The EU’s Paradoxical Efforts at Tracking the Financing of Terrorism: From criticism to imitation of dataveillance. CEPS Paper in Liberty and Security No. 56, August 2013

In July 2011, the European Commission published a Communication aimed at setting out different options for establishing a European terrorist finance tracking system (TFTS). The Communication followed the adoption of the EU-US agreement on the US Terrorist Finance Tracking Program (TFTP) in 2010. The agreement concluded various series of national, European and transatlantic negotiations after the disclosure through public media of the US TFTP in 2006. This paper takes stock of the wide range of controversies surrounding this security-focused programme with dataveillance capabilities. After stressing the impact of the US TFTP on international relations, the paper argues that the EU-US agreement primarily has the effect of shifting information-sharing practices from the justice/judicial/penal/criminal investigation framework into the security/intelligence/administrative/prevention context as the main rationale. The paper then questions the TFTP-related conception of mass intelligence through large-scale databases and transnational communication of bulk data in the name of targeted surveillance. Following an examination of the project creating an EU system equivalent to the TFTP, the paper emphasises the fundamental paradox of transatlantic security matters, in which European criticism of American programmes tends to be ultimately translated into EU imitation of US dataveillance practices.

EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress? Research Papers in Law, 3/2008

From the Introduction. This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI.3 In its judgment under appeal,4 the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

U.S.-Israel Foreign Direct Investment and Terrorism. ACES Working Paper No. 9, 2007

The Israeli economy has been subjected to a continuous flow of terror since its creation. The focus of our study is how terrorism's impacts the level of production of the high-tech sector. The two main objectives and novelties of the paper are: First our paper can be a major contribution to as yet a new subfield in applied microeconomics attempting to measure the impact of terror on economic issues like FDI and Industry output in general and that focused on the High-Tech industries. Second our research is designed to help us understand the impact of terror news, especially on U.S citizens' reactions to terror in Israel. Our terror variable isn't how many bodies or but how many negative articles regarding terror there are in leading American news paper. We focus on the volatility clustering of terror information arrivals in major US financial papers and its impact on high-tech production and FDI to Israel.

The EU Counter-Terrorism Policy Responses to the Attacks in Paris: Towards an EU Security and Liberty Agenda. CEPS Liberty and Security in Europe No. 81/February 2015

This paper examines the main EU-level initiatives that have been put forward in the weeks following the attacks in Paris in January 2015, which will be discussed in the informal European Council meeting of 12 February 2015. It argues that a majority of these proposals predated the Paris shootings and had until that point proved contentious as regards their efficacy, legitimacy and lawfulness. The paper finds that EU counterterrorism responses raise two fundamental challenges: A first challenge is posed to the freedom of movement, Schengen and EU citizenship. Priority is being given to the expanded use of large-scale surveillance and systematic monitoring of all travellers including EU citizens, which stands in contravention of Schengen and the free movement principle. A second challenge concerns EU democratic rule of law. Current pressures calling for the adoption of measures such as the EU Passenger Name Record challenge the scrutiny roles held by the European Parliament and the Court of Justice of the EU on counterterrorism measures in a post-Lisbon Treaty setting. The paper proposes that the EU adopts a new European Agenda on Security and Liberty based on an EU security (criminal justice-led) cooperation model that is firmly anchored in current EU legal principles and rule of law standards. This model would call for ‘less is more’ concerning the use, processing and retention of data by police and intelligence communities. Instead, it would pursue better and more accurate use of data meeting the quality standards of evidence in criminal judicial proceedings.

The EU and its Counter-Terrorism Policies after the Paris Attacks. Liberty and Security in Europe No. 84, 27 November 2015

This paper examines the EU’s counter-terrorism policies responding to the Paris attacks of 13 November 2015. It argues that these events call for a re-think of the current information-sharing and preventive-justice model guiding the EU’s counter-terrorism tools, along with security agencies such as Europol and Eurojust. Priority should be given to independently evaluating ‘what has worked’ and ‘what has not’ when it comes to police and criminal justice cooperation in the Union. Current EU counter-terrorism policies face two challenges: one is related to their efficiency and other concerns their legality. ‘More data’ without the necessary human resources, more effective cross-border operational cooperation and more trust between the law enforcement authorities of EU member states is not an efficient policy response. Large-scale surveillance and preventive justice techniques are also incompatible with the legal and judicial standards developed by the Court of Justice of the EU. The EU can bring further added value first, by boosting traditional policing and criminal justice cooperation to fight terrorism; second, by re-directing EU agencies’ competences towards more coordination and support in cross-border operational cooperation and joint investigations, subject to greater accountability checks (Europol and Eurojust +); and third, by improving the use of policy measures following a criminal justice-led cooperation model focused on improving cross-border joint investigations and the use of information that meets the quality standards of ‘evidence’ in criminal judicial proceedings. Any EU and national counter-terrorism policies must not undermine democratic rule of law, fundamental rights or the EU’s founding constitutional principles, such as the free movement of persons and the Schengen system. Otherwise, these policies will defeat their purpose by generating more insecurity, instability, mistrust and legal uncertainty for all.

From Lockerbie to Umar Farouk AbdulMutallab (Assessing the Destruction of Civilian Aircrafts by Terrorism). Transatlantic Security Paper N.1–April 2010

Data published by the Federal Aviation Administration (F.A.A.) in its "Annual report on the criminal acts against civil aviation" indicates that in the year 1960, there have been fifteen attacks on board planes leaving 286 dead; 44 in the year 1970 with 650 dead (mostly hijackings); and 26 in the 1980s leaving 1207 dead. In the 1970s, the record is established by the year 1976 (168 dead).The three years - 1985 (390), 1988 (287), and 1989 (278) - were more deadly than the 1960s all together. These casualties were largely provoked by IEDs. Since the end of 1980 - the deadliest decade, with the exception of September 11, 2001 -, it is however a rare practice. The reasons for the decline in big and politically motivated hijackings were varied. One could have been the improvement of the effectiveness of the safety response by States, airports and companies. The improvised explosive device (I.E.D.) posed a serious threat to the civil aviation industry in the 1980s. Since the 1990s, the jihadi networks have regularly tried to target aircrafts using various types of IEDs.

Who will monitor the spies? CEPS Commentary, 8 January 2014

A majority of national governments across the EU have long tried to cordon off their practices of mass interception of communications data and cyber-hacking of foreign companies and diplomats from supranational scrutiny by the EU institutions and courts, arguing that they remain within the remit of their ‘exclusive competence’ on grounds of national security. In light of the revelations that some EU member states (namely the UK, France, Germany and Sweden) are running their own secret interception programmes, however, the question of whether the EU can and should intervene becomes more pressing. This commentary, by a team of JHA specialists at CEPS, offers four important legal reasons why the covert surveillance programmes of member states should not be regarded as falling outside the scope of EU intervention.