Tuesday

7th Jul 2020

Opinion

Europol and the FBI: Scope for mutual learning

On August 15, the Lithuanian Criminal Police Bureau made a dramatic swoop in the ancient, baroque city of Vilnius. They seized 2,000 counterfeit banknotes of the €100 denomination, and arrested five suspects. As several nations have found to their cost, no economy can survive the inflationary impact of mass counterfeiting. By nipping in the bud a criminal conspiracy that was threatening to become Europe-wide, the Lithuanian police contributed to the economic and political stability of the European Union.

Behind the Lithuanian police, stood the European Police Office, Europol. Its forgery and logistics experts, drawn from all over the EU and located in The Hague, contributed essential information that made possible the local arrests of international conspirators. Though it became operational only in 1999, Europol is steadily supplying the antidote that EU-wide organised crime requires, EU-wide policing.

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At the same time, perhaps there is a need for reflection on how Europol might develop. What comparisons can be made between this federal agency and the FBI, a bureau that, for the better part of a century, has similarly operated in a federal polity?

In light of the deep unpopularity of the current Bush administration, this might not seem a propitious moment to suggest the possibility of mutual learning between the EU and America. But the Bushes did not always control America, and will soon cease to do so.

Learning from each other

Furthermore, America has more than once tried to learn from Europe. For example, when the government worried about an outbreak of violent class conflict in the United States in 1911, it searched internationally for good examples of policing, settling on the German model. Conversely, Europeans have already looked to America.

For example, when the British judge Lord Scarman chaired an enquiry into the Brixton race riots in 1981, he looked at the lessons to be learned from American analyses of the 1960s disorders in the USA.

In a mood of some optimism, therefore, and with the support of the British Academy and other foundations, I undertook two research projects. One was the first scholarly history of the FBI, to be published by Yale University Press next year. The second was on the idea of a "European FBI," focussing on Europol. The second publication will appear in January in Loch Johnson, ed., Counterintelligence and Counterterrorism (New York, Praeger). However, it is aimed at academic specialists. So I welcome this opportunity to explain some of my findings in (I hope!) plainer language.

Talking to some EU officials, I was surprised to learn that they thought that the FBI had an easy time of it, because it did not have to contend with the restrictions of a federal system. Far from it. The FBI is governed by the interstate commerce clause in the US Constitution, meaning it can investigate only crimes that affect at least two states. It is also restricted by the doctrine of reserved powers -- the Tenth Amendment to the Constitution indicates that powers not vested in the federal government are reserved to the individual states.

Securing federal laws for the FBI to enforce has been a real struggle. Notoriously, lynching is still not a federal crime in the USA. Nevertheless, the Bureau has been in business for a long time, and there now exist over 3,000 other federal crimes for the FBI to investigate.

A long way to go

The Convention under which Europol has operated says, as in the USA, that crimes to be investigated must affect at least two member states. But they must also be illegal in all Member States – there are no federal European laws for Europol to investigate. So, in constitutional terms, we in Europe have a long way to go, if Europol is to emulate the FBI as a police agency. We have to decide whether to develop the police powers of Europol, or ask it to concentrate on intelligence. Given the dangers we face and their international character, can we afford not to have the European Parliament pass laws for Europol to enforce?

In talking to officials and by keeping an eye on the press, it struck me that in Europe we do not have the phenomenon known in the USA as "boosterism." In a nation that admires the confidence man and adheres to the advertising values of Madison Avenue, the FBI has always had to make a major effort to promote itself, with distorting effects on its mission. For example, the legendary FBI director J. Edgar Hoover treated the arrest of high-profile gangsters like Alvin "Creepy" Karpis as a photo opportunity, and contrived to be personally present, instead of sticking to more constructive work back at this Washington desk. But Europol is more conservative. In my view, the Americans can learn from Europe here.

Oddly enough, another phenomenon that impressed me by its absence in Europe was Gestapo phobia. American intelligence was reorganised in 1947, with the FBI being limited to domestic work to reduce its power and prevent it from becoming a US Gestapo. The newly formed CIA got foreign intelligence, including foreign counter-intelligence.

Public scrutiny

Current thinking is that the FBI-CIA split has been a disaster for counter-intelligence and anti-terrorist work. In contrast, Europol officials and their Brussels counterparts were absolutely adamant in saying that Europol is a barrier to the development of any police state. America needs to catch up here, too.

Finally, the FBI is thoroughly overseen and scrutinised by directly elected federal officials, but Europol is governed by the EU's Council of Ministers which is composed of member state government ministers sometimes less interested in transparent scrutiny of Europol's activities than in ensuring that it doesn't exceed its mandate. The prospect of oversight by the European Parliament has support in The Hague and Brussels, and would increase public confidence in police co-operation, leading to increased efficacy.

The author is professor of American History at Edinburgh University

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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