The FBI was created in 1908,
more than a century after the U.S. federal system of dual sovereignty had gone
into effect in 1989; before then, the U.S. had been a military alliance and then
a confederation of sovereign countries (under the Articles of Confederation).
An ahistorical American mindset tends to overlook the international beginnings
of that political union, and especially that the federal system designed in the
Convention in 1787 incorporated both national and international elements into
the federal level. This history bears not only on the American federal system,
but also in how it can be accurately compared with the E.U.’s system, which
also divided governmental sovereignty between the federal and state levels, and
whose federal level also contains national and international elements,
institutionally. Unfortunately for the E.U., the destructive technology
available in the twenty-first century, as in advanced weaponry for mass
destruction, has put pressure on E.U. officials to federalize intelligence-capabilities
that could otherwise take over a century, as in the case of the U.S., to be
federalized from the state level. Such pressure could exacerbate fears that the
E.U. might be headed like a fast train to becoming a central state, consolidated
at the expense of even its distinctly federal elements—for the U.S. had arguably
consolidated too much, given its empire-scale, since at least the end of World
War II.
A German citizen having some
association with Lebanon intentionally drove into a crowd of people at a gay
Pride festival in Berlin on 26 July, 2026, killing one person and injuring at
least 29 others. “Everything we see here points to us dealing with an Islamic
terror attack,” the state’s Interior Minister Alexander Dobrindt said.[1]
The suspect, who would be killed by police after a manhunt, “had previously
sought to join the militant Islamic State group,” according to prosecutors.[2]
Even though the problem facing Europeans regarding the presence of socially-conservative
Muslims in the relatively open society of the E.U. had obviously not been solved,
questions also swirled regarding the all-but-absent E.U. intelligence on the
culprit. I contend that the state-biased federal system itself—one that the
U.S. also had for over a century at the very least— is culpable.
Even though the Schengen Information
System (SIS) “enables police, border guards and customs officers . . . to
access real-time alerts on wanted criminals, missing persons and individuals
linked to terrorism and other serious crimes,” the alerts are state to state,
and even include four countries, so culprits can slip through the cracks.[3]
“According to the European Commission, counterterrorism remains primarily the
responsibility of individual member states,” with the federal level being
limited to facilitating “cooperation through intelligence sharing and common
security tools.”[4]
Even though the Schengen Information System is “the EU’s common security
database,” it allows state authorities “to identify and locate terrorist
suspects,” a Commission spokesperson said at the time of the attack. The donut
hole in the federal system is evident in the absence of federal authorities
and with authority and a “EU-wide intelligence register showing how many
people are under surveillance for suspected involvement in Islamic extremist
networks,” as each state applies “its own legal definitions, surveillance
thresholds, and monitoring practices.”[5]
This problem should be obvious, and yet the state-centric bias in the Europeans’
approach to federalism at the empire-level (i.e., consisting of kingdom-level polities)
had preempted any fruitful attempts to fill in the hole at the federal level
such that it’s role would be more than coordinative.
In the parlance of American
history, the anti-federalists (i.e., Euroskeptics) had successfully resisted the
creation of an FBI-like agency at the federal (i.e., E.U.) level. That the
weapons available to the bad guys had become considerably more dangerous than eighteenth-century
muskets did not matter to state officials anxious to preserve their turf from
what they would view as encroachment by the Commission. It is precisely this
institutional and personal (power) conflict-of-interest that keeps the E.U.
from moving to a balanced system of federalism. Such a balance requires more
from the federal level than merely a coordinative role, especially if the
operative network (i.e. the SIS) is not even limited to E.U. states!
To be sure, a glance over to
Hong Kong since China regained control of the “special administrative area” could
bring fears that a centralized intelligence operation run by the E.U. could
result in “no dark corners” (i.e., security cameras covering every public area)
in the E.U. and federal agents too numerous to count (even if they could be
recognized) in every E.U. city. Furthermore, Edward Snowdon, once a NSA
contractor in the U.S. had made public just how invasive the U.S. National
Security Agency (NSA) had been in collecting data often without warrants even
on American citizens. E.U. citizens in
turn could legitimately be worried about giving their consent to the Commission
being expanded to include a NSA-comparable agency. Even just in using some words
here that are likely to be “picked up” by the NSA or FBI, or even the CIA even
though I am an American citizen within the U.S., I empathize with the fears of
E.U. citizens who may have heard of the Pride attack yet still resisted calls
to strengthen the E.U.’s intelligence capabilities at the federal level.
Whereas the
overly-consolidating tendency of the U.S. at the expense of its federal system inhibits
the member-states from acting as a collective check on excessive power at the
federal level, the E.U. states were, at least as of 2026, fully able to act as
a check should the Commission be charged with doing more than cooperative work
in the intelligence field. Whereas in the U.S., it was tenuously assumed that
the separation of powers within the federal level would protect citizens from
inappropriate intrusion by federal intelligence agencies, E.U. citizens could
count not only on the Parliament and the Councils to check the Commission, but
also on the state governments to leverage their direct involvement at the
federal level, via the Councils, to check the federal executive branch from
over-reaching. In this respect, the E.U.’s federal system is healthier, but that
assumes that more power is given to the Commission to be checked! It makes
little sense to trumpet the ability of the states to act as a check on the Commission
on X if the power to do X is still held by the states.
At a more abstract (i.e.,
federal theory) level, the coordinative role of a federal level is consistent
with a confederal system in which, as in the U.S.’s Articles of Confederation,
all governmental sovereignty is held by the states. Having federal institutions
(and officials) do more than merely coordinate state activities is consistent
with “modern” federalism, meaning federalism with dual sovereignty—at least
some autonomy is reserved for the states and some for the Union itself. At the
empire-scale (of territory), a political union benefits from diverse laws set
by its parts as well as unified laws reflecting the common good of the whole.
Dual-sovereignty not only allows for both, but also gives each some governmental
autonomy from the reach of the other. As of 2026 at least, reliance on the SIS
can thus be viewed as founded on a category mistake—taking the E.U. to be a
confederation of still-sovereign states rather than a federal system in which
both E.U. and state governmental institutions have some sovereignty. Qualified-majority
voting alone is enough for dual-sovereignty to be demonstrated as extant in the
E.U.’s federal system; exclusive competencies of the Commission add even more support.
In short, matching the federal role with the E.U. as federal rather than
merely confederal would enhance the security of E.U. citizens because the
E.U. would be doing more than coordinative work as state officials of various
states variously decide on thresholds for intelligence, and thus on what can be
shared with other states.
2. Anna Weglarczyk, “Berlin Pride Attack Sparks Fresh Questions over EU Intelligence Sharing,” Euronews.com, 28 July, 2026.
3. Ibid.
4. Ibid.
5. Ibid.
