The European Union: Sword or shield? Comparing counterterrorism law in the EU and the USA after 9/11
| Author | Claire Hamilton |
| DOI | 10.1177/1362480616684195 |
| Published date | 01 May 2018 |
| Date | 01 May 2018 |
| Subject Matter | Articles |
684195TCR0010.1177/1362480616684195Theoretical CriminologyHamilton
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Theoretical Criminology
2018, Vol. 22(2) 206 –225
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https://doi.org/10.1177/1362480616684195
DOI: 10.1177/1362480616684195
journals.sagepub.com/home/tcr
counterterrorism law in the
EU and the USA after 9/11
Claire Hamilton
Maynooth University, Ireland
Abstract
Drawing on the developing literature on a ‘European penology’ this article seeks to
use counterterrorism as a lens through which to re-examine arguments concerning
penal moderation in Europe. Counterterrorism measures adopted in the EU and the
USA in the post-9/11 period are therefore scrutinized for the lessons they hold about
the role of European values and institutions as a ‘shield’ against punitiveness or indeed
their ability to, swordlike, cut deep into citizens’ freedoms. The resulting analysis raises
questions about the need for a more refined approach to the question of ‘European’
penal values as well as pointing up the continued existence of a culture of rights in the
USA.
Keywords
Counterterrorism, European penology, human rights, punitiveness
Introduction
Perhaps one of the richest seams of literature to emerge in response to Garland’s (2001)
seminal Culture of Control is that which draws attention to the spatial or ‘cultural’ limits
of his thesis (Garland, 2011). While many of these accounts focus on national
idiosyncrasies, a more recent line of argument extends the criminological gaze outwards
Corresponding author:
Claire Hamilton, Senior Lecturer in Law, Department of Law, Maynooth University, Maynooth, Co Kildare,
Ireland.
Email: claire.hamilton@nuim.ie
Hamilton
207
towards Europe and the role that European human rights standards and cultural norms
may play in insulating member countries from repressive penal policies (Body-Gendrot
et al., 2013; Daems et al., 2013; Snacken, 2006; Snacken and Dumortier, 2012; Van Zyl
Smit and Snacken, 2009; Vaughan and Kilcommins, 2007). Building on the work of
Whitman (2003) and others (e.g. Salas, 2005), this literature seeks to interrogate the
significance of European values and human rights standards for penality, particularly the
opportunities they provide for ‘resistance’ to US-style punitive policies (Snacken and
Dumortier, 2012). Writing in this journal, Snacken (2010), for example, has pointed to
policies such as the rejection of the death penalty, the steady evolution of the European
Court of Human Rights (ECtHR) case law on prison conditions; and the limits placed by
the Court on states’ ability to criminalize certain behaviours in support of her argument
that ‘penal moderation is in accordance with some of those fundamental values cherished
by many Europeans’ (2010: 287). Taking up the mantle, Daems (2013) makes the case
for a ‘European penology’, while emphasizing the common values that unite Europeans
such as a liberal and cosmopolitan tradition. In the same volume Snacken and Van Zyl
Smit (2013) argue that an understanding of European penology is better reached by
focusing on the specific European institutional context, namely, the Council of Europe
but also the European Union, an actor which since the creation of the Area of Freedom,
Security and Justice (AFSJ) in 1999 has become increasingly active in the penal field.
Here too we are witnessing a deepening commitment to human rights in its activities,
with the role of human rights now formally reflected in the form of the European Charter
on Fundamental Rights, now in force and legally binding on Member States when imple-
menting EU law.
One area which has remained relatively under-examined in the context of this
debate—and which this article seeks to address—is the field of counterterrorism, with
only cursory discussions in the literature on the role of security matters in ratcheting up
the punitive climate in Europe (Dumortier et al., 2012: 109–110; Snacken and Van Zyl
Smit, 2013: 22). While this may be unsurprising in light of what Zedner (2007: 264) has
described as the tendency of counterterrorism to remain ‘outside the normal boundaries
of criminological knowledge’ it is nevertheless an omission in terms of the significant
influence it has wielded over European crime control policy. Conceived precisely at the
moment when the EU was beginning to assert itself in the criminal justice field, EU
counterterrorism law and policy (such as the European Arrest Warrant, asset freezing
measures, data retention and surveillance legislation, etc.) has become the ‘central driver’
(Murphy, 2013: 169) of European criminal justice cooperation in the past decade. This
has been accompanied by a literature expressing concern about the securitized nature of
European criminal law and justice, particularly the impact which counterterrorism policy
has had on the evolution of ‘ordinary’ crime control policy in the Union since the area of
‘freedom, justice and security’ first emerged in 1999 (Baker, 2010; Baker and Roberts,
2005; Loader, 2002; Mitsilegas et al., 2003). In a report commissioned by Privacy
International, for example, Hosein (2005) argues that European counterterrorism poli-
cies such as the interception of communications and data retention/profiling go much
further than those adopted in the USA and furthermore (unlike US policies) lack trans-
parency or a robust process of policy deliberation in order to keep such powers in check.
In the most comprehensive study of this issue to date, Baker (2010) characterizes the
208
Theoretical Criminology 22(2)
Union’s existing role as a penal actor as ‘governing through security’ rather than ‘gov-
erning through crime’ (the latter being of course a reference to Simon’s (2007) argument
concerning the use of crime as a mode of governance in the USA). Applying this frame-
work to the European Union, Baker observes some evidence of victim focused/crime
control thinking in terms of security policies that have been adopted so far with many of
these, such as the European Arrest Warrant, having been somewhat hastily adopted in the
face of the ‘terrorist threat’ (Caneppele, 2013). Indeed, the influence of counterterrorism
on criminal justice policy in the Union has been such that Dumortier et al. (2012) describe
it as a ‘turbo’ to the penalization engine which has resulted in a significant escalation in
penal measures and the punitive climate in Europe. Discussion such as this casts Europe
in a very different light, one much more aligned with the US position where security
demands, particularly since 9/11, have pushed it to ‘the brink’ (Baker, 2010: 206) of a
more punitive approach.
Given the different approaches taken by these two literature streams, this article seeks
to use counterterrorism as a lens through which to re-examine arguments concerning
penal moderation in Europe. Adopting the metaphor employed by Dumortier et al.
(2012), the counterterrorism example is scrutinized for the lessons it holds about the role
of European values and institutions as a ‘shield’ against punitiveness or indeed their abil-
ity to, swordlike, cut deep into citizens’ freedoms. To this end, a comparative approach—
contrasting developments in the EU with those in the USA—is adopted given the insights
it affords into the question of Europe’s position in relation to the rest of the world (Pakes,
2015: 5). Through cross-Atlantic comparison of counterterrorism law and policy we gain
a better perspective on European initiatives, particularly given the frequent use of the
‘punitive turn’ in the USA as a foil for arguments concerning a European penology (see,
for example, Daems, 2013: 27–28). As the EU is a supranational body and not a sover-
eign state like the USA it goes without saying that the nature of the comparison is not
strictly ‘like-for-like’; inter-state measures such as the European Arrest Warrant do not
have a meaningful equivalent in the USA, for example. As comparative scholars such as
Dannemann (2006) have remarked, however, we should beware of a rigid focus on simi-
larity/difference and instead seek to strike a proper balance between these qualities in
accordance with the purpose of the comparative inquiry.
In line with the approach taken by members of the ‘European penology’ school of
thought, ‘punitiveness’ for this purpose will be defined broadly incorporating: ‘a wide
variety of actors’ ranging from ‘primary criminalization by legislators, to decisions taken
by practitioners within the criminal justice system (police, prosecution, sentencing, etc.),
or to attitudes of revenge or forgiveness of victims of crime’ (Snacken and Dumortier,
2012: 2). The article thus proceeds in the next part to provide an overview of European
Union and US law and policy in this area in the period since 2001, examining some of
the key measures taken by the USA and the European Union in response to the events of
9/11. This is followed by a more detailed look at some of the most significant criminal
law measures adopted with the Framework Decisions on Combating Terrorism (hereafter
‘FDCT’) and the European Arrest Warrant (hereafter ‘EAW’) providing the main focus
as the flagship measures in the EU response (Hassan, 2010).1 Extra-legal measures are
subsequently examined in line with suggestions in the literature that many of the coer-
cive practices associated with the ‘war on terror’ have been deployed outside of...
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