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SPAIN, EU AND US:
WAR OR TERROR OR WAR ON LIBERTIES?

Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

Once again, the eyes of the world are focused on a brutal and devastating terrorist attack on innocent civilians, this time in Spain. But instead of demanding tougher anti-terrorism laws, the Spaniards on Sunday voted out the center-right government that supported the Iraq war. The Spanish people, who had overwhelmingly opposed the war, were evidently moved by Al Qaeda痴 statement that the attack was 殿 response to your collaboration with the criminals Bush and his allies.

As the Spanish national elections approached last week, the center-right government had tried to lay blame for the vicious rail attack on the Basque separatist movement ETA, hoping that the people would respond by voting for the existing government. But when the evidence pointed to Al Qaeda, the Spanish people unseated the old government, and replaced it with the Socialists.

On Sunday, the New York Times analyzed Spain痴 readiness to sign onto George W. Bush痴 war on terror: 鉄pain, like Britain, embraced the American approach, principally in order to place its fight against ETA in the context of a global war on terrorism. The soon-to-be Prime Minister Jose Luis Rodriguez Zapatero recognizes this well. 典his [former] government, he told journalists, 電oesn稚 serve Spaniards any more, it only serves the interests of Bush.

Spain was one of the few European countries that stood by Bush in his war on Iraq. After September 11, 2001, under the guise of the 努ar on terror, the Bush administration had launched a war on civil liberties. Although unable to convince most European countries to participate in its Iraq war, Washington successfully pressured the European Union to enact a framework law on terrorism reminiscent of the repressive anti-terrorist legislation in the United States.

At the end of February, I participated in a colloquium in Brussels on the struggle against terrorism and the protection of fundamental rights. Invited by the Belgian Progress Lawyers Network, I was tasked with explaining the post-September 11 anti-terrorism laws in the United States to a large gathering of European lawyers.

Three days before the colloquium, United States Education Secretary Roderick R. Paige called the largest teachers union in the U.S. a 鍍errorist organization. This characterization alarmed the lawyers at the colloquium, who fear that their own anti-terrorism laws will be used to suppress labor struggles.

As lawyers and law professors from country after country rose to speak about their anti-terrorism laws, I felt an ominous deja-vu. The geography was different but the themes were familiar: vague laws that criminalize dissent, authorize preventive detention, and blur the separation of powers.

Many of the new anti-terrorism laws in Europe, as in the United States, were in the works before September 11. The 342-page Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or USA Patriot Act, rushed through Congress a month after September 11, contains detailed provisions that had to have been a long time in the drafting. Similarly, my European colleagues explained that their governments, looking for ways to criminalize trade union activity throughout the 1990s, took advantage of the September 11 attacks to pass laws that will facilitate attacks on labor.

In June 2002, the European Union enacted a framework decision on combating terrorism. It establishes a joint definition of 鍍errorism that member states are expected to insert in their national legislation. This definition is so broad, it proscribes many social, political and labor movements. It says that committing or threatening to (a) cause extensive damage to a government or public facility, transport system, infrastructure facility, or private property likely to result in major economic loss, which may damage a government or international organization, constitutes a terrorist offense, when committed with the intent either (a) to compel the organization to perform or abstain from any act, or (b) to seriously destabilize or destroy the fundamental political, constitutional, economic or social structure of a country or international organization. A general strike or a large demonstration against the World Trade Organization, where property is damaged and considerable expense is incurred to mobilize a police force, could be punished as terrorism under this definition.

The framework decision contains a clause that aims to protect civil liberties: 哲othing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate. But the European lawyers at the colloquium were of the mind that this disclaimer merely provides lip service to the protection of basic civil rights. They pointed out that the Nazi occupiers attached the word 鍍errorist to the political prisoners interned at the Breendonk concentration camp near Brussels, and Nelson Mandela was called a terrorist before he was released from prison and elected president of the newly liberated South Africa.

Six European Union member states have enacted specific legislation to comply with the framework decision. All consider the destabilization of political or economic power an element of terrorist crime. Other member states are using their existing laws on criminal conspiracy to punish not just participation in terrorist acts, but also simply being a member of prohibited organizations.

In December 2003, the Belgian Parliament enacted an anti-terrorism law to comply with the framework decision. Under its terms, someone painting graffiti in an urban environment can be considered a terrorist, if the public prosecutor and judge decide that the destruction of property was undertaken with the purpose of 電estabilizing or destroying the fundamental political, constitutional, economic or social structures of a country and it caused 田onsiderable economic damage.

The United Kingdom passed the Anti-Terrorism, Crime and Security Act 2001 in the wake of the September 11 attacks. A person can be indefinitely detained if the Home Secretary issues a certificate stating he has (a) a reasonable belief that a person痴 presence in the United Kingdom is a risk to national security, and (b) a reasonable suspicion that the person is a terrorist. 典errorism in the United Kingdom encompasses the use or threat, 吐or the purpose of advancing a political, religious or ideological cause, of action 電esigned to influence a government or to intimidate the public or a section of the public, which involves serious violence against any person or serious damage to property, endangers the life of any person, or 田reates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously disrupt an electronic system.

The law professors from the United Kingdom felt that this definition is so broad, it is unworkable, and blurs the line between protest and terrorist groups.

In Italy, the anti-terrorism law provides for five to ten years imprisonment for simply participating in organizations that 殿im to commit violent actions with subversive purposes against the democratic order. An Italian lawyer complained that the provision does not define 都ubversive purpose or delineate what level of participation is required to run afoul of this statute. He said the Italian law harkens back to the Fascist code on terrorism. Likewise, some pointed out that the Spanish definition of terrorism is the same as the one in effect during Franco痴 regime.

Two hundred European lawyers, magistrates and jurists signed a statement complaining that the European framework decision threatens democratic rights. Last year, members of the United Nations Human Rights Commission expressed concern at the 澱road use of the word terrorism and the 妬ncreasing attack on human rights in the struggle against terrorism.

Lawyers at the colloquium observed that in Germany, Belgium and the United Kingdom, the executive branch had enacted anti-terrorist laws, which place all power in the executive, blurring the separation of powers.

Many also expressed concern at the absence of guarantees that the privacy of databases shared by European countries with the United States would be protected. A British lawyer observed that providing sophisticated security devices will be quite profitable; he called it the 都ecurity-industrial complex.

Some pointed out that whereas the European Union defines terrorism as a crime, the United States sees terrorism as an act of war. International state terrorism, or regime change (such as the United States war on Iraq), however, is conveniently excluded from the definitions of terrorism.

Most people in Europe opposed the war on Iraq, and they do not see a war on civil liberties as an effective antidote to terrorism. David, a young Spaniard, told the New York Times why he changed his vote to Socialist: 溺aybe the Socialists will get our troops out of Iraq, and Al Qaeda will forget about Spain, so we will be less frightened.

During the election campaign, Zapatero vowed to change the government痴 policy toward ETA, saying, 展e have to sell the idea that Spain can be more democratic and that it can understand the needs of the Basque country. He understands that long as long as poverty, repression and imperialism are the norm, terrorism will be the frightening response.


Marjorie Cohn, a professor at Thomas Jefferson School in San Diego, is executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

March 16, 2004

CONTRIBUTING EDITOR

JURIST Contributing Editor Marjorie Cohn is a professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is executive vice president of the National Lawyers Guild, editor of the Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the Santa Clara University School of Law.