Parliamentary oversight of security and intelligence agencies in the EU

One of the reasons for the lack of posts on this blog the past months is that I co-authored this large study (446 pages), together with Aidan Wills, for the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE). The study came out today, and also includes a number of attachments written by national intelligence oversight bodies.
Abstract: This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

We will present the study at the LIBE Committee at 15h on Monday the 3d of October. An Interparliamentary Committee Meeting on  “Democratic Accountability of the Internal Security Strategy and the Role of Europol, Eurojust and Frontex” will be held on Wednesday 5 October from 15.00 to 18.30 and on Thursday 6 October from 9.00 to 12.30 in the Hemicycle of the Paul-Henri Spaak building of the European Parliament as well, which is open to the public. You can register for this meeting until the 29th of September.

New book by Kent Roach – The 9/11 Effect: Comparative Counter-Terrorism

The 9/11 Effect – Comparative Counter-TerrorismKent Roach, University of Toronto

Publication date: August 2011

448 pages

Abstract:

This book critically and comparatively examines the responses of the United Nations and a range of countries to the terror attacks on September 11, 2001. It assesses the convergence between the responses of western democracies including the United States, the United Kingdom, Australia, and Canada with countries with more experience with terrorism including Egypt, Syria, Israel, Singapore, and Indonesia. A number of common themes – the use of criminal law and immigration law, the regulation of speech associated with terrorism, the review of the state’s whole of government counter-terrorism activities, and the development of national security policies – are discussed. The book provides a critical take on how the United Nations promoted terrorism financing laws and listing processes and the regulation of speech associated with terrorism but failed to agree on a definition of terrorism or the importance of respecting human rights while combating terrorism. It also assesses the failures of the American extra-legal approach and departures from criminal justice and the challenges of transnational cooperation and accountability for counter-terrorism.

Transformative Radicalization: Applying Learning Theory to Islamist Radicalization

Alex S. Wilner and Claire-Jehanne Dubouloz have a new article in ‘Studies in Conflict and Terrorism’.

Abstract:

While a consensus has emerged concerning the role radicalization plays in persuading Westerners to participate in terrorism, little research investigates the cognitive processes inherent to radicalization processes. Transformative learning theory, developed from the sciences in education and rehabilitation, offers an interdisciplinary lens with which to study the processes of personal change associated with radicalization. Transformative radicalization explains how triggering factors lead to critical reflection of meaning perspectives and personal belief systems that guide and alter behavior. Using an autobiographical account of the radicalization process, this study offers a plausibility probe of an inherently interdisciplinary and novel theoretical framework.

Clive Walker – Terrorism and the law

Clive Walker has just published his new book at OUP:

Terrorism laws and legal practices have been politically and socially controversial to a degree beyond almost any other legal issue during the past decade, and this analytical text contains extensive analysis of these controversies. Written by  leading commentator Clive Walker, Terrorism and the Law offers a thoughtful and up-to-date discussion of all the key materials on terrorism law. It provides comprehensive coverage of all major domestic, European, and international laws, and their impact on the UK. It also contains an extensive examination of implementation and practical problems, as well as comparison with closely comparable jurisdictions ranging from Australia, Canada, and the Republic of Ireland, to the United States.

The book contains five Parts. Part I focuses on meanings of ‘terrorism’ in law and political science. It provides the reader with an understanding of the political phenomenon and the legal concept, including its statutory definitions, which is essential to the book’s assessment of the strategies and tactics adopted in the codes of laws as well as policy statements. It also addresses normative constraints, such as human rights, and considers mechanisms of accountability.

Parts II-IV focus on the United Kingdom law and practice. It provides extensive coverage of the major UK terrorism legislation, namely: the Terrorism Act 2000; the Anti-Terrorism, Crime and Security Act 2001; the Prevention of Terrorism Act 2005; the Terrorism Act 2006; the Justice and Security (Northern Ireland) Act 2007; the Counter-Terrorism Act 2008; and the Terrorist Asset-Freezing etc. Act 2010. The themes comprise: investigatory and policing powers and interventions; the disclosure of Information, special criminal laws, special criminal processes, post-trial restraints and the penology of terrorism, executive regulation through control orders and immigration measures, terrorist funding and property, and protective security laws, structures, and regulations. The study encompasses wherever relevant the impact of European, international and transnational laws and practices, covering international transnational cooperation and extradition; key European Union law measures against terrorism; other international law measures against terrorist activities; and international human rights and terrorism.

Part V considers regional variations in Northern Ireland, with some reflections on the application of Scottish law, especially in the Lockerbie cases.

Part VI reflects the impact of European, international and transnational laws and practices, covering international transnational cooperation and extradition; key European Union law measures against terrorism; other international law measures against terrorist activities; and international human rights and terrorism.

Advising terrorism – hybrid scrutiny, safe harbors, and freedom of speech

SSRN
has published new scholarship from Peter Margulies analyzing the
Supreme Court decision in Humanitarian Law Project v. Holder (HLP)
upholding a statute that bars “material support” of terrorist
organizations. Some commentators have labeled HLP as heralding a new
McCarthyism. Margulies argues that such critics overlook the tailored
quality of the decision’s hybrid scrutiny model, its roots in the
Framers’ concerns about foreign influence, and its surprising parallels
with constitutional justifications for professional regulation. H/T Georgetown SLB.

Criminalizing Humanitarian Engagement

This Working Paper presents HPCR’s research to date on dilemmas arising from the intersection between, on the one hand, counterterrorism laws and policies prohibiting engagement with certain non‐state entities and, on the other, humanitarian access and protection of civilians in armed conflict. This Working Paper aims to provide HPCR’s initial analysis of these dilemmas and to suggest key areas for future research and policy engagement.  

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law – Daphne Barak-Erez and David Scharia

In the recent case of Holder v. Humanitarian Law Project, the Supreme Court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech. This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.