculative prospect of removal within a reasonable time. This is precisely what the Court did not hold in Charkaoui. The Court in Charkaoui also relied on its previous departures from both comparative rights jurisprudence and international law (Suresh) to invoke unsustainable distinctions with comparative authorities that were directly on point (Belmarsh), claiming compatibility with them on that basis. As to why the Court expresses its affiliation with these ‘rights-­ protecting’ authorities while departing from their reasoning, I can only speculate. It may be that, not forced to confront an absolute legal prohibition on removal, the Court opted for a less confrontational, procedural route and viewed this as equivalent. If so, this suggests problems with both dialogic36 and procedural37 judicial approaches in the area of counter-­ terrorism. Benvenisti’s claim of inter-­judicial cooperation is a strong one. He states that the courts have reacted ‘consistently’ to counter-­terrorism measures. His account of the logic underlying inter-­judicial coordination speaks to coordination in the level and scope of rights protection (2008a: 272, 275; 2008b: 249). The comparison between Belmarsh and Charkaoui serves as a

A coordinated judicial response?   255 counter-­example to such claims of coordination. The claims of the Court in Charkaoui to consistency or compatibility with Belmarsh obscure a more fragmented and divergent judicial response across jurisdictions. The courts of the two jurisdictions, while sharing, in some loose sense, an understanding of what is the appropriate response to state counter-­ terrorism measures, arrive at very different conclusions on the ‘specific content of the norms’ at issue. A person wishing to stress the commonalities between Belmarsh and Charkaoui could validly argue that they both depart from a position of judicial acquiescence to political demands in the area of national security. It is just that the House of Lords, pushed by an express statutory authorization of indefinite detention, held such detention to be incompatible with the relevant rights instrument, while the Canadian legal context (the absence of an absolute prohibition on deportation to torture, and no express statutory authorization of indefinite detention) left the Court with the option of focusing on a less confrontational procedural solution, dealing with detention on a case-­by-case basis. But even if one accepted that the decisions are animated by a common judicial ethos, namely a departure from judicial acquiescence in national security matters, the questions then arise ‘How much of a departure?’38 and ‘What is the specific content of the relevant norms?’ In the result, in the United Kingdom there is a clear judicial statement that indefinite detention measures confined to non-­citizens are not immigration measures and are incompatible with the relevant human rights instrument, while in Canada there are firm indications to the contrary. This matters to those subject to the law. And it runs counter to the bold claim of a coordinated judicial response.

Acknowledgments This chapter has benefited from Karen Knop’s comments, and from those of Lindsay Aagaard, Audrey Macklin, and Anastassia Tsoukala on an earlier draft.

Notes   1 While Benvenisti often presents this claim as a suggestion, at other points he unequivocally states that there has been a consistent and coordinated judicial response to state counter-­terrorism measures; see, for example, Benvenisti (2008a: 275–276).   2 Audrey Macklin’s chapter in this volume, Chapter 12, can also be read as raising doubts about the claim.   3 The short name for the second of these cases, Belmarsh, is that of the prison where the detainees were held. For Benvenisti’s comments on Belmarsh, see Benvenisti (2008a: 253–254 and footnote 49) and Benvenisti (2008b: 254–255). On Charkaoui, see Benvenisti (2008a: 262–263 and footnote 71), Benvenisti (2008b: 255 and footnotes 61 and 66), and Benvenisti and Downs (2009: footnote 22).

256   R. Thwaites   4 Benvenisti does not state a view on the legality of the indefinite detention of non-­citizens. But the tenor of his account suggests that the phenomenon of judicial coordination he discerns and champions is supportive of a principled defense of civil liberties. This would militate against the legality of indefinite detention, at least pursuant to an immigration rationale.   5 SC 2001, c.27, as amended by SC 2002, c.8; S.C. 2005 c. 38 [IRPA]. This was the version of the IRPA considered in Charkaoui. Subsequent section changes are cited to IRPA, ibid., as amended by SC 2008, c.3 [IRPA-­2008].   6 IRPA, s. 78 (IRPA-­2008, s. 83) sets out reasonableness hearing procedures that are designed to address concerns about the disclosure of confidential national security information. A judge can convene hearings at the request of the government from which the named individual is excluded and can rely on material disclosed in such a hearing without providing it either to the named individual or to anyone charged with representing him.   7 A warrant issued by the minister was required for the arrest of a permanent resident (IRPA, s. 82(1)), while no warrant was required for the arrest of other non-­citizens (ibid., s. 82(2)). A warrant is now required for all non-­citizens: IRPA-­2008, s. 81.   8 IRPA, s. 84(2). The IRPA distinguished between permanent residents (s. 83) and other non-­citizens (foreign nationals) (s. 84(2)). Charkaoui struck down the more onerous provisions relating to foreign nationals and assimilated their position to that of permanent residents: cf. IRPA-­2008, s. 82.   9 The Supreme Court’s decision in Charkaoui was an appeal from three cases of the Federal Court of Appeal involving the plaintiffs Mr. Charkaoui, Mr. Almrei, and Mr. Harkat. The Supreme Court heard the matters together over three days in June 2006, delivering a unanimous judgment on 23 February 2007. 10 Section 7 of the Charter reads, ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ 11 Section 15(1) of the Charter reads, ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’ 12 For an account of the Court’s reasoning on the procedural issues, and the legislative response, see Audrey Macklin’s chapter in this volume (Chapter 12) and Roach (2008). 13 The Court made it clear that the constitutionality of the regime was dependent on the procedural guidelines laid out in the judgment being adhered to: Charkaoui at para. 123. 14 The principles established in this case have been approved by the Privy Council in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre (1997: 111–112) and by the House of Lords in R. v. Secretary for the Home Department; ex parte Saadi (2002: 793). 15 See, for example, the endorsement of the Hardial Singh principles in the Australian case Minister for Immigration v. Al Masri (2003) and that judgment’s extended discussion of common law authorities discussing those principles. 16 All those held under the security certificate regime have now been released under conditions from detention in a facility. This does not address the highly restrictive nature of conditions on release, discussed later in this chapter. 17 See, for example, Canada (Citizenship and Immigration) v. Mahjoub (2005) 270 (Mahjoub’ second application for release) and Almrei v. Canada (Citizenship and Immigration) (2005). 18 Before 11 September 2001 there was Zadvydas, discussed in the text later in the chapter. Since 11 September 2001 there have been the Australian case Al-­Kateb

A coordinated judicial response?   257 v. Godwin (2004), Belmarsh (House of Lords), and the New Zealand case Zaoui v. Attorney-­General [2005] 1 NZLR 577 (New Zealand Court of Appeal and New Zealand Supreme Court), in addition to Charkaoui. For commentary on the comparative jurisprudence, see Wilsher (2004), Ip (2007), and Thwaites (2009). 19 On the basis that it would assist in the uniform administration of the detention period in the courts, the US Supreme Court went on to state that detention was presumptively valid for six months. As it was no more than a presumption, a non-­citizen could be held for longer ‘until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future’: Zadvydas at 701. 20 The language of ‘risk to the community’ in Zadvydas simply picks up the wording of the statutory provision under consideration. Where Kennedy J differs from the majority and aligns with Finnis is the extent to which he effectively endorses ‘risk to the community’ as a constitutional rationale for detention of non-­citizens, independent of the prospects of removal: see, for example, ‘the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself ’: Zadvydas at 713. 21 Bigo and Guild’s concern is with the abandonment of any concept of reasonable foreseeability with reference to the threat to national security. Mine is with the converse, the abandonment of any concept of reasonable foreseeability with reference to the prospect of removal (where that prospect serves to justify detention). 22 See, for example, the rejection by the majority in Zadvydas of a procedural solution to indefinite detention: Zadvydas at 696. This is expressed in reaction to Kennedy J’s dissenting reasoning (ibid. at 722–724). The reliance on procedures in Charkaoui aligns with Kennedy J’s position. 23 See further Macklin’s chapter in this volume (Chapter 12). 24 Section 1 of the Charter is a limitation provision stating, ‘The Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ 25 For examples, see Mahjoub v. Canada (Minister of Citizenship and Immigration) (2005) (re first deportation decision), Mahjoub v. Canada (Minister of Citizenship and Immigration) (2007) (re second deportation decision), and Almrei v. Canada (Minister of Citizenship and Immigration) (2005) (re second deportation decision). The fact that the Suresh exception has not led to deportation to torture does not rest on unwillingness by the minister to issue statements seeking deportation to torture. The Canadian government has issued decisions (under s. 115 of the IRPA) that sought deportation to countries where it accepted that there was a real risk of torture, in reliance on the Suresh exception. But the Federal Court has invariably found the reasoning in support of these decisions to be defective such as to lead to their being quashed on administrative law grounds. See further Thwaites (2009: 693–696). 26 Re Jaballah (2005: para. 85). 27 The Anti-­Terrorism, Crime and Security Act (UK) 2001, c. 24, s. 23 provided for detention of a foreign terror suspect ‘despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely)’. 28 The ECHR, art. 3 provides that ‘[n]o one shall be subjected to torture or inhuman or degrading conduct’. The European Court of Human Rights read this as imposing an absolute prohibition on deportation to torture in Chahal v. United Kingdom (1996); aff ’d Saadi v. Italy (2008). Under the ECHR, art. 15(2) provides that this right is non-­derogable.

258   R. Thwaites 29 The ECHR, art. 5(1)(f ), creates an exception for the ‘lawful . . . detention . . . of a person against whom action is being taken with a view to deportation’, but this exception does not apply if the person’s deportation is precluded by art. 3: Chahal (1996). 30 The derogation was effected in domestic law by an order tabled before Parliament: The Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644 (UK). The derogation was made under the ECHR, art. 15, and had the domestic law consequences described in the Human Rights Act, ss. 1(2), 14. The derogation was said to be justified by the public emergency, threatening the life of the nation, in the form of Al-­Qaeda. 31 The blurring of immigration and criminal law functions, and the resulting complexity, are evident in the legal arrangements for detention of those named in a security certificate, at the Kingston Immigration Holding Centre, a building within Millhaven Federal Prison outside Kingston, Ontario. The operation of the facility is governed by a Memorandum of Understanding between the Correctional Service of Canada (CSC) and the Canada Border Services Agency (CBSA). This contract makes the CSC a ‘service provider’ for the CBSA, the ‘detention authority’, and sees the CSC centrally involved in arrangements that have nothing to do with the criminal justice process: see Larsen and Piché (2009). 32 See the language in: Re Charkaoui (2005: para. 78), Harkat v. Canada (Minister of Citizenship and Immigration) (2007: para. 82), and Mahjoub v. Canada (Minister of Citizenship and Immigration) (2007a: para. 139). 33 Jaballah v. Canada (Minister of Public Safety and Emergency Preparedness) (2007: para. 70). 34 Blanchard J confirmed Mr. Mahjoub’s request to return to detention. For a detainee’s perspective on the release conditions, see Larsen et al. (2008: 40–42). 35 For a critical discussion of the Court’s attempt to arrive at a procedural ‘solution’ to indefinite detention, see Thwaites (2009: 703–706). 36 For misgivings about the influence of ideas of dialogue in the counter-­terrorism area, see Roach (2005: 575–576). 37 On the adverse implications of procedural solutions to substantive rights issues in the US counter-­terrorism context, see Martinez (2008: 1031): ‘First, by delaying ultimate resolution of rights claims, it has allowed serious violations of human rights to continue for years. Second, this approach has foreclosed many rights based challenges without considering the merits of those challenges.’ 38 Benvenisti attends to the varied forms of response open to the judiciary in response to requests for judicial review of executive action, referring to this as the ‘ladder of review’ (2008a: 255–263; 2008b: 256–258). What needs further exploration is whether, and if so how, this variation can be reconciled with judicial consistency with respect to the specific content of the norms in question.

14 The other transatlantic Policies, practices, fields Mark B. Salter and Can E. Mutlu

Inspired by Walker’s provocative statement that “Europe is not where it is supposed to be” (2000), we can ask a parallel question: Where is the transatlantic? The memories of Cold War provided a particular political and economic geo-­imaginary of Europe and its location in the world. The “transatlantic dialogue” was understood as a post-­war Western European and American connection institutionalized through NATO. While for a brief period in the 1990s the triumphant neoliberal agenda replaced security with a political agenda of democratization and an economic agenda of liberalization, today, to the backdrop of collapsing buildings and exploding train stations, a new type of insecurity is forcing us to reconsider the meaning of the transatlantic dialogue. This security-­ oriented re-­imagination has provided room for another, albeit quieter, voice: Canadian–EU cooperation. The authors in this collection are guided by the circuits of practice, the routes of policy formation, the communities of professionals who are creating and institutionalizing this new dialogue. By way of conclusion, we first question what is meant by otherness and transatlanticism, develop a clear map of the causes for these newly intense relationships, and sketch some consequences of the new connections. Even with the slight relocation of transatlanticism, we must admit that the view presented within this volume reaffirms a Northern-­centric view of the Atlantic (and its overcoming). We do not talk here of the long history of Cuban–Angolan relations, the petro-­diplomacy between Venezuela and Nigeria, or even the longitudinal cooperation between Europe and its postcolonial developed partners on security matters (including a security– development complex that involves the digitization of identity systems with Western technology, subsequently readable by Western intelligence agencies). The “other” in this new security triangle trade is the United States, and there is a particular logic to displacing the architect of the war on terror in our analyses. Many analysts assume that the United States has a dominant and determinative role in shaping European and Canadian policies, following traditional and critical understandings of hegemony. But an actual tracing of the circuits of policies points to a more complex

260   M. B. Salter and C. E. Mutlu pattern. We are precisely not saying that the role of the United States is not important or even paramount in developing some of the key security practices and meanings in the current era. Both the European Union and Canada play secondary roles in the United State’s global imaginary: important, allies, but not primary markets. American engagement with Canada and the European Union (as an institution, not a region) occurs often at that middle level, bureaucracy to bureaucracy, that we are interested in. But, rather, we argue that if we focus solely on the United States, then we often mistake intention for invention, hegemony for consensus, and cooperation for consent. Hobbing’s, Newman’s, and Pawlak’s discussions of privacy regimes illustrate this point clearly: while American security-­driven norms have come to be ascendant in the data transfer of traveler data, Canada–European Union norms have the potential and the space to re-­imagine new norms that are mediated more by constitutional and human rights concerns. Macklin’s chapter on transjudicial conversation and Koblanck’s chapter on the multilateralism that enables the policy of extraordinary rendition also paint a very specific picture: international norm convergence is not solely for the benefit of the United States. In this sense, we see that political, bureaucratic, or juridical networks, and indeed policy systems, are not confined to national boundaries of sovereigns. We follow Sassen in identifying the disaggregation of policy-­ making power among internal organs of government (2006). However, we also connect those new assemblages of power with new conceptions of identity, new constellations of self/other. While hegemonic constructions of national identity and even civilizational identity were mobilized in the aftermath of the Cold War, the constructions of self/other are increasingly drawn along political lines that are much more attentive to political affinity than national origin. In this sense, the otherness of the European Union–Canada relationship is not so much non-­Western as a different part of the Western tradition, one that puts liberty at the heart of security, rather than in some kind of balance. There is another kind of otherness at the heart of these security practices: the new relationship between the state and its other, non-­state actors. In addition to NGOs that promote human rights, these chapters have also identified private actors (see also Abrahamsen and Williams 2008). Indeed, within the complex of aviation security or intelligence processing, a strict line between state and non-­state security providers does not make analytical sense. Maps highlight the visual relationship between objects, regions, or themes. Through the presentation of different security practices and policies, this book has presented an updated map of the new transatlantic security dialogue: a tripartite structure involving Canada, the European Union, and the United States. While the Atlantic remains a geographical division between Europe and the Americas, the mapping of this new transatlantic relationship is not solely dependent on the “who” and the “where” questions. This new cartography relies equally on the policies and

The other transatlantic   261 practices to determine the cause, strength, and scope of relationships. In that light, the Atlantic becomes a connection instead of a division and the transatlantic becomes a dialogue instead of a location. This point becomes clearer in the Canadian case. Canada as a country placed – culturally, economically, historically, geographically, legally, and politically – between a problematical European tradition and an equally troubling “American” future is in many ways located in the middle of the Atlantic. For the most part, however, the role of Canada–European Union relations remains secondary, both in academic works and in policy analysis, to the other transatlantic dialogue between the United Kingdom and the United States. While certain anti-­terrorism policies and practices were adopted in the United States and the European Union initially, as Scherrer’s and Thwaites’s chapters in this book have demonstrated, those “best” practices have either made their way to Canada or been partly created through a dialogue that involved Canada as a major actor. As the policy outcomes of this tripartite transatlanticism are an important reality that shapes a multitude of practices affecting the daily lives of many, on both sides of the Atlantic, it is more important now than ever to map the factors shaping this new transatlanticism to understand the causes and consequences of this renewed dialogue. This new transatlanticism is transforming the existing mandate of the European Union and the scope of its jurisdictions. Expansion of the size and influence of the Justice and Home Affairs pillar, established by the Maastricht Treaty, is a testament to the changing nature of the European Union. This renewed mandate, however, goes against the original “constitutional prerogatives” of the Union as a polity that exclusively dealt with issues related to agriculture, exchange rates, trade, production and monetary policy, foreign aid, and trade-­related environmental, consumer, and competition policy (Moravcsik 2002). Yet as seen by policies on immigration, asylum, judicial cooperation, trafficking, and data protection, nowadays the European Union has considerable impact on shaping national policies in those policy areas as well. Similarly, the binding decisions of the European Court of Justice and European Court of Human Rights – albeit a non-­EU institution – result in a certain kind of “European” practices to be implemented by member states, challenging traditional boundaries of the European Union’s relation with its members. Similarly, establishment of the Schengen zone facilitating the “four freedoms” has provided the Union with a great deal of responsibility and power to shape border management and security policies of its member states. In other words, the European Union, now more so than ever, is in the business of providing a particular kind of internal security, one that requires certain kinds of policies that transform the established jurisdictions of the Union. This change became more concrete with the newly ratified Lisbon Treaty, which eliminates the “three-­pillar” structure and replaces it with a unified European Union. Under the Lisbon Treaty, security practices and policies of the

262   M. B. Salter and C. E. Mutlu Union – both policing and military – will be placed under the responsibility of the High Representative for Common Foreign and Security Policy. These supranational policies, however, are not solely defined in relation to internal constraints imposed by the member states but rather also by the external constraints of the international system. There were a number of obvious immediate consequences of the war on terror for Canada, including the adoption of “smart border” initiatives, the creation of the Canadian Air Transport Security Authority, and the amalgamation of a number of separate ministries and departments into the new Public Safety Ministry. While American criticism of Canadian asylum, refugee, and multicultural policy has had a lesser impact, the Canadian government has been reconsidering its positive duty to protect its citizens, as demonstrated by the Omar Khadr case (a Canadian national currently imprisoned in Guantánamo Bay) and in the case of dual nationals (the evacuation of Canadian–Lebanese dual nationals during the recent strife led the citizenship minister to speculate publicly about the duty to protect dual citizens). Thus, while charting a different path for Canada in the face of the global war on terror, the Canadian government is plainly also using the opportunity to test the value of citizenship itself. This move can also be seen in Canada’s first ever national security policy, Securing an Open Society, published in 2002. While the tone of the document attempts to include Canada’s investment in the rule of law and cultural diversity – a crucial part of its mandate (i.e. to lose that through security measures would be to lose an important part of Canadian identity) – what gets counted as security vastly increases: critical infrastructure, pandemics and public health, and multiculturalism are all treated as security matters, an expansion that is institutionally expressed in the new Ministry of Public Safety, which includes the Public Health Authority of Canada, the Canadian Secret Intelligence Service, the Royal Canadian Mounted Police, the Canada Border Services Agency, the Communications Security Establishment, and the cultural roundtable. We see in Macklin and Thwaites that Canadian justices are also playing an important role in the global framing of norms. Hobbing makes the strong case that the Canada–European Union passenger name record (PNR) agreement represents a better protection of rights and liberties (i.e. better than the American one), but the transparency of this breed of agreement is up for debate. The response to the new “Passenger Protect” program, administered by Transport Canada under the authority of the Aeronautics Act, is a case in point: there were no public consultations on the “made-­in-Canada” no-­fly list, and reaction to it from privacy commissioners and other groups indicated the degree of skepticism in civil society, but to no avail. Indeed, in the Canadian case we must ask about the role of civil liberties organizations, as important as they are in the British and Hungarian cases demonstrated in earlier chapters. While the provincial and federal privacy commissioners – the BC Civil Liberties Union, the Canadian Internet Policy and Public

The other transatlantic   263 Interest Clinic, and the International Civil Liberties Monitoring Group – are active in public and policy discussions, the network of these kinds of groups is thin in Canada. The global war on terror has clearly shaped the Canadian landscape, even as it charts a fundamentally different path from the European and American counterparts, but the counterpart to the dominant state-­centric voice is not yet mature, coherent, or organized. Since 9/11 the importance of the dialogical process that has shaped transatlantic security policies and practices has increased significantly. Somewhere between American determination to achieve total security, European resolution – which is a source of debate within Europe (Habermas 2006; Levy et al. 2005) – to maintain rights and freedoms intact, and Canadian aspirations to maintain normal relations with both the European Union and, more importantly, the United States, lie the paradoxical origins of post-­9/11 security policies and practices. The liberty–security relationship is in fact both the very foundation of and the core tension within this new transatlanticism. The creation and maintenance of these new security practices result from the definition of the threat as exceptional – while those exceptional practices in return infringe established rights and freedoms. As the cases in this volume have demonstrated, in the case of post-­9/11 transatlantic security measures, practice and exception equally define the norm. Onto this backdrop of exceptional politics, new sets of policies and practices were implemented to meet a threat that has no natural policy avenue: fraudulent passports yield tamper-­proof documents, visa fraud begets an electronic authorization system, but what can detect or deter terror suspects? The underlying threat of anti-­Americanism or anti-­Westernism is as yet undetectable by technological means. It is this difficulty of detecting or determining the identity of terror suspects that results in certain policies and practices that attempt to describe a kind of security that is dependent on the loss of liberty. The uncertainty over the location and intent of those suspected of plotting terrorist attacks has changed our perception of established rules and regulations of normal politics, deeming them to be inept against fighting or stopping global terrorism. Public discourses surrounding the war on terror privileged two kinds of policies and practices: taking the war “there” as well as regulating and establishing control over who gets to come “here.” On the one hand, the first strategy relied on the doctrine of preemption – to take the war to the enemy wherever they may be, before they can get a chance to bring it here, before indeed the threat could be proven. On the other hand, the second strategy not only required securing the territory by strengthening existing virtual and physical walls, fences, and guard posts, but also through the securitization of mobilities – and, more specifically, certain kinds of mobilities that were deemed dangerous or risky. Under this new strategy, regulation and control of certain undesired mobilities – through detention centers at international airports, house arrest of (permanent)

264   M. B. Salter and C. E. Mutlu residents, passenger name records, and no-­fly lists – as well co-­opting mobilities to redirect suspected “terrorists” to undesirable places – such as black sites, offshore detention centers, or third-­party countries under the extraordinary rendition procedures – became the norm. In this war against mobilities, however, more attention has been paid to the detentions and renditions than to the transformation of policies, practices, and procedures. The cases of extraordinary renditions and the network of black sites represent only one end of the spectrum. There have been other, more subtle changes in the modus operandi of security policies and practices since 9/11. Yet the resistance to these changes has been minimal. We can speculate that part of the reason that these policies have seen such little public resistance is precisely because they are not public policies. This proves the utility of the political sociology approach, even as such chapters as those by Scherrer and Tsoukala indicate its challenges. Navigating the policy world, or its analogue the legal world, is not easy: reconstructing the networks of security officials, judicial language, or human rights groups presents its own methodological and political challenges. When these issues become public, however, as in the case of Maher Arar or the European Court of Human Rights decision regarding US data policies, for example, there is public and political pressure that the network must respond to. But the international political sociology that is so useful in describing this coordination has no theory of how these norms or policies change, particularly from external or cultural pressure. We can understand how the risk language proliferated through the policing sector – it tied into notions of preventive policing, and neoliberal arguments about efficiency and self-­care, and could be tied into bureaucratic systems of reporting – but it does not tell us how those policies gained a grip in other fields. Were there individual champions of risk or institutional incentives? In particular, this kind of network analysis has a hard time understanding change: the evolution of the European Union–Canada PNR agreements, the misappropriation of judicial norms, the transmission of the risk language. One aspect of these complex and dense networks that is plain from these chapters, and requires further research, is the role of private firms in driving particular policing, intelligence, and counter-­ terrorism strategies. How do the development of sophisticated algorithms, and the nationality of the firms that produce them, determine what technical standards are adopted by different countries? Are there transatlantic dynamics to the development and production of the technologies of the war on terror? Or, as was demonstrated by Salter in the case of aviation security risk, do risk appetites fundamentally differ according to political culture, social cohesion, or recent historical developments? This glimpse into the other transatlantic does provide a useful supplement to dominant narratives of Western consensus or American hegemony, but it also generates a great number of further questions. Within

The other transatlantic   265 criminology, sociology, public administration, and other cognate disciplines, we are seeing more studies on the increasing use, efficacy, and accountability of the risk paradigm. What is commonsensical in the new transatlantic fields of security experts? What can be justified and what need not be justified? To what extent do Canadian, American, and European conceptions of the relationship between liberty and security affect what policy instruments are seen as appropriate, effective, or legal? To what extent do we see the migration of policy tools between bureaucracies across the North Atlantic, and for what reasons? What are the bounds of the invocation of security: what policies will publics not accept? What can explain the relatively short attention span of publics, even in liberal, democratic, stable countries? The international political sociology engaged in here produces politically relevant policy analyses that must push us to interrogate the present and speculate on the future.

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Index

9/11 2, 8, 11, 26, 27, 28, 32, 43, 56, 61, 62, 67, 69, 75, 76, 87, 94, 114, 117, 131–2, 199, 201, 204, 207, 212–13, 216, 221, 229, 263–4 Advance Passenger Information (API) 66, 76, 78, 84–5, 93, 112 Advance Passenger Processing (APP) 76 al-Qaeda 30, 35 Arar, Maher 4–5, 11–13, 15–27, 30, 34–7, 84, 93, 148, 223, 264 Article 29 Data Protection Working Party (Art. 29 WP) 82–5, 87, 89, 90–1, 104, 117 Aviation Security (AVSEC) 1–4, 6–7, 60–7, 68–9, 71, 74, 79, 260, 264 Aznar, José Maria 32 Batasuna 32–4, 36–8 Bigo, Didier 1, 3, 5, 9, 43, 64, 72, 132 Bill C-36 8, 204–7 biometrics 59, 63, 66, 80–1, 93–4, 109, 112, 132 Birmingham Six 30–1 borders 1, 80–1, 110, 119, 132, 141, 143, 163–4, 213, 215, 231 Bourdieu, Pierre 3, 8, 130, 133 British Airport Authority 69 British Airport Police 69 Canadian Air Transport Security Authority (CATSA) 61–2, 65, 68–9, 262 Canada Border Services Agency (CBSA) 61, 78–9, 83–6, 262 Canadian Security Intelligence Service (CSIS) 35, 61, 219, 220 CCTV 52–3, 58, 66, 189 Center for Constitutional Rights 19

Charkaoui 9, 216, 221–5, 227, 236–9, 241–5, 248, 250–1, 253–5 Chretien, Jean 16, 17 Cotler, Irwin 205 Council of Europe 17, 147, 154, 163–5, 186, 193 Critical Security Studies 4 Customs and Border Protection (CBP) 78, 87–9, 95, 111, 115, 118, 123–5 Data Protection Authorities (DPAs) 82–6, 101, 117, 118, 125 Department of Homeland Security (DHS) 21, 23, 62, 66, 80, 90, 108, 114, 118 DG-External Relations (DG-RELEX) 116 DG-Liberty, Justice and Security (DG-JLS) 116, 119–20, 137, 144 Electronic System of Travel Authorization 109 EU Agency for Fundamental Rights 144 EU Charter of Fundamental Rights 148 EUROJUST 8, 147, 197–9, 200–3, 206–10 European Arrest Warrant (EAW) 8, 198–9, 200–3, 210 European Commission 1, 9, 17, 62, 81, 86, 90, 104, 107, 112, 115–18, 121–2, 137, 163, 200–2, 210 European Commission on Human Rights (ECommHR) 143 European Convention on the Promotion of Human Rights and Fundamental Freedoms 216 European Court of Human Rights 9, 34, 145, 150, 153–7, 187, 190, 214, 216, 218–19, 227–9, 231–2, 248, 261, 264

Index   295 European Court of Justice 83, 89, 115, 141, 204, 261 European Parliament 17, 19, 82–3, 89, 111, 115, 117, 121, 163, 165, 186, 201–2 European Privacy Directive 6, 100, 106 Europol 49, 60, 65, 111, 123, 147, 202–3, 207–8 EU Network of Independent Experts on Fundamental Rights 145, 152 expedited removal 34 extraordinary rendition 34, 162, 164–5, 171, 174, 185, 190, 192, 213, 230, 260, 264 Federal Bureau of Investigation 19, 123 Freedom of Information 9, 89–90, 162, 164, 166–7, 175, 176, 177–80, 184, 187–9, 191–2 Frontex 61, 65, 123 G-8 8, 128, 129, 131–9 Guantanamo Bay/GITMO 17, 151, 186, 213, 215, 262 Guild, Elspeth 38 Guildford Four 5, 29, 30–1, 36 habitus 8, 64, 130, 133 High Level Contact Group on Data Protection 112, 114, 120, 123 human rights 4, 7–10, 15, 19, 20–2, 38–9, 41–4, 53–8, 60, 95, 133, 140–9, 150–1, 153–5, 157–9 Hungarian Civil Liberties Union 181, 186, 188, 191 Hungarian Helsinki Committee 186, 187, 190 International Air Transport Association 62, 65–6, 70, 122 International Civil Aviation Organization 61, 74, 75, 76, 77, 122 International Forum for Security Screening in Aviation 61, 65 International Political Sociology 1, 3, 128, 130, 264–5 Interpol 61, 65, 137 Irish Republican Army, the 30 Justice O’Connor see O’Connor, Dennis Justice and Home Affairs 2, 7, 27, 120, 127, 137, 141–9, 151, 153, 159, 261

Lyon/Roma Group 8, 130–4, 136–8 Maguire Seven, the 30–1 NATO 1, 2, 24, 98, 155–6, 189–90, 192, 205, 259 NATO Kosovo Force 156 non-governmental organizations 9 Northern Ireland 29, 30, 31, 36 O’Connor, Dennis 17, 22, 34 OECD 78, 95, 98, 104, 128, 138–9 Partido Popular 32 Partido Socialista Obrero Espanol 32 Passenger Name Record (PNR) 7, 49, 66, 73–9, 80–9, 90–5, 111–12, 114–15, 118, 121–5 passport 37, 63, 76, 263 Pre-board Passenger Screening 68–9, 70 privacy 73, 83, 86, 94, 98–9, 100–1, 104, 107–8, 111, 114, 118, 120, 132, 180, 189, 260; advocates 6, 99, 103, 106; commissioners 6, 73, 79, 82, 86, 104, 106, 108, 262; data 98, 103, 149, 190; law 95, 103, 107; legislations 82, 105–6; norms 6; protection 89, 95, 98, 100–1, 107, 187; regulation 100; regimes 98–100, 103, 260; rights 78, 114 Reid, Richard 61 regimes 1, 54, 100, 132, 138, 212, 214, 218 rights 1, 3, 5, 13, 20–3, 27, 28–34, 41–2, 47, 52–3, 55–6, 72, 91, 94, 114, 119, 143–4, 146, 148–54, 157, 162, 164, 166, 167, 169, 171, 175–6, 180, 182–5, 192, 200, 202–5, 209–10, 212, 223–5, 232, 237, 239–42, 245–7, 249, 254, 262–3; constitutional 19; discourses 2; human see also human rights; procedural 5, 145, 202, 239, 253 risk 1–2, 5, 7, 8, 9, 19, 38–9, 43–58, 62–3, 67, 69–71, 73, 76, 78–9, 86, 88, 92, 94, 110, 129, 146–54, 159, 179, 214–17, 227–32, 237, 245–9, 252, 264–5; management 2, 4, 7, 62–3, 71, 80, 128 Schengen Information System (SIS) 1, 80 Secure Flight programme 88

296   Index security 1–8, 11, 15, 18, 24, 26, 28, 35–6, 39, 41–5, 47–52, 54, 56–7, 60–72, 73–8, 82, 87, 90, 94, 107, 108, 111–22, 128–32, 137, 141–5, 151, 156–7, 164–7, 170–2, 174, 179, 182, 191, 198, 200, 202, 206, 210, 213–33, 237–9, 242, 244, 247, 249–55, 259–65; assemblage 59, 260; international 2, 28, 60, 62, 67, 128, 131, 143, 158; measures 5, 6, 62, 65, 73, 85, 119, 262–3; national 9, 15, 17, 19, 27, 30, 35, 42, 60, 66, 78, 93, 150, 156, 169, 171, 173–4, 177–9, 183, 190, 213–26, 228–9, 231, 233, 245, 253, 255, 262 Senate Special Committee on the AntiTerrorism Act 205 Sinn Féin 32 smart borders 80, 110 special service requests 75, 77 Supreme Court of Canada 9, 206, 207, 214, 216, 221, 223–33, 236–8, 247–8, 252, 254

Suresh 9, 206, 216–17, 221, 228–9, 231, 248–54; exception 248–53 surveillance 2, 15, 34, 37, 45, 51, 55, 60, 68, 86, 99, 104, 108, 132, 155, 189, 213 SWIFT Data 111, 120, 171 Transport Canada (TC) 61–2, 66, 69, 79 UK House of Lords 9, 86, 93, 153, 157, 202, 214, 224–7, 231, 238, 243, 247, 250–2, 255 US Customs and Border Protection 78, 87, 111, 118 USA PATRIOT Act 87 US-VISIT 80, 93–4, 110 War on Terror 2–5, 15, 19–21, 24, 34, 161, 205, 213, 215, 230, 259, 262–4