Montreal, September 13, 2003  /  No 128  
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Ralph Maddocks is a retired textile executive and former management consultant. He lives in Cowansville, Quebec.
by Ralph Maddocks
          Mala fide – in bad faith – has the opposite meaning to Bona fide – in good faith – and is the Latin tag which springs to mind most often when considering the events of September 11, 2001. Probably at no time in history has such an event been used to institute repressive measures in what we were once pleased to call our western democracies. Wherever one looks, the three digit number 911, to employ the shorthand term, crops up as the basis or excuse for some measure allegedly designed to combat terrorism in some form or other. The reality is quite different.
          The "War on Terrorism" has metamorphosed into a "War on Freedom" and almost everywhere one looks, evidence can be found to support this contention. In the defence of "freedom and democracy," human rights protections are luxuries which, if they have not disappeared for ever, have been seriously curtailed. Political accountability has slithered further into the background and we see now a system lacking not just accountability but worse, it no longer seems to believe in democracy itself. Our neighbours to the south are forever banging on about the "Land of the Free" which seems to be a reasonable proposition until, say, you take an airline flight. Then all your personal information is recorded and sent to various US police agencies for scrutiny.  
          This is happening not just in the US itself, but attempts are being made to apply the same measures to all flights originating outside the USA. Passengers boarding any plane flying to a US destination are to have their personal information sent to the US police authorities. In Canada too, next year will see the introduction of a colour coding system which will either allow one normal access, precipitate extra screening or refusal of permission to travel to the USA at all. Most are aware of the provisions of Mr. Ashcroft's Patriot Act and the effect that it is having on our neighbouring democracy, so this piece will deal with other self described democracies, mainly the emerging federal state of Europe, otherwise known as the European Union. 
From "terrorism" to "criminal" matters 
          Immediately following the events of 9/11, the European Union's Justice and Home Affairs Council recognized that an agreement should be negotiated with the USA on "penal cooperation on terrorism." The day after this agreement was made, on 21 September 2001, the US government wrote to the EU calling for "a formal agreement with the EU on judicial cooperation in criminal matters." Within eight days informal exploratory talks were started, and a high level meeting took place in Washington when the EU Ministries of Interior and Justice, the Commission and the [Council] General Secretariat visited the US on 18 October 2001. One day later, the fifteen EU prime ministers agreed to the broadening of an EU-US agreement from "terrorism" to "criminal" matters in general (including terrorism). 
          It is now quite obvious, not least from listening to the contrived mutterings of the US president, that the world is witnessing the beginning of a new era. An era in which, unlike the Cold War period, there is to be a new vision of what some say is US imperialism where the US will do as it pleases with or without the assistance of its former Cold War allies. Some even believe that those former coalition partners may still prove useful, provided they give the appearance of legitimating the actions of the US government. Emerging too is an increasingly vociferous EU, and the EU, despite its pretensions to democracy, has a political system virtually devoid of accountability. Already there has been at least one EU scandal which caused wholesale resignations and another is brewing which appears likely to be every bit as damaging. The EU is supposed to be "democratic" as are most of its member states and those running the EU constantly make the right noises in their attempt to convince us. The truth of course is that the EU is not very democratic, nor is it given to emphasizing "freedom" and the attributes we normally associate with it. The EU concept of freedom of speech prevents an Italian wine producer from marketing his wine in Germany because of German sensitivities about using the name of the late and unlamented Adolf Hitler... 
          It has lead also to attempts to impeach and prosecute a Danish member of the EU parliament for opining that many immigrants, after first ingratiating themselves, seek to undermine the European way of life. It would seem that the "protection of minorities – religious, cultural and ethnic" is more important than freedom of speech. The argument seems to be that before ethnic minorities from the developing countries (known to the multiculturalists as formerly exploited colonies) came to the various European countries, the concept of racism was based on colour and ethnic origin. Today they say that even diehard German Nazis and skinheads rarely use colour as a reference because racism has been against the law for many years. Racism is now understood to have been replaced by any bias shown against culture and religion. 
          Many thought that the end of the Cold War was also a victory for capitalism and the democratic way of life, but it did not guarantee that liberal democracy would survive. During the Cold War it was expedient to embrace democracy as being a more desirable system than the state controlled economy of the Communists. When the USSR degenerated as a force after the fall of the Berlin Wall in 1998 not only did the USSR cease to exist as a political culture but with it went the need for liberal democracy. Indeed, a UK government sponsored think-tank, meeting in 1996, had already concluded that, "Democracy must not be confused with capitalism. The former is a political system while the latter is an economic system. Although many capitalist countries are democracies, capitalism can exist without democracy." A concept which one is tempted to believe is being instituted today, as more and more of our "democratically elected" governing parties seem to prefer to retain power rather than advance the cause of liberty. 
Living in democracies? 
          Of course, our politicians argue that we have such things as Supreme Courts, Constitutions, Charters and Human Rights Conventions – graciously conceded to us by them of course – which guarantee our freedoms and rights. But those institutions and pieces of paper, along with holding elections every four or five years – or in the case of places like Britain or Canada, whenever the current dictator believes his party can win – does not mean that we live in democracies. A sense of one's country's history is an essential part of any culture, and we all know the perilous state of the teaching of history in many western countries today, including Canada. A healthy democratic political culture would be one that is perhaps heterogeneous but enlightened, well informed, pluralistic and tolerant of others and their ideas. Tolerance though is a concept which is being repudiated by the multiculturalists and the other politically correct members of our self-appointed elites. Such a political culture would be also a place where the expression of critical views is nourished and encouraged, not marginalised. However, the EU democracy is not the sum of its parts, it suffers from a number of defects and there is a dearth of informed analysis covering most new measures advanced by its constituent elements. 
          An example of this would be the stealthy introduction of such odious acts as Corpus Juris as a replacement for the Common Law in England (see CORPUS JURIS, le QL, no 39). One reads of leading French politicians talking about ignoring such things as the Stability Pact – which requires countries to maintain certain budgetary ratios – whereas others such as Portugal are sanctioned for not maintaining such ratios. There is little or no freedom of information. There is a lot of printed paper coming out which contains regulations, there are comprehensive Web sites available, but little real information is available, say about forthcoming measures e.g. EU-US "penal cooperation on terrorism." Indeed, most European public outrage against some EU proposal or other comes almost invariably from leaked documents, not from the furnishing of documents under some Freedom of Information scheme such as we have in the USA or Canada. 
          There is virtually no involvement by civil society, as we see here with privately funded organizations such as Canada's IEDM or Fraser Institute, unless it is funded by the EU or one of its constituent governments. An example of this would be the coming Swedish referendum on joining the euro, where huge sums of government money are being poured into the pro-euro side. Perhaps most important of all, since it relates directly to the apparent political torpor of the EU citizenry in the face of this loss of freedom, is the absence of an active, inquisitive, analytical media. Journalists, with few exceptions, report mindlessly on government press releases and prefer to present "spin" as fact. 
     « Long before the effects of 9/11 had to be dealt with, it was clear that democracy in the EU had very little legitimacy. Ten years ago, in answer to long standing and repeated demands by EU customs, police, immigration and internal security authorities for access to communications data, an agreement was reached with the FBI. »
          Much of this seeming disinterest in what is happening results from the above and a combination of silence and inaction. Undoubtedly, there must be some citizens in the EU who can see that freedom cannot be defended by destroying it, but they must be consciously deciding to remain quiet and continue to enjoy their comfortable lives assuming that what is happening will not affect them. This attitude is exploited by all our governments who rely on the public's apathy and feelings of "this doesn't apply to me." It is a variation of the old remark about ID cards, "Those with nothing to hide have nothing to fear." In addition, it may explain much of the decline in voting activity. 
The use of 9/11 to attack 
          Long before the effects of 9/11 had to be dealt with, it was clear that democracy in the EU had very little legitimacy. Ten years ago, in answer to long standing and repeated demands by EU customs, police, immigration and internal security authorities for access to communications data, an agreement was reached with the FBI. Communications providers, whose obligation until then was limited to providing billing information, would be obliged to give access to all data upon production of an "interception order." The FBI were able to achieve their objective by law in October 1994 and the EU cobbled together a plan giving real time interception against production of an appropriate order by January 1995. In1998, those same EU agencies and the FBI wanted to update the arrangement to cover mobile telephones and the Internet but the document was leaked and the resultant outcry put the issue on hold. However, post 9/11 all this changed and law enforcement agencies were given the right to access telecommunications data for the purpose of "criminal investigations" not simply to investigate terrorism. Thus communications privacy protection disappeared completely and a provision was made that all EU member states adopt laws requiring the retention of communications data. 
          Other examples of the use of 9/11 to attack liberties and rights, which could not be justified in ordinary circumstances, were the introduction of various new regulations, databases, practices and new groupings of officials without accountability. Groups such as the Police Chiefs Operational Task Force (PCOTF) which was created at the Tampere Summit in October 1999 but whose legal or constitutional status has never been clarified. It was intended to concentrate on "three or four top priority organised crime problems" but after 9/11 its role seems to have changed to cover intelligence, the exchange of information, cooperation between national anti-terrorist units, security at airports, the planning and operations of border management and the coordination of para-military police units for EU Summits and international meetings. A request for access to the minutes of their deliberations was refused on the grounds that it did not come under the Council of the EU and thus no documentation could be supplied. Another example of how to avoid accountability for political actions. 
          It became apparent that much of what ensued had little to do with terrorism but had to do with crime in general, the targeting of dissident groups, protestors and the like. More importantly it created a EU-US relationship to deal with border controls, immigration, extradition and so on. Space being limited, only one aspect of this will be dealt with, namely the definition, in Article 1 of the relevant "Framework Decision," of "terrorist offences" which attempts to ensure that each EU Member State must make certain that the term covers: 
              The following list of intentional acts which, given their nature and context, may seriously damage a country or an international organisation, as defined as offences under national law, where committed with the aim of: 
      (i) seriously intimidating a population, or; 
      (ii) unduly compelling a Government or international organisation to perform or abstain from performing any act, or; 
      (iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
          It then lists a number of obvious offences such as kidnapping, extortion and murder. However, the document includes also offences such as: "causing extensive destruction of a Government building or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on a continental shelf, a public place or private property likely to endanger human life or result in major economic loss." 
Totalitarian in outlook 
          There are probably many in this world who wish to object, rightly or wrongly, to government measures or actions (G8 meetings, the WTO, etc., bans on fox hunting in the UK, etc.) and actually want them to "perform or abstain" from performing, some act or other. Should property damage result from civil demonstrations, then the perpetrators of such acts are designated as "terrorists." The majority of EU governments refused also to remove any use of this Decision to suppress those exercising their democratic rights, or even to exclude liberation struggles against repressive regimes. Interestingly, "actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision" which is binding on all EU countries and must be incorporated into each country's national body of law. 
          The recent introduction of the European Arrest Warrant, another emergency measure which passed through the legislative process at the speed of light, effectively removes virtually all existing checks and balances of the former extradition process. There will be no legal test applied in the case of any of 32 offences (not all of which were offences in the constituent countries) listed in the enabling legislation. The state requesting extradition will say simply that the person is wanted for such and such an offence and he or she will be arrested, their home searched, their property seized and their body deported to face charges in the requesting country. Habeas corpus no longer applies and no appeal will be heard either. Although scheduled to take effect on January 1, 2004, thus far only three EU countries – Denmark, Spain and Portugal – out of the fifteen have transposed the necessary legislation while in the remainder the process is still in their respective parliaments. 
          When Spain held the Presidency of the EU they proposed, and it was of course passed without debate, the "introduction of a standard form for exchanging information on terrorists." The Recommendation states that the information to be exchanged should concern "individuals with a criminal record in connection with terrorism as defined in the (Framework) Decision on combatting terrorism." The meaning of a criminal record though, is not necessarily the same in each state. For example, a person could have been arrested for sitting down in the road in a non-violent protest against the local super-market's policies and thus have a "criminal record" in one state and thereby be considered the same as someone who had committed armed robbery in another. Thus democracy in the emerging United States of Europe. 
          Mr. bin Laden's attack on the WTC two years ago was supposed to demonstrate that the USA was vulnerable to attack and that it would result in a US counterattack. The US counterattack in turn was to be countered by Al Queda and produce an uprising among the Islamic masses enabling the creation of a new Caliphate. I doubt though that Mr. bin Laden envisaged the western democracies becoming quite so totalitarian in outlook.  
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