Safety, Liberty, and Islamist Terrorism American and European Approaches to Domestic Counterterrorism Gary J. Schmitt, Editor The AEI Press Publisher for the American Enterprise Institute WASHINGTON, D.C. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, 1150 Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. Library of Congress Cataloging-in-Publication Data Schmitt, Gary James, 1952– Safety, liberty, and Islamist terrorism : American and European approaches to domestic counterterrorism / Gary J. Schmitt. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-8447-4333-2 (cloth) ISBN-10: 0-8447-4333-X (cloth) ISBN-13: 978-0-8447-4349-3 (pbk.) ISBN-10: 0-8447-4349-6 (pbk.) [etc.] 1. United States—Foreign relations—Europe. 2. Europe—Foreign relations— United States. 3. National security—International cooperation. 4. Security, International. I. Title. JZ1480.A54S38 2010 363.325'16094—dc22 2010018324 13 12 11 10 09 1 2 3 4 5 6 7 Cover photographs: Double Decker Bus © Stockbyte/Getty Images; Freight Yard © Chris Jongkind/ Getty Images; Manhattan Skyline © Alessandro Busà/ Flickr/Getty Images; and New York, NY, September 13, 2001—The sun streams through the dust cloud over the wreckage of the World Trade Center. Photo © Andrea Booher/ FEMA Photo News © 2010 by the American Enterprise Institute for Public Policy Research, Wash- ington, D.C. All rights reserved. No part of this publication may be used or repro- duced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not neces- sarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Printed in the United States of America Contents ACKNOWLEDGMENTS vii INTRODUCTION, Gary J. Schmitt 1 1. UNITED KINGDOM: ONCE MORE UNTO THE BREACH, Tom Parker 8 Northern Ireland 9 A Period of Transition 13 9/11 and Its Aftermath 19 7/7 and Its Aftermath 21 More Resources, More Coordination 24 Londonistan and Liaison Partners 26 Conclusion 29 2. FRANCE: IN A LEAGUE OF ITS OWN, Gary J. Schmitt 31 The French System 32 Changes Since 2001 42 Conclusion 45 3. SPAIN: FROM 9/11 TO 3/11 AND BEYOND, Rafael L. Bardají and Ignacio Cosidó 48 Policing the Threat 50 Policing the Threat after 3/11/04 53 The European Framework 56 The Threat Today 58 Conclusion 60 4. GERMANY: THE LONG AND WINDING ROAD, Eric Gujer 62 Germany’s Islamist Threat 64 German Idealism and the War on Terror 68 New Measures and Old Impediments 70 v vi SAFETY, LIBERTY, AND ISLAMIST TERRORISM Germany’s Divided House 75 Conclusion 80 5. UNITED STATES: FACING THE THREAT AT HOME, Gary J. Schmitt 81 U.S. Counterterrorism before 9/11 81 After 9/11: New Laws, Old Laws, and Old Laws Implemented in New Ways 87 New Structures, New Guidelines 92 Some Concluding Points and Questions 97 6. U.S. COUNTERTERRORISM IN PERSPECTIVE, Gary J. Schmitt 105 The Energetic Executive 107 The European Experience 110 Comparing and Contrasting 114 Conclusion 121 NOTES 127 INDEX 179 ABOUT THE AUTHORS 193 Acknowledgments This book owes its origins to long and fruitful conversations with Reuel Marc Gerecht, my former AEI colleague. Much of the initial spadework for the vol- ume was a joint effort. In particular, the chapter on France owes much to Reuel’s insights into French security politics. I would also like to thank Abram Shulsky of the Hudson Institute and John Yoo of the University of California, Berkeley School of Law for taking the time and effort to read the manuscript and provide me with their thoughts and suggestions. In addi- tion, I would like to thank the numerous government officials, scholars, and policymakers from Spain, France, Germany, and the United Kingdom who agreed to share their thoughts on their countries’ respective security prac- tices and policies. Allied relations have gone through a particularly rough patch since the Iraq War, but cooperation in the field of intelligence and counterterrorism remains a solid cornerstone of transatlantic ties. Finally, I would like to thank Philipp Tomio, my research assistant, for seeing this project through and providing invaluable research help. Gary J. Schmitt, May 20, 2010 vii Introduction Gary J. Schmitt This volume owes its genesis to several long discussions with a former AEI colleague, Reuel Gerecht. Gerecht, a Middle East scholar and former opera- tions officer with the Central Intelligence Agency (CIA), had lived in Europe for extended periods and had worked Middle East “targets” for much of that time. I, on the other hand, was trained as a scholar in presidential studies and worked in both Congress and the White House in senior positions over- seeing the U.S. intelligence community. What struck us both in the wake of the attacks on 9/11 was the general failure to put recommended changes to our domestic counterterrorist efforts into proper historical and comparative perspective. It was as though the United States had never in the past dealt with a security threat on its own soil, or democratic allies had not faced or were not facing similar problems from jihadist terrorists. This observation led us to publish an initial paper that looked at France’s success in meeting its own Middle East terrorist problem and at the possible “lessons learned” for the United States.1 It also led us to think that a broader set of country studies might be useful; hence, this volume, with chapters on France, Spain, the United Kingdom, and Germany, as well as a chapter detailing the U.S. counterterrorism regime. These individual country stud- ies describe the nuts and bolts of current domestic security laws, institu- tions, and practices and place those elements in the unique political and historical context of each nation. Each country study also looks at what changes have been made since the attacks of 9/11 and, in the case of the European allies, what changes have followed the bombings in Madrid (March 11, 2004) and London (July 7, 2005). The final chapter draws 1 2 SAFETY, LIBERTY, AND ISLAMIST TERRORISM together these earlier analyses and considers what broader points can be drawn from comparing the counterterrorism practices of the United States with those of other democratic states, while at the same time considering the changes in U.S. laws and practices since 9/11 within the broader sweep of American history. All too often, the debate in the United States over its post-9/11 policies looks only at U.S. policies and practices, and through the lens of the past three decades. Although stated in different forms, the underlying question derived from this narrowed perspective is whether we have moved too quickly and too aggressively to undo the regulations put in place to keep the American intelligence community under greater control in the wake of the investigations of the mid-1970s into intelligence practices—or, less often, whether we have not moved quickly and decisively enough. Not only does this time-constrained focus do little justice to our own history of dealing with serious domestic security issues, but it ignores the efforts by long-time allies—all of whom have had to deal with serious terrorist challenges in the recent past—to find the proper balance between safety and liberty. If noth- ing else, being clear about the lines being drawn by other liberal democra- cies between, say, the right to privacy and the need for surveillance, between law enforcement and intelligence gathering, and between free speech and incitement, makes for a more meaningful and more useful debate here in the United States. The time is right for such a debate, given the change in the U.S. admin- istration. Certainly, as a candidate and senator, Barack Obama promised to rethink the Bush administration’s policies on the “global war on terror,” which he described as “dangerously flawed” and as “undermin[ing] the very values we are fighting to defend.”2 As president, he has pointedly charac- terized the previous administration’s decisions as “hasty,” “based on fear rather than foresight,” and he has criticized its “ad hoc legal approach . that was neither effective nor sustainable.”3 Few were surprised then when the new administration moved swiftly and dramatically to distance itself from the policies of the previous White House: on his third day in office, the president issued executive orders to close the detention facilities at Guantá- namo Bay, renounced the use of torture, and shut down the CIA’s network of secret detention facilities.4 And while controversial, other decisions by the administration are hardly surprising either, given candidate Obama’s INTRODUCTION 3 rhetoric about Bush administration policies: for instance, the decision to try Khalid Sheikh Mohammed, along with four other detainees associated with the attacks on 9/11, in a federal court rather than before a military tribunal, and to treat the case of would-be Christmas bomber Umar Farouk Abdul- mutallab as a criminal matter rather than one involving an unlawful enemy combatant. These changes in policies are significant—if for no other reason than the signal they are designed to send abroad: that the Obama adminis- tration will rebalance America’s approach to the jihadist threat to be more in line with what allied, especially European, publics believe should be a less warlike, more law-bound approach to counterterrorism.