I distinctly remember the first time I heard of the Civil Liberties Committee of the European Parliament, because I marked the occasion with some juvenile snide remark, alluding to how Orwellian, yet at the same time how strangely Monty Pythony, it is to have a Central Committee that dispenses the allotted, rationed portions of Civil Liberties to the people, probably after thorough research to establish the daily recommended doses of freedom that the human body can handle without serious side effects.
Well, after the recent wave of terror attacks, it seems our liberty rations are about to be slashed again. But not to worry: The right honourable Monika Hohlmeier, the Committee’s rapporteur, reassured us that this council of wise elders has apparently “managed to strike a fair balance between ensuring security and respecting basic human rights, such as freedom of opinion, to travel and access education”.
The new anti-terror measures, especially designed to make Europe a safer place, are very closely modelled after the previous anti-terror measures; which were also especially designed to make Europe a safer place. I guess the thinking here is, after having failed to stop the attacks in France and in Germany, it’s clear that it’s not the medicine that’s the problem, it’s the dose.
Throwing out the baby with the bathwater
Briefly, the new EU measures include:
New powers for Europol that will allow the organisation to set up specialised units in “troubled” member states more easily and to ask private companies, such as Facebook, to share information on their clients and/or take down content deemed incendiary, like an ISIS fan page.
Even stricter gun laws. And since real guns have already been regulated to extinction in Europe, this next step also ensures that all live firearms that have been disarmed and converted to acoustic firearms (“blank guns”) will continue to be have the same level of control and be subject to the same regulations as live guns.
A ban on all those travelling abroad, with the intention to commit or to contribute to terrorist acts.
Receiving or providing training in the dark arts, i.e. making or using explosives, firearms or other weapons. This measure also includes anyone conducting research on their own initiative, by par exemple, visiting forbidden websites or reading forbidden books.
The old ban on “incitement” to terrorism is now expanded to include on- or offline “praise” of terrorism, after the fact.
And of course, there are new measures to fight the financing of terrorism, enabling EU and national authorities to seize or freeze funds that were collected with the intention of chipping in to global jihad.
All of the new restrictions share two very worrying characteristics: They are dangerously vague in their descriptions and, more importantly, they are all firmly grounded on the, until now flat-out illegal, concept of Pre-Crime. Having the intention to do something horrible, is a. not the same thing as actually doing it, and b. quite tricky to prove (if proof is required at all, which in many member states it no longer is). Also, expressing an opinion over a crime after it has been committed, be it praise or condemnation, falls entirely within the bounds of one’s right to free speech. That’s the thing about free speech, it cuts both ways. It allows us to say things that sound unpleasant and offensive to other people, but we pay for that pleasure by extending the same courtesy to them. End of the day, if one really doesn’t like a particular message, there’s always the off button, or the unfollow button or the go-live-in-a-cave-and-never-be-offended-by-anyone-ever-again button.
To be clear, anyone who endorses, cheers or praises an act of violence, of any type or motivation and of any scale, is a detestable human being, and, in my personal view, there is absolutely no excuse, no political, cultural or religious exemption that makes it ok to cheer on any murderer of innocent people. Like many others, I’m sure, if I was in a position to do so, I would chose to instantly fire such an individual from my private company, evict them from my property, boycott their business as a customer and deny them service as a business owner. That said, we live in a society where the agreed-upon law of the land allows the state to punish the actual act of violence and vindicate the blood shed. Any opinion about said act, no matter how demented it might be or how widely it is broadcast, is not and cannot be a crime. Supporters of such measures often claim that public encouragement motivates and triggers more potential terrorists to come out of their caves or parent’s basements and wreak havoc, yet let us reiterate: This measure criminalises speech, even after the fact; after the havoc has already been wreaked.
And then there’s another worry: Under a law so vaguely described and loosely worded, what is “terrorism” and what is “praise”? To quote the EU Parliament’s “Understanding definitions of Terrorism” 2015 report: “The Council of Europe Convention on the Prevention of Terrorism (CETS No 196), adopted in 2005, does not provide a definition of terrorism, but does criminalise public provocation to commit a terrorist offence and recruitment and training for terrorism”. Or to further obfuscate: “Terrorist offences are defined as acts committed with the aim of ‘seriously intimidating a population’, ‘unduly compelling a government or international organisation to perform or abstain from performing any act’’, or “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’”. Without a single mention of violence, of physical force or aggression, loss or damage to life and property, this definition of terrorism can be stretched to equate bombs with words. Today’s terrorists, of the islamic extremist variety, sure fit the specifications, and nobody can object to that. Tomorrow’s terrorists, however, could look a whole lot different. Any type of non-violent anti-government protest on the streets or even online, any form of civil disobedience, conscientious objection, even refusal or failure to pay one’s taxes, could all be treated as terrorist offences and punished accordingly, superseding whatever legal framework currently governs them.
Another measure that also comes with an extremely slippery slope of its own, is the one criminalising access to and research on terrorist propaganda and how-to guides for DIY weapons, apparently targeting “lone wolves”. The problem here is that, in order to track down an individual who, using conventional criminal profiling, looks like another tree in the forest, one would have to apply blanket surveillance on the entire forest. And even then, to calibrate any tracking system, be it human- or computer-based, so that its parameters and filters are sensitive enough to flag such low-profile, isolated individuals with no physical, financial or electronic ties to organised and on-the-radar groups, one would have to live with a fair amount of false positives: for every midnight knock on the right door, you’d get a considerable number of knocks on the wrong doors. How does the online footprint and search patterns of a demented suicidal jihadist differ from that of a journalist, or an academic, or just a curious civilian researching the subject? “Lone wolves are like a needle in a haystack”, the officials often say, explaining why they often fail to stop them. Well, thanks to the new measures, the haystack just got a whole lot bigger.
Let us briefly turn to Europol for a moment, Europe’s law enforcement agency. Through this anti-terror legislation wave, it just got its leash extended, presumably to fight terrorists more freely. However, Europol’s official mandate, as outlined on the agency’s own website, aside from stopping evil jihadist plots, also includes fighting drug and human trafficking, cybercrime, Intellectual Property crime, cigarette smuggling, Euro counterfeiting and of course, VAT fraud, and cross-border tracing, freezing and seizing of criminal assets. (My personal favourite however, is their specialist project, “Monitor”, which is dedicated to protecting us all from a truly existential threat to civilisation as we know it: Bikers.) Europol’s recently extended powers, combined with the new legislation that is meant to ease suspicious asset and fund confiscation by EU and national authorities, have, conceivably, the potential to be abused and to be added to the long list of tools, that authorities already use to meddle with individual financial sovereignty and property rights.
Giving the people what they want
In an effort to back up these measures as though they were the result of “popular demand”, the European Parliament has published a poll (commissioned and paid for by said Parliament), claiming that “82% of Europeans want the EU to do more to tackle the terror threat”. Even if this number is indeed accurate (which, alone, is a scary thought), the moral of the story that the EU chooses to put forth is misleading at best. Looking at the actual survey details, and the reactions to specific anti-terror measures, it turns out that national variations reach 34 percentage points on the immigration issue, and 39 points on the issues of border protection. So basically, this vast majority that is “asking the EU to do more”, includes those merely calling for more effective border control, as opposed to having their emails and bank accounts snooped into and their Facebook timelines tinkered with.
To be fair, EU and national leaders had to respond somehow. It was indeed their own irresponsible foreign and domestic policies and various bright ideas that led us into this mess, but now that we’re in it, they have to at least look like they know how we’re going to get out. To be even more fair, preventing the next attack, separating friend from foe and identifying threats in time, both from within and from without, is obviously not a simple puzzle to solve. However, there must be a smarter way than countering asymmetric attacks with symmetric responses. We can do better than just accepting pre-crime as the new moral compass of our legal philosophy, replacing the old “presumption of innocence” basis. We can also do better than giving up our democratic rights to free speech, to privacy and to free access to information, all in the name of security. And we can definitely do better than adopting panic-driven, ill-conceived and largely ineffective policies, that can only ever hope to place mere pebbles on the jihadists’ path to organise another attack, while corroding our society’s social, legal and moral values.