A previous version
of this paper was prepared for a conference on “Legal Evolution: Toward
a World Rule of Law,” Syracuse University’s College of Law, April 16 -17,
2005. I am grateful to Richard Schwartz for inviting me to participate
in the conference.
Abstract
With increasing vigor since
the events of September 11, police institutions across the globe have proliferated
their counter-terrorism strategies, including participation in international
police organizations such as Interpol. This paper discusses some of these
developments in light of the prospects of the development towards a global
rule of law. Based on the theory of police bureaucratization, it is shown
that police institutions have independently developed international structures
and practices irrespective of international accords among states. This
article reveals the dynamics of such international police efforts by examining
the counter-terrorist policies of the International Criminal Police Organization
(Interpol). It is argued that the outcome of the relative separation between
international police practices, on the one hand, and global legal developments,
on the other, will be critical in assessing any efforts to counter-act
the societal processes and conditions that may facilitate the development
of terrorism on a global scale.
Keywords
international police cooperation;
Interpol; international terrorism; counter-terrorism; rule of law
In the modern state,
real authority...rests necessarily and unavoidably in the hands of the
bureaucracy.
—Max Weber.
Introduction
In the context of democratic
societies, the rule of law is guaranteed by the legitimacy legal norms
enjoy from those to whom such norms apply, on the one hand, and by the
threat of enforcement from specialized agents of control, on the other.
With respect to the threat of force, modern states have monopolized the
function of internal coercion in specialized police institutions. But the
function of policing is also articulated at the international level, as
law enforcement institutions engage in a variety of international activities
and have forged international cooperative structures and organizations
that aim to foster collaboration in the fight against crimes that are of
an international nature. Increased concerns over the threat of international
terrorism since September 11, 2001, have sharply accelerated these developments.
Thus, police instructions across the globe have proliferated their counter-terrorism
strategies, both domestically and abroad, while international police organizations
have likewise stepped up their campaigns against terrorism.
Based on existing research
of the dynamics of international police cooperation (Deflem 2002, 2004a),
there is substantial evidence to suggest that the security and intelligence
agencies of national states engage in collaboration across national borders,
in matters of terrorism and other crimes, despite the fact that critical
differences may exist in their respective countries’ attained level of
and formal commitment to constitutional democracy. To the extent that police
institutions across nations have already forged a global order against
terrorism, it can be said that terrorism has effectively been criminalized
under a world rule of law enforcement. Yet, it is not clear whether the
legitimacy requirements of a global democratic order are realized by these
developments, as research has also revealed that international police operations
can take place outside the confines of legal safeguards and human rights
restrictions. A central question, then, is if and how a global order of
law enforcement can lead the way to a global order of law. In this article,
I will address this question on the basis of an analysis of selected developments
in the policing of international terrorism in the post-9/11 context. I
will specifically focus on the counter-terrorism strategies that have been
devised by the International Criminal Police Organization, the police organization
better known as Interpol. My analysis relies on the bureaucratization theory
of international police cooperation that has been developed in a comparative-historical
context (Deflem 2000, 2002).
International Police Cooperation
and the Bureaucratization of the State
The bureaucratization theory
of international police cooperation was developed to analyze the behavior
of modern police institutions under conditions of increasing globalization
from the middle of the 19th century onwards (Deflem 2000, 2002). Yet, the
theory can also be applied to account for important dimensions of the contemporary
conditions of counter-terrorism, especially at the level of international
policing activities (Deflem 2004a, 2004b). In these variable contexts,
the theory predicts a high degree of autonomy of police institutions to
determine the means and objectives of activities related to crime control
and order maintenance. As state bureaucracies always remain related to
the political power of governments, the degree of a police institution’s
institutional autonomy will vary and have variable implications, depending
on social conditions, especially attempts by governments to politicize
police activity during periods of intense societal upheaval.
The bureaucratization theory
of policing is founded on the work of the sociologist Max Weber (1922),
who forwarded the conception of police institutions as state bureaucracies
when he specified among the functions of the modern state “the protection
of personal security and public order (police)” (Weber 1922:516). Weber
attributed special significance to the police function by arguing that
the expansion of the bureaucratization process was particularly accelerated
by “the increasing need, in a society accustomed to pacification, for order
and protection (‘police’) in all areas” (p. 561).
The bureaucratization theory
maintains that public police institutions, since at least the formation
of national states in the 19th century, reveal a tendency towards independence
from the governments of their respective national states. Police bureaucracies
achieve institutional autonomy on the basis of a purposive-rational logic
to employ the most efficient means (professional expertise) given certain
objectives that are rationalized on the basis of professional systems of
knowledge (official information). The theory does not deny that police
is related to state control, but holds that the behavior of police agencies
is not wholly determined by reference to their relation to the political
center of states. Instead, bureaucracies are shaped by organizational transformations
related to a more general rationalization process affecting bureaucratic
activity. In the case of social control, it is most crucial that police
bureaucracies gradually adopt criminal enforcement tasks, irrespective
of political directives, and develop professional techniques to fulfill
these goals.
The theory of bureaucratization
accounts for change and continuity in the development of state institutions.
Most interesting in this respect are the conditions that impact bureaucratization
during periods of momentous societal change. Intense social disturbances
typically lead to attempts to redirect bureaucratic activity to again play
a role intimately related to the political goals of national states (politicization).
In the case of policing, periods of societal upheaval are seen to affect
the institutional autonomy of police institutions in functional and organizational
ways. Drawing from work on the evolution of international policing in the
context of Europe and the United States, several historical examples can
be mentioned (Deflem 2002).
In 1851, the first modern
international police organization was established in the form of the Police
Union of German States. Active until 1866, the Police Union brought together
police of seven sovereign German-language states, including Prussia and
Austria, with the express purpose of policing the political opposition
of established autocratic regimes. Ironically, from such political efforts
would gradually grow police organizations and practices with distinctly
criminal objectives. Throughout the latter half of the 19th century, police
institutions indeed developed and expanded professionally justified systems
of policing and forged cooperation on the basis thereof. In 1898, a striking
re-politicization attempt occurred when the Italian government organized
the Anti-Anarchist Conference of Rome. Attended by government representatives
of 21 European nations, the conference sought to organize an international
police structure against the anarchist movement. Although a follow-up meeting
was held in St. Petersburg in 1904, three years after the assassination
of U.S. President McKinley, independent developments in the bureaucratization
of the police function prevented these politically directed efforts from
interrupting the anti-anarchist and other international policing strategies
which police institutions had already begun to develop beyond any political
policies and intergovernmental conventions.
Next to the disruptive impact
of World War I, another striking example of the momentary shifts brought
about in bureaucratization during sudden crises occurred after the Bolshevik
Revolution, when police institutions in Europe and elsewhere turned attention
to the presumed spread of a global communist movement. But, once again,
such politically motivated police activities would be only temporarily
relevant, or they were redirected in terms that did not necessarily harmonize
with government power, with implications that lasted until long after World
War II. This is most clearly revealed in the case of the FBI during the
Hoover era when anti-communist police activities formed part of a generalized
policing of ‘each and all,’ including the politically powerful (Deflem
2002).
Efforts to politicize police
institutions and other bureaucracies during moments of intense societal
change are not especially surprising, as national crises typically bring
about a centralization of power in the executive branch. What is ironic
is that these politicization efforts occur progressively at times when
police institutions continue to expand and solidify a position of autonomy
that enables them to better resist such attempts at political control.
Thus, on theoretical grounds alone, the degree to which the autonomy of
state bureaucracies has been accomplished in periods of relative stability
cannot be assumed to be without consequences during moments of upheaval.
September 11 as World
Event
Offering an interesting parallel
to historical incidents of attempts to politicize policing during periods
of war and revolution are the dynamics of international policing that have
taken place since September 11, 2001 (Deflem 2004a). Indeed, the function
and organization of policing in many nations across the global as well
as at the international level have changed very significantly in response
to the terrorist events of 9/11. Among the most important external determinants
of counter-terrorism policing are political pressures by means of new legislations
and other forms of official policy. In the decades before September 11,
government policies and legislation against terrorism at the national and
international level developed only slowly. Internationally, the regulation
of terrorism dates back to 1937 when the League of Nations adopted a convention
on the ‘Prevention and Punishment of Terrorism’. The convention found little
support among the nations of the world, and, from then on, international
policies on terrorism developed piecemeal, focusing on specific elements
associated with terrorism (plane hijackings, bombings, hostage taking).
In the United States, formal policies against terrorism also developed
slowly and piecemeal until the Clinton administration secured passage of
the ‘Antiterrorism and Effective Death Penalty Act’ of 1996.
Legislative and other policy
responses to the terrorist attacks of 9/11, especially in the United States,
have gone far beyond what could have been predicted on the basis of developments
during the 1990s. While the military intervention in Afghanistan mirrored
the strikes launched against Al-Qaeda by order of President Clinton in
1998, the U.S. military effort was now more resolute, backed by new policies
to justify the militarization of the judicial processing of foreign terrorists
and new legislation aimed to broaden counter-terrorist police strategies.
About a month after 9/11, the PATRIOT Act (the ‘Provide Appropriate Tools
Required to Intercept and Obstruct Terrorism Act’) received congressional
approval. Next to the PATRIOT Act, the creation of the Department of Homeland
Security in November 2002 has been among the most concrete political efforts
to unite and oversee the various U.S. security agencies involved in the
‘war on terror.’
Despite the various political
and legal efforts to control counter-terrorist policing, however, it also
makes sense to expect that police institutions will resist politicization
attempts to remain focused on an efficiency-driven treatment and depoliticized
conception of terrorism. The reason for this autonomy of policing is that
the bureaucratization of modern police institutions is now at un unparalleled
high level. Unlike the late 19th and early 20th century, modern police
institutions have presently attained a level of bureaucratic autonomy that
is unprecedented in scale, and police can therefore more effectively resist
political influences in a manner that is congruent with achieved professional
standards of expertise and knowledge with respect to the means and objectives
of bureaucratic activity. In what follows, I will make this case by focusing
on the counter-terrorism strategies of the international police organization
Interpol.1
Interpol and Counter-Terrorism
Interpol is an international
police organization that aims to provide and promote mutual assistance
between criminal police authorities within the limits of national laws
and the Universal Declaration of Human Rights. Originally formed in Vienna
in 1923, the organization has steadily grown in membership but never substantially
changed in form or objectives (Deflem 2000, 2002). Interpol is not a supranational
police agency with investigative powers, nor an organization sanctioned
by an international governing body such as the United Nations, but a cooperative
network formed independently among police agencies in order to foster collaboration
and provide assistance in police work across nations. To this end, Interpol
links a central headquarters, located in Lyon, France, with specialized
bureaus, the so-called National Central Bureaus (NCB), in the countries
of participating police agencies. At present, Interpol counts 181 member
agencies.
For several decades now,
Interpol has passed various resolutions to combat terrorism and terrorist-related
activities (Anderson 1997; Bossard 1987; Interpol website). During the
1970s, Interpol passed resolutions that pertained to certain crimes that
are typically involved with terrorist activities, such as criminal acts
conducted against international civil aviation and the holding of hostages.
Such terrorism-related resolutions were considered valid only within the
context of a 1951 Interpol resolution that the organization would not concern
itself with matters of a political, racial, or religious nature, a restriction
that has since been adopted explicitly as Article 3 of the Interpol constitution.
Following resolutions on
organized groups that engage in acts of violence and on explosive substances,
an Interpol resolution passed in 1984 concerning ‘Violent Crime Commonly
Referred to as Terrorism.’ The resolution encouraged the member agencies
to cooperate and combat terrorism within the context of their national
laws. An additional Interpol resolution that year acknowledged that it
was not possible to give a more precise definition of political, military,
religious or racial matters, and that each case had to be examined separately,
but in 1985 a resolution passed that called for the creation of a specialized
group, the ‘Public Safety and Terrorism’ (PST) sub-directorate to coordinate
and enhance cooperation in matters of international terrorism.
Following certain highly
publicized terrorist incidents during the 1990s (such as the World Trade
Center bombing on February 26, 1993), the Interpol General Assembly stepped
up its counter-terrorist initiatives. In 1998, at the General Assembly
meeting in Cairo, Interpol’s commitment to combat international terrorism
was explicitly confirmed in a ‘Declaration Against Terrorism,’ condemning
terrorism because of the threat it poses with regard to security, democracy,
and human rights. In 1999, at the Interpol General Assembly meeting in
Seoul, it was again affirmed that the fight against international terrorism
was one of Interpol’s primary aims.
Interpol Since September
11
A few weeks after the terrorist
attacks in the United States, the Interpol General Assembly held its 70th
meeting in Budapest, Hungary. At the meeting, the Interpol General Assembly
passed Resolution AG-2001-RES-05 on the ‘Terrorist Attack of 11 September
2001’ to condemn the “murderous attacks perpetrated against the world’s
citizens in the United States of America on 11 September 2001” as “an abhorrent
violation of law and of the standards of human decency” that constitute
“cold-blooded mass murder [and] a crime against humanity” (Interpol website).
It was also decided to tackle terrorism and organized crime more effectively
and that the highest priority be given to the issuance of so-called Red
Notices (i.e., international Interpol warrants to seek arrest and extradition
of a suspect) for terrorists sought in connection wit the 9/11 attacks.
In October 2001, Interpol held its 16th Annual Symposium on Terrorism to
discuss new anti-terrorism initiatives, such as the feasibility of setting
up a special aviation database, the financing of terrorism, and anti-money
laundering measures. In October 2002, 450 representatives from 139 of Interpol’s
181 member agencies attended the 71st General Assembly meeting in Yaoundé,
Cameroon. Acknowledging September 11 as a catalyst in the development of
global approaches to crime, the meeting paid even more distinct attention
to the matter of terrorism. The Assembly attendants agreed to draft a list
of security precautions for the handling of potentially dangerous materials
(such as letters and parcels that might contain anthrax), while bio-terrorism
was specified as deserving special attention.
Since 1998, a formal set
of ‘Interpol Guidelines for Co-operation in Combating International Terrorism’
more explicitly addresses the relationship of terrorism to Article 3 of
Interpol’s Constitution, forbidding Interpol to undertake matters of a
political, military, religious or racial character. Basically, terrorist
incidents are broken down into their constituent parts, only the criminal
elements of which can then be identified and subjected to police investigations.
Interpol pays special attention
to the financing of terrorist activities since it is assumed that the frequency
and seriousness of terrorist attacks are often proportionate to the amount
of financing terrorists receive. Interpol’s emphasis on financing is aided
by the fact that Interpol Secretary General Ronald K. Noble, the organization’s
chief executive (and an NYU Law School Professor), has a long-standing
interest in monetary crimes as President of the Financial Action Task Force,
a 26-nation agency established to fight money laundering. In 1999, a first
specific Interpol resolution on the financing of terrorism was passed in
Seoul.
In matters of the fight against
terrorism, Interpol also maintains liaisons with other international organizations.
In November 2001, for example, Interpol signed an agreement with Europol
to foster cooperation in the policing of terrorism and other international
crimes. In December 2001, Interpol and the U.S. Department of the Treasury
similarly pledged to cooperate more closely and create an international
database of organizations and persons identified as providing financial
assistance to terrorist groups. In March 2002, Interpol reached an agreement
to cooperate closely with the Arab Interior Ministers’ Council to facilitate
the exchange of information with the Arab police community.
The terrorist attacks of
September 11 were considered an Interpol matter because of the international
dimensions of the case. Shortly after 9/11, Interpol Secretary General,
Ronald Noble, argued that while the terrorist attacks took place on U.S.
soil, “they constituted attacks against the entire world and its citizens”
(Interpol website). Immediately following September 11, Interpol issued
55 Red Notices for terrorists who had committed or were connected to these
terrorist attacks. Interpol also increased its circulation of Blue Notices,
i.e., requests for information about or the location of a suspect, of which
19 concerned the hijackers who carried out the September 11 attacks.
From a practical viewpoint,
Interpol reorganized in several key respects after September 11, although
some of these organizational changes had already begun before the terrorist
attacks. Most concretely, during a press conference in Madrid on September
14, 2001, Secretary General Noble announced the creation of ‘11 September
Task Force’ at Interpol’s Headquarters in Lyon, France, to coordinate international
criminal police intelligence received at Interpol’s Headquarters and relating
to the recent terrorist attacks in the United States. Also instituted following
the September 11 attacks was a General Secretariat Command and Co-ordination
Center that is operational 24 hours a day, 7 days a week. A new Financial
and High Tech Crimes Sub-Directorate was created that specialized in money
laundering. In April 2002, Interpol announced the creation of an Interpol
Terrorism Watch List, which provides direct access by police agencies to
information on fugitive and suspected terrorists who are subject to Interpol
warrants. Also, at the Interpol meeting in Cameroon in 2002, a new global
communications project was announced as Interpol’s highest priority. This
project involves the launching of a new internet-based Global Communications
System (called I-24/7) to provide for a more rapid and more secure exchange
of data between the member agencies.
Global Rule of Law and
International Police Cooperation
The theory of bureaucratization
suggests that structures and processes of international police cooperation
rely on a high degree of institutional independence among police institutions.
Unlike a legally binding and/or politically attained global rule of law,
the global rule of law enforcement relies on professional expertise and
efficiency considerations. Interpol indeed places most emphasis on a smooth
coordination of and direct contacts between the various participating police
agencies. Only a few days after September 11, Interpol Secretary General
Noble flew to New York and Washington to meet with U.S. police chiefs and
plead for international cooperation. Interpol pays much attention to establishing
direct international police communications that can be used efficiently,
further aided by technologically advanced means of police technique.
As an important consequence
of Interpol’s orientation to efficiency in counter-terrorist and other
police objectives, the organization has managed to attract cooperation
from police agencies representing nations that are ideologically very diverse
and not always on friendly terms in political respects. For example, shortly
after the war in Iraq, authorities from France and the United States agreed
to cooperate towards the development of biometric techniques to prevent
the forgery of passports as part of their efforts against terrorism, despite
these countries’ profound disagreements over the Iraqi conflict. On the
occasion of the signing of the agreement, U.S. Attorney General John Ashcroft
also visited the Interpol Headquarters in Lyon to attend an international
conference aimed at stepping up the recovery of Iraqi works of art stolen
in the aftermath of the fall of the Saddam regime. The diversity among
Interpol’s member agencies, however, has also hindered the organization
to be effective in its missions, as members do not always trust one another.
Therefore, unilaterally executed transnational police operations may be
preferred instead of participation in the multilateral structures of Interpol.
In that sense, Interpol is not always a particularly effective organization
because “major powers, like the United States, do not fully trust it” (Bassiouni
2002:93). Especially in matters of international terrorism, U.S. police
agencies typically conduct international activities unilaterally rather
than participate in an international organization such as Interpol.
The emphasis on efficiency
in international counter-terrorist police work reveals the relevance of
formal rationalization processes which have been observed in many modern
bureaucratic institutions. In terms of the objectives of social control,
the bureaucratization of policing involves most noticeably a de-politicization
of the target of counter-terrorism. This criminalization of terrorism is
accomplished by defining terrorism very vaguely (‘a crime against humanity’)
and/or by identifying and isolating the distinctly criminal elements (bombings,
killings) from terrorist incidents. Bureaucratization processes have historically
been influential across Western societies (Jacoby 1969), so that an important
implication is that cooperation among state bureaucracies policing terrorism
can take place irrespective of the similarities and/or differences among
nations in political, legal, cultural, and other respects. The relative
independence of police thereby exposes the limitations of state-centered
theories in terms of the specific roles played by police and other state
institutions. The autonomy of state bureaucracies creates the potential
for bureaucratic activity, such as policing efforts against terrorism,
to be planned and implemented without regard for considerations of legality,
justice, and politics.
Conclusion
Ideological and political
sentiments on terrorism are very divided in the world of international
politics and diplomacy. Yet, efforts at the level of police agencies and
international police organizations, such as Interpol and its member agencies,
can be based on a common ground surrounding terrorism through its treatment
as a de-politicized crime. Terrorism is thereby fought in ways that are
considered to be efficient, irrespective of normative concerns. As such,
the bureaucratization of modern police institutions harmonizes with Weber’s
perspective of societal rationalization as having gone in the direction
of an increasing reliance on principles of efficiency in terms of a calculation
of means. It is under those conditions, Weber (1922:570) argued, that the
modern state bureaucracy becomes an “almost unbreakable formation,” with
little political control and democratic oversight.
It is important to recognize
that the processes and structures of policing and other state activities
are comprised of a multitude of dimensions and institutions which are not
necessarily in tune with one another. For our theorizing of the rule of
law, an important implication of the developments of bureaucratization
at the level of policing is that we need to recognize a fundamental irony
of the modern political state from its origins through its further evolution.
The centrality of the state in any discussion on law and police needs no
introduction, but it is also important to contemplate the evolution of
the state and its functionally divided components, specifically the legal
system and the forces of internal coercion. Developing a bureaucratic apparatus
to fulfill the state’s concentrated and growing arsenal of functions, the
state’s powers are dispersed across a multitude of institutions, the organization
and activities of which the state can no longer carefully control. As the
case of international police cooperation shows, the institutions that develop
and multiply during the state’s continued development cannot be assumed
to always be carefully disciplined by the center of the state.
Not only does the evolution
of the modern state bring about that the spontaneous collective attention
of society is inevitably relaxed (Durkheim 1893), the functionally divided
state institutions that are created in response to the weakening influence
of tradition also lead to a diversification of the objectives of state
power. The expansion of state bureaucracies such as the police has ironic
consequences. For as the state grows, the relative power of its center
weakens. There is no common end to the state, of course, but it also does
not suffice to merely enumerate the state’s multiple functions. What is
particularly important is that the many functions of the state are not
always neatly harmonized, for they each have their own instruments and
institutions that develop in relative autonomy to one another and with
respect to the center of the state. A state with many means will also have
many ends. Therefore, whatever model that is suggested towards the adoption
of constitutional-democratic principles at the global level of law and
politics in order to decrease the chances of terrorism must also take into
account the manner in which effective control of terrorism is currently
accomplished by international cooperation among public police agencies.
Note
1.
The following analysis selectively draws from Deflem and Maybin (2005).
Biography
Mathieu Deflem is Associate
Professor in the Department of Sociology at the University of South Carolina.
His research interests include the police dimensions of counter-terrorism,
international police cooperation, abortion policy, the sociological profession,
and sociological theory, especially in the area of the sociology of law.
His writings have appeared in dozens of journals and books. Deflem is the
author of Policing World Society (Oxford, 2002), and editor of Terrorism
and Counter-Terrorism: Criminological Perspectives (Elsevier, 2004) and
Habermas, Modernity, and Law (Sage, 1996). He maintains an extensive professional
website: www.mathieudeflem.net.
Pull Quotes
Politicization efforts occur
progressively at times when police institutions continue to expand and
solidify a position of autonomy that enables them to better resist such
attempts at political control.
The diversity among Interpol’s
member agencies, however, has also hindered the organization to be effective
in its missions, as members do not always trust one another.
Especially in matters of
international terrorism, U.S. police agencies typically conduct international
activities unilaterally rather than participate in an international organization
such as Interpol.
The autonomy of state bureaucracies
creates the potential for bureaucratic activity, such as policing efforts
against terrorism, to be planned and implemented without regard for considerations
of legality, justice, and politics.
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