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