United
Europe, divided intelligence By Roman
Kupchinsky
Muhammad Daki, a 38-year-old
Moroccan, arrived in Germany on a student visa to study
engineering. He had no record of association with
terrorists or criminals. He didn't study engineering in
Hamburg, but he did go to a mosque, where he came in
contact with the al-Qaeda cell that planned the
September 11, 2001, attacks on the United States.
According to the International Herald Tribune of
March 23, "When the German police questioned Daki three
weeks after [the September 11] attacks, he acknowledged
that he knew members of the [Hamburg] cell and that one
of them, a fugitive named Ramzi bin al-Shibh, was
registered as his roommate. 'I know why I am here,' Daki
said when the police took him in for questioning,
according to transcripts of his interrogation. But Daki
apparently lied when asked whether a second [September
11] suspect was also registered at his apartment. German
officials now acknowledge that they never investigated
further."
His name was never entered on INPOL,
the computerized search system maintained by the
Bundeskriminalamt (BKA), the German federal police.
Daki left Germany in the spring of 2002 and,
moving across the open borders established by the
Schengen agreements, went to Milan. His name never
popped up on the Schengen Information System (SIS)
computer system maintained to prevent people like Daki
from roaming about Europe freely.
The German
police did not inform the Italian police about his
contacts with the cell in Hamburg until the Italians
charged him with aiding another cell in Milan, where he
was suspected of recruiting local residents to go to
Iraq and fight the Americans. He was arrested on April 4
in Milan.
The Daki case raises a number of
concerns. Why were the Italian authorities not notified
by the BKA of his movements? Why was his name not
entered into the INPOL or SIS databases? Why did the
anti-terrorism system of exchanging information, so
carefully prepared by European authorities, break down?
Coordination and sharing The Madrid
bombings of March 11 have once again brought into focus
one of the most frustrating problems facing European
security and law-enforcement organizations: the lack of
timely sharing of intelligence information between
police and intelligence services in the European Union.
Intelligence and counter-terrorism operations by
their very nature are never transparent. Information is
released on a "need to know" basis only, since leakage
of sensitive information can lead to tragic consequences
and can warn terrorists or criminals that a
law-enforcement organization has placed them under
surveillance.
At the same time, the need-to-know
principle frequently works in favor of terrorists who
benefit from this "compartmentalization". They
inadvertently are handed the advantage by the tendency
to limit distribution of information. In effect, the
fewer organizations with a need to know, the easier it
becomes for the terrorists and their comrades to
operate.
In Europe this is a particularly acute
problem. Each national police force and intelligence
agency (in some countries the police are subordinated to
regional authorities as well as to federal ministries)
has its own well-defined area of legal jurisdiction and
runs its own operations.
There are of course
exceptions to these rules and there is also common
sense, but usually there is nothing legally binding to
force these police and intelligence units to share
information with one another. At present, the most often
practiced form of intelligence sharing seems to be an
informal network of police and intelligence officials
who share news with one another outside the established
rules.
The Amsterdam Treaty The EU's
1997 Amsterdam Treaty went into effect on May 1, 1999,
and provided for a two-speed Europe by allowing closer
cooperation between countries wanting to forge ahead on
certain issues.
One important aspect of
Amsterdam was the abolition of border checks by
incorporation of the Schengen agreements into EU law for
all member states, except the United Kingdom and
Ireland.
The union members also agreed to
coordinate their approach to asylum and immigration as
well as increasing cooperation on police and law
enforcement.
The Amsterdam Treaty also provided
the institutional framework for common police action
across the EU in the following areas: facilitating and
accelerating cooperation between competent ministries
and judicial or equivalent authorities of the member
states in relation to proceedings and the enforcement of
decisions; facilitating extradition between member
states; ensuring compatibility in rules applicable in
the member states, as may be necessary to improve such
cooperation; preventing conflicts of jurisdiction
between member states; and progressively adopting
measures establishing minimum rules relating to the
constituent elements of criminal acts and penalties in
the fields of organized crime, terrorism and illicit
drug trafficking.
Framework decision on
terrorism In 2002, the EU "Framework Decision on
Terrorism" was adopted. According to a report by the
International Helsinki Federation for Human Rights in
April 2003, "nothing in the decision [on terrorism]
should be interpreted as being intended to reduce or
restrict fundamental rights or freedoms, such as the
right to strike and to demonstrate. In addition,
according to a complementary non-binding declaration
that was agreed on by the EU Council in December 2001,
the decision should not be understood to criminalize on
terrorist grounds persons who exercise their legitimate
right to manifest their opinions, even if they commit
criminal offenses while exercising this right."
The report continues: "The EU Framework Decision
on Terrorism leaves much up to the discretion of the
individual member states to determine where the line
between legitimate opposition and terrorism is to be
drawn."
By adopting such a stance, the EU left
unanswered too many questions about the legal definition
of terrorism and kicked it back to member states. The
framework decision called on member states to make
provisions in their national legislation for punishment,
and in June 2002 the EU Council agreed on the
replacement of traditional extradition procedures for
serious crimes, including terrorism, with a European
arrest warrant that went into effect on January 1, 2004.
The European arrest warrant makes it compulsory for a
person to be handed over to the state requesting him or
her from the state the person is currently in.
On paper these decisions seemed sensible, if
somewhat unclear; with the Madrid bombing last month
their faults soon became highly visible.
Doing a third of what is
required Baltasar Garzon, a Spanish investigative
judge, was quoted by the International Herald Tribune on
March 23 as saying: "There is an enormous amount of
information, but much of it gets lost because of the
failures of cooperation. We are doing maybe one-third of
what we can do within the law in fighting terrorism in
Europe. There is a lack of communication, a lack of
coordination and a lack of any broad vision."
Europol's 2003 report on organized crime in the
EU does not deal with terrorism as such, but it does
touch on the problems of police coordination, an issue
vital to anti-terrorist investigators, and seems to
confirm the views of Garzon. The report says: "A more
proactive and cooperative fight against organized crime
in the EU could be achieved by a higher degree of
prioritization and coordination, resulting in legal
harmonization (eg in the areas of drug trafficking,
illegal immigration, trafficking in human beings and
money laundering). Existing legislative initiatives at
EU and national levels should be implemented as soon as
possible."
The problems police
face Given the linguistic diversity of residents
in the EU, its open borders, and proximity to North
Africa and the Middle East, European counter-terrorist
forces are faced with enormously difficult operational
and jurisdictional problems. As in the United States,
few European law-enforcement officers speak Arabic. The
difficulties of infiltrating the underground terrorist
cells in the tightly knit Islamic ghettos in Europe is
another major factor.
Counter-terrorism
operations often use technical methods of information
collection such as monitoring cellular-phone
conversations (mainly in Arabic) and e-mail messages
(the same), and surveillance of financial transactions
and border controls. For this intelligence to be
effective it needs to be shared by those who can act on
it and prevent a tragic event.
Monitoring both
cellular and conventional phone conversations involves
tracking suspects who use multiple cell phones and who
have dozens of phone cards. This also requires the
monitoring agency to get periodic legal approvals for
the surveillance, a time-consuming task.
Monitoring telephone conversations is often
easier then understanding the conversations themselves.
These tend to be innocuous phrases, spoken in Arabic,
which mean little if anything to those listening in. It
is very rare to listen in on a conversation where the
suspects actually are heard saying anything of
operational importance, such as when a specific target
is to be attacked.
Share and share
alike The first level of intelligence sharing is
among the different law-enforcement and intelligence
agencies of a sovereign state. The natural tendency of
one agency wanting to keep its sources protected working
against the need to share their product with other
agencies in the interests of national security is a
universal problem. This became evident during US
congressional hearings in the aftermath of the September
11 attacks.
Whereas in the United States the
problem of coordination is limited to one national
jurisdiction and involves a small number of agencies
(mainly the Central Intelligence Agency, National
Security Agency, Federal Bureau of Investigation - FBI -
and Immigration and Naturalization Service), in Europe
the number of different agencies in 15 different
jurisdictions becomes almost unmanageable.
After
the Madrid bombings, French police officials were highly
upset at their Spanish colleagues for refusing to tell
them the type of explosive used by the terrorists. And
while this might seem a trivial matter and it is very
possible that the Spanish police might not have known
the answer to this question at the time, it is
illustrative of the broader problem.
With a
myriad different police and intelligence services
working side by side, each legally required to protect
their sources and limit distribution of covertly
gathered information, the probability of an intelligence
failure is dramatically increased.
The
BKA The German Federal Criminal Police Office,
the Bundeskriminalamt (BKA), is a highly professional
police force with an outstanding record of success. But
despite its domestic record, it can also make mistakes.
Like all other police forces in the EU, the BKA is bound
by domestic legislation and jurisdictional rights. On
its website, a profile of the BKA points to these
jurisdictional questions.
"The Bundeskriminalamt
is an essential cornerstone in a comprehensive system of
crime control and works as a partner with the police
forces of the federation and of the individual German
states. According to the German constitution, for the
most part police jurisdiction in Germany lies with the
16 German states. However, the diversity resulting from
the principle of federalism should not lead to
uncoordinated activity that creates obstacles for police
work. This is why the Bundeskriminalamt, as the central
police agency in Germany, has the task of coordinating
crime suppression at [the] national and international
level."
A revealing statement in the section
dealing with the mandate of the BKA reads as follows:
"By law, the Bundeskriminalamt has also been assigned
the task of promoting police cooperation in Europe and
throughout the world. After all, national borders should
not be an obstacle in the fight against crime."
Yet these national borders in the EU are rapidly
disappearing with the Schengen agreements, and this in
itself is another obstacle to fighting crime and
terrorism.
The use of terms such as "promoting"
and "should not be an obstacle" simply mean that at the
time the document was written in 2002, cooperation
between the BKA and the rest of the EU still needed to
be promoted, a far different meaning then
"implemented".
The BKA's mandate also gives it
"original jurisdiction" in fighting international
terrorism. The profile cited above claims: "The central
computer used for searches by the German police is
installed at the Bundeskriminalamt. It provides
information around the clock, responding to an inquiry
in less than 10 seconds. Is this person on the wanted
list? Is this item the subject of searches? No matter
whether information is needed by a radio patrol squad on
local streets or by border-control officers at a German
airport - an inquiry to INPOL, the computerized search
system of the German police, will provide a dependable
response."
In theory this seems ideal; however,
in the case of Muhammad Daki it failed.
Europol The Europol Charter adopted in
July 1995 was a compromise agreement among those members
who saw the need for a Europe-wide police force, an EU
FBI, and those who did not care for infringements on the
jurisdictions of national police organizations. The
result was Europol, the European Police Office.
Its objectives, as stated in the "Europol
Convention", are "to improve ... the effectiveness and
cooperation of the competent authorities in the member
states in preventing and combating terrorism, unlawful
drug trafficking and other serious forms of
international crime where there are factual indications
that an organized criminal structure is involved and two
or more member states are affected by the forms of crime
in question in such a way as to require a common
approach by the member states owing to the scale,
significance and consequences of the offenses
concerned".
More important, however, are the
tasks that were assigned to Europol. Among them, the
task of coordination with national police is assigned
top priority, while at the same time Europol was not
given the right to conduct independent investigations or
arrests of suspects.
The BKA website's
description of its relationship with Europol is an
interesting, if somewhat convoluted, explanation of this
complex relationship. "The European Police Office
(Europol) in The Hague is an important BKA partner for
police cooperation. Europol's objective is to improve
cooperation between the EU member states with regard to
the prevention and suppression of the fields of crime
laid down in the Europol Convention. Europol does not
have any independent investigative or executive powers.
All 15 member states of the European Union are
represented in Europol. The BKA is the Europol national
office for Germany. The information exchange between the
individual member states is carried out through the
national Liaison Office in The Hague. At the domestic
level, the BKA ensures the flow of information between
Europol on the one hand and state police, customs, and
border patrol authorities on the other hand."
But as the case of Daki cited above shows, this
exchange of information does not always take place, and
other component parts of Europol, as well as national
police agencies, are often left out of the bigger
picture.
In January, Europol issued a report on
its counter-terrorism activities in which it claimed:
"Despite military action in Afghanistan and the
disruption of a number of Islamic extremist terrorist
cells worldwide, al-Qaeda and linked organizations
remain a dynamic and potent terrorist force. Although
al-Qaeda has not carried out a terrorist attack within
the European Union, it has targeted and attacked
European and Western interests abroad."
On March
11 the attack was finally carried out in Madrid. The
wording of the Europol report, prepared prior to this
attack, is vaguely reminiscent of the testimony given by
US intelligence agencies after September 11 in which
they explained that most US intelligence agencies
believed al-Qaeda would attack US interests, but not
within the United States.
As US National
Security Adviser Condoleezza Rice testified on April 7
before the 9-11 Commission in the US Congress: "The
threat reporting that we received in the spring and
summer of 2001 was not specific as to time, nor place,
nor manner of attack. Almost all of the reports focused
on al-Qaeda activities outside the United States,
especially in the Middle East and North Africa. In fact,
the information that was specific enough to be
actionable referred to terrorist operations overseas."
The Europol January 2004 report makes the
following somewhat pleading observation: "Cooperation
with and among all competent authorities in the fight
against terrorism is seen as the proper and effective
answer to the current terrorist threats."
The
Schengen open door On April 6, the International
Herald Tribune quoted Spanish Interior Ministry
spokesman Ricardo Ibanez as saying: "People and
terrorists move freely across borders in Europe. Police
and justice officials do not. What we really need is to
tear down that last frontier in Europe and unify our
information and policing services."
While this
might seem to be a needed and reasonable step, it is
nonetheless a vague solution. The Schengen agreements,
worked out after many years of negotiations among states
and finally agreed in Schengen, Luxembourg, allow for
the free movement of people and goods through the
Schengen zone, which practically encompasses the entire
EU.
Without border checks and with a database
known as the Schengen Information System (SIS) meant to
keep track of criminals and terrorists, Europe's borders
became open. But soon afterward the SIS was considered
unsatisfactory and plagued with problems of updating. By
relying on the often capricious goodwill of national
police and intelligence organizations to share data with
the SIS database, the compilers of the database soon
realized that they were faced with problems which had
not been foreseen by its founders.
Given the
propensity of many Middle Eastern men to use the same
name or pseudonym, the list can contain thousands of men
with the name "Abu-Jihad". Or, as the case of Daki
showed, their names might not be entered on the list
since a national jurisdiction - in the case of Daki, the
BKA - found no legitimate reason for doing so.
The "2003 Europol Organized Crime Report" noted
that in January 2002 the EU Council "mandated the
European Commission to develop a new second-generation
Schengen Information System (SIS II). In the first half
of 2003, feasibility studies on the architecture and
functionalities of SIS II were completed and the [EU]
Council adopted, on June 5-6, 2003, conclusions on the
technical conditions for SIS II. The new information
system is planned to be ready by the end of 2006."
According to Europol, since January 15, 2003,
the fingerprints of anyone who applies for asylum in the
EU, Norway and Iceland have been stored in a database
called Eurodac. This seems to indicate a willingness
within the EU to track asylum seekers in case they might
be linked to terrorist groups and attempt to enter other
countries such as the US, which presumably can access
the Eurodac database.
Conclusions The
primary focus of the EU Commission after the Madrid
attacks is currently concentrated on the ability of
law-enforcement agencies within the EU to coordinate and
share information among themselves in order to prevent
further terrorist attacks. This will require a major
conceptual shift away from traditional
jurisdiction-based concerns to wider EU problems. It is
apparent that terrorist groups have now targeted the
entire continent as their battleground and national
jurisdictions hold little meaning for them except as a
means of avoiding capture.
The current,
post-Madrid tactic of preemptive strikes against known
terrorist cells in Europe seems to be showing results
and hopefully will prevent, or delay, new attacks. This
is, after all, the job the police are expected to do.
But in the long run, nothing can replace an efficient,
well-trained, EU-wide anti-terrorist force, which will
not be legally bound to deal with national jurisdictions
and will have the right to destroy terrorist threats in
Europe without insurmountable obstacles being placed in
its way by the EU itself.
