Second Thoughts

From Tony Blair to George W. Bush to Gerhard Schroder, everyone agrees that the war on terror won't be won solely in the mountains of Afghanistan. This is also a fight on the home front. Across Europe, governments are following America's lead: arresting suspects, freezing bank accounts, trying to break up terrorist networks. And as in America, they're rushing to enact a whole book of new laws they say will help them to better do the job.

But hold on. In the United States, Attorney General John Ashcroft is under fire for the plan to create secret military tribunals and, as many Americans see it, infringe on basic civil rights. And so it is in Europe. Last week in London, in a telling reversal of fortune, Tony Blair's efforts to muscle a radical package of antiterror measures into law backfired spectacularly when the package was carpet-bombed in the House of Lords by naysayers from both the political left and right. Among other things, the far-reaching legislation would allow prosecutors to jail or indefinitely detain without trial any foreigner suspected of terrorism. To many Britons that smacked of Star Chamber justice, a violation of centuries-old civil rights. It's all well and good to ride roughshod over the Taliban, a majority seems to be saying. But let us not be tempted by such "illiberties" at home.

Britain's House of Lords wasn't the only arena of dispute. Last week also saw an angry row between Italy and the rest of the EU over the so-called common arrest warrant, one of several tough measures to jointly fight terror. The idea: to codify 32 offenses for which a suspect can be arrested anywhere within the Union, speeding extraditions and eliminating bureaucratic roadblocks in dealing with transnational crime. Fair enough, but Rome wants the list pruned to 16. It has yet to say precisely why, but one reason must surely be the measure's scope: overreaching and indiscriminate, as Italy's Justice minister put it.

That could describe a lot of legislation wending its way through European parliaments. Spain has targeted an aggressive legislative campaign against the Basque terrorist group ETA. France has given the police broader powers to search private property with police warrants. Germany has abolished laws conferring special protections on religious groups, making it possible to ban extremist Islamist organizations, and is loosening restraints on wiretapping and electronic surveillance. Some such initiatives are clearly necessary. Yet critics are beginning to speak out. Slow down, they say. Let us be more discriminating and careful. From Madrid to Berlin, they complain that September 11 is being used to enact laws that (a) not long ago would have been dismissed as plainly anathema to civil society or (b) do little to advance their declared goal.

Take Germany. After September 11, Finance Minister Hans Eichel was quick to call for tough new laws on financial transfers to tax havens like Luxembourg. It's not clear how many terrorists bank there--but tens of thousands of ordinary Germans do, seeking to escape their own confiscatory tax regime. It raises an obvious question: is Berlin interested in cracking down on terrorism, or on tax evasion? Similarly, Interior Minister Otto Schily is using September 11 to push a long-standing pet project of his own: kicking out any non-EU foreigner even suspected of extremism. That might play well with many German voters resentful of foreigners. But it would do little to stop law-abiding engineering students from becoming suicide bombers.

Many law-enforcement authorities even question whether new legislation is necessary. "We don't need any new laws," says a spokesman for the German police union. "We just have to better apply the ones we already have." Listen to antiterrorism experts, and you will hear a similar refrain. The chief impediment to terrorist investigations, they often say, is a lack of personnel--such as foreign-born agents who can penetrate Islamist circles. In Hamburg, where three of the September 11 hijackers lived and the attack was planned, there was exactly one intelligence officer tracking local Islamist terror groups. "It's useless to give us new legal powers if we don't have the people and equipment to investigate," says Manfred Murck, deputy head of Hamburg's domestic-intelligence bureau. "In Europe we have a different legal culture from America's. We have to have much better reasons to throw people in jail."

To Americans such a remark might seem smug, especially in light of Europe's generally patchy record in combating Islamist terror. But the sentiment is a fact to deal with. To be sure, there's ample reason to tighten Europe's security laws. But Europeans do not want to rush to justice. They've balked at extraditing suspects to America, where they might be subject to the death penalty. Now they are understandably unwilling to ape Ashcroft. "The way to defend democracy after the outrage of 11 September is not to dismantle it. It is to strengthen it," Lord Corbett told the House of Lords last week. He spoke for much of Europe.