Nearly four months have passed since Islamic terrorists killed 191 people in Madrid on March 11. Yet, Spain appears to be making little effort to prevent a similar attack. As someone who experienced the September 11 attacks on America in 2001 and helped fashion a response, the relatively passive approach of the Spanish—and other Europeans—to the “3-11 attack” on Madrid is stunning.
There is a valuable lesson for Europe from the tragedy. The bombings were preventable. The Spanish government failed to prevent them, however, because of specific and identifiable structural weaknesses in the country’s counter-terrorism law and practice. Most other European states suffer the same weaknesses, as did the US until recently. These can be corrected if properly understood and if elected leaders are prepared to act. Unfortunately, Spain has not yet begun a self-critical examination of why its authorities failed to prevent the bombing. The inquiry that began yesterday, has no real hope of rendering such a service. The investigative panel is made up of members of parliament who belong to opposing political parties; they are not independent actors and are unable to provide the objectivity and independent prescriptive vision required.
The Madrid attack was like the September 11 attack in that government agencies failed to share information about an unfolding terrorist threat. Although the US government possessed little data directly relevant to the September 11 conspiracy, there is no question that Washington’s ability to perceive the plot—to “connect the dots”—was impaired by a “wall” between US law enforcement and intelligence agencies. This problem was rectified after the attacks. George W. Bush began daily meetings with his intelligence and law enforcement chiefs. Congress eliminated the statutory foundation of the “wall” by passing the USA Patriot Act. The FBI, the CIA, the new Homeland Security department and many other federal agencies are now required to share all terrorism-related information with one another and with the White House. If there is ever again a failure of information-sharing in the US government, it will be due to malfeasance or incompetence, not scrupulous observance of policy.
The same cannot be said of European countries. With the exception of the UK and, to a lesser extent, France, European countries have a “connect the dots” problem at least as severe as that in the US before September 11, 2001.
So what should European governments do to improve their chances of preventing another attack? Each country’s leader should order all law enforcement and intelligence agencies to share all terrorism-related information with one another, to the extent permitted by law. In some cases it may also be appropriate to establish a standing “fusion cell” to analyse domestic and foreign threat reporting, as the US and UK have done, or a joint taskforce to include sub-national law enforcement agencies in specific investigations. But these interagency practices will be insufficient if the law continues to discourage police from using intelligence in domestic counter-terrorism operations.
While details vary according to different legal systems, there are three basic requirements for an effective legal regime for domestic counter-terrorism. First, domestic law enforcement officials need a viable procedure for using foreign intelligence to initiate a domestic wiretap, search warrant or other surveillance measure. Second, prosecutors need the ability to introduce foreign intelligence into judicial proceedings without prejudicing the prosecution or risking the disclosure of the information. Third, intelligence analysts need the ability to receive, possess, search and analyse information collected by law enforcement on people who may be associated with a terrorist organisation or plot. The legal systems in most European countries lack these three basic requirements. At the moment, however, no European government—including the new Spanish government—shows any sign of having the political courage to propose a sensible, balanced legislative remedy to these basic statutory deficiencies. This is precisely why Spain needs an independent, apolitical 3-11 commission, made up of of statesmen who are out of government and “above politics”. It should have an expert, independent staff as well as the time and money needed to complete the task. It must have unfettered access to all classified intelligence and sensitive law enforcement information related to pre-March 11 terrorist threats and counter-terrorist operations. And it must make clear, actionable recommendations about reforming Spanish counter-terrorism law and practice.
With the structural problems of European counter-terrorism so widespread and interconnected, all of Europe stands to benefit from an independent Spanish 3-11 commission.