Defense

the United States and the European Union countries have worked diligently to create inhospitable environs for terrorists. Still, notable variations exist in their approaches to terrorism, especially with respect to 

the costs and benefits of responses to the heightened threat posed 

to the West. For the most part, the events of September 11 did not 

result in a fundamental shift of most European governments’ security 

paradigm. However, both the Madrid bombings of March 11, 2004, and 

the London bombings of July 7, 2005, spurred new antiterrorist proposals that have since brought EU policy closer to that of the United 

States. Still, these measures have been undertaken not so much to 

cooperate with U.S. efforts as to address more realistically terrorism 

as “one of the key strategic threats facing Europe.”1 Indeed, shortly 

after the March 11 attack, British Prime Minister Tony Blair observed 

that the Madrid bombings had exacerbated the divergence between 

the United States and Europe.

In response to the September 11 attacks, Article V of the North 

Atlantic Treaty Organization (NATO) Charter was invoked for the first 

time in the history of the Alliance. Nevertheless, Europe does not see itself 

at war. For Europe, March 11 was a wake-up call that new policies and 

practices were needed, but it was not the beginning of a war in the same 

way that September 11 was for the United States. In general, Europeans 

have been dealing with relatively low-level terrorism for decades and 

have found means to cope with it. Many prominent Europeans have noted 

that complacency is a grave danger, particularly in light of the potential 

for terrorist groups to undertake mass terrorism using chemical, biological, radiological, and nuclear (CBRN) weapons. However, for the most 

part, European governments do not appear to share the United States

sense of urgency about terrorist groups with global support networks.2

Under the auspices of NATO, European states agreed to numerous enhancements to defend against terrorism, such as intelligencesharing and force protection measures. At the Prague Summit in 

November 2002, NATO members agreed to improved collaboration on 

Overview

Differences in strategic vision and concepts of security are 

central to the U.S. and European Union (EU) approaches to counterterrorism. While the United States conceives of a war against 

terrorism, Europe does not. As a result of different perceptions of 

the threat, both sides of the Atlantic take divergent approaches 

to homeland security. Europeans tend to favor the use of a law 

enforcement strategy over a warfighting approach. Meanwhile, the 

U.S. administration believes that a quasi-militaristic, overtly proactive, and highly vigilant stance will serve as the best deterrent to 

future attacks. By their own standards, Europeans are doing more 

to counter terrorism since September 11 and even more since the 

attacks in Madrid (March 11, 2004) and in London (July 7, 2005); 

by U.S. standards, these measures sometimes appear inadequate. 

As a result, there are significant transatlantic divergences on the 

best methods for halting the spread of terrorism.

The way ahead in an EU–U.S. counterterrorism relationship 

may be to focus on positive areas such as capacity building, anticorruption measures, and strengthening multilateral agreements. 

Further, the key to apprehending—or at least interrupting—terrorist conspiracies may well lie in cooperating on the law enforcement side to apprehend and incarcerate terrorists for criminal 

activity. The United States may have to be satisfied when terrorists 

are brought to justice for organized criminal activity in EU states. 

While this does not hold the same political weight as convictions 

for terrorism, the result may be fewer acts of terrorism. Perhaps 

the greatest task for the transatlantic counterterrorism partnership is to renew the sense of urgency for cooperation in areas 

where the United States and EU countries do agree.

Differing Assessments

American–European Union (EU) cooperation in the war against 

terrorism has improved in a number of important areas over the past 

several years, but in some respects policies and practices in justice and 

law enforcement continue to diverge. Overall, the effort is exposing serious differences born of the varying backgrounds and diagnoses of the 

problems. To be sure, both sides of the Atlantic are being more vigilant; 

Countering Terrorism 

Across the Atlantic?

by Kimberley L. Thachuk

A publication of the

Center for Technology and National Security Policy

National Defense University

J U L Y 2 0 0 6

Number 53

Horizons

July 2006 Defense Horizons  

Acknowledgments

I am grateful to my colleagues Hans Binnendijk, Spike Bowman, 

Stephen J. Flanagan, Richard L. Kugler, and Courtney Richardson, for 

their comments and suggestions that so enriched the content of this 

paper. I am also grateful to Peter C. Potman, Counselor, Royal Netherlands Embassy, Washington, DC, for his numerous insights, remarks, 

and suggestions. —KT
be expanded elsewhere, including the key realm of counterterrorism. 

If so, determining exactly how to do so is critical.

Differences in Approach

Differences in strategic vision and the way that terrorism fits into 

overall concepts of security are central to the differences in the U.S. 

and EU approaches to counterterrorism. President Bush has defined 

the battle against terrorism as “a clash between civilization and those 

who would destroy it.”4 Indeed, the United States is waging a war 

against terrorism. Europe is not. While global terrorism has achieved 

somewhat greater political salience in Europe, particularly in the aftermath of the March 11 train bombing in Madrid, the security paradigm 

of European governments has not fundamentally shifted. As a result, 

there are significant transatlantic divergences on the best methods for 

halting the spread of terrorism.

For the United States, the strategy remains to: make no concessions to terrorists and bring them to justice for their crimes; broaden the 

international consensus that terrorism is an international scourge and 

warrants global cooperation; degrade, disrupt, and destroy terrorist cells 

and support networks using a combination of intelligence, law enforcement, financial, informational, and military capabilities; isolate any states 

that harbor or support terrorism; 

enhance U.S. and coalition partner capabilities to counter terrorism and strengthen domestic 

critical infrastructures and consequence management capabilities to cope with a broad array of 

terrorist attacks, including those from WMD; transform the environment in which terrorism flourishes by addressing the sources of anger 

and hatred; and minimize the backlash against coalition activities in the 

Muslim world. 

Europeans, on the other hand, do not mix war and justice in 

their version of counterterrorist strategy. They tend to characterize 

terrorists as criminals and to favor a law-enforcement strategy over a 

warfighting approach. For Europeans, war requiring the annihilation of 

an enemy will do little to resolve criminal and social problems. Instead, 

law enforcement and judicial cooperation are required, as well as attention to conditions of poverty and deprivation that give rise to violent 

expressions of indignation and powerlessness. 

Notwithstanding these beliefs, there remains, at times, a lack 

of consensus in Europe on whether it is possible to deter and protect 

against certain terrorist groups and some of their possible associates, 

as well as disagreement on which cases such action might be necessary. Despite the appointment in May 2004 of an EU Counterterrorism 

“czar,” responsible for coordinating the development of an EU-wide 

counterterrorism policy, most European governments assess and deal 

with terrorism “on an emergent basis, after particular threats have 

arisen.”5 Further, at the December 2002 NATO Parliamentary Assembly, 

European participants noted that they felt that the American response 

to terrorism has been “one dimensional” or solely a military one. While 

U.S. representatives quickly cited a three-pronged approach, involving 

military, political, and social components, the Europeans stressed that 

the latter two components are not evident. In effect, the Europeans 

were concerned that the United States was not adequately addressing 

the causes of terrorism.

A Perception Gap?

Since the September 11 attacks, Europeans have been apprehensive about some of the steps the United States has proposed and 

undertaken as part of the war on terrorism. Most European governments opposed a U.S. military campaign against the regime of Saddam

Hussein for the purpose of eliminating WMD—even for the stated 

Kimberley L. Thachuk is a Senior Research Fellow in the Center for Technology 

and National Security Policy at the National Defense University. Dr. Thachuk can 

be reached at thachukk@ndu.edu.

civil emergency planning, increased sharing of information and intelligence, and intensified scientific cooperation, especially in the area of 

weapons of mass destruction (WMD). At the NATO Ministerial meeting 

in December 2004, members agreed to continue the measures adopted 

in 2002 as well as to improve interoperability and to conduct joint 

counterterrorism training exercises. 

Despite these significant accomplishments in terms of collective 

security arrangements, the war in Iraq has muddied transatlantic counterterrorism relations. The Iraq war is very unpopular in Europe, and 

along with dredging up old transatlantic differences, it is viewed as exacerbating terrorism rather than combating it. European voters fear—and 

for them March 11 confirmed—that being seen as pro-American and, 

more importantly, supportive of the war in Iraq, makes them possible 

targets for al Qaeda and its affiliates.3

The transatlantic relationship on counterterrorism becomes still 

more difficult to decipher when the various approaches of the European 

countries are considered. While Britain has been a staunch ally of the 

United States, France has been less willing to enter into agreements 

in which privacy laws might be abrogated. Some of the other countries 

have less capacity to invest in anti-terrorist countermeasures due to 

fiscal constraints and lack of sufficiently robust institutions to confront adaptable transnational 

individuals and groups. Much 

of the transatlantic relationship 

continues to be conducted via 

bilateral channels rather than 

through the multilateral vehicle 

of the EU. However, for the purposes of analyzing the transatlantic counterterrorism relationship, sufficient similarities exist in European states’ approaches such that some 

generalizations may be made about the stance they tend to take.

The war on terrorism has brought to the fore a number of latent 

differences between the United States and EU countries in the way that 

justice and law enforcement issues are approached and organized. By 

their own standards, Europeans are doing more to counter terrorism 

since September 11 and even more since the Madrid attacks of March 

11, 2004; by U.S. standards, these measures sometimes appear inadequate. Regardless of these differences, the war on terrorism requires 

that all partners work together. It may be, therefore, that the United 

States will have to continue to urge European partners to take a stronger stance while at the same time make some serious and realistic 

choices over which issues it can bear to have less control. 

A low point was reached in 2003–2004 when the United States and 

Britain were pitted against France and Germany in the debate over Iraq. 

Arguably, the past year has seen some warming of relations. President 

Bush’s call for democracy in the Middle East and his fence-mending trip 

to Europe in late 2005 helped reduce tensions. Progress in the Middle 

East, including democratic elections in Afghanistan and Iraq, Syria’s 

withdrawal from Lebanon, and steps toward democracy in Egypt and 

Saudi Arabia have further helped in creating a common cause across 

the Atlantic Alliance. NATO recently has increased its involvement in 

Afghanistan and is now training Iraqi security forces. All agree on the 

importance of creating a stable, democratic Iraq and on using diplomacy 

to deflect Iran from pursuing acquisition of nuclear weapons. Europeans 

are also working hard on creating the new NATO Response Force and 

on other defense initiatives. In this setting, perhaps collaboration can 

Europeans tend to favor a 

law-enforcement strategy over 

a warfighting approach

 Defense Horizons July 2006
purpose of preventing those weapons from falling into the hands of 

apocalyptic terrorists. While Europeans and Americans agree that al 

Qaeda, and perhaps other radical Islamic groups, have the requisite 

determination and patience required to acquire and deploy WMD, they 

do not agree on the likelihood of their success in either instance.6

Europeans, for the most part, prefer to resolve differences with 

enemies through reconciliation and dialogue. A majority of Europeans

view the unilateral move by the United States against Iraq, and the 

strong language employed against other would-be aggressors such 

as Iran and North Korea, as unhelpful and counterproductive. These 

Europeans are dedicated to multilateralism and resolution of crisis

through international institutions. President Bush’s announcement 

shortly after September 11 that “either you are with us or you are 

against us” was arguably viewed as damaging to the transatlantic relationship. While this remark was not necessarily intended to draw allies 

into a debate about the strength of allegiances, it was misinterpreted 

by many Europeans who were displeased by the proverbial line being 

drawn in the sand. Indeed, Europeans tend to feel that many of the 

Bush administration policies continue to reflect this stance. For Europeans, alliance does not imply allegiance in all things. They are further stung by the seemingly-recurrent implication, through U.S. action 

and deed, that this is a unipolar world in which the United States 

takes the lead. The European view is that the world is multipolar and 

that Europe is a significant, autonomous “pillar,” effecting a balanced 

“partnership based on mutual respect” with the United States.7 

As a result of different perceptions of the threat, both sides of 

the Atlantic take different approaches to homeland security. The 

United States believes that a quasi-militaristic, overtly proactive, and 

highly vigilant stance will serve as the best deterrent to future attacks. 

Europeans, while more conscious of the threat since the attacks on 

London and Madrid and more cooperative in terms of transatlantic collaboration in this regard, are still unwilling to replicate this stance with 

a “Fortress Europe.” For some 

in Washington, this seemingly 

passive European attitude 

is making the United States 

increasingly vulnerable. After all, 

it is argued, the hijackers began 

plotting September 11 in Europe 

and then took advantage of good 

U.S.-European relations (that do 

not require visitor visas and so forth across the Atlantic), to enter the 

United States and execute their attack. Yet, the fact that the United 

States now openly displays the extent of the power and force behind 

homeland security should perhaps alert Europeans to the fact that terrorist groups, who might have originally set their sights on attacking the 

American heartland, may now be satisfied with targeting Europe.8

In terms of the NATO Alliance, the picture is somewhat different. 

At the Prague Summit in 2002, a majority of the Alliance concepts and 

doctrines were reviewed with the terrorist threat in mind. In particular, 

the Military Concept called for a common defense against terrorism, 

including the use of military force to deter, defend, disrupt, and protect 

against threatened or real terrorist attacks. It was further agreed that 

military assistance could be rendered to national authorities for dealing with the consequences of terrorist attacks, including those using 

CBRN weapons. The Military Concept further allows NATO to act outside 

the Euro-Atlantic arena wherever and whenever necessary, including 

involvement in crisis-response operations. What is interesting to note 

is that while there is a differing assessment of the threats posed by terrorism between the EU countries and the United States, the European 

members of NATO appear to support the Alliance’s possible military 

action against terrorist threats. Reconciling these two seemingly different 

approaches will be an important task for both sides of the Atlantic.

Operational Differences

Differences of opinion continue between the United States and 

EU countries about the nuances of counterterrorism operations regarding, for example, the degree to which certain subnational communities 

should be monitored and how. As a result of September 11, the U.S. 

Justice Department utilizes a 1996 law that makes it a crime to offer 

“material support” to any group designated by the United States as a 

terrorist organization. Because this represents a once-removed evidentiary standard or a near-“guilt by association” notion of intent, it is seen 

as antithetical to stringent European evidentiary standards. Such differences do not bode well for cooperation that has existed at least since 

World War II on issues of legal harmonization, including informationsharing, mutual legal assistance, and extradition matters. Aside from 

political misgivings, many of the European states may be legally prohibited from sharing information or extraditing a suspect if such evidence 

or act will be contrary to the provisions set forth in their constitutions. 

Despite these hurdles, since September 11, the EU Third Pillar 

Cooperation (police and judicial cooperation in criminal matters) and 

bilateral EU–U.S. exchanges in these areas have both been enhanced. 

The United States and the EU announced coordinated targeting of an 

expanded list of terrorists and terrorist entities at the May 2002 U.S.–EU 

Summit. Still, differences over the conduct of certain counterterrorist 

operations and the scope of information sharing are evident.

In June 2003, amid major debates over the war in Iraq, the United 

States and the EU succeeded in concluding two treaties, one paving the 

way for the extradition of terrorist suspects to America and the other 

offering mutual legal assistance for terrorism cases. Since the 2004 

U.S.–EU Summit, both bilateral protocols have been implemented with 

17 EU states. These treaties are landmarks because it is the first time 

a country has negotiated with the EU as a unit, and also because many 

EU states are opposed to extraditing their nationals for any crime, particularly if the death penalty is 

a sentencing option. In the first 

instance, the United States has 

long preferred to conclude bilateral extradition treaties with 

individual countries, so negotiating with the EU was viewed 

as a triumph for Europeans. In 

the second case, EU agreement 

to form joint investigative teams, provide information on the assets of 

terrorist and criminal suspects, and allow videotaped testimony was a 

breakthrough for the United States, as these had previously been prevented by stringent EU civil liberties laws. 

Indeed, while transatlantic collaboration on preventive security 

and investigative matters appears satisfactory, judicial issues could 

prove to be highly disruptive. Exceptional judicial provisions, such as 

irregular rendition, secret military courts, and the battlefield detainee 

status currently being employed by the United States, are problematic 

for Europeans on two counts. First, if not managed with a substantially 

multilateral approach, such exceptional legal measures risk being 

highly incompatible with existing European judicial principles, provisions, and practices. Second, because the fight against terrorism is also 

a fight for hearts and minds, Europeans fear that deviations from the 

rule of law and accepted international legal principles could play into 

the hands of terrorists. Europeans often argue that the Italian success 

against the Red Brigades was achieved with significant societal support due, in part, to scrupulous adherence to constitutionalism and 

high judicial standards. 

A more recent sticking point has been the alleged extraordinary rendition program run by the Central Intelligence Agency (CIA), 

in which the agents are said to have spirited Egyptian-born imam 

reconciling these two seemingly 

different approaches 

will be an important task for 

both sides of the Atlantic

July 2006 Defense Horizons  
or international criminals has led to strong recrimination from European states. On her January 2006 trip to Washington, German Chancellor Angela Merkel’s criticism of Guantanamo Bay was quickly rebuffed 

by President Bush on the grounds that the prison is “a necessary part 

of protecting the American people.”15 On the one hand, it is argued, if 

the suspects are belligerents, they must be accorded all the rights of the 

Geneva Convention Relative to the Treatment of Prisoners of War and 

become subjects of international humanitarian law.16 If, on the other 

hand, they are found to be international criminals, then habeas corpus

would apply in most constitutional democracies, paving the way for fair 

and speedy trials of the detainees. It might be argued that by using the 

term War on Terrorism, the U.S. Government has opened the door for the 

detainees to be classified as belligerents under the Geneva Conventions. 

Since the United States has 

chosen to call these suspects 

enemy combatants, this term, 

at some point in the future, may 

have a place in customary international law, thereby legitimizing the status. For this to occur, 

particular remedies, actions, 

and techniques must be decided 

upon and institutionalized such 

that they become practice, and 

therefore customary, over time. 

The seemingly ad hoc nature of the terms and treatment of the detainees 

invites the accusation that arbitrary justice is being applied. The United 

States cannot operate alone on this front indefinitely; to successfully 

wage a global war on terrorism it must rely on the cooperation of friends 

and allies. To gain this cooperation, it must demonstrate that international law and institutions shape and constrain U.S. actions. 

An Expanded Definition of Terrorism?

The focus of the current phase of the U.S. counterterrorism campaign has been on certain groups with global reach, failed states where 

terrorists can operate with impunity, and defiant state sponsors of terrorism. With this in mind, future transatlantic security planning needs 

to take into account not only the challenges of terrorism, but also 

a broader range of new asymmetric threats as they intersect with terrorism. Indeed, many of the tools required to counter other threats, such 

as international organized criminal activity, can be used to combat terrorism and a wide array of other transnational threats. Yet, because the 

global war on terrorism has consumed much American and European 

policy and planning time since September 11, some of the other transnational threats, such as drug trafficking, have seemingly fallen through the 

cracks.17 To focus on countering terrorism to the near exclusion of other 

threats is to overlook the fact that many, if not all of the threats, are linked. 

It is on this linkage that transatlantic consensus may be built.

The success of al Qaeda results not only from its adaptability but 

also its willingness to seek out the vulnerabilities of each state’s system 

and exploit them for criminal enterprise. In Europe, Spain was used 

by al Qaeda operatives to raise funds through a credit card scheme, 

while Germany was exploited for its privacy laws to store contraband 

materials. Funds were raised in Italy through the manufacture of counterfeit couture, and Belgium became the epicenter of document forgery 

using Belgian passports.18 Indeed, Belgium is particularly vulnerable 

because the Belgian police are rather ill-equipped to combat conspiracies of this nature, and because Belgium is the center of the international diamond business, which is an important source of funds and a 

money-laundering vehicle for terrorists. Britain is the target of Russian 

and Albanian mafias trafficking in humans that make upwards of $1.6 

million per week smuggling people into the country.19 The great fear 

is that because these trafficking rings are not concerned with whom 

Osama Mustafa Hassan, also known as Abu Omar, from the streets of 

Italy in 2003 without the approval of the Italian government and to 

have taken custody of two Egyptian terrorist suspects at the Stockholm airport and escorted them to Egypt to stand trial.9

 In the former case, Italian authorities were clearly upset and claimed Omar 

had been kidnapped. In the latter case, widespread internal criticism 

forced the Swedish government to change its regulations for executing deportation orders. The Italian Government went so far as to issue 

22 arrest warrants for the suspected CIA agents involved in the abduction of Omar, saying that it had hindered ongoing Italian terrorism 

investigations and sparked further Islamic extremism.10

Reports that the CIA maintained secret prisons in Europe and 

North Africa and used a number of EU states as transit facilities led 

to reactions by European governments ranging from quiet denial 

to seething outrage. Despite subsequent revelations that a number of European countries had 

allowed their facilities to “support 

the return of criminals/inadmissible aliens” and also by default 

to what many critics termed the 

eventual “outsourcing of torture,” 

the damage to transatlantic relations was done.11 

During her December 2005 trip to Europe, U.S. Secretary of State 

Condoleezza Rice restated the U.S. view that terrorists must be brought 

to justice wherever possible because traditional extradition is often not 

an option. She added that, “the local government can make the sovereign 

choice to cooperate in” the transfer of a suspect to a third country using 

rendition.12 Rice’s implicit assertion was that circumventing traditional 

extradition allows for countries to cooperate with the United States while 

not undertaking unpopular overt judicial actions with political consequences. Rice underscored this point by stating that not only are European lives being saved by expediting burdensome legal procedures, but 

that the suspects in question are “essentially stateless, owing their allegiance to the extremist cause of transnational terrorism.” While politically expedient in the short run, this may not be the best argument for the 

United States to employ with European partners. European states take 

the European Convention on Human Rights very seriously and prefer to 

defer—even for responding to terrorism in extremis—to the European 

Court of Human Rights to safeguard the rights of individuals.13

Indeed, in his remarks to the press on the publication of a report 

of the inquiry into the irregular renditions by the Committee on Legal 

Affairs and Human Rights, Secretary General of the Council of Europe 

Terry Davis stated that while he strongly supports cooperation between 

Europe and the United States on all issues, especially in the fight against 

terrorism, “the threat of terrorism cannot justify disregard for the European Convention on Human Rights. Blatant violations of human rights, 

such as secret detention and torture, are not only morally wrong and 

illegal, they are dangerous because they undermine the long-term 

effectiveness of our fight against terrorism.”14

Differences in approach stem from how each side of the Atlantic 

defines terrorism and terrorists. Rather than being intimidated by the 

presence of 15 million Muslims, European states take their cues from 

their definitions of terrorism. For the most part, European states define 

terrorism as a crime, so they are legally constrained in the measures they 

can take. The majority of European national constitutions and the EU 

legal regime have clear guidelines for addressing criminal offenses. Thus, 

European countries impose a self-limiting definition on the amount and 

type of state force that may be brought to bear on terrorists. 

For its part, the lack of success by the Bush administration in deciding whether the suspects at Guantanamo Bay prison are belligerents 

because the war on terrorism 

has consumed much American 

and European policy and 

planning time, other transnational 

threats have seemingly fallen 

through the cracks

 Defense Horizons July 2006
“Alliance Base.” With several countries, including Canada and Australia, 

contributing to it, the center allows sharing of intelligence information, 

including criminal records. 

Meanwhile, although the British police had arrested suspects all 

over Britain, their dragnet had not delved deeply into fringe elements 

of the Islamic community for fear of violating civil rights. The London 

Underground bombings led Britain to appeal directly to the EU member states for “extra impetus” to understand the radicalization and 

recruitment behind these attacks, with Tony Blair stating that the links 

of terrorism are seldom confined to one country.23 The Italian police 

thwarted an alleged attempt to gas the American Embassy in Rome in 

2002 and apprehended a group of Moroccans near Venice with maps of 

the London Underground.24 More recently, in April 2006, Italian police 

averted an attack by “North African Islamists” who were planning to 

disrupt the recent Italian elections by attacking a church in Bologna 

and the Milan underground. 

A More Proactive European Approach?

Since the Madrid and London bombings, the European states 

have begun taking proactive stances in their approach to terrorism. 

This is perhaps borne of the realization that, while conspiracies are 

difficult to prove in the courts, waiting for a terrorist event to occur 

is not a palatable option. Recently, the Dutch government chose to 

test its new antiterrorist legislation, which enables the prosecutions 

of people who intend to commit terrorist acts. In March 2006, nine 

Muslims belonging to the so-called Hofstad terrorist group were found 

guilty of promoting a violent ideology. The ruling stated that, “threatening terrorist crimes strikes public order at its heart,” which threatens 

Dutch democracy.25

Perhaps the greatest victory in Europe was the conviction in 

Spain of Syrian-born Imad Eddin Barakat Yarkas, also known as Abu 

Dahdah, for conspiring with the September 11 hijackers. More significant were the guilty verdicts awarded to 17 of the 23 men who were 

on trial at the same time as Yarkas, not for any specific acts that they 

committed, but for their membership in, and support of, al Qaeda. In 

European courts, such charges are traditionally more difficult to prove 

because of strict adherence to rules of evidence and the difficulty 

of proving conspiracies. In part, these impediments were overcome 

because the Spanish Court chose to accept wire-tap evidence that may 

not be acceptable elsewhere in Europe. The decision also might be 

attributed to Chief Prosecutor Pedro Rubira’s request of the Court to 

impose “an exemplary sentence that shows that fighting Islamic terrorism does not require wars or detention camps,” alluding to the war in 

Iraq and the Guantanamo Bay prison.26

Strengthening Current Efforts

Some positive measures on which the United States may work 

with European partners are in the areas of building capacity, curbing corruption, and strengthening multilateral agreements. The 

United States cannot combat small cells of transnational criminals 

and terrorists alone. Not only do the groups have little knowledge 

of each other’s operations, they are autonomous operators who rely 

on their wits and guile to achieve success. Hence, the capture of 

one may not necessarily lead to the capture of, or information on, 

others. Modern terrorists are elusive denizens of a globalized world 

with no fixed addresses. They tend to move quickly across borders 

using fake passports and identification cards, gaining access to any 

number of countries before moving again, leaving few, if any, signs of 

their passing. They also operate in cyberspace using new technology 

to elude detection and evade capture. Criminals and terrorists are 

more adroit than many states at adapting to the realities of a globalizing world. Governments must not only catch up to the methods 

or what they are smuggling, but rather how much a client can pay, 

they may be helping al Qaeda and other groups to gain access to many 

European countries. Further, because of the Schengen Agreement20

and despite the creation of the European Borders Agency to control 

the flow of illegal immigrants, once inside Europe, criminals can move 

across borders using a single visa, virtually undetected and unimpeded. 

Both the United States and EU states are in agreement regarding the definition and illegality of most activities of organized crime. In 

fact, transatlantic legal, judicial, and law enforcement cooperation was 

strong prior to September 11, especially in terms of the fight against such 

organized criminal activity as human trafficking, arms smuggling, drug 

trafficking, international vehicle theft rings, hazardous waste dumping, and cross-border fraud schemes. Indeed, transatlantic law enforcement collaboration already had ironed out any barriers to concluding 

agreements on evidence sharing, cooperation in law enforcement intelligence gathering, rendition of fugitives, joint training, harmonized 

standards, port security, and financial regulation.21

Law Enforcement and Intelligence Cooperation

A key thrust of the U.S. counterterrorism strategy has included 

enhanced law enforcement exchanges and intensified cooperation with 

intelligence and security services worldwide. Much of this cooperation 

takes place through bilateral channels, including those with European 

governments. EU member governments responded quite vigorously 

to UNSC Resolution 1373 and subsequent measures that called on 

member states to take certain law enforcement and financial actions 

to thwart terrorism, including abolishing the use by terrorists of the 

Political Offense Exception to extradition. Further, there have been 

agreements on biometric standards, both bilaterally and via the International Civil Aviation Organization, as well as on cargo screening and 

inspection procedures under the Container Security Initiative. These 

measures, along with the implementation of the U.S.–EU Passenger 

Name Record agreement, which allows airlines to provide EU-origin 

passenger data for flights to the United States, have helped to integrate 

border control systems across the Atlantic.22

While counterterrorism operations can be onerous, they will 

likely continue to be pursued via multiple bilateral channels largely 

because of the realities of the sovereign states system and the fact that 

corresponding law enforcement agencies generally have longstanding 

working relationships. 

In December 2002, the United States and the EU assigned liaison 

points of contact between Europol and Eurojust and their U.S. counterparts; entered into agreement on the sharing between the United 

States and Europol of data on terrorism and crime; and collaborated on 

threat assessments. Among other things, the agreement allows the Federal Bureau of Investigation (FBI) and Europol to station officials in 

each other’s headquarters. While not a Euro-FBI, Europol is acting with 

increasing efficiency as an information clearinghouse among European 

national police bodies on a widening range of matters. This model might 

offer some solutions for future U.S. law enforcement cooperation.

Cooperating closely, the European police have had considerable success piecing together the European links of the September 11 

hijackers. In Germany, Moroccan Mounir el Motassadeq was convicted 

in 2003 for his role in the September 11 attacks. While the conviction 

was later overturned on appeal, the verdict was a victory for German 

prosecutors because it was the first successful prosecution of anyone 

involved in the September 11 attacks. Further, a number of European police and intelligence agencies claim to have prevented future 

planned attacks. In Spain, 300 people suspected of being involved in 

the March 11 bombing have been detained. The French police have 

arrested dozens of alleged terrorists and more recently have entered 

into a joint U.S.-France anti-terrorism center in Paris codenamed 

July 2006 Defense Horizons  
being employed by such groups, they must surpass them by responding creatively, consistently, and quickly to the new challenges. To 

elicit the support needed, U.S. policymakers must take the first steps 

along the path of reconciliation with European partners. This may be 

done in the following manner:

Strengthening Multilateral Agreements

n While bilateral agreements have useful applications, multilateral agreements tend to employ a group psychology to their adherence. A 

logical complement to effective mutual law enforcement assistance on a 

bilateral basis would be to conclude more multilateral treaties for cooperation between law enforcement and other agencies involved in pursuing terrorists. Such treaties are symbolically quite significant because 

they demonstrate that countries are not solely responsible for the activities of transnational actors within their sovereign borders. 

n European countries also could do more to ensure that nonprofit organizations, such as charities, cannot be used to finance 

terrorism. Yet, many European 

leaders are hesitant about displeasing the minority groups in 

their countries and are walking 

a much finer line than are U.S. 

lawmakers in regard to monitoring and investigating individuals 

or nonprofit organizations. European nations tend to have much 

larger Muslim immigrant communities and hew to stringent 

standards regarding the inviolability of individual liberties and the 

treatment of minorities. With the recent exceptions of Spain and Holland, they disagree with the United States on the broad criminalization of indirect support for terrorist activities, especially with regard to 

what may be deemed legal and what might constitute an offense. Particularly contentious is the disagreement over what EU states view as 

funding for humanitarian organizations and the United States views as 

support for terrorist organizations in Palestine. The United States will 

have to respect these limitations and seek provisions in multilateral 

agreements that meet the standards of European countries.

Sharing Information

n More effective information sharing requires greater numbers 

of analysts with expertise on the international financial system, as well 

as greater numbers of people in international law enforcement with fluency in foreign languages. The Europol Training and Education Program 

(TEP) addresses this factor by training Europol officers to operate in 

multicultural environments. The U.S. Government would make a wise 

investment by sending people to European capitals to gain working fluency in local languages and understanding and respect of local cultures. 

Communicating in the language of an ally is a sign of an intent to work 

multilaterally rather than unilaterally. 

n Policymakers face continued obstacles posed by poor or uneven 

sharing of information between national agencies. At the moment, serious institutional and cultural gaps exist in the dissemination of data 

and sources and the ability of each community to use the information 

to prevent, preempt, or deter terrorists. In addition, information produced by intelligence and law enforcement agencies needs to be put 

together in an effective and legally admissible way. Intelligence is rarely 

admissible in court, but its format could be modified so that it could be 

made more available to investigative bodies. Investigative evaluations 

could usefully complement intelligence ones. Europol, in its Counter 

Terrorism Program for example, addresses this point in its TEP, which 

trains law enforcement and intelligence officers to work together and 

thus to be open to other institutional approaches. However, investment 

in intelligence capabilities in the Middle East and South Asia is somewhat lacking in numerous European states. The role of European intelligence in detecting the activities of terrorist financial operators in these 

regions would be invaluable, as many of the counterparts for the organizations are based in European countries such as Belgium.

n In the United States, classified information cannot easily be 

shared with foreign nationals, which complicates prosecution and 

extradition proceedings. Increased sharing of intelligence presents 

the possibility of unauthorized disclosures to people who might harm 

U.S. interests and those of its allies. A concerted effort must be made 

to ensure that unclassified information can be safeguarded so that it 

may be shared with other countries. This has been a particular problem for European courts attempting to try terrorist suspects. At trial, 

courts have been forced to drop cases due to the unwillingness of 

U.S. authorities to share evidence. A case in point was that of Moroccan Mounir el Motassadeq, 

who was convicted in 2003 for 

assisting the Hamburg-based 

September 11 suicide pilots. 

His conviction was overturned 

by a German appeals court 

in 2004 on the grounds that 

he was unfairly denied testimony from U.S.-held suspects, 

including Ramzi Binalshibh, 

who is believed to be the 

Hamburg cell connection to 

al Qaeda. Further, some European states have at times refused to block bank accounts because 

they claim that the United States is unwilling to share intelligence on 

many of the designated organizations and individual members.27

Curbing Corruption in Third Party Countries

n When collaborative efforts lead U.S. and EU partners to countries rife with corruption, some genuine understanding and attempt to 

address the problem must be made. Most governments appear willing 

to collaborate, share expertise and intelligence, conduct joint training, and work more closely with inter-governmental organizations. Yet, 

if their systems have been corrupted and their officials suborned, the 

information being shared is likely tainted, and their efforts can be only 

partly effective. Hence, working outside the coalition can be costly and 

fraught with the threat of receding cooperation. The value of intelligence from countries outside the coalition may require constant, 

rigorous scrutiny.28 

Accepting the Use of Criminal Justice Methods

The overarching goal of international counterterrorism efforts 

should be to stop terrorist attacks before they occur rather than to 

bring terrorists to justice for plotting terrorist conspiracies. The lessons learned by Europeans are important to note in this regard. The 

United States has dedicated significant monetary and human resources 

to hunting down terrorists and proving their conspiracies. Enormous 

political weight has been thrown behind the war on terrorism, and 

new tools, such as the U.S.A. PATRIOT Act, have been formulated to 

prosecute it. Meanwhile, Europeans have looked for ways to interdict 

terrorists before they can commit their acts.29 While this sounds like 

a distinction without a difference, it is not. Europeans have dealt with 

terrorism for decades and have come to recognize the shadowy and 

elusive nature of these groups. They prefer to interdict the acts before 

they occur and have found that the political fallout is worse from a terrorist act occurring than it is from incarcerating known terrorists for 

criminal acts. As recently as January 2005, the European Commission

Europol, in its Counter Terrorism 

Program, trains law enforcement 

and intelligence officers to work 

together and thus to be open to 

other institutional approaches

 Defense Horizons July 2006
(EC) teamed up with the United Nations Office on Drugs and Crime 

(UNODC) to fight drug trafficking, organized crime, and terrorism. As 

UNODC Director Antonio Maria Costa observed, the joint commitment 

with the EC is a “clear recognition of the links between drugs, organized 

crime and terrorism, and our shared responsibility to combat this immediate, three-dimensional threat.”30

Most terrorist cells have to raise their own operating funds now 

that state sponsorship has all but vanished, and many of their recent 

moneymaking activities are criminal in nature, since these readily generate quick cash. The heightened security tensions that resulted after 

September 11 have tended to obscure developments in the justice sector. Further, political considerations have led to heightened scrutiny 

and a rethinking of some practices and approaches, such as the sharing 

of intelligence, and whether these agreements truly meet U.S. national 

security needs and EU constitutional traditions. Yet, the areas of cooperation against organized crime are less contentious, and pursuing terrorists 

from the criminal justice angle may bring more success. Although proving a terrorist conspiracy can present a significant and often impossible 

evidentiary burden, proving criminal activity is not nearly as difficult. 

The key to apprehending, or at least interrupting, terrorist conspiracies 

as well as working in a close transatlantic partnership may well lie in 

cooperating on the law enforcement side to apprehend and incarcerate 

terrorists for criminal activity. The United States may have to be satisfied when terrorists are brought to justice for organized criminal activity in EU states. While this does not hold the same political weight as 

convictions for terrorism, the result may be fewer acts of terrorism. 

Limitations, Obstacles, and Differences

Most Europeans are steadfast in their dedication to protecting 

human rights and see this as a matter of preserving their most basic 

values. They have made clear that, while they are fully committed to the 

fight against terrorism, they will not compromise on human rights to win 

that fight. In the words of the EU’s Javier Solana, “There is absolutely 

no trade-off between security and 

human rights protection and the 

rule of law. The violation of human 

rights in the fight against terrorism 

is not only morally undesirable, but 

also ineffective in the long run.”31

The United States admittedly has 

confused international partners by 

not classifying prisoners at Guantanamo Bay as either belligerents or terrorists. Yet the potential for collaboration in this regard 

exists, as new international law 

often emerges from customary 

practices of states. Whether or not 

these prisoners might constitute a new form of international legal personality has largely gone undebated on both sides of the Atlantic. 

Despite these seeming differences in perspectives, a landmark 

U.S.–EU extradition treaty was concluded. The main obstacle had 

been American use of the death penalty for certain capital crimes. 

By providing sufficient assurances that extradition will not lead 

to violations of European constitutional norms, the United States 

reached agreement with the EU on the terms of a treaty. While not 

explicitly taking the death penalty off the table, the United States 

conceded that the EU has the right to refuse extradition if the 

death penalty will be, or could be, imposed.32

Other issues also stall the prospects of formulating better transatlantic relations. EU countries still smart over U.S. refusals to sign the 

Kyoto Treaty on Global Warming, to support the International Criminal 

Court, and to accept another term for Mohamed El Baradei as head of 

the International Atomic Energy Agency. Further, the United States has 

continued to pressure Europe to list Hezbollah as a terrorist organization and impose sanctions. Led by France, Europe refuses to do so on 

the grounds that this step would impact future negotiations with Iran 

on the nuclear issue. France also argues that blacklisting Hezbollah

will damage relations with other Middle Eastern countries, such as 

Lebanon, where the group not only engages in military operations, but 

is also a political party. Finally, Europeans watch with great skepticism 

the holding of the so-called illegal combatants in Guantanamo Bay. They 

cite the Geneva Conventions as well as international human rights law 

in urging the United States to uphold international law and either try 

these prisoners or set them free. 

The Way Ahead

There is, of course, no way to suppress or interdict every conceivable terrorist movement or conspiracy, even when countries are 

cooperating fully. A more realistic scenario would be to increase dramatically the costs and risks that criminals and terrorists face when 

they seek to engage in conspiracies. Beyond that, more steps can be 

taken. The United States can work more with European partners to 

bolster states in transition and those new to democracy in any number of economic arenas. Indeed, the European model seems to offer 

incentives before punitive threats.

When the United States requests that European countries clamp 

down on terrorist groups, U.S. policymakers should anticipate that the 

successful interdiction of illegal transactions by law enforcement personnel will tend to drive terrorists and criminal groups further underground or toward more sophisticated methods of evasion. To the greatest extent possible, counterterrorism and organized crime operations 

must address entire networks rather than their component parts; partial quick fixes generate new problems that could become problems for 

Europeans exclusively. For example, if only some members of a terrorist 

network are apprehended and their assets forfeited, other operatives 

will fill the void. By addressing the 

problem as one terminated when the 

effects are no longer felt in America, the United States risks angering 

Europeans, who may see themselves 

as being left behind with a problem 

that was only transferred to them. 

The United States cannot cease 

operations until the entire problem 

has been addressed satisfactorily for 

all partners.

Finally, attempting to impede 

terrorist financing only in the legitimate financial sector is insufficient. 

It overlooks the fact that groups that 

have gone underground have resorted to alternative methods, such as 

the hawalas, for the movement and manipulation of finances.33 Not only 

are movements through these systems virtually untraceable, but also 

many EU countries are reluctant to tamper with a system that allows 

remittances to be sent home to family members in the country of origin 

of many minority groups. As a result, cooperation between the United 

States and EU countries on this issue may be one of the most critical 

and difficult in countering terrorists and their financing.

Conclusion

As a result of differences over the war in Iraq, tensions between 

several EU states and the United States have been high. Despite this 

lapse in good relations, EU countries have undertaken many effective actions and initiatives in the war on terrorism. While many of the 

the key to apprehending, or 

at least interrupting, terrorist 

conspiracies may well lie 

in cooperating on the law 

enforcement side to apprehend 

and incarcerate terrorists for 

criminal activity

July 2006 Defense Horizons  
steps taken have been to secure European homelands and critical 

infrastructure, most have materialized as cooperative efforts with the 

United States. Many of the practices that the United States has put in 

place since September 11 already existed in European states that are 

all too familiar with terrorist activity. 

There is little transatlantic disagreement that terrorism is a 

scourge and a threat to national and international security. There is 

also little doubt that EU states are working closely and collaboratively 

with U.S. counterparts. However, notable differences do exist in the 

way some of the justice components of the war on terrorism are being 

pursued. Standards on both sides of the Atlantic vary and are unlikely 

to converge on many of the legal issues, especially with regard to the 

monitoring of suspects, sufficient and compelling trial evidence, and 

sentencing guidelines. Perhaps the greatest task that lies ahead for the 

transatlantic partnership is to renew the sense of urgency for cooperation in areas where the United States and EU countries do agree, such 

as in the collection and sharing of intelligence. The fact remains that the 

United States will have to make some difficult choices in the interests of 

good relations with EU partners. It will have to decide between matters 

of vital importance and those on which it might be willing to concede 

so that, over the long term, EU states remain strong and cooperative 

partners in the war on terrorism. 

Notes

1 Javier Solana, “Terrorism in Europe: How Does the Union of 25 Respond to this 

Phenomenon?” Remarks by EU High Representative for the Common Foreign and Security Policy, Berlin, October 7, 2004, available at <http://ue.eu.int/ueDocs/cms_Data/

docs/pressdata/EN/discours/82163.pdf>. 2 Observation by Dr. Stephen J. Flanagan, Director, Institute for National Strategic 

Studies, National Defense University. 3 Glenn Frankel, “Europe, U.S. Diverge on How to Fight Terrorism,” The Washington Post, March 28, 2004, A15.

4 National Strategy for Combating Terrorism (Washington, DC: The White House, 

February 2003), 29. Available at <http://www.whitehouse.gov/news/releases/2003/02/

counter_terrorism/counter_terrorism_strategy.pdf >. 5 Jonathan Stevenson, “How Europe and America Defend Themselves,” Foreign 

Affairs, vol. 82, issue 2 (March/April 2003), 75.

6 The Transatlantic Dialogue on Terrorism: Initial Findings (Washington, DC: 

Center for Strategic and International Studies, August 2004), available at <http://www.

csis.org/media/csis/pubs/0408_transatlanticterrorism.pdf>, 6. 7 Roger Cohen, “A French Call for a New Day with U.S.,” International Herald 

Tribune, January 10, 2005, 1. 8 Stevenson, 75.

9 Victor L. Simpson, “U.S. Allies Resist Secret Deportations,” USA Today, June 19, 

2005. 10 Gordon Corera, “CIA Renditions Strain Europe Goodwill,” BBC News, March 20, 

2006. 11 Dick Marty, “Alleged Secret Detentions in Council of Europe Member States,” 

Information Memorandum II, Committee on Legal Affairs and Human Rights, Council of Europe, January 22, 2006, available at <http://assembly.coe.int/CommitteeDocs/2006/20060124_Jdoc032006_E.pdf>. 12 Joel Brinkley, “U.S. Interrogations are Saving European Lives, Rice Says,” The 

New York Times, December 6, 2005. 13 See Colin Warbrick, “The European Response to Terrorism in an Age of Human 

Rights,” The European Journal of International Law, vol. 15, no. 5 (2004), 989-1018. 14 Speaking Notes of the Secretary General on Council of Europe Report on Article 

52 Investigation Committee on Legal Affairs and Human Rights, Council of Europe, 

March 1, 2006, available at <http://www.coe.int/T/E/Com/Files/Events/2006-cia/Speaking_notes%20_sg.asp> 15 “Bush Rebuffs Merkel on Guantanamo,” BBC News, January 13, 2006, available 

at <http://news.bbc.co.uk/2/hi/europe/4610872.stm>. 16 Geneva Convention Relative to the Treatment of Prisoners of War (Geneva, Switzerland: 12 August 1949), available at <http://www.unhchr.ch/html/menu3/b/91.htm>. 17 Kimberley Thachuk, “Transnational Threats: Falling Through the Cracks?” 

Journal of Low Intensity Conflict and Law Enforcement, vol. 10, no. 1 (Spring 2003), 

47-67.

18 Christopher Bouchek, “Belgium: the Epicentre of Terrorism in Europe.” Jane’s 

Terrorism & Security Monitor, March 12, 2002. Service subscription. 19 Gary Mason, “Immigration Criminals May Aid Terrorists,” Jane’s Intelligence 

Review, December 1, 2002. Service subscription.

20 The Schengen Agreement, which is part of EU law, introduces a common visa 

policy by removing all internal border controls and implementing effective controls at 

the external borders of the EU. For more details, see <http://europa.eu/abc/travel/doc/

index_en.htm>. 21 Jonathan M. Winer, “Cops across Borders: The Evolution of Transatlantic Law 

Enforcement and Judicial Co-operation,” Council on Foreign Relations, September 1, 

2004, available at <http://www.cfr.org/publication/7389/cops_across_borders.html>, 2. 22 On May 30, 2006, however, the European Court of Justice overturned an agreement that provides the United States personal data from air passengers traveling to 

the United States from Europe. Current procedures remain in effect for the next 4 

months—the deadline set for the European Commission and the U.S. Government to 

negotiate a new agreement. For more details, see Nicola Clark, “EU Court Bars Giving 

Passenger Data to U.S.,” International Herald Tribune, May 31, 2006. 23 “EU Agrees New Security Measures,” BBC News, July 14, 2005. 24 The majority of the more than 200 suspects arrested in Europe since September 

11 have been North African rather than Middle Eastern. European intelligence sources 

believe that al Qaeda, having been disrupted, is attempting to recruit long-established 

Islamic terror groups from countries such as Morocco, Tunisia, and Algeria. 25 “Dutch Jail ‘Terror Group’ Muslims,’” BBC News, March 10, 2006. 26 Renwick McLean, “Spain Finds Qaeda Cell Chief Guilty in 9/11 Plot,” International Herald Tribune, September 27, 2005, 1. 27 For example, the Luxembourg government stated recently that the country’s 

banking regulatory agency “did not have access to releasable intelligence information” 

related to the case against al Barakaat and thus released the assets of an organization 

allegedly linked to the hawala. European governments have faced legal challenges from 

citizens on the United Nations terrorist list of 219 people who are suspected members 

or supporters of al Qaeda. These people claim that they have been denied their right to 

trial which is enshrined in the Council of Europe Human Rights Charter, available at 

<http://www.europarl.eu.int/charter/default_en.htm>. 28 For example, in Cyprus, an aspirant to the EU, questions remain about the 

nature of certain members of the Greek Cypriot leadership and their ability to regulate 

international companies according to EU best practices for money laundering. Greek 

Cypriot President Papadopoulos’ law firm has recently been accused of providing front 

companies to launder Slobodan Milosevic’s arms trafficking profits. For more details, 

see Kerin Hope, “Greek Cypriot leader’s law firm linked to funding web for Milosevic,” 

Financial Times, April 15, 2003, 14. 29 Speech by member of the Guardia Civil, April 1, 2003, Garmisch, Germany.

30 “UN Teams Up with European Commission to Fight Drug Trafficking, Crime 

and Terror,” January 21, 2005, available at <http://www.europaworld.org/week208/

unteams21105.htm>. 31 Solana.

32 General Secretariat of the Council of the European Union, European Union 

Factsheet: Extradition and Mutual Legal Assistance (Brussels: June 2003), available at 

<http://ec.europa.eu/comm/external_relations/us/sum06_03/extra.pdf>. 33 Hawalas are informal money exchange networks that have existed for centuries. They are based on trust and no money physically moves across international 

borders in a normal transaction.

Defense Horizons is published by the Center for Technology and National Security Policy. CTNSP 

publications are available online at http://www.ndu.edu/ctnsp/publications.html.

The opinions, conclusions, and recommendations expressed or implied within are those of the 

contributors and do not necessarily reflect the views of the Department of Defense or any other 

department or agency of the Federal Government.

Center for Technology and National Security Policy

 Hans Binnendijk

Director

 Defense Horizons July 2006