UNIVERSITY OF AMSTERDAM
GRADUATE SCHOOL OF SOCIAL SCIENCES
Finding the proper balance
Secrecy and accountability in the EU terrorist blacklisting processJanita Figge Master thesis
MSc Political Science – International Relations September 2014
Supervisor:
Dr. Stephanie J. Simon Second reader
1 LIST OF ABBREVIATIONS
AFET Committee on Foreign Affairs
AFSJ Area of Freedom, Security and Justice
CD Council Decision
CFI Court of First Instance
CFSP Common Foreign and Security Policy
CP Common Position
CPP Communist Party of the Philippines
DPA Declaration of Political Accountability
DROI Sub-Committee of the Committee on Foreign Affairs on Human Rights
EC European Commission
EEAS European External Action Service
EP RoP Rules of Procedures of the European Parliament
ESDP Common Security and Defence Policy, formerly known as European Security and Defence Policy (ESDP)
EU European Union
EU INTCEN European Union Intelligence Analysis Centre, formerly known as Situation Centre (Sitcen)
EUCI European Union Classified Information Eurojust European Union’s Judicial Cooperation Unit
Eurojust JSB RoP Rules of Procedures of the Joint Supervisory Body of Eurojust Europol European Police Office
Europol JSB RoP Rules of Procedures of the Joint Supervisory Body of Europol EUSR European Union Special Representatives
G6 France, Germany, Italy, Poland, Spain and the United Kingdom
IIA Inter-institutional Agreement/arrangement
JSB Joint Supervisory Body
LIBE Committee Committee on Civil Liberties, Justice and Home Affairs
OPSEC Operations security
SEDE Sub-Committee of the Committee on Foreign Affairs on Security and Defence
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
UN United Nations
2 TABLE OF CONTENTS
1. Introduction 4
1.1 Targeted Sanctions 5
1.2 EU blacklisting regime 6
1.3 Blacklist coverage in academic literature 7
1.4 Research objectives 9
1.5 Thesis outline 10
1.6 Notes on methodology 11
Part I – SETTING THE CONTEXT
2. Pre-emption 14
2.1 Risk and pre-emption 14
2.2 Pre-emption in the EU 15
2.3 Pre-emption and counterterrorism 16
2.4 Pre-emption and the burden of proof 17
3. Epistocracy 19
3.1 The relationship between expert and government 19
3.2 Epistocracy 20
3.3 Negative implications 21
3.4 Epistocracy in the EU blacklisting process: the intelligence sector 22
4. Network-based governance 25
4.1 Why does network-based governance materialize? 26
4.2 EU networks of intelligence cooperation 27
4.3 Informal counterterrorism arrangements 28
4.4 Efficiency versus accountability 30
4.5 Conclusion part I 31
Part II – SECRECY, AN UNSOLVABLE DILEMMA?
5. Secrecy, a conceptual approach 32
5.1 Why is secrecy problematic? 33
5.2 Why is secrecy necessary? 34
6. Transparency 37
6.1 Transparency within the EU 38
6.2 Finding the proper balance 39
6.3 Conclusion part II 40
Part III – ACCOUNTABILITY, A POSSIBLE SOLUTION?
7. Accountability 41
7.1 Holding the executive to account 42
7.2 Holding the executive to account within the EU 43
8. Oversight 47
8.1 Different forms of democratic intelligence oversight 48
8.2 Parliamentary oversight 49
8.3 Intelligence oversight mechanisms in the EU 50
8.4 Oversight at the national level 50
3 9. Access to information 53 9.1 Classification 56 9.2 Implementation 57 10. Conclusion 59 10.1 Recommendations 62 Bibliography 63
4 1. INTRODUCTION
In August 2002 professor Jose Maria Sison, a Filipino refugee living in the Netherlands since 1987, was informed that his bank had not paid the bills of his dentist and his grocery store. Unpleasantly surprised, professor Sison contacted his bank, only to find out that the assets on his account had been frozen. The reason for this: his name had been added by the Dutch authorities to a list of persons suspected of committing or facilitating terrorism. The bank was the first to inform professor Sison of this fact; he had not been given any notice by a public authority, nor had he been the subject of any criminal charges brought against him.
Jose Maria Sison had been the Chairman of the Central Committee of the Communist Party of the Philippines (CPP) from December 1968 until he was arrested by the dictatorial regime of Marcos in November 1977. Sison found out that the Netherlands had included him in an ‘asset freezing list’, based on allegations that Sison was the man behind the nom de guerre Armando Liwana, in charge of the CPP’s military wing the New People’s Army. Even though Sison claims he was not in any way involved in terrorism, the fact that his name had been put on the list was enough to change his entire life. He no longer had access to his money and was deprived of all income. In an attempt to prove his innocence, he challenged the decision of the Dutch authorities in a national court, but before the judicial proceeding could start, they had already annulled his listing. His name was, however, still on a similar list, namely the asset freezing list of the European Union (EU). Sison proceeded by applying to the Court of First Instance (CFI) of the EU for annulment of the decision of his listing. He also applied for access to the documents that were at the basis of this decision, but his request was denied. Many years after being labelled a terrorist, professor Sison still did not have a single element of information as to why his name was on the list. In the meantime, he remained deprived of his most basic rights and completely excluded from economic and social life. After more than seven years of continuous legal challenge, then, on 11 December 2009, the CFI removed him from the EU list and unfroze his assets. (Sullivan and Hayes 2001: 45-48; Fermon and Beys 2002: 2-4; Case T-47/03 R, Sison v Council, 2003)
The case of Sison is not only an example of a man being wrongly accused of terrorism or terrorist affiliations; it also demonstrates the grave impact targeted financial sanctions have on an individual’s life and the seeming lack of justifications necessary for their imposition. Taking this into account, it is worth examining the decision-making process of subjecting someone to these kinds of measures in order to discern what safeguards are in place to ensure
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that these sanctions are being implemented in a fair and just manner. This thesis will do so with a focus on the parliamentary task of providing democratic accountability and the element of secrecy involved in the process, in an attempt to answer the following research question: ‘to what extent is the element of secrecy hollowing out the role of parliaments in the provision of democratic accountability throughout the EU ‘blacklisting process’?. The structure of this thesis will be further outlined below, but first it is helpful to develop a better understanding of the EU blacklist and how it came to exist as a targeted sanction.
1.1 Targeted Sanctions
The case of Sison is neither the first nor the last instance where an individual or organization has had their assets frozen due to being included in a specific national or international list. These lists, also known as ‘blacklists’, have become an important tool in the fight against (international) terrorism implemented by national governments as well as the United Nations (UN) and the EU. They are based on the act of designating a group or individual as a terrorist, as an associate of known terrorists or as a financial supporter of terrorism, and the procedures following the listing are designed to disrupt the activities of terrorist groups by criminalizing their members, cutting off their access to funds and undermining their support (Sullivan & Hayes 2010: 6). The UN created a ‘United Nations Consolidated List’ in 1999 as the product of an anti-terrorism sanctions regime. This blacklist was first created to target the activities of the Taliban and was subsequently expanded to target Al Qaeda and Osama Bin Laden
(Anderson et al. 2003: 111-112). After the last update of the UN’s blacklist in 2014 it contains 558 names, the majority of which were listed on the basis of secret intelligence material supplied by UN Member States (UN 2014). The EU has adopted this UN blacklist, as well as created its own, allowing them to implement financial targeted sanctions against any individual or entity affiliated with terrorism.
Notwithstanding the several improvements that have been implemented throughout the years, the UN blacklisting procedure has been widely criticized. For example, the Council of
Europe’s Parliamentary Assembly rapporteur on this matter, Dick Marty, summarized it giving the following thinly veiled critique:
‘A country proposes that a person be added, often without giving any detailed reasons, even to the other members of the Sanctions Committee, and the Committee agrees without hearing or even notifying the person concerned. That is, the ordinary practice of the Sanctions Committee is simply to
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‘rubber-stamp’ blacklisting nominations made by member states and duplicate individual states’ own blacklists without any proper consideration of the relevant material.‘
(Dick Marty, cited in Sullivan and Hayes 2010: 29)
Marty was right about the absence of notification to the persons concerned. Targeted
individuals or entities will not be informed before the listing decision, for the obvious reason that this would annihilate the effectiveness of the sanctions by providing targets with an opportunity to prepare for the consequences of having their assets frozen. Furthermore, after the targets are listed, Member States are not obliged to provide detailed information to the person or entity concerned regarding the reasons for their inclusion in the list. They are merely encouraged to inform them – to the extent possible – in writing – where possible – of the measures imposed on them, the Committee’s guidelines and the listing and de-listing procedures it contains. In 2008 the UNSC introduced several improvements directing the Committee to provide for a narrative summary of reasons for listing on its website.
Nonetheless, targeted individuals and entities are still unable to access detailed information with regard to their listing. (Michaelson 2010: 450-452)
1.2 EU blacklisting regime
As mentioned before, there are two different types of EU sanctions. The first type is a direct implementation of UN resolution 1267 and the related resolutions 1333 and 1390 into the European legal order (Sullivan and Hayes 2010: 17). The second type of EU sanctions is implemented under Common Position 2001/931/CFSP allowing the EU to consolidate its own blacklist and freeze the funds or other assets of ‘persons groups and entities involved in terrorist acts’. Formal responsibility for decisions regarding the EU blacklist lies at the ministerial level of the Council. The Common Position is based within the area of the EU’s Common Foreign and Security Policy (CFSP) but at the same time contains elements
pertaining to the Area of Freedom, Security and Justice (AFSJ). Both the CFSP and the AFSJ are involved in the fight against terrorism but the AFSJ focuses more on the EU’s internal security and on the aspects of police and judicial cooperation specifically referred to in the Common Position:
‘Member States shall, through police and judicial cooperation in criminal matters (…) afford each other the widest possible assistance in preventing and combating terrorist acts. To that end they shall,
with respect to enquiries and proceedings conducted by their authorities in respect of any of the persons, groups and entities listed in the Annex, fully exploit, upon request, their existing powers in
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accordance with acts of the European Union and other international agreements, arrangements and conventions which are binding upon Member States.’
(Art. 4, CP 2001/931/CFSP)
In 2007, after the Council conducted a thorough review of the implementation of its listing and de-listing procedures, a number of improvements were made in order to establish a more transparent procedure. As a result, a ‘Working Party on implementation of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism’ was established, better known as the ‘Clearing House’ (Council, 2007). This Clearing House replaced the mechanism of informal consultation among Member States which had been in place since 2001 by examining proposals for listings and de-listings and preparing the regular review by the Council (ibid.). Furthermore, the Council is now obligated to provide targets with a statement of actual and specific reasons for their decision, sufficiently detailed to allow targets to understand these reasons and to allow a court to exercise its power of review. In practice, however, limitations on disclosure of information are often made on the grounds of public security and the statement of reasons provided is so brief and general that it prevents blacklisted individuals or entities to effectively challenge their designation (Sullivan and Hayes 2010: 30).
1.3 Blacklist coverage in academic literature
The blacklist as a counterterrorism measure has been covered extensively in the academic literature, though the vast majority of it revolves around the legal – or lack thereof – aspect of the process and consequences of the blacklist regimes. Again, it is Dick Marty who provides us with the sharp insight that ‘these days, a serial killer has more rights than a person on a terrorist list’ (Dick Marty, cited in De Goede 2012: xxviii). The blacklist regime has mostly been researched by legal scholars focusing on the discussion of its implications for human rights (see, for example, Leonard and Kaupert 2012; Cameron 2003; De Goede and Sullivan 2013; Bures 2010). Furthermore, an extensive body of research has been created around the tensions between national and European law and the prevalence of UN resolutions, the UN Charter or the Universal Declaration of Human Rights (see Koedooder and Lang 2009; De Wet 2008). Finally, blacklisting processes have been placed within the wider contexts of pre-emption in liberal democracies (see Guild 2008; Vlcek 2009; De Goede 2008, 2012).
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The most commonly heard critique from legal scholars is the fact that the blacklisting process denies targets the right to a fair trial as consolidated in the Universal Declaration of Human Rights, as well as the European Convention for the Protection of Human Rights and
Fundamental Freedoms. The right to a fair trial consists of the right to be informed, the right to be heard, and the right to judicial review and an effective remedy; all of which are
bypassed by the blacklist regime (Sullivan and Hayes 2010: 27).
Many of the controversies surrounding the blacklist regime, such as the tension between UN resolutions and EU law, EU law contradicting national law and the (legal) complications of getting off the list once having been wrongly included have been pointed out on the basis of EU case law. Legal challenges have so far been the primary means of bringing about several reforms. Each new case that came before the courts instigated a new debate and opened up new spaces for challenging the legitimacy of the blacklist regime (Ibid.: 42).
Placing the blacklist regime in a wider context and researching its political implications, Marieke de Goede (2008; 2012) has discussed the security-finance nexus and the element of pre-emption that formed the basis for these financial targeted sanctions. In her book
‘Speculative security’ (2012) she raises questions concerning the logic of ‘following the money’ as a counterterrorism measure, the value of financial data and the contestable
interpretative work of financial investigators. Furthermore, and in relation to this, the fact that a criminal charge or conviction is not a prerequisite for placement on the list reveals the pre-emptive nature of targeted sanctions: In Common Position 2001/931/CFSP it is stated that persons, groups and entities concerned are placed on the list based on ‘serious and credible evidence or clues’ (Koedooder and De Lang 2009: 319; Council 2001). The pre-emptive nature of the blacklist regime forms part of the build-up to the argument presented in this thesis, and will therefore be discussed further in the first chapter.
There is an ever increasing amount of criticism, aimed specifically at the unlawfulness and inhumanity surrounding the decision-making process of the blacklist. Furthermore, the notions of pre-emption and secrecy are amongst the most widely challenged when it comes to the blacklisting procedure. Especially regarding the involvement of intelligence agencies, an enormous power is being attributed to the effects of secrecy, identifying the compromised notion of legitimacy. In light of this, and taking into account the rather impressive amount of case law regarding wrongfully targeted individuals and entities, I am interested in examining how such a controversial counterterrorism measure is being sustained within the framework
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of the EU, and what safeguards are in place to balance the need for public or national security with the civil rights of individuals.
1.4 Research objectives
The notion of democratic accountability is one of the most important safeguards established in democratic societies to prevent abuse of power. The thesis focuses on the notion of accountability and not legitimacy, because legitimacy ultimately depends on the individual citizen feeling that he or she is part of the polity under which he or she lives. The
accountability of those who make political decisions is equally important as a fundamental part of democratic governance; however, instead of dealing with the feelings or perceptions of citizens, it is related to the degree to which those who exercise power on the electorate’s behalf do so in a rational and transparent manner, giving citizens the opportunity to
participate and make judgments and decisions in the well-informed manner necessary for the proper functioning of a democracy (Bogdanor 2007: 5-6). Accountability thus regards more organizational, structural matters. These are not only more receptive to change, but – and this is perhaps more important – a necessary prerequisite for improvements in the realm of
legitimacy.
Accountability can, of course, be achieved in many different ways, through a multitude of mechanisms and by various branches of government; the executive, legislative, judicial or a combination of these. My research question ‘to what extent is the element of secrecy hollowing out the role of parliaments in the provision of democratic accountability
throughout the EU ‘blacklisting process’’ specifically addresses the legislative branch, i.e. the parliament. In my view, this is the most interesting actor in the present context due to its involvement in all critical aspects of the blacklist regime by means of the European Parliament, the national parliaments and the relationship between the two. Moreover, the importance and scope of their role in providing an accountability forum at various stages of the blacklist decision-making process has remained relatively unexamined. By virtue of their direct electoral link to the public and their capability of keeping track of the bigger picture – as opposed to, for example, the judicial branch, which is somewhat restricted by the specific cases being brought before them and whose review regarding the blacklisting process still only extends to the lawfulness of the decision in terms of the rules of procedure – parliaments are a crucial actor in terms of democratic accountability (Guild 2008: 186-188).
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The other element addressed in the research question is the notion of secrecy. The
blacklisting process remains shrouded under the veil of secrecy induced by its involvement in matters of national security and further enhanced by the specific working methods of the Council and its reliance on intelligence agencies. This is interesting because of the tension between secrecy, on the one hand, and accountability – heavily leaning on principles of transparency and access to information – on the other. In the process of answering the research question, it will be examined how the EU attempts to deal with this tension.
1.5 Thesis outline
As stated before, parliaments are particularly capable of taking into account the bigger picture. This is also the aim of this thesis; after all, the implementation of targeted financial sanctions is not an isolated measure but rather the product of a specific type of security environment. The argument is based on the observation that, recently, there have been three specific ‘shifts’ in the field of security policy, namely the move towards pre-emption, the increasing reliance on expert knowledge and the rise of ‘network-based governance’. This is relevant, here, because the blacklist regime can be understood as the embodiment of all three shifts: within the blacklist regime all three elements are present and come together. The first part of the thesis will, thus, be dedicated to these shifts in an attempt to place the blacklist regime in the wider context of the field of EU security politics. What is perhaps most interesting about these shifts, is the fact that they all increase the need for proper
accountability mechanisms while at the same time presenting ever greater obstacles to the proper functioning of these accountability mechanisms.
The second part of the thesis revolves around the seemingly unsolvable structural dilemma created by secrecy and its contemporary understandings. It will be argued that the greatest obstacle – the ‘common problematic denominator’ – to acquiring a proper level of
accountability is the notion of secrecy. In this chapter it will be theoretically examined whether secrecy a priori subverts the role of parliaments in providing accountability. Furthermore the idea of more transparency as a possible viable solution will be considered, concluding that – although it is a vital element for the effectiveness of accountability mechanisms given the access to information it engenders – establishing full transparency is by no means a ‘silver bullet’.
Subsequently, the third and last part of the thesis will elaborate on the notion of
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as the national parliaments in establishing a proper form of accountability for the Council and the intelligence agencies as the main actors involved in the blacklist decision-making process. The Commission is responsible for the subsequent implementation of the sanctions in the various Member States, but the thesis will focus on the roles of the Council and the
intelligence agencies because the Commission acts once the decision has already been made. The comparison of the roles of the parliaments as laid down in the formal policy documents of the EU and reports on their actual functioning, combined with and based on the
information and arguments of the preceding chapters, leads to the conclusion that, in practice, it seems like secrecy is in certain ways indeed hollowing out the role of parliaments in the provision of democratic accountability. Yet, this is not a result of secrecy an sich, but rather a consequence of the interplay between the elements of secrecy, trust and motivation combined with regulations regarding restrictions on the right to access of sensitive information which allot too much discretion and leeway to those in charge of granting this access.
1.6 Notes on methodology
The goal of this research is ultimately about exploring, therefore the most appropriate method of research is qualitative research (Marshall and Rossman 1999:45). It touches upon multiple current debates, such as secrecy versus transparency, accountability in the EU and the
seeming tension between civil liberties and the protection of national security and it will place a specifically criticized counterterrorism measure within these debates. As a result, this research has a highly theoretical basis, drawing from academic literature to develop theories concerning the main relevant concepts. As inferences come through interpretation of raw material informed by theory, this theoretical research is combined with document analysis in order to subsequently draw meaningful conclusions regarding the EU blacklisting process. According to Scott (1990: 28) the ultimate purpose of examining documents is to arrive at an understanding of the meaning and significance of what the document contains. Documents can range from public through private to personal documents, including various sources such as policy statements, newspaper articles and even diaries (Mogalakwe 2006: 223). Since the current research revolves around the role and activity of the parliaments in providing
accountability, the main source of documents is policy documents retrieved from the EU database, including legislation, regulations, Council Decisions and the Treaties. The
documents have been selected based on their relevance for the current subject so that together they can form an inclusive overview of the formal EU policy on accountability and the
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formal relationship between the parliaments and, respectively, the Council and the intelligence bodies.
To arrive at a meaningful and accurate answer to the research question, however, it is also necessary to examine the actual functioning of these policies in practice. This brings me to perhaps the most important limitation of this research: as the research question inherently deals with secrecy and sensitive information, it has not been possible for me to conduct my own empirical evaluation and assessment. Therefore, this part of the research is based on reports written by various Parliamentary Committees of the EU as well as relevant EU case law. These sources have been selected due to their wider scope, better access and the quality control criteria formulated by Scott (1990: 1-2): authenticity, credibility, representativeness and meaning. The limitation imposed by secrecy ultimately inhibits the drawing of absolute conclusions; instead the thesis is focused on identifying several possibilities in terms of secrecy abuse and established safeguards. The collected data has been analysed based on this conceptual approach to inform my argument and subsequently support my conclusion.
In an attempt to circumvent the limitation inherently imposed by the concept of secrecy in the research question while at the same time increasing the relevance of the current study, I have opted to place the EU blacklisting regime within the wider context, ultimately focusing on the relationship between the main actors involved, namely the Council, national parliaments, the European Parliament and the intelligence agencies. As a result, the blacklist regime –
effectively the trigger of the current research – is examined less in the in-depth manner as would have been required were it a case study; on the contrary, it functions more as a guiding notion throughout the thesis, setting the parameters of the concepts and actors to be
examined. This could be interpreted as a limitation; however, it is my conviction that the blacklist regime is not an isolated phenomenon in European security politics and the current broad approach facilitates not only the generalization of the conclusion to cases other than the EU blacklist, but also a conclusion with a higher degree of relevance and accuracy.
Lastly, I have had the chance to engage in several informal conversations with both policy officers from the Dutch Ministry of Foreign Affairs dealing with the Dutch relations with the EU as well as a few analysts working at the intelligence sector of the Directorate of
Operations at the Dutch Ministry of Defence and their liaison officer from the Dutch Military Intelligence and Security Service. All of them, surprisingly, were either not willing or not capable to discuss actual sensitive information but they did take the time to listen to my ideas
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and share their general thoughts on the issue. Even though these conversations did not result in raw data in the strict sense of the word, these conversations have undoubtedly – either directly or indirectly – influenced my thoughts and arguments, and are therefore worth noting here.
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PART I – SETTING THE CONTEXT
2. PRE-EMPTION
This chapter will elaborate on the first of the three shifts in the field of security politics: the move towards emption. It starts with a brief explanation of how the politics of pre-emption have sprung from the incorporation of risk technologies into the field of security, after which the link will be made with the EU blacklisting regime in order to clarify the relevance of this shift for the scope of the thesis.
2.1 Risk and pre-emption
Risk-based routines and practices of government are present in most areas of our lives, most visibly in medicine, security/crime prevention and public health. Beck (2001) speaks of a ‘risk society’, which is a society permeated with risks of all kinds, stemming from
technological and scientific innovations. Theorists of the risk society envision an unending cycle in which new discoveries of risks give rise to increased insecurity as opposed to
security; this, in turn, giving rise to the discovery of further risks. The more science unravels, the more it demonstrates that life is filled with risks. This results in a sort of fatalism
regarding risk (ibid.: 17, 26). However, in our concern to manage and reduce risks, ‘risk thinking’ has led to an accumulation of studies identifying risk’s recent appearance in new programmes and areas of government, obtaining data and using statistics to ‘tame the future’ and leave nothing to chance (Hacking 1990; Bernstein 1996).
In the context of the war on terror, the use of risk assessment and statistical profiling in the field of security has accelerated. At the same time, the war on terror recognizes that the uncertainty and randomness of terrorist attacks have rendered conventional risk assessment techniques inadequate. Increasingly, this uncertainty is being incorporated into policy-making as a basis for pre-emptive action: decisions are being made ‘not in a context of certainty, nor even available knowledge, but of doubt, premonition, foreboding, fear and anxiety’ (Amoore 2008: 852; De Goede 2008a: 164). Following the risk logic, states embrace and implement anticipatory and preventive measures to provide the image of control where there is none. While global risks such as terrorism are uncontrollable and surrounded by uncertainty, states are not released from their duty or responsibility to address them. According to Beck, it is the
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‘social force of uncertainty that does not allow states to just sit and wait irrespective of whether such an act improves or worsens the action conditions’ (Beck as cited in Kessler 2010: 3).
Pre-emption deals with threats that have not yet emerged as determinate threats. It is one of the three forms of anticipatory action springing from risk thinking and strategies of risk management which have been identified by Andersen (2010). These three types are
precaution, pre-emption and preparedness. All of these have been used in liberal democracies to govern an array of events, conditions and crises with the aim of not letting anything bad happen (ibid.: 777-779). As a result, the present is ‘continuously assayed for the futures that may be incubating within it and emerge out of it’ (ibid.: 782). Anderson argues that, pre-emption as well as precaution and preparedness are a means of guiding action once the future has been problematized in one way or another, and each are deployed once specific futures have been made present through different practices, such as calculation, performance or imagination (ibid.: 791).
2.2 Pre-emption in the EU
Despite its image of a normative power, a strong proponent of the rule of law and inherently critical of pre-emptive war, the EU vigorously appropriates and develops pre-emptive security practices. It can even be regarded as a world leader in the development of various important aspects of pre-emptive security, especially those measures which insert its logic into everyday life such as data retention and financial transactions monitoring. (De Goede 2008a: 176)
The European Security Strategy (2003: 7) articulates a security environment filled with radical new threats that render the traditional concept of self-defence obsolete, and which implies that we should be ready before a crisis occurs: conflict prevention should start as early as possible. Particularly important regarding Europe’s turn to pre-emptive security is how the Framework Decision’s ‘incrimination of belonging to a terrorist group requires the law to look into the future in order to punish not a suspect’s actions but a suspect’s attitudes and possible future actions’ (ibid.). This facilitates the criminalization of suspects who have yet to engage in any violent act, and may very well never do so; effectively criminalizing stages of facilitation increasingly further removed from the violent act. (De Goede 2008a: 169-173; De Goede 2011: 8)
16 2.3 Pre-emption and counterterrorism
The fight against terrorism and the notion of pre-emption have become practically
inseparable. Terrorism is defined as a catastrophic but incalculable threat that has made the more traditional security measures obsolete. It is this understanding of terrorism as being simultaneously catastrophic and incalculable that is used to justify the fact that certainty is no longer the only basis for action and has been replaced by uncertainty. This appeal to
uncertainty and unpredictability is utilized to justify the implementation of the blacklist, ideally striking before the terrorist will act. These measures are essentially targeting suspects and potential terrorists aiming to disrupt and destroy terrorist organizations at the earliest stage possible through the identification of potential future terrorist by looking at the processes of financing and facilitation (De Goede 2008a; 161-162; 2011: 10, original emphasis).
Once uncertainty has become an accepted basis for action, the way to decide upon the form and scope of these actions requires some creativity in terms of being able to imagine multiple scenarios. Richard Grusin defines this process as ‘premediation’. The fact that there are multiple scenarios on which a subsequent decision can be based necessarily means that a certain future scenario is chosen over others, which shows that there is also an inherent cultural aspect at work in pre-emptive security. (De Goede 2008b: 158-162) The centrality of the imagination to any pre-emptive decision has significant implications for the way political power is exercised in the context of security governance, for it enhances the subjectivity of decision-makers: authorities are granted a carte blanche to brand, categorize and detain on the basis of suspicion alone (Stockdale 2013: 145-148). Pre-emption, therefore, raises important questions about the power of political leaders as the visionaries of ‘publicly unforeseeable dangers’ (Elmer & Opel 2006: 480). Pre-emptive security practices increasingly require the work of what Bigo has called the ‘managers of unease’, the visionaries of publicly unforeseeable dangers, who conceptualize, classify, calculate and grade terrorist threats (De Goede 2008a: 165). Elmer and Opel (2006) speak of a ‘survivor society’ in which future attacks are inevitable but gathering threats are invisible to normal citizens. These citizens are thus asked to trust their leaders, whereas evidence of potential threats has been consistently kept hidden in classified documents. Moreover, in the face of uncertainty and catastrophe, even the absence of specific evidence forms the basis for action. As Stern and Wiener (2006: 394) said: ‘absence of evidence of risk is not evidence of
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bureaucrats’ who are the only ones knowing the inevitable outcomes of a predetermined future and using this knowledge as a justification for their action in the present (ibid.).
2.4 Pre-emption and the burden of proof
Be it through the premediation of ‘managers of unease’ or the classified knowledge of (absent) evidence of the ‘elite-class of sacred bureaucrats’, present action is being informed by uncertainty and imagination presented as knowledge; feigning control over an
uncontrollable future. This has important consequences for the degree of evidence required to take action and the actor bearing the burden of proof. With respect to the latter, the phrase ‘guilty until proven innocent’ springs to mind: an individual’s demonstrable present innocence becomes almost irrelevant when matters of security relate to these imagined futures which may or may not ever come about (Stockdale 2013: 150). The rules of the game are different and more relaxed for the intelligence services in terms of what information suffices as evidence that an individual forms a threat (Krishnan 2013: 287). The following statement of Paul O’Neill, former United States Treasury Secretary, is often cited as a clear expression of this element:
‘We moved on setting up a new legal structure to freeze assets on the basis of evidence that might not stand up in court. (…) Because the funds would be frozen, not seized, the threshold of evidence would be lower and the net wider. Yet ‘freeze’ is somewhat of a legal misnomer – funds of Communist Cuba
have been frozen in various US banks for forty years.’ (Cited in Suskind 2004: 192)
Apparently, the logic of pre-emption has this new relationship to rules of evidence to enable security action on the basis of uncertainty and, therefore, on evidence that is not designed to hold up in court. This not only significantly expands the scope of the implementation of Common Position 2001/931/CFSP, but also makes it harder for targeted individuals or entities to seek effective judicial remedy. This is particularly problematic considering the burden of proof has now been transferred from the ‘actor’ – in this case the government or the Council – to the citizen.
Pre-emption and the envisioning of worst-case scenarios call for their avoidance at all costs. The infamous ‘one percent doctrine’ exemplifies this: according to this doctrine, if there is a one percent chance of a potential disaster coming about, there is a duty to undertake action to prevent this. In this line of thinking, the financial, political and human costs involved in the
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apparent prevention of terrorist financing can never measure up to the disaster supposedly prevented (De Goede 2012: 199). This has the important normative consequence that any action in the present can be cast as a legitimate means for overcoming a future catastrophe (Stockdale 2013: 153). Zedner (2009) claims that, when this catastrophe is as closely related to national security as terrorism, it allows states to take extraordinary measures. The pursuit of security signals a sense of urgency and importance that, in essence, stifles debate regarding priorities, resources and countervailing interests:
‘The special nature of security threats justifies the use of extraordinary measures to handle them. The invocation of security has been the key to legitimizing the use of force, but more generally it has
opened the way for the state to mobilize, or take special powers, to handle existential threats’ (Buzan et al. 1998, as cited in Zedner 2009: 37)
This securitization of political issues and public policy has the tendency to demote other concerns and legitimize emergency powers. The risk here is that competing interests and civil liberties tend to be sacrificed to the more pressing claims of security (Zedner 2009: 45). This reinforces the need for proper accountability mechanisms to function as a safeguard of civil liberties.
The EU has been attempting to reform its blacklisting process, initiated by rulings of the CFI regarding individual cases, and has worked to introduce the notion of accountability during and after the process as much as possible. Nevertheless, the possibility for Member States to appeal to secret intelligence and national security persists. This in itself is a potentially legitimate claim; however, as we have seen, the logic of pre-emption enables extraordinary measures, decided upon by a relatively small group of people using tactics of imagination and premediation, grounding its decision on what may happen in the future, effectively lowering the threshold of evidence. The existence of ‘credible evidence and clues’ as specified in Common Position 2001/931/CFSP – rather vague terms which allow very liberal
interpretations – should, thus, be subjected to close and careful scrutiny in order to protect the individual or organization from potential human rights violations.
19 3. EPISTOCRACY
The ‘managers of unease’ or the ‘elite class of bureaucrats’ identified in the previous chapter can be linked directly to the second shift identifiable in security politics, namely the
inclination towards epistocracy. It has by now become a frequently heard argument that policy-makers increasingly rely on expert advice. This has become relevant in the security policies of nation-states as well as, and maybe all the more so, on the European level. Especially since the terrorist attacks of September 11 the need for security-relevant
knowledge has grown. The introduction of risk-based calculations and threat assessments to the field of security explained in the previous chapter have caused policy-makers to turn to specialists more often in order to ‘ameliorate the uncertainties and help them to understand current issues and anticipate future trends’ Experts are now called on to provide knowledge of facts, causal connections and interconnections, risk estimates and possible negative effects of measures. (Schröder 2006: 473).
According to Bigo (2006: 124), even though politicians still play a key role in the structuring of security issues, due to their daily involvement in settling security practices, agencies and bureaus comprising the world of security are eventually the only agents able to assert, rather successfully, their definition of what inspires unease (ibid.: 27). If this is indeed the case, security experts are pivotal in defining what constitutes risks and how best to act in order to prevent or minimize these risks. In other words, they play an important part in agenda-setting as well as policy-making in the field of security policy.
The EU has always depended on the infusion of specialized knowledge into its decision-making process at various stages. Yet, this need for security-relevant knowledge in a situation of increased risks has been spurred by the rapid development of a European security
architecture (Eriksen: 2011: 1176; Schröder 2006: 477).
3.1 The relationship between expert and government
There are many different ways in which expert knowledge can be infused into policy-making or decision-making processes. The various relationships between experts and government fall on a spectrum with the two extreme, ‘pure’ models on each end. On the one end of the
spectrum is the model in which the expert has a solely scientific or advisory role and is thus subordinate to the politicians who remain the responsible policy-makers accountable to the
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public, for example through public debate and elections. The key task for experts here is to support the politician with the necessary data and assessments in order to qualify decisions so that they will endure public scrutiny and criticism. On the other end of the spectrum we find the epistemic model, the model of knowledge-based rule. Here the relationship between the expert and the politician is completely the opposite: scientific expertise is the hegemon, which forces politicians to choose particular solutions ‘because of the facts’ (Eriksen 2011: 1172).
Where in the first model experts were shielded from the interference of policy-makers to enable them to provide neutral scientific advice, in an epistocracy, experts alone shape public policy (Schröder 2006: 473). In reality the relationship between government and expertise is never this clear-cut and pure. Policy-makers, nowadays, seem to recognize that even expert knowledge is not able to completely eliminate the uncertainty inherent in the process of making political choices in complex environments. This has by no means decreased their reliance on expert advice, however, seeing as uncertainty will always call for information. Furthermore, ‘actors offering interpretations of a complex world are in a pivotal position because policy is first and foremost an attempt to understand and decode a complex reality (ibid.: 473-474).
3.2 Epistocracy
Some authors use the term ‘technocratic governance’ when they discuss the ‘rule of the experts’ or ‘knowledge-based rule’ (Boukalas 2012). This is a term used more often in contemporary discussions about the relationship between democracy and knowledge-based rule. The terms ‘epistocracy’ and ‘technocracy’ are similar, but should not be used
interchangeably. Technocracy is just one variant of epistocracy: the latter entails the totality of ways in which expert knowledge can be infused into government, while the first term refers specifically to a situation in which public officials make technical decisions within the limits of the law, but also decisions that are only seemingly ‘technical’, resulting sometimes in the reducing of value-based questions to questions of technical facts – the technocratic fallacy (Holst 2011: 3). For example, according to Boukalas (2013: 291) the analytic machinery involved in risk assessment, with its usage of algorithms and statistics and its deployment in open-ended and speculative investigations, is reducing the political process to a techno-scientific procedure, causing the reinforcement of the representation of the state as a depository of rationality, forcing it out of the realm of politics and into that of science. The
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distinction between technocracy and epistocracy is important, because they each have
different implications in terms of accountability. Furthermore, technocracy has clear negative connotations from a normative perspective while epistocratic features are not necessarily this problematic. (Holst 2011: 3).
While achieving the proper form of accountability in an epistocracy is arduous, it is not sheer impossible. The challenge mainly concerns the transparency of the process, finding the locus and the right actors to be held accountable. A shift to technocracy, however, effectively insulates the political decisions from scrutiny, critique and debate as the scientific nature and basis of decision-making renders it immune from accountability. The public can only
evaluate the decision based on its result. And even then, in cases of bad, unexpected or unwanted results, experts can simply shift responsibility for failure onto faulty algorithms or fraudulent intelligence. (Boukalas 2012: 292) This distinction might offer an explanation for the fact that technocracy in all cases has a negative connotation, whereas epistocracy does not.
3.3 Negative implications
In the debate about democracy versus epistocracy/technocracy a number of negative aspects of epistocracy are repeatedly being pointed out. The most important argument contains that an advance of knowledge-based rule initiates a mutation of liberal democracy. By
constituting politics as a field of expertise, the population is being denied the possibility of any meaningful participation. Needless to say, this goes against the core of the democratic principle. (Boukalas 2012: 279-281) As Eriksen (2013: 283) argues, we can only know what is right by hearing the affected parties and in a democracy everyone should have an equal say. In an epistocracy, however, the balance of power tips towards the executive in
combination with expert networks, causing an increasing distinction between the ‘spectacle of politics and the real centres of power’ (Boukalas 2012: 280).
The second argument against epistocracy concerns the specific presence of knowledge-based rule in the field of security policy. This complexity combined in the European setting with a multilevel structure of governing in which the composite character of knowledge is a core feature of the security field makes it especially difficult to pinpoint who exactly has the upper hand in policy-making, politicians or experts. And the more complex the knowledge base, the harder it becomes to effectively hold decision-makers to account. As the decision-making
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process in the EU is rather complicated and opaque already, comprised of a relatively closed community of professional experts and more often than not dealing with sensitive
information, this poses serious challenges to the transparency and accountability of the political process. (Boukalas 2012: 472; Eriksen 2011: 1171-1177; Schröder 2006: 484)
In an epistocracy popular sovereignty becomes subordinated to science (Eriksen 2011: 1173). However, in the field of security policy speaking of specialized, objective knowledge can be rather questionable as the field is infused with value judgments – already referred to with respect to premediation. Furthermore, there is the assumption that expert advice will likely draw on worldviews from a specific organization or professional background. Schröder (2006: 482) states that ‘an organization’s ability to define problems according to its institutional worldviews and capabilities and to export this problem-definition into its environment enhances its chances of survival’. Thus, the objectivity of expert knowledge is not always a given and the solutions and advice offered by experts will not necessarily be the best solution available as they might simply be linked to their professional capabilities and arising from expert competition.
3.4 Epistocracy in the EU blacklisting process: the intelligence sector
The notion of epistocracy with its discussed pitfalls is relevant to the case of the EU
blacklisting process because of its heavy reliance on intelligence. The targeting of individuals necessarily falls within the domain of the intelligence services as it is – due to its pre-emptive nature – in need of information about individuals who are or may become a threat in some way, but have not necessarily already committed a crime within the jurisdiction of the respective state (Krishnan 2013: 287). Intelligence can be defined in a general sense as information designed to assist a certain receiver’s decision-making (Müller-Wille 2008: 52). In the case of the EU blacklist, the (political) decision of adding a certain person or entity to the list and the subsequent freezing of assets is based on information received from the national security and intelligence services.
There is a specific tension between knowledge and power in the use of intelligence as a basis for political decision-making. One could argue that the role of experts, i.e. the intelligence services, in the blacklisting process is that of an advisor, supporting the politician with data and assessments on which to base the eventual decision. This would be an ideal-type balance between the two actors, in which case the politician remains accountable for these decisions.
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However, there are two specific possible, extreme situations in which this balance is distorted. The first extreme is the already discussed model of epistocracy; its complete opposite, politicized intelligence, forms the second extreme.
As intelligence is a profession in which specialist knowledge is jealously guarded, politicians have virtually no basis on which to challenge the assessments and knowledge claims of the intelligence professionals: they have to trust them, or – if they choose to ignore them – run the risk of failure (Gill 2005: 14). This puts the intelligence professional in a position of relative power, leaning more towards the model of epistocracy in which a politician is forced to make decisions because of the facts.
Politicized intelligence, on the other hand, describes a situation in which the will to act precedes the search for information. This means that the intelligence collected will be judged on the basis of its ability to support the already chosen course of action. With regard to the EU blacklist, a situation of politicized intelligence would support the argument that the blacklist is being utilized as a political tool; using it as a means of eliminating all types of state enemies or anyone causing some form of nuisance to the state, as opposed to using it strictly as the counterterrorism measure it is designed to be (Boukalas 2013: 287).
As with the general models for the relation between expert knowledge and government, in reality, the specific balance between the intelligence professionals and the political decision-makers will fall somewhere in between the extremes of epistocracy and the use of politicized intelligence: the process will most likely contain factors of both extremes. Intelligence professionals have been known to influence threat perception and feelings of urgency,
thereby possibly steering political decision-making in a certain direction (Müller-Wille 2008: 50-51). At the same time, politicians must at all times convey a message to the public that they know exactly what they are doing and why in order to maintain public support. Because of this, they might have little use for the measured or conditional language employed in intelligence assessments, causing a situation where, as Gill (2005: 22) argues, ‘by a mixture of creative omission and cherry-picking, professional doubts are translated into political certainties’.
It is not feasible given the scope of this thesis to conduct an empirical analysis to support an answer to the question whether in the EU blacklisting process the balance between the expert knowledge of intelligence professionals and the political decision-making is acceptable or has
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tipped towards one side or the other, due in large parts to the veil of secrecy inherent to the work of intelligence professionals. The above discussion of the possibilities regarding this balance has therefore not served as an argument for or against the use of intelligence, but as an argument for the need of oversight and accountability in order to ascertain the proper, democratic and thus, rightly balanced, use of the expert knowledge of intelligence
professionals. This not only calls for accountability mechanisms for the political process of using expert knowledge, but for mechanisms within the intelligence process itself as well: ‘if intelligence is to be used to drive policy-decisions, it must be credible for policy-makers, legislator and citizens to sacrifice their blood and treasure’ (Doorey 2007: 6).
25 4. NETWORK-BASED GOVERNANCE
As stated in the previous chapter, there is an important role for the intelligence agencies in the preparation of decision-making concerning the EU blacklist. The presidency of the Clearing House can, either at its own initiative or in respond to a request of a Member State, invite a representative from both Europol and INTCEN to ‘make a presentation of
background information in order to facilitate discussion on a particular subject’ (Council 2007: art. 13; 14). EU INTCEN is the EU Intelligence Analysis Centre, formerly known as the Situation Centre (SitCen). Its product of in-depth analysis is specifically designed to inform the EU decision-making process, based on intelligence received from the EU Member States’ national intelligence and security services (European Union 2012). As both Europol and EU INTCEN, as well as Eurojust, are dependent on information of national intelligence services, this implies some form of cooperation between them. This chapter will examine the position of these agencies in light of the third shift in security politics: the rise of network-based governance.
When it comes to the notion of Westphalian sovereignty, based on territoriality and the exclusion of external actors from domestic institutions as sources of authority, one could say that a paradigm shift is taking place: the third shift in security politics relevant for the context of the EU blacklist regime. Westphalian sovereignty has eroded significantly and is
increasingly being replaced by a disaggregated sovereignty in which networks instead of states are the main actors of international cooperation, caused by both the changing nature of international relations and the stronger interdependence among states. Social problems formerly dealt with by state agents are now more and more transferred to the transnational sphere and governing has turned into a matter of international cooperation with a significant role for networks in the decision-making processes. (Hamann & Ruiz Fabri 2008: 481-484)
Instead of the rather general term ‘transnational’ – referring merely to transboundary
operations – it is more useful to consider the ‘transgovernmental’ character of many networks existing in global governance today. Kal Raustiala (2002) defined transgovernmentality as ‘the involvement of specialized domestic officials who directly interact with each other, often with minimal supervision by foreign ministries. They are ‘networks’ because this cooperation is based on loosely structured, peer-to-peer ties developed through frequent interaction rather than formal negotiation’ (cited in Hamann & Ruiz Fabri 2008: 486). Furthermore, Robert Keohane and Joseph Nye (1974: 43) defined transgovernmental relations as ‘sets of direct
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transactions among subunits of different governments that are not controlled or closely guided by the policies of the cabinets or chief executives of those governments’. Existing networks composed of private actors fall within the transnational network category, whereas networks of national government officials, as components of the disaggregated state, may be characterized as transgovernmental networks (Hamann & Ruiz Fabri 2008: 486).
4.1 Why does network-based governance materialize?
Network governance is not exclusive to the domain of (inter-)national politics. Over the past few decades many industries are increasingly making use of network governance as well. Taking a closer look at the reasons behind their existence could be helpful in understanding the rise of transgovernmental networks in global governance. According to Jones et al. (1997: 914) network governance involves a select, persistent and structured set of autonomous firms or non-profit organizations engaged in creating products or services based on implicit and open-ended, socially – as opposed to legally – binding contracts to adapt to environmental contingencies and to coordinate and safeguard exchanges. These firms operate like a single entity where needed but are completely independent of each other, and often strong
competitors in other domains. For a governance form to emerge and continue it must be capable of adapting, coordinating and safeguarding exchanges more efficiently than other forms of governance. Another enabling network governance is ‘task complexity’, which creates behavioural interdependence and increases the need for coordinating activities since this coordination will speed information-sharing among parties and thus reduce the time necessary to complete the tasks. Moreover, an important condition for the emergence of network governance is the frequency of interaction, for this creates ‘embeddedness’, likely resulting in trust, confiding and information-sharing. (Jones et al. 1997: 916-922)
Another important characterization of network governance is its restricted access: the
strategic reduction in the number of exchange partners within a network. This occurs through ‘status maximization’; meaning that partners will avoid network forming with partners of lower status. As both parties are applying this strategy, networks will usually be composed of partners with similar statuses. Having fewer partners and frequent interactions usually
increases identification among partners and leads to the development of strong ties. On the one hand, this will reduce the potential for opportunism. On the other, however, heavy
reliance on these strong ties will develop tight and isolated cliques that are not well integrated with the rest of the industry. (Ibid.: 925-928)
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Taking a closer look at governance networks is relevant here both because of the more general shift towards governance networks in the field of security politics and because of the increasing network forming of the intelligence services, in particular, which has important consequences in terms of accountability in the blacklisting process of the EU. Due to the limited scope of this thesis the focus will not be on this general shift in the field of security politics, but on the increasing network forming of the intelligence services, as this has a more direct effect on the EU blacklisting process. To provide an idea of the broader shift towards governance networks in the field of security politics: Nickel (2010: 631) argues that we are now moving towards ‘global militant security governance networks’. According to him, militant security governance, based on a Hobbesian logic, is turning the idea of individual rights upside down and is able to claim a high degree of legitimacy for all its actions – especially if these actions can be justified by the constitutional order whose main goal is the protection of citizens against all threats. The increasing reliance on networks within this global militant security governance networks allows the government to ‘pre-cook’ solutions for (legal) problems in closed circles after which they can then present these solutions to their respective parliaments as ‘binding rules to be enacted’ (ibid.: 634). Needless to say, this poses a challenge to the notion of (democratic) accountability as the possibility for input and oversight of the parliaments is severely limited. Applying this logic to the working methods of the Council, this could mean that the relatively high level of secrecy adopted by the Council allows the representatives from the Member States to return to their respective nations and present a decision which they know is unpopular amongst their constituents as having been imposed upon them from the level of the European Union, effectively
circumventing national parliamentary scrutiny.
4.2 EU networks of intelligence cooperation
Now, turning to the intelligence services, due to the more and more diffuse and complicated nature of the threats they are facing there has been an increase in intelligence cooperation between various states (Müller-Wille 2008: 53). In theory, there are two main methods of cooperation relevant for the intelligence services within the EU. The first one is a
centralization of cooperation, meaning the creation of European intelligence agencies. The alternative is the creation of horizontal intelligence cooperation networks among national services. The former type of centralization is the formally preferred model of security
governance as it allows Member States and European authorities to exercise legal, democratic and social control over internal security actors and the processes of information-sharing in
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which they engage. While cooperation between national services in the security field, and especially regarding counterterrorism, has always been a high priority for the EU Member States, there appears to be a hesitation on the side of these national agencies to fully
centralize this cooperation by integrating their national services into an EU framework (Bures et al. 2012: 503). Not surprisingly, then, there has been an increase in the quantity, as well as quality, of cross-border and cross-agency intelligence cooperation relating to terrorism (Müller-Wille 2008: 69; Den Boer et al. 2008: 101-102).
The centralization of cooperation is happening within vertical organizations including Europol, Eurojust and EU INTCEN (Den Boer et al. 2008: 102; Müller-Wille 2008: 54). However, for the most part, these AFSJ bodies do not collect any of their own intelligence and are therefore dependent on the national agencies’ willingness to provide them with data and intelligence. This limits their effectiveness, as national services may have issues with the sharing of their intelligence; for fear of leaking – given the fact that they rely for a major part on temporary staff, returning to their national agencies once their contract has ended – or the effect this sharing might have on their bilateral relationships with other partners, such as the United States. (Keohane 2008: 127-128)
4.3 Informal counterterrorism arrangements
Bures et al. (2012: 498) define informal counterterrorism arrangements as ‘a variety of bodies dealing with counterterrorism issues with the participation of relevant representatives from the ministries and/or official security agencies from some (or all) EU Member States, which nonetheless lack a formal EU Treaty foundation and formal links to official EU
institutions/agencies’. Some examples of these informal counterterrorism arrangements are the so-called G6-group – consisting of the interior ministers from France Germany, Italy, Poland, Spain and the United Kingdom – the Police Working Group on Terrorism, the Club of Berne and the Counter Terrorist Group (Müller-Wille 2008: 55; Den Boer et al. 2008: 102).
The existence of these and other intelligence networks, or arrangements as Bures et al. (2012) have named them, can be explained according to the factors described above in relation to network governance within the market industries. First of all, the networks are comprised of autonomous agencies, working together but often also as competitors. Secondly, these informal counterterrorism arrangements lack a formal legally binding foundation and are merely socially binding. With regard to their reason of existence, the arrangements have been
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created in part because of perceived challenges of the formal EU institutions to adapt to the rapidly changing nature of the security field: these arrangements tend to be highly flexible and thus better suited to deal with quickly changing situations, actors and demands. This capability issue is combined with the factor of trust: unlike in centralized EU institutions or agencies, access to the informal networks is restricted and will be granted only to those trusted enough by all other members to share sensitive information with. This factor of trust is a product of the frequency of interaction between the members and their relational
embeddedness: most of these networks are composed of the ‘usual suspects’, including for example the G6-group. Finally, there is the notion of status maximization, which is also closely related to trust in the case of intelligence networks as ‘equal status’ might translate to ‘like-minded’ or well-known and therefore trusted. (Müller-Wille 2008; Bures et al. 2012; Jones et al. 1997)
There are four possible explanations for the preference for intelligence cooperation within horizontal, informal arrangements as opposed to a centralized, vertical European body. The first, and most important one, is the above discussed factor of trust. This appears to be the decisive factor for intelligence cooperation. In the case of centralized intelligence cooperation it is the major hindering factor limiting the capability of the EU bodies and in the informal counterterrorism arrangements it forms the reason for cooperating with one yet not another agency. It is exactly this option to be selective about partners which could explain the preference for cooperation within horizontal, informal arrangements.
The second one is the lack of enforcement capabilities regarding the sharing of information within the EU. In several EU documents the need for information-sharing has been expressed (Council 2004a, 2004b, 2006, Commission 2005). In reality, however, other than the
speeding up of the sharing of information states were already willing to share, these statements have had little impact as forcing authorities to share more information remains problematic. Furthermore, the Framework Decision (Council 2006) provides the opportunity for agencies to withhold information and intelligence when its release would harm national security interests, jeopardize the success of a current investigation operation or the safety of individuals. A decision of this kind becomes very difficult to challenge, as a judgment as to whether or not information would in fact be harmful in this way can only be given by the agency itself (Müller-Wille 2008: 67-68).
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The third explanation for the preference of horizontal networks, in addition to their
flexibility, concerns capabilities and efficiency. National agencies are perceived to be more suitable for operational and tactical responsibilities due to their ‘location and integration within the system of national authorities and decision-makers, knowledge of established contacts within the underworld and most importantly, their societal and cultural knowledge, none of which could be replaced by a central European agency’ (ibid.: 69).
The final argument in favour of informal, horizontal networks is the fact that even though its access and membership are limited, they do not necessarily exclude non-European states as a central European agency most likely would (Bures et al. 2012: 507). Taking into account the important role of the United States in the post-9/11 era, this could very well be a particularly important explanation.
4.4 Efficiency versus accountability
Horizontal networks of intelligence cooperation may be preferred by the intelligence agencies themselves, but the informal nature of non-EU arrangements does raise important questions regarding legitimacy, accountability and transparency. In other policy areas such as the environment, trade or education, the formation of networks has usually led to a more active inclusion of civil society actors. However, due to the highly secretive nature of the
intelligence agencies and the sensitivity of the issues being dealt with, it has instead lead to closed circles in which secrecy could lead to self-regulation; which in turn might lead to group-think, pointing right back to a situation of epistocratic governance. (Ibid.: 511) The risk of epistocratic features of intelligence cooperation network cooperation is further enhanced by the fact that the trust necessary among agencies in order to participate in these networks needs to be built and grown, created by the frequency of interaction and relational embeddedness. It is therefore not strange that these networks are usually composed of the same agencies, whilst other agencies, on the other hand, consistently remain on the outside.
In essence, there seems to be a trade-off between effectiveness on the one hand and
legitimacy, accountability and transparency on the other: formal EU bodies appear to score solely on the latter front due to the lack of trust from national agencies and the absence of operational powers, whereas informal horizontal arrangements or networks are stronger in terms of effectiveness, legitimized from the perspective of the participating counterterrorism practitioners by their superior output performance (Den Boer et al. 2008: 103; Bures et al. 2012: 511). However – once again due to the secretive nature inherent to intelligence
