Drulakova - Post Democracy Within the EU

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Post-democracy within the EU: Internal security vs.

human rights - unavoidable conflict?

Paper prepared for the CEEISA 4th Convention, Tartu, 25-27 June 2006

Abstract

At the very beginning of the 21st century Europe needs to address terroristthreats to a larger extent than ever before. Both the EU member states and theEU institutions adopt whole range of measures to prevent and to fight terrorism.

Nevertheless, some of these measures can endanger human rights and freedoms.Paradoxically, efforts to enhance security could therefore decrease security ofindividuals. I use the concept of securitization to analyze this process. The text

tries to answer the question to what extent the securitization of terrorism takesplace inside the EU nowadays. This is done by the analysis of some counter-terrorist measures and of their perception by general public. In extreme case, anintensive securitization could change current liberal democracies into post-democracies.

Key words

terrorism, post-democracy, home security, individual security, Copenhagenschool, securitization, political discourse, France, Italy, Great Britain, EuropeanUnion

Radka Drulkov, Ph.D.University of Economics in PragueFaculty of International Relations

Czech Republic


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[email protected]

2
mailto:[email protected]:[email protected]


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Europe is coming to grips with the fact that al-Qaidas opponent is the West, not just the

United States. The interior ministers of the EU nations have been holding meetings tocoordinate anti-terrorist measures. The outcome of these meetings is likely to determine how

many of their civil liberties Europeans will have to sacrifice.Richard Rorty

Introduction1

Terrorism and fight against it are among key challenges in current internationalrelations. States as well as international organizations increasingly adopt newanti-terrorist measures. In Westfalian system of nation states security has twodimensions internal (inside the state borders) and external (at internationallevel). Although the political decisions and methods differ at the two levels(Liberty & Security Challenges2 2005a), they are interrelated. This interrelationis especially visible when the internal dimension of security is externalized. Atthe EU level we can call this process Europeanization of the internal security,which means that internal security was now defined as legitimate filed forEuropean co-optation(Liberty & Security Challenges 2005a). Europeanizationimplies that the measures for strengthening of internal security are adopted notonly by member states themselves but also by the EU as a whole.

Looking at the internal security from the individual point of view, therelation between state at one side and individual on the other side has two-ways.Traditionally, the security of individual is derived from the security of state.However, human and state security can also clash (Waisov 2005: 138).Strengthening of state security does not necessarily bring about thestrengthening of the human security. Moreover, some measures can evenendanger the security of individual eroding civil liberties and human rights(right to a fair trial, freedom of association, freedom of expression, no arbitraryinterference with the privacy, family, home or correspondence etc.) including

the core principle of European justice - presumption of innocence.3 In anextreme case, the individual could be endangered not by the terrorist threat but

by the anti-terrorist measures instead. This article examines some anti-terroristmeasures adopted both by some member states and by the EU itself assesingtheir impact on human security and especially on human rights.

1 This draft version is based on the text which will be published in Mezinrodn vztahy 2/2006. Any comments tothe text are welcome.2Liberty & Security Challenges is project of 5th Framework Programme for "The Changing Landscape ofEuropean Liberty and Security" (European Liberty and Security, ELISE) presented on the website

http://www.libertysecurity.org. The research is done by a number of European universities and research centres.3 It is not relevant for the text to distinguish between human rights, civil rights, civil liberties etc. which in othersense can not be automatically replaced. In this text they mean a block of rights belonging to individual.

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http://www.libertysecurity.org/http://www.libertysecurity.org/http://www.libertysecurity.org/


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Terrorist threat is usually seen as one of the greatest objective threats to both domestic and international stability. But terrorist threat has its owndynamics which can not be reduced only to its objective basis, it results from the

process of securitization as analysed by the Copenhagen school (Buzan 1991,

Buzan, Waever, de Wilde 1998). Securitization is process in which statesdeclare some issues as matters of state security and for this reason excludesthem from the standard democratic rules. Such issues are therefore excludedfrom the public debate and depoliticised. Political representatives convince

public about these steps with a great urgency. Hence the audience accepts thenecessity of such provisions to be left to experts only. Text presents casestudies on Great Britain, Italy and France which show that these countries havereached different stages of securitization of terrorism. France has pastexperience with terrorist attacks (remind Algerian attacks in 50s and 60s),Great Britain was attacked in July 2005 and Italy is expecting some kind ofattack in these days because of its support to American policy in the MiddleEast. Through the member states the securitization process rejoines at the EUlevel as well which is facilitated by the democratic deficit at this level.4

A massive securitization can lead to post-democracy (Rorty 2004). Post-democracy does not mean non-democracy. In post-democratic regime the publicopinion and influence on public affairs are reduced by the powerful minority of

political elites to minimum. The political elites do not keep in line with thepublic opinion and expertise more and more issues. Finally, the public audiencegives up on a possibility to influence the public affairs at all. Even though this is

not the case in any of the countries in Europe today, it remains a negativescenario which should be avoided.

The article analyses political discourse as the expression of political power. Some anti-terrorist measures can evoke political controversy. This isstudied at the cases of disputes between the political power and NGOs (orinterested public). The discourse analyses helps us to determine the level ofsecuritization in selected countries5; analyses of adopted measures shows the

possible extant of derogation from human rights.The investigation of the relation between anti-terrorist security measures

and human rights is still quite rare as much of the debate on the security/libertytension is too polemical and/or on a very weak theoretical basis (Liberty &Security Challenges 2005b). The article tries to overcome this shortcoming byconnecting of securitization to post-democracy. By analysing the empirical casesand political discourse I want to illustrate the clash between individual and statesecurity as well as a possible future threat of post-democracy. The connected

4 The text analyses anti-terrorist measures adopted at the EU level mostly during 2005.5 The way to study securitization is to study discourse and political constellations. If by means of an

argument about the priority and urgency of and existential threat the securitizing actor has managed to break freeof procedures or rules he or she would otherwise be bound by, we are witnessing a case of securitization.(Buzan, Waever, de Wilde 1998: 25)

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issue of the externalisation of internal security is addressed by the examinationof both three selected countries and the EU as such.

Home security versus individual security

I focus on the impact of internal security measures on the individual security(individual as a citizen whose rights and duties should be granted by state). Theproportions of these two sides of the same coin, that is state security andindividual security, are not always symbiotic but may be contested respectively.I have used the theoretical framework of the Copenhagen school of securitystudies for researching the state/citizen security relationship (Buzan 1991;Buzan, Waever, de Wilde 1998).

Contemporary international system is still based on the states as mainactors. Every state acts as independent and sovereign subject of internationalrelations. The main aim of every state is to ensure its survival and security insurrounding world (Drulk, Drulkov 2000: 13). Its external security efforts

belong largely to the remits of ministries of defence. But the state authorities behave as sovereign subjects also within the sub-state structures, internalsecurity is an example of this. Internal security is in remits of law enforcementagencies which are coordinated largely by ministries of home affairs andministries of justice.

The division of state security into internal and external one has never beenrigid but nowadays it is more interconnected than ever before. This shift iscalled externalisation of internal security (Liberty & Security Challenges

2005a). The main reason for the shift consists in the more and more intensivefight with the trans-frontier forms of organized crime including counter-terroristactions. At the EU level we can speak of the process of Europeanization (Liberty& Security Challenges 2005a). This means that some important counter-terroristdevices are more often adopted at the EU level than before, which correspondsto the idea of building the EU as an area of freedom, security and justice. AsBuzan stated, government stands at the frontier between internal dynamics of thestate and external dynamics of the international system and tries to balance them(Buzan 1991: 328-329). States may keep its external sovereignty but at the same

time they must be able to reduce criminal activities coming into/across itsterritory. Otherwise their proclaimed sovereignty loses its internal contents(Noina 2000: 13).

From the Copenhagen school point of view, the security means to ensuresurvival of the reference objects. The reference objects are placed at the threelevel of analysis international system, state and individual state being themost important. It is the sovereign state which is primarily obliged to its citizensto guarantee their safety within its boundaries and uses all its supreme powers tofulfil this objective. But as state may produce both security and insecurity for the

citizen, their relation is not equivalent. An individual is never so powerful todestroy a state but a state can endanger an individual (Buzan 1991: 44). The

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the reality but it also tries to construct a new one. This is done by securitizingactors using the words as survival, defence, utmost urgency, the priorityis to act now otherwise is could be late, duty to save [our] values etc. Thespeech acts are performed very emotionally, dramatically and with a great

urgency. We will focus on the use of these words in the empirical part of this paper as we will study some statements made by politicians havingresponsibility for the state security issues (and being the securitizing actors inthe front line) such as prime ministers and home affairs ministers. Connecting itwith some opinion polls on counter-terrorism I can asses the level ofsecuritization in selected countries and the EU respectively.

Post-democracy

Before speaking of post-democracy I clarify my concept of democracy. Two perspectives on democracy can be distinguished: procedural and substantive(Janda et al. 1998: 36 - 39). Procedural point of view focuses on the processeshow the decisions are made and on the procedures which allow people to govern(public debates, elections etc.). Substantive point of view accents the substanceof government policies (e.g. guarantees of the freedom of expression and humanneeds). Both perspectives agree that the public audience provides an efficientguidance to democratic society. The governments should be therefore sensitiveto the public opinion and from this reason also attempt at strengthening ofhuman rights and liberties. Empirical studies document the stabilizing andrationalizing influence of the public audience upon the government policies in

longer term (Everts 1996 in Drulk, Drulkov 2000: 103 105).If we look at securitization now, we can sum it up as excluding the public

from the decision-making leaving it with a little influence on the governmentdecisions. The securitized issues are dealt with by the securitizing actorsthemselves with no respect to the public opinion. Moreover, the audience is

persuaded about the necessity to give the influence up to the experts exclusively.If securitization continues in a longer period without the possibility of de-securitization,6 it could change the basis of liberal-democratic societiesdramaticaly. Under these conditions the democracy could degenerate into post-

democracy.Post-democracy is relatively new concept in the field of social sciences

and its interpretations differ from one scholar to another. Some researchersdefine post-democracy as weakening of national democratic states by acts oftrans-national corporations, global financial speculations and other influenceswhich limit the possibilities of democratic decisions within the states (Hrubeced. 2005: 7). According to them the main reason of this trend lies in the processof economic globalization which causes the increasing influence (more or less

6 De-securitization means that a certain security issue is politicized again, i.e. the issue is open to public debates,it is a matter of choice again (Buzan, Waever, de Wilde 1998: 29).

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indirect one) of trans-national corporations on matters of exclusively statepowers. This trend is negative in fact as it could erode the state sovereignty.7

Other researchers blame the NGOs for weakening the democraticprinciples as they are not elected authorities and from this stance they should not

have such a big influence on public matters as they have now. As one of themstated: Post-democratic challenges to American democratic sovereignty shouldbe clearly identified and resisted. NGOs that consistently act as if they arestrategic opponents of the democratic sovereignty of the American nation should

be treated as such. They should not be recognized or supported at internationalconferences, not permitted to roam battlefields, and not given special briefingsor access to U.S. government officials. (Fonte 2004: 125) The opinion of theCzech president Vclav Klaus is very similar to this one at the Council ofEurope summit (May 2005) he ... warned of what he called the dangerousinfluence of non-governmental organizations. President Klaus said that we areexperiencing what he calls a "post-democracy" - a society where democracy is

being put under pressure by different groups which having no mandate fromdemocratic elections still have an ambition to determine lives of citizens.(http://www.radio.cz, 23.5.2005)

According to this group, it is the state which has to be responsible for therespecting and granting of the human rights and liberties primarily, not the NGOs because of the weak regime of the current international law. Both of these twoviews see the reasons of the possible installation of post-democracy as external,coming from the surrounding world. But others see the reasons as internal too,

e.g. coming from the state itself. This view is represented by Richard Rorty andColin Crouch (Rorty 2004 a Crouch 2004). This article refers to their view on

post-democracy as to the analytical concept coming from normative discourse.8

According to them, post-democracy is a society ruled by political elitesdiminishing the influence of the public opinion.

Rorty defines post-democracy in the context of counter-terrorism: Yet ifmuch less severe damage occurred as a result of terrorism, the officials chargedwith national security, those who bear the responsibility for preventing furtherattacks, will probably think it necessary to end the rule of law, as well as the

responsiveness of governments to public opinion. Politicians and bureaucratswill strive to outdo one another in proposing outrageous measures. (Rorty2004: 10). The outrageous measures can limit human liberties in the end. Someof the citizens can even give up their rights and liberties on their own. However,governments often do not ask the citizens if they agree with such restrictions ornot. Moreover, the media would be coerced into leaving protest againstgovernments decisions unreported (Rorty 2004: 10). Extremely, whatever

7 Among others this is why the EU is being built as defensive reaction on the external globalizationpressures. (Hrubec 2005a: 2)8 The post-democracy in their view is accepted by the most scholars. The web sites Google Scholar(http://www.googlescholar.com) prove it Rorty and Crouch occupy the first places after the entry post-democracy having the highest quotation index.

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criticism of the government fighting terrorism could be punished by otherextraordinary measures as acts aiding terrorists. War on terrorism could be in anextreme case more dangerous than the terrorist acts itself.9 It is the public debatewhich can prevent aforementioned negative scenario to be put into practice.

According to Rorty, that is why the public audience should be stimulated tobecome more interested in the things of state secrecy foreign policy steps,armament etc. The security acts should be explained to the public and the publicshould call for explaining of these acts by its government which is in thedemocratic societies responsible for its steps just to the public. This is the onlyway of avoiding the post-democracy coming into existence.

The concept of post-democracy emerged in the field of political sociologyin recent years too (Crouch 2004). Political sociology defines the post-democracy similarly to Rorty: political system is ruled by minority which ismore active than the mass of people, e.g. citizens. The citizens beingdiscouraged from interest in public matters in longer period need not beconsequently interested in public policy any more. In this situation, elections arenot means of the citizens rights, the citizens must be forced to take part in them

by the campaigns directed from above (Crouch 2004: 20 - 21). According toCrouch, the role of citizens in such a system is minimized to the form of passive,manipulated participants. This is done by political elites which are able toidentify public demands, are able to influence formulation of the demands butare unable to guarantee common weal. According to Crouch the politicians are akind of traffickers finding out the public demands and reacting by wolf soup in

so that to be (re-)elected. Crouch compares the process to parabola: with thedemocracy on its top, the curve on its left side represents the phase of pre-democracy, the curve on its right side the phase of post-democracy then.Flowing from this, the post-democracy is not non-democracy but the importanceof the top, e.g. the democracy, is reduced (Crouch 2004: 20-21).

According to Rorty the western society stands at the post-democracysdoor nowadays, Crouch even sees some symptoms of post-democracy in thesedays. Crouch identifies the symptoms at different levels, one of them is made ofeconomic globalization outcomes. He mentions the influence of the terrorist

activities and counter-terrorism too the situation in the US and Europe after9/11 reflects the presence of post-democracy by now states proclaim the rightfor state secrecy more than before, they claim the right to supervise their citizensand interfere their privacy (Crouch 2004: 14). It is evident that the trade-offsand dilemmas (notably in relation to liberty) involved when democracies enterhigh security engagements, is far less openly addressed than, for example,when the US entered the Cold War. (Liberty & Security Challenges 2005b)

The main features of post-democracy are: the minority (political elites)has the decisive role in society with simultaneously declining influence of

9 Rorty even says that he have spent more time worrying about what his government will do than about what theterrorists will do (Rorty 2004: 10).

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public, moreover the influence of audience is marginalized by the elites. Hencethe interest in public matters is minimal which seems to be basis for slighteroding of civil liberties without public protests. Just such kind of manipulationscould be the outcome of the securitization process, some even speak about

unspecified hyper-securitization which allows for civil rights violationswithout precise links to specific and specified threats. (Liberty & SecurityChallenges 2005b) The relation between security and democracy is fragile.

Anti-terrorist measures in selected member states of the EU primary

study

The text chooses three member states of the EU Italy, Great Britain andFrance. The Italy perceives terrorist threats as top actual mainly because of itssupport to the US in the Middle-East; Great Britain because of the same reasonand because of its recent terrorist attack and following actions; France as it hasmany years experience with tackling the terrorist threats (at least since 60s andthe war on Algerian independency). Except for these reasons, the states anti-terrorist measures are often criticized by NGOs, especially by those watchingthe human rights (Human Rights Watch, Statewatch, Privacy International etc.);independent journalists (United Press International, The Economist etc.) and last

but not least by interested public. But their criticism is usually rejected bygovernments. Together with successful securitization these measures may leadthe societies into the ante-chamber of post-democracy. Luckily, it is more or less

negative scenario which can be and should be avoided.The main aim is to find out weather securitization is present within

selected countries and to establish the level of securitization at same time.Through the political discourse analysis I try to find out whether the states are inthe phase of securitizing step or in the phase of full securitization already. Thiswill be done by analysis of the statements of the governments - represented bymembers of government responsible for internal security, i.e. prime ministersand home affairs ministers - concerning the counter-terrorism. I will focus onspeech act they use. The second step will be the analysis of opinion polls

concerning the counter-terrorism performed by their government. It will show usthe level of accepting the securitization of terrorism by general public. At theend of each case study there will be mentioned some anti-terrorist measuresdocumenting their extraordinary feature. I do not want to doubt upon anobjective basis of terrorist threats and upon the rationality of adopted measuresen bloc. What I want to show is that it is unnecessary to adopt extraordinarymeasures which do not have to be effective, contrary they could endangerhuman rights by eroding them slightly. That is why I have chosen only measureswhich breach the rule of law.

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Great Britain

The analysis of the political discourse concerning the terrorism in Great Britaintells a lot about securitization efforts of the British government. The governmentcomes to grips with the opponents represented by House of Lords, judges, public

etc. over the necessity of some anti-terrorist measures. The statements of TonyBlair, Prime Minister, and Charles Clark, Home Secretary, provide evidence ofthe securitization of terrorism. Tony Blair had expressedh himself veryemotionally in his statements after the London attacks and he emphasised thequestions of national identity a lot: as the world has changed hence the needto protect our way of life is necessary (Statewatch 2005d: 1) and he thinks thatEuropean human-rights law prevents Britain from dealing with supporters ofterrorism (The Economist, August 13th 2005: 29).10

The Terrorism Act (2000) was presented as reaction to extraordinarycircumstances which was also the case with any other counter-terrorismlegislation. When a new legislation after the London attacks was discussed inthe House of Lords (November 2005), some of the MPS were strongly againstincreasing of police powers without objective justification.11 Tony Blair blamedthese MPS from putting the security of the country at risk (The Economist,

November 12th 2005: 43) He fought for the higher police competencies bystressing the urgency: We need the competences to protect the citizens securityof this country and we can not admit to MPS to trifle with the legislation(Prvo, March, 11 2005: 9).12 He claimed that [t]he present law is called for bythe police and security services. Voting it down would mean jeopardising the

country`s security. (Paye 2005) There is no doubt that Blair acts as an actorsecuritizing terrorism. Charles Clarke, the home secretary, supported Blair withhis emphasis on the necessity of re-evaluation of the balance between humanliberties and security as based by European Convention on Human Rights.According to him this balance is not right for the circumstances which wenow face (Hayes 2005b: 1).

The speech act performed by British government provides evidence of thesecuritization of terrorism as it is emotive, with state of emergency notions,convincing about necessity of adopting new and more radical steps to fight

terrorism. In this moment one can ask about the level of securitization - is therea full securitization or only a securitizing move? According to the poll taken byEurobarometer at the end of 2005, a 20 point increase has been recorded(from 14% to 34%) (Eurobarometer 2005: 8) in the UK for consideringterrorism as one of the most important issues threatening the country. Thisnumber has increased due to London attack but the public is not convinced a lot10 According to Mr Blair, the first step in that process is to find a way around the 1998 Human Rights Act (TheEconomist, August 13th 2005: 29).11 The police wanted a dramatic increase in the number of days a terrorist suspect can be held without charge,from 14 to 90. (The Economist, November 12th 2005: 43) The final compromise consists of 28 days suspecting

without charge even Blair insisted that there could be no compromise on the 90 days because it was the rightthing (The Economist, November 12th 2005: 43).12 Translated from Czech newspaper Prvo.

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about necessity of some legal devices adopted to fight terrorism. Some of thecritics objected to the new legislation saying that the executive powerconcentrates in its hands all the power, including judicial prerogatives (Paye2005)as the new legislation gives the judicial prerogatives to the secretary of

state for home affairs.13

This change thus calls into question the notion ofhabeas corpus. (Paye 2005)Neitherthe House of Lords is satisfied with somenew legislation acts as it could be seen during the scrutiny on the controlorders. The control orders allow to put suspected terrorists under house arrest the House of Lords sent this highly contentious bill back to the House ofCommons (The Economist, March 5th 2005: 38) as it wanted to strengthen the

burden of proof.14 Even a high court judge branded one of the counter-terrorismdevices as an affront to justice and ruled that [it] breached human rightslaws. (Dodd, Bailey 2006)

Thus given the opponents objections, it can be argued about the level ofsecuritization in the UK that the country experiences securitizing movenowadays. The terrorism is securitized by members of government but theinterested public, human rights organizations and some state institutions are notconvinced completely about necessity of some of anti-terrorist measures. Somecritics are also afraid of future development (implicitly in post-democratic way)indicating that [f]undamental human rights, such as the right to a fair trial, arewhat distinguish democrats from terrorists and dictators. The governments

policy is in tatters we hope that this time they are listening. (Dodd, Bailey2006)

The UK had passed a law enhancing to fight against terrorism even beforeSeptember 2001 because of its long experience with the IRA terrorism. The firstcomplex framework to counter-terrorism was put in 2000 by Terrorism Actwhich is still in force andRegulation of Investigatory Powers Act. The attacks ofSeptember 11, 2001, allowed the British government to force the urgentadoption of a new antiterrorist law,Aniterrorism, Crime and Security Act(Paye2005)with sunset clause till 2005. But before expiry a new modification wasapproved ( Prevention of Terrorism Bill, March 2005) strenghtening theexcessive measures which provoked more controversies than ever before.

Already the first law (Terrorism Act) was criticised by human rightsorganizations but the situation has not changed with following legislation:Various non-judicial organs of the Council of Europe, , recently scrutinisedand severly criticised the detention conditions of foreign terrorism suspects inthe United Kingdom as well as the countrys new anti-terrorism legislation.(Mantouvalou 2005: 1) They were declared by some NGOs as derogating fromthe European Convention on Human Rights.15 But, under the convention,derogation is permitted only in time of war or other public emergency13 This criticism goes for so called control orders which can be imposed by home secretary only on person

suspected from some kind of terrorist involvement especially in the cases with soft evidence. It is clear thatthe home secretary is acting as the judge, jury and prosecutor. (Dodd, Bailey 2006)14 However, calling for refinement of proof procedure was not successful.

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threatening the life of the nation and then only to the extents strictly required(The Economist, February 19th 2005: 33). None of these conditions seems to befulfiled in the UK nowadays.

ThePrevention of Terrorism Bill(2005) brought a new pre-emptive anti-

terrorist instrument: control orders. The control orders can for example ban theperson suspected of terrorist activities to use any communication devices, orleave a certain area, or have any visitor at home or any other limitations of freemovement etc. Thus the suspects are not necessarily taken into custody (forwhich an irrefutable evidenceis usually required) but are put under house arrest(for which the suspicion of home secretary is sufficient). This instrument resiststhe basic principle of Western judicial system, e.i. the presumption of innocence,and can be easily abused (Paye 2005).

France

French government representatives, especially those responsible for homesecurity, aim at tough counter-terrorism line but the securitization of terrorismclashes with the objections of the civil rights NGOs and interested public insimilar way as in the UK. Nicolas Sarkozy, Interior Minister, summed up theFrech counter-terrorism as zero tolerance policy (The Economist, August 13th

2005: 25). Sarkozy indicates the terrorist attack on France and on Paris inparticular as highly possible and counts the tough counter-terrorism as the onlyefficient. Sarkozy has argued the new legislation reinforces Frances capacity tofight terrorism and better protects French citizens against the threat (Bryant

2005: 1). Dominique de Villepin, Prime Minister, has said: It is essential to beopposed to [terrorism] together and by all means. (Whitlock 2004)

During Senats negotiations on the new anti-terror law (November 2005)Sarkozy put pressure on deputies to ratify the bill arguing that greater powers tolaw enforcement agencies are necessary to avoid a catastrophe (BBC News2005). The new bill was adopted by the easy majority (373 : 33) in the end. Butas United Press Internationalmentioned the counter-terrorism may become akey issue before 2007 presidential elections. Both Sarkozy and Villepin areconsidered to be front presidential candidates and cracking down on Islamist

extremism is the kind of get-tough policy French voters are likely to support(Bryant 2005: 1) Nevertheless, the public support to the extraordinary anti-terrormeasures is not very high indeed as indicated by polls.

The terrorist threat was perceived as real by 50% of French population,but only 11% of them considered it as top actual (Eurobarometer 2003). Sarkozyhad no strong support to his home security policy until the 2005 riots. Toughmeasures adopted to stop the riots gained him support (he had got a 70% support

15 The Terrorism Act 2000 allows police to interrogate suspects for up to seven (extended in 2004 to 14 and atthe end of 2005 to 28!) days without charge; it allows premises to be searched without a warrant etc. (Hayes2005b: 1-2)

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then) and confirmed him in merits of a firm hold policy.16 Although it could looklike the full securitization of terrorism in France there are expressed many

protests from various human rights organizations, researches etc. The publicdebates on the counter-terrorism, home security and individual rights are

common in France. Some of them criticise the extraordinary measures and warnof the human rights erosion explicitly (Whitlock 2004, Human Rights Watch2005, Lerougetel 2005, Lefebvre 2002 etc.). Some of them emphasis the anti-terror legislation in existence since 1986 (which could be better used) instead ofadopting new, more excessive law. On the other hand, such criticism does nothave wide impact: While other Western countries debate the proper balance

between security and individual rights, France has experienced scant publicdissent over tactics that would be controversial, if not illegal, in the UnitedStates and some other countries. (Whitlock 2004) The French case study cannot be summed up unambiguously but we can say that France is more or lessstanding at the door-step of full securitization of terrorism.

France has experiences with Islamist terror since the Algerian war in 50sand 60s and has developed a preventive system for suppressing extremism.Current system is based on three pillars: increased surveillance, offensiveharassment and a tough criminal-justice system (The Economist, August 13th

2005: 25 - 26). The increased surveillance is applied in France since 1995 whenParis was attacked by Algerian terrorists and is aimed mainly at Muslimminority. Nevertheless, France considers itself to be the birthplace of humanrights which is difficult to reconcile with the mass surveillance. Thus the secret

services identified three groups which are under permanent surveillance becausethey may serve for terrorist recruitment converts to Islam; French citizens whohave fought in Iraq and brought back violent ideas, and people who could beradicalised in prison (French Muslims have 10% in population but majorityamong prisoners) (The Economist, August 13th 2005: 25).

Offensive harassment (or active intolerance) means raids on placessuspected of harbouring extremists with the deterrence effects. The raids aresometimes borderline as they are done under the pretexts as health check, safetycheck, a tax audit etc. (The Economist, August 13 th 2005: 25).17 Although these

raids can be effective in a short period they may cause serious problems in along run. The policy of active intolerance can be evaluated as successful in short

period but in longer period it triggered the riots at the end of 2005 within socalled second generation of immigrants which felt to be discriminated andtreated as second-class citizens

Toughness of French counter-terrorism is reflected in criminal-justicesystem too. One of the measures makes it possible to held suspected terroristsfor 96 hours without charge. A 1996 law gives judges free rein to detain16 On the other hand, during student protests (2006) it was just Sarkozy who opposed a strong line in this

situation and acted like a conciliator.17 There were made 88 such raids in 2004 which involved 1,173 people. Of these, 185 were taken into custody,and eight prosecuted. (The Economist, August 13 th 2005: 25)

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suspects merely for association with wrongdoers involved in a terroristenterprise. (The Economist, August 13th 2005: 25) Another measure concernsradical clerics which are expelled from the country if they encourage extremists.

The new French anti-terrorist legislation is supported by its proponents as

reducing the threat of Islamist extremism but its critics fear that it will curb basicfreedoms with few benefits in return. (Bryant 2005: 1) Human rights NGOsdoubt the necessity to adopt a new legislation by pointing out the alreadyexisting law (dating back to 1986) which supports the relevant authoritiessufficiently. Jean-Pierre Dubois, president of Frances Human Rights League,has said that: Every time you have a terrorist attack, you have Westerngovernments taking the opportunity to harden laws against terrorism. Andhardening restrictions against civil liberties. People in France are getting used to

being treated like potential suspects. (Bryant 2005: 1)

Italy

It seems that Italy had moved from the securitizating move to the fullsecuritization of terrorism. The securitizing steps are accepted by majority of

people as polls indicate. Terrorism is highlighted as imminently threatening thevital interests of the country. The fighting on terrorism by all means is necessarywhich supports Giuseppe Pisanu, Interior Minister, saying that: Italy willstop at nothing to fight terror. (Celeste 2005)

Silvio Berlusconi, Prime Minister, spoke about superiority of westerncivilisation (The Economist, July 16th 2005: 27) which must be defended by

West. Berlusconi predicted that the West will continue to conquer peoples, likeit conquered communism even if that means confronting the Islamiccivilisation (Standish 2001). Giuseppe Pisanu, Interior Minister, claimed that[w]e have before us a grave threat that must be faced with all the means of

prevention and opposition that we have (aljazeera.net). But because thecentral-left opposition is afraid of too wide and draconian measures, Pissanu atanother opportunity stated that: We cannot curb the freedom of the public tocombat the enemies of freedom. (The Economist, July 16th 2005: 27) The thenopposition led by Romano Prodi preferred targeted measures instead of general

ones and Pissanu had to suppress the evolving emotions. Nevertheless, Pissanuprefered tougher measures and that is why he appreciated the latest anti-terrorlaw (2005) by stating that it makes existing norms sharper and more incisive inthe fight against terrorism (Statwatch 2005e). He justified it by state ofemergency terrorism is knocking at Italys door (The Economist, July 16th

2005: 27). In this light he evaluated the adopted measures not as extraordinarybut as helping the counter-terrorism to be more efficient.

Some of the government parties from far-right are more militant (TheNorthern League, The National Alliance); they called for a motion declaring

Italy at war with terrorism (The Economist, July 16th

2005: 27) which wouldenable using further extraordinary measures. The fighting terrorism was

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institutionalised by setting up the Strategic Anti-Terrorism Analysis Committeewhich is composed of representatives of all law enforcements agencies, secretservices included. The Committee shall identify potential threats there weremore than 140 of them till September 2005 and recommend vital measures to

be taken (Ministero dellInterno: 1).When we look at polls made on terrorism, it seems that there is a fullsecuritization of terrorism in Italy. Even in 2003 was the threat of terrorism

perceived as imminent by 62% of population, 17% of them felt it very strongly(Eurobarometer 2003). Accoring to the poll for the Italian daily news Corrieredella Sera (2005) as much as 80% of Italians see a serious risk of terroristattacks while 66% of them think that an attack could be within several months(The Economist July 16th 2005: 27 - 28). Anti-terrorist measures are mostlyadopted without wide public debates.18 This can be interpreted in the way thatItalians need not to be persuaded about the necessity of adopting extraordinarymeasures any more. When the new anti-terrorist law was adopted there was nomajor opposition to the law even though Italy has a healthy protest culture(Celeste 2005).

Italy belongs to the main supporters of the US policy in Iraq which is whyItalians are afraid of imminent terrorist attack (The Economist, July 16th 2005:27-28).19 Italy multiplies existing anti-terrorist measures and makes themtougher than the other selected states. The new Italian anti-terrorist law is validsince August, 1st 2005. It broadens the scope of activities being declared asterrorist and thus must be under special regime surveillance: terrorist recruitment

and/or terrorist training, conducts that have terrorist goals etc. The period duringwhich suspects can be interrogated without a lawyer being present was increasedform 12 to 24 hours which may according to Amnesty International crackthe right to a fair trial (Statewatch 2005e: 3). Some of the measures may soundreasonable but Italian law has substantial weak point dispersion ofcompetencies among law enforcement agencies. This weakeness was notrectified by the new legislation, moreover the legislation grants powers to searchor detain suspects for anti-terrorist purposes even to the army. It also allows the

prefetto (local police chief) to order the immediate expulsion of foreigners

(Statewatch 2005e: 3 - 5) Hardening of the anti-terrorist legislation withoutresolving this weak point could not have desirable effects.

One of the new anti-terror laws imposed the duty to check all the Internetcaf clients on communication providers to store their IDs and track thewebsites they visit. The law from July, 2005 ordered these providers to make

passport photocopies of every customer seeking to use the Internet, phone, orfax (Celeste 2005: 1) All the companies providing communication services hadto apply for the special licence in which they obliged themselves to submit to

police authorities a list of customers and a list of web pages they have visited.

18 But speaking of the Italys activities in Iraq, the situation is totally different.19 Most Italians think that the best counter-terrorism would be withdrawing the Italian troops from Iraq.

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These data will be stored until September 31, 2007 at least. Italian Associazione per la liberta nella comunicazione elettronica interattiva criticises the lawsaying that it represses civil rights with the pretext of terrorism and it does notdistinguish prevention from repression (ALCEI 2005: 2).

ConclusionThe three case studies made on the UK, France and Italy show slightly differentlevels of securitization of terrorism. Only Italy seems to be in the fullsecuritization of terrorism - the governments political discourses providesevidence of the securitizing move, i.e. its speech act is aimed at presentingterrorist threat as state of emergency. Moreover, public is convinced of animminent terrorist threat and accepts the governments explanations. For thegovernment it is therefore easier to remove the counter-terrorism from publicdebates and adopt new and sometimes extraordinary measures without asignificant opposition.

On the other hand, France and the UK still seem to be in the phase ofsecuritizing move. The governments of both states try to securitize terrorism but

public does not consider adopting new legislation as an urgent need. There aremany debates about the anti-terrorist policy in newspaper, on TV, on Internet,among the institutional structures of the state (House of Lords, Senate House,

National Assembly), among human rights organisations, among many specialistsat public sessions, conferences etc. Some of them draw attention to the questionof democracy asking wether adopted laws can in some way endanger the system

of democracy within Western countries. Some of human rights and judicialpillars may be affected by the anti-terrorist measures, e.g. right to privacy, rightto a fair trial, freedom of expression, presumption of innocence etc. Hence theconcept of post-democracy is to some extent relevant, nevertheless it is not areal scenario in the three countries nowadays.

Counter-terrorism within the EU

It is not necessary to analyse the political discourse within the EU because it is

performed by the same politicians and the proceedings at the EU level are closeto those at the member states level. Domestic experience and legislation of themember states are decisive for the EU counter-terrorism. Following the July2005 bombings in London, Jacques Barroso, Commission President, said: Inresponse to this threat against our common values, the European Union willstand together ever closer and intensify our mutual support and assistance.(EurActive.com 2005) Hence the counter-terrorism within the members isreplicated at the EU level as well. This part of the text will address some of themeasures which could be labelled as extraordinary and diminish the scope of

human rights within Europe.

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Ad hoc co-operation in the field of home affairs and terrorism particularlygoes back to the end of the 1960s. More organized coooperation althoughoutside law and institutional framework of the then European Community wasset up in 1975 by the TREVI groupe (Terrorisme, Radicalisme, Extremisme et

Violence Internationale) (Drulkov 2005: 18-20). Maastricht Treaty introduceda more coordinated framework but still at the intergovernmental level which wasmodified a bit by Amsterdam Treaty. Since Amsterdam Treaty the EU is built asan area of freedom, security and justice, all three issues being balanced becauseEuropean public order shall respond to the desire of citizens forsecurity and reflect the values of freedom and justice to which the Union iscommitted. (Wallace 2005: 458). Such an optimum is desirable but callsfor liberty have been overridden by the security rationale. Security has invadedthe dimensions of Freedom and Justice. In a word, the balance has been missed.(Balzaq, Carrera 2005)20 Others interpret this statement in a very similar way there is no balance between security and civil liberties just less of each.(Hayes 2005) These affirmations can be backed up by some Union anti-terroristmeasures (innovation of Schengen Information System (SIS II), so calledSchengen III and foremost Data Retention Directive) all of them vulnerable to a

potential abuse detrimental to civic freedoms. Our attention will be focusedforemost on the last mentioned legislation which is the most controversial, thatis Data Retention Directive.21

Data Retention

The EU discussions on the Data Retention as a new tool for fighting terrorismhad taken place since 2004 and resulted into two proposals, each of them withits own connotations and procedures one was concluded within the third pillaras a framework decision and the second within the first pillar as a directive.22

Both of them included retention of telecommunications data to investigateterrorist acts and serious crimes. The adoption of the proposal (in the form ofDirective at the end)23in the aftermath of London bombings may be an exampleof the current momentum to effectively and comprehensively implementmore widely as soon as possible cooperation on a highly contested set of

technical security measures (Bigo, Carrera 2005). The proposal wassubmitted to the European Parliament during 2005. However the Parliamentrefused it at first pointing to the incompatibility with Art. 8 of the European20 Quoted from ELISE research (European Liberty and Security).21SIS IIproposal contains also some equivocal elements, for example the term of violent troublemakers orsuspected terrorists which will be probably included into the SIS II but the definition of these categories is notclear at all. The criminal law needs maximum exactness in wording otherwise it can cause serious problems. Socalled Schengen III Treaty (the ratification process is still not over) seems to fulfil the trend of proliferation ofdatabases as it includes setting up of the DNA database, database of persons meaning threat to security andpublic order in relation to large events with cross-border significance (Art. 3 of the Treaty) etc. But in databasesalone cannot be found salvation against terrorism.22 Framework decision is a tool of third pillar which has to be adopted by unanimity but with limited powers ofEuropean Parliament and European Court of Justice. Democratic deficit is called into question in similar cases.23 COM(2005) 438 final

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Convention of Human Rights, which guarantees the right of respect for privatelife against interference by a public authority. (Balzacq-Carrera 2005: 3). Butthe Parliament yielded to the UK Presidency24 in the end and accepted the

proposal in first reading.

The Directive contents a duty of telecommunication services providers(telephone companies and internet providers) to retain data of all connectionsrealized by every individual. It does not contain the content of any connection

but includes all the identifiers of phone calls (even unsuccessfully establishedconnection), e-mails and websites visits: who was contacted by whom (phonenumbers, e-mail addresses), when and how long. The phone call data would bekept for one year and Internet communications for six months (EurActive.com2005), but this is a minimum (maximum depends on every states decision). Thecost of the storage shall be met by the telecom companies themselves. This willcertainly raise the price of their services which will be paid by individual user atthe end. Except for the invasion to the right of privacy this system will de factoforce the people to contribute to its own surveillance.Moreover, the efficiency ofthis Directive is quite unclear as it has hardly any preventive purpose but can becalled into question until ex postinvestigation.

The Data Retention Directive cannot sustain a more general criticismeither. The organizations paying attention to the digital data transmission and tohuman rights made public their common letter which they sent to Members ofthe European Parliament on Data Retention (Privacy International and

European Digital Rights 2005) before the directive was adopted. They warn

against the intrusion upon the privacy right of the individual. They identify theDirective as invasive, illegal, illusory and illegitimate:

- invasive because it invades the individual privacy beyond reasonablemeasure and can create a map of all of our contacts and relationships indetail (Privacy Internationaland European Digital Rights 2005: 1);

- illegal because it criminalizes using of telecommunications meansbecause [t]he indiscriminate collection of traffic data offends a core principle of the rule of law: that citizens should have notice of thecircumstances in which the State may conduct surveillance, so that they

can regulate their behaviour to avoid unwanted instructions (PrivacyInternationaland European Digital Rights 2005: 2)25;

- illusory because the identification of suspicious individuals will notper seensure the security of the region;

- illegitimate because its approval is an act of policy loundering: to passlaws at the EU level [which] failed in Member States (Privacy

Internationaland European Digital Rights 2005: 5).

24 After London bombings the anti-terrorism became the top priority for the UK Presidency which wanted topush Data Retention proposal either as Directive or as Framework Decision.25 The European Court of Human Rights has ruled that the recording of traffic data is a violation of Article 8rights (Article 8 guarantees every individual the right to respect for his or her private life, subject only to narrowexception where government action is imperative). (Privacy Internationala European Digital Rights 2005: 2)

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Some years ago fierce discussions took place in the EU (lackingunanimous view) on surveillance of people by means of security cameras whichwere installed to watch over the public spaces. Some years on, there are no suchdiscussions not only because the cameras have proved their raison dtre but

also because of people got used to them. Even though it looks like it might bethe same with the data retention measure (i.e. it is only about getting used to it)there is one substantial difference the security cameras are watching over

public space which is not anybodys private area. Using the phone, websites, faxmachines etc. is a part of everybodys private space and that is the stumbling

block of the measure.

Conclusion

Some measures adopted both at the state and at the EU levels to combatterrorism share a dangerous feature: by enhancing the security of the state theyconsequently endanger individual security by cracking his rights and freedoms: human rights and civil liberties can be endangered and finally lost to theexceptional security demands. (Balzacq-Carrera 2005: 1). This paradox isexemplified by such measures as control orders in the EU, active intolerance inFrance, data retention in Italy and in the EU, etc. But it seems that currentEurope subscribes to the view once voiced by the Head of MI5: we valuecivil liberties and wish to do nothing to damage these hard-fought for rights. Butthe world has changed and there needs to be a debate on whether some erosionof what we all value may be necessary (Statewatch 2005d: 4).

Securitization is an act which gives a chance to excessive andextraordinary measures to be adopted. Securitization includes three subsequentsteps: firstly, a security threat must be identified and presented as an urgent issue

by securitizing actors; secondly, these actors must convince public about theirarguments (and necessity to adopt new and extra measures), their success orfailure can be measured by polls on related topics; it seems that the objections ofthe public lose their weight, the discussions on the need and substance of the

proposed measures are disappearing during this phase; thirdly, securitizationactors remove the security field out of public decision making process which

allows them to propose and adopt extraordinary measures. The securitizationprocess is done at this moment. The case studies in this paper have pointed outthe presence of the securitization of terrorism in all three European countries.However each country is in a different phase France and the UK at the phaseof securitizing move while Italy is very close to full securitization of terrorism.

It may be argued that anti-terrorist measures are successful. But it is notevident that using todays security tools would help to prevent an attack similarto the one on 09/11. Although the extraordinary measures can be effective in ashort run, in a long run they are likely to cause serious problems. The example

of this is the policy of active intolerance in France, which can be evaluated assuccessful in a short run (some people were accused of crimes connected with

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terrorism). But in a long run they triggered the riots at the end of 2005 amongso-called second generation of immigrants which was frustrated by what they

percieved as second-class citizenship which wasresult of an active intoleranceamong others.

Greater danger than terrorism itself is that we create a repressive anddefensive society (Liberty & Security Challenges 2005c). Extraordinarymeasures with limited applicability in time (having so called sunset clauses)often turn into permanent laws. Some of them can intrude human rights andfreedoms which is frequently criticised by some institutions or individuals. Butgovernments stop listening to the critics mainly because of securitization. Thismay be the first step to post-democracy. The second step consists in the intensityof state reactions to potential terrorist threats: The objective of most actualterrorism is usually the overthrow of the state, or at least the status quo. That

being so, it is crucial that a democratic state does not over-react to terrorism orthe threat of terrorism, because to make any of these errors can catapult a stateout of democracy (Liberty & Security Challenges 2005c). Extraordinarymeasures bring interference with the spontaneous order of society. The only wayout of the ante-chamber of post-democracy lies in the public which should havea possibility to take an active part in public matters because this is the core

principle of liberal democracies.

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Drulakova - Post Democracy Within the EU

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