November 23, 2005

A Transatlantic Dialogue

The Hauser GLobal Law School brought Valerie Caproni of the Federal Bureau of Investigation and Jonathan Faull of Justice, Freedom and Security at the European Commission in a discussion of counterterrorism law enforcement.

In the days and weeks after the World Trade Center and Pentagon attacks, the world joined with the U.S. in shocked unity against the new threat that was both without, and within. The routing of Al Qaeda in Afghanistan was accepted as inevitable and necessary. But then things changed. President Bush’s bellicose unilateralism sent a shiver through older, more circumspect nations. The rejection of the UN and the march to Baghdad turned the shiver into a chill. Since then, things have only gotten worse.

But the fact remains, global terrorism requires a global response, and different nations, drawing on different legal traditions, must work together against a worldwide threat. Terrorism has taken a seat at the table, and we are now all in the same room.

On November 23, the Hauser Global Law School’s Transatlantic Dialogue series brought together Valerie E. Caproni, general counsel of the Federal Bureau of Investigation; and Jonathan Faull, director general of Justice, Freedom and Security at the European Commission, to discuss some of the key issues that have arisen between European and American approaches to counterterrorism law enforcement.

The discussion was moderated by Bonnie and Richard Reiss Professor of Constitutional Law Samuel Issacharoff and New York University Professor of Politics Martin Schain.

On both sides of the Atlantic post 9-11, there was a perception that existing law was inadequate to meet the new threat. In the US, counterterrorism laws “read like a cobbled-together greatest hits from the federal code,” said Issacharoff.

But much has changed in the last four years. In the United States, a reliance on interstate commerce statutes has been overtaken by new anti-terrorism legislation.

The Patriot Act, perhaps the most controversial of the laws pushed through post 9-11, introduced a raft of extra powers for surveillance and intelligence gathering. These include the right to secretly search third party holders of financial, library, travel, video rental, phone, medical, church, synagogue and mosque records.

For the European Union, the key question has been how nations can work together to investigate and prosecute terrorists. European states have adopted new legislation and promoted cooperation between the courts and police forces across Europe.

There is no European wide criminal code, and due to increasingly porous national borders since the 1990’s, the EU can no longer rely on border control to apprehend goods and people. Member states must rely on the cooperation of law enforcement bodies within individual countries.

One new piece of legislation designed to facilitate this process is the "European Arrest Warrant.” Although initially difficult to pass as it ran counter to the constitutions of several countries, it was pushed through quickly post 9-11.

After the unsuccessful bombings in London on July 21, the warrant allowed for one suspect who was arrested in Rome to be extradited back to the U.K. within 41 days. In the past, this would have taken months, if not years, and may never have happened at all.

However, said Faull, despite progress between countries, cooperation has often worked on a bi-lateral basis, rather than continent-wide. Some countries just don’t have relationships with others, he said.

Further legislation that may come into force would require telecommunications companies to retain traffic information from Internet communications.

In the US, although telecommunications companies are not obligated to keep hold of data, they are required to design computer and telephone systems so that they can be tapped.

But huge cyber dragnets are not always the most effective way to gather useful intelligence.  It is often close relationships with the communities that may give rise to extremism that produces the most actionable information.

The FBI relies on local police to notice local changes – such as the arrival of a radical Imam to a local mosque, followed by increased attendance by young Muslims.

But it struggles with being dislocated from communities at the grass roots level. “We are not really boots on the ground in this effort,” said Caproni.

And there is often tension between the FBI and local police forces. There is some truth, it seems, to the classic film stereotype of the special agent strolling in to take over an investigation from the disgruntled local cop.

As pointed out most clearly by the 9-11 Commission, lack of cooperation between US law enforcement agencies has presented serious obstacles to the effective use of intelligence.

In the UK, says Faull, this is less of a problem as there isn’t an equivalent split between local and national law enforcement. “In a way it’s a lot easier for us because…we don’t have the FBI, we don’t have agents,” he said.

In the wake of Abu Ghraib, the continuing extra-judicial detentions at Guantanamo and the recent allegations of CIA secret prisons across Europe, many now see the US approach to counterterrorism with deep suspicion.

The expanded powers have given serious concern to civil libertarians both at home and abroad.  But Caproni considers their fears to be unfounded. “The people that work at the FBI are Americans too,” she says.

Several of the new measures included in The Patriot Act — notably the right for law enforcement to secretly access library records -- will “sunset” this year. From our perspective, there is a “strong desire that these provisions do not sunset,” said Caproni.

“The police and law enforcement agencies love information…they have an insatiable appetite for information…[but] they can’t always have what they want,” said Faull.

It is important to remember, he said, that within living memory, many European nations have been under dictatorships or occupied by foreign powers. The notion of governments operating outside of the law “for any reason, is abhorrent.”

By Dan Bell