Once upon a time, in a peaceful world, there was a terrorist ogre who liked to do evil around him. Nomadic, this dreadful ogre is not attached to any particular territory. He moves to the regions that accept to welcome him, from where he foments bloody attacks to strike, by surprise, the populations he hates. Particularly dangerous, this monster is also elusive as its ability to hide everywhere, including among the population, is so great. This justifies, for the authorities, the implementation of particularly thorough liberticide policies…
Privacy has long been considered a fundamental right. However, for many years, the authorities have been multiplying the surveillance and invisible controls of the population. So when the European countries decided to create a common market with free movement of capital, goods and people, the question soon arose: how were we going to control people? One of the answers was to collect all kinds of private data, to store them on computer servers and make them available to « authorized persons » (e.g. law enforcement). While this policy started modestly (with a limited amount of data collected and legally regulated), it has been growing ever since. To take just one example, in 2006, a European Directive required all member states to adopt legislation to collect and store all metadata related to our communications (fixed telephony, mobile telephony, Internet, e‑mail). Basically, it is about who called whom, when and for how long, with what form of technology and from what location (for the internet).
the liberTiCide PhiloSoPhy of anTiTerroriSm
Although directly linked to the advent of the « free movement » of goods and people, this policy was justified in the name of anti-terrorist repression. And as the terrorist ogre is a great nomad, it is necessary to be able to circulate all this information between friendly countries. This is why Europe has made numerous agreements with the United States, agreeing in particular to transfer Swift data (bank accounts) and « PNR » data (data held by aviation companies when we take a plane likely to fly over the United States)(1). But security cooperation (both European and transatlantic) goes much further.
The terrorist ogre being a particularly dangerous monster, governments have found it necessary to develop exceptional methods of investigation, tracking and repression. By exceptional, we mean here: « that goes beyond the democratic framework ». These methods vary from one country to another and allow, for example, the use of classified judicial documents during a trial for terrorism: these documents can be used by the prosecution but cannot be consulted by the defense. Similarly, police forces (such as Europol, the European police force) can draw up secret lists of people suspected of terrorism: their privacy will then be happily violated (placement of cameras, interception of mail, etc.) without having to go through the democratic filter of an investigating judge. Although a little more controlled, such intrusions are also possible towards lawyers, doctors, journalists… In the United States, the President has the right to detain without evidence and in secret a person suspected of terrorism who has little access to a lawyer.
Here again, international cooperation is in full swing. Uncle Sam and Europe have established transatlantic agreements on extradition and security cooperation. These came into force in 2010, authorizing American police teams to come and work on European soil, and legalizing the use of videoconferencing to gather testimony (or confessions) in legal proceedings. Above all, they greatly facilitate the extradition (from Europe to the United States) of persons wanted by the American authorities(2). This transatlantic security cooperation is an extension of European agreements that follow the same logic. Thus, within the framework of the European Area of Freedom, Security and Justice (created in 1997), a European arrest warrant was created in 2004. On the assumption that all European member states are democracies, the European arrest warrant practically puts an end to the right of asylum (e.g. for political persecution) between European countries. As long as they meet certain minimum criteria, such as being capable of leading to a prison sentence of at least three years, extradition requests must be endorsed between European countries. In addition, country A can request the extradition of a person to country B on the basis of a law that is only in force in country A. In other words, the European arrest warrant organizes a kind of « free circulation » of national criminal law throughout Europe.
the return of old transatlantic cauChemarS?
Of course, the authorities want to reassure us that all these liberticidal measures (spying, data collection, exceptional methods of investigation and repression) are aimed at ensuring our security. They have only one ambition: to locate as quickly as possible, to put out of action, any terrorist ogre hidden in the population. For the rest, « people who have nothing to blame » have nothing to fear: we are in a democracy, and they can continue to live quietly. An official discourse that does not fit well with the revelations of Edward Snowden denouncing American espionage, generalized to the point of not sparing its friends (see page 9). An official message, above all, that does not hide the subjective nature of the new forms of anti-terrorist repression.
How do the authorities define a terrorist act? Is it resorting to violence and terror rather than political debate? Not at all: At the EU level, the legal list of terrorist acts includes both criminal offences (such as taking a hostage or killing a person) as well as acts that are more related to the right to demonstrate. For example, « seizure of aircraft and ships or other common means of transportation » is a potentially terrorist offense. However, it is for an almost similar act (the non-violent boarding of an oil platform under construction in the Arctic) that Greenpeace activists have just been prosecuted by the Russian justice system for « organized piracy ». In Europe, « public provocation to commit a terrorist offence », for example by distributing leaflets for an association deemed to be terrorist, or « threatening to commit any of the behaviours » considered to be terrorist, are also considered terrorism. Thus, a person distributing leaflets, calling for resistance to an Atlantic military intervention in a foreign country, is quite likely to be qualified as a terrorist.
However, in order to distinguish a common law crime from a terrorist act, it is ultimately the intention of the perpetrators that counts. What Europe formulates as follows: the terrorist ogre is recognized by the fact that it tries to « seriously intimidate a population » or to « unduly compel a public authority or an international organization to perform or refrain from performing any act »(3). Yes, but… how to distinguish a democratic constraint (like the right to strike) from an « undue » constraint (thus terrorist)? The answer is chilling: it is the authorities, the police and the secret services who are judge and jury. It is on their benevolence that one must count to distinguish, in the population, a social movement legally criticizing their policy, from a terrorist ogre unjustly mistreating the government.
The principle of separation of powers is thus largely flouted. This decision is all the more serious because the transatlantic past is fraught with deeply anti-democratic security abuses. Thus, in the aftermath of September 11, 2001, the American secret services illegally abducted more than a hundred people on European soil in order to discreetly expatriate them to « friendly » countries, where it was possible to use torture to interrogate them(4). An arm of honor to the democracy not exceptional. Throughout the Cold War, in their relentless fight against the communist ogre, Western Europe and the United States set up a network of clandestine national armies. Created with the help of the CIA and coordinated by NATO, these shadow armies were supposed to resist, from within, a possible invasion of European territory. However, only one potential foreign enemy was identified: the communist ogre. As a result, the Parliaments (partly composed of communists) never heard of these secret armies, known only to a few insiders (a few high political and military officials, secret services…). Worse: former Nazis and far-right activists were in great demand for the recruitment of shadow soldiers.
Everywhere, these clandestine NATO armies have been used for liberticidal purposes: spying on pacifist movements, spreading anti-communist electoral propaganda… In the dictatorships of Turkey or Spain (in Franco’s time), these shadow armies were integrated into the repressive forces of the regimes in place. Elsewhere, too, shadow armies were involved in acts of terror, such as the overthrow of Greek democracy in 1967, or participation in the terrorism of the « lead years » in Italy. From 1969 to 1987, approximately 15,000 acts of political violence were committed on Italian soil, killing 491 people and maiming more than a thousand. Systematically associated with the extreme left, these attacks were sometimes the work of the state and the Italian military secret service, which used terror to accuse the left, then carried out mass arrests in communist and socialist circles. It is in fact thanks to the meticulous investigative work of an Italian judge, seeking to shed light on a car bombing dating back to 1972, that the existence of the Italian shadow army was discovered in 1990.… and its similar « sisters » in all NATO member countries.
Strangely, the hierarchy of responsibility for these acts of transatlantic terror has never been clarified. Thus, the United States is still at the stage of « we do not deny or confirm this hypothesis ». Some European countries set up parliamentary commissions of inquiry, all of which ended up getting bogged down by the inertia of political majorities that were too involved in this story. As for Europe, after a courageous declaration by the European Parliament in 1990, it did nothing to displease the United States. As we have seen, transatlantic security cooperations have even been born, implementing increasingly libertic legislation.
MARKET FREEDOMS AND SECURITY POLICIES
Far from being aimed exclusively (or even primarily) at the terrorist ogre, this strengthened criminal framework actually follows « free trade » policies very closely. In both cases, it is a question of facilitating the international mobility of goods, services, places of production and capital, but also of criminal law, police forces, judicial decisions, persons sought by the authorities and information (sometimes very personal) concerning objects and persons, stored in data banks. The second common feature (between the international market and the international security space) lies in the political will: whether it is penal or commercial, the « free circulation » created is not spontaneous, but results from a long process of international negotiation. Some governments, depending on the subject matter, agree to adopt common standards, harmonize legislation, and recognize the validity of their respective decisions (whether to launch a new product on the market or to remove from circulation an individual deemed suspicious). Along the way, institutions are born, cooperation multiplies, and like two intertwined threads, the commercial and security worlds gradually become inextricably linked to each other.
In the case of the transatlantic deal, security cooperation is ahead of the trade negotiations (started in the summer of 2013). And if the official objective remains to put the communist ogre out of action, those who rebel against the established order can expect to live through future nightmares. In 2012, Spain reformed its penal code in this way. Surprised by the strong mobilizations of the Indignados, who refuse to cut off the means of living of modest people (both young and old), the Spanish government has betrayed this popular momentum by describing it with scary words: « anti-system collectives » have allegedly used « urban guerrilla techniques » to set up a « spiral of violence » that the government has proposed to stop with tough legislative reforms. From now on, occupying a building against the will of its owner (even in the context of a demonstration) is punishable by three to six months in prison. Similarly, resisting authority (e.g., by chaining together to avoid police deportation) is considered a form of assault, which can lead to a sentence of up to four years in prison. Finally, relaying a call to demonstrate for a mobilization that has not received official authorization can also be punished with a penalty of (maximum) one year in prison!
In the contemporary evolution of criminal law, distinguishing between terrorist ogres and oppressive state policies is not as simple as one might think…
23 years ago…
« The European Parliament,
A. having regard to the revelations by several European governments of the existence, over the last forty years, of a parallel structure of intelligence and clandestine armed action in several Member States of the Community
B. whereas this structure escaped any democratic control for more than forty years and was piloted by the secret services of the states concerned, in relation with NATO.
D. whereas, moreover, in some Member States military secret services (or uncontrolled branches of such services) have been involved in serious terrorism and crime, as has been revealed in various judicial investigations
1. condemns the setting up of clandestine influence and action networks and calls for full disclosure of the nature, organisation, aims and any other aspects of such clandestine structures and any deviations, as well as their use for illegal interventions in the internal political life of the countries concerned, the terrorist phenomenon in Europe and any complicity of secret services of Member States or third countries;
2. protests vigorously against the fact that certain American military circles of the Shape and Nato have arrogated to themselves the right to push for the installation in Europe of a clandestine intelligence and action structure;
3. Calls on the governments of the Member States to dismantle all clandestine military and paramilitary structures;
4. Calls on the judiciary in countries where the presence of such military structures has been detected to shed full light on their reality and actions, and invites the judiciary to elucidate in particular the role they may have played in destabilizing the democratic structures of member states;
8. Instructs its President to forward this resolution to the Commission, the Council, the Secretary General of NATO, and the governments of the Member States and the United States. »
European Parliament resolution on the Gladio affair, November 22, 1990.
Source : http://eur-lex.europa.eu/
- Swift est le nom d’une compagnie privée gérant l’ensemble des communications bancaires à travers le monde (et possédant donc tous les détails sur les comptes financiers de chacun). Les données PNR reprennent des éléments comme les noms et prénoms d’un passager, son adresse, son moyen de paiement, sa place dans l’avion, les personnes avec lesquelles il voyage, le poids de ses bagages…
- Les textes légaux en la matière sont référencés comme suit par l’Union européenne: 22003A0719(01) pour l’accord d’extradition transatlantique, et 22003A0719(02) pour l’accord d’entraide judiciaire transatlantique.
- On trouvera ces critères dans le texte de base de la législation antiterroriste européenne (références 2002/475/JAI & 2008/919/JAI). Précisons que des faits plus objectifs sont également nécessaires pour qualifier une infraction de terroriste. Cependant, leur éventail est si large (par exemple: la simple distribution d’un tract) qu’il ne restreint nullement la portée subjective des lois antiterroristes.
- Stephen Grey en fait un article «Les Etats-Unis inventent la délocalisation de la torture», publié en avril 2005 dans le Monde diplomatique. Un rapport du Conseil de l’Europe est également disponible sur le sujet sous la référence AS/Jur(2006)03rev.