E.U. Federalism: On SIS Counterterrorism

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.  

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1. Stephen Sorace, “Berlin Pride Attack Suspect Killed in Police Confrontation: AP,” Foxnews.com, July 26, 2026.
2. Anna Weglarczyk, “Berlin Pride Attack Sparks Fresh Questions over EU Intelligence Sharing,” Euronews.com, 28 July, 2026.
3. Ibid.
4. Ibid.
5. Ibid.

The U.S. Government Spying on Americans: Was It Ethical?

In early June, 2013, while Barak Obama was the U.S. president, Americans learned of the U.S. Government’s domestic surveillance program, under which the Verizon Business Network Services subsidiary had been turning over call logs “on an ongoing daily basis” to the National Security Agency[1] The order, signed by a judge on the Foreign Intelligence Surveillance Court in April of that year, was "lawful,” U.S. Senator Dianne Feinstein contended.[2] The program analyzed time and number logs that did not include the calls’ content. According to U.S. Senator Chambliss, “All of these numbers are basically ferreted out by a computer, but if there’s a number that matches a [suspicious] number that has been dialed . . . , then that may be flagged. And they may or may not seek a court order to go further on that particular instance. But that’s the only time that this information is ever used in any kind of substantive way.”[3] Harry Reid, Majority Leader in the U.S. Senate at the time, added that the phone-data program had “worked to prevent” terrorist attacks.[4] Does it make any difference. ethically speaking, that the program had helped stop a domestic attack? Shortly after The Guardian broke the story on Verizon’s subsidiary serving corporate customers, The Wall Street Journal reported, “[T]he initiative also encompasses phone-call data” from AT&T and Sprint, as well as from Verizon itself (i.e., beyond its business subsidiary).[5] Does this revelation on the vast scale of the program make any difference ethically? Moreover, does a positive collective consequence--or the lack of a negative harm to the public good--justify forays into the privacy of a vast number of individuals? 

Not surprisingly, privacy advocates were alarmed at the sheer scope of the program. Kate Martin of the Center for National Security Studies, a civil liberties advocacy group, said that “absent some explanation I haven’t thought of, this looks like the largest assault on privacy since the N.S.A. wiretapped Americans in clear violation of the law” under the Bush administration.[6] Her statement raises the question of whether the fact that the Obama administration had confined itself to court orders makes the program ethical.

Whereas the content of the phone conversations, including the parties’ names, were said to be not included in the trove of data turned over to the government, internet companies had been providing the contents of emails, online chats, Facebook accounts, Skype video calls, and web searches to the government as per court orders (i.e., not through direct access).[7] Does the inclusion of content make any difference, ethically speaking? Applying a few ethical theories may get us closer to some answers. 

                        I. Utilitarianism

Utilitarianism maintains that conduct is ethical if it provides the greatest happiness for the greatest number of people. This can be in terms of pleasure over pain or benefits over costs. In terms of phone records, the question is whether the harm from attacks that are prevented by the program outweighs the harm from the loss of privacy. Put another way, do the benefits of prevented attacks exceed the costs in terms of privacy that is lost?
That at least one attack had already been prevented indicates that benefits do indeed exist—but for how many people (saved)? Furthermore, how grave would the attacks have been? Attacks can vary in their severity and breadth of harm. The reduction in the fear of a possible attack is also a benefit, and the program, once exposed, can be expected to have put that fear at ease, at least to some degree. That these factors require judgment means that different people are likely to come to different conclusions on a given issue.
On the harm or cost side, the number of people whose calls have been reported is relevant. Judgment again intrudes in the determination of the harm from the loss of privacy if the parties are not aware of it, and then if they are aware of it. That the contents of the calls are not reported suggests that the cost or harm may not exceed the program’s benefits, even though the data provided covers a great number of people. In other words, it is reasonable to conclude that the harm to them pales in comparison to the harm that would be unleashed by mass attacks were they not prevented by the program. In the twenty-first century, access to chemical weapons and nuclear bombs can translate into massive harm. Anyone having parents, a brother or sister, or a child living in a major city would likely judge that giving the government access to his or her phone log is worth the loss in privacy. In terms of utilitarianism, therefore, the phone-records government program can be regarded as ethical because it is consistent with the greatest net happiness for the greatest number. The pain prevented would likely have been severe, whereas, even though the phone-logs involve many more people, the costs in terms of loss of privacy are far less intense. In other words, saving legs and lives is a benefit so significant that the loss of some privacy of many more people would likely be less overall than the benefits overall. To be sure, weighing and relating benefits and costs both in terms of severity and the number of likely people involves considerable uncertainty. Utilitarianism is therefore often a matter of judgment rather than mathematical calculation. The value of the theory here may be in comparing the two programs.
For example, going on to the Prism program, it can be regarded as less ethical from a utilitarian standpoint because of the extent of content provided. The possibility of government “Nixonist” abuse is greater here. Further, it could be asked whether the sheer amount of content is necessary to prevent attacks. In other words, would more attacks in the works be prevented, and if so, would this increased benefit be worth the added cost in terms of privacy lost? Even though judgment again comes into play, the Prism program is likely less ethical than the phone-log program—perhaps even unethical.

            II. Kantianism

Kant argued that treating others as ends in themselves rather than only as a means is a duty owing to the value of rational nature, given that it assigns values to things. The people whose calls are being reported are in one sense being used, but it is also possible that they or their loved ones could be saved from being killed or wounded as a result of the program. The more people whose calls are being reported, the stronger is the case that they themselves are being protected, and thus treated not merely as means, but also as ends in themselves. That three major phone companies have been submitting the logs suggests that the people can be regarded as the point of the program, rather than only as the means. The program can thus be viewed as ethical in Kantian terms.
In regard to the Prism program, the inclusion of so much content makes it easier to argue that the people are being used. At the same time, that so much from the internet is included means that more people are included. The assertion that the people harmed are also those being protected is thus stronger. However, it is also true that a lower proportion of those whose data is being mined would likely be those saved from the prevented attacks. A person could feel uncomfortable knowing that government employees could be reading his or her emails and tweets as well as looking at his or her Facebook pictures even though it is unlikely that he or she, living in the woods in Idaho, would ever be a victim of a terrorist attack. Such a person would rightly feel used for the sake of others’ safety.
For the Prism program to be ethical under Kantian ethics, one would be on more solid ground asserting that “the People” are being used and protected. As a government policy oriented to the general welfare, the program may thus be ethical. Even so, particular individuals could claim that they are being used.  

                        III. Social Contract: Rights and Obligations

Even if people have not sat down in the state of nature to agree to a social contract as a basis for a society, the balance of rights and obligations can be understood in terms of a contract. The rights and obligations are both for the good of the people. The question for us regarding the phone program is whether the obligation to allow one’s calls to be noted and used secretly by a government agency would be viewed by actual or hypothetical contract negotiators as going too far in encroaching on the right to privacy. That is, the question is whether people in the state of nature would agree to giving up that right in exchange for being (or feeling) protected. Because the contents of the calls and the names of the callers are not part of the obligation, people in the state of nature could reasonably agree to it in exchange for feeling or actually being protected.
Regarding the Prism program, people devising a social contract would be less likely to agree to provide their emails, web-searches, blogs, tweets, and Facebook contents in exchange for feeling or being more secure in a society. From a social contract perspective, the Prism program can be regarded as unethical. This approach assumes that the right to privacy is created in the making of a social contract, rather than being a natural right. If the right is “hardwired” into human beings, we could not simply “trade it in” without an enduring psychological cost.

                        IV. Natural Rights

That privacy is typically subject to questions of how much it benefits us relative to how much the loss of privacy benefits society suggests that the right is not natural. However, when a person’s privacy is not respected, such as by someone demanding personal information, it is natural to react in anger—to have what Hume calls a sentiment of disapprobation. Hume claimed this emotional reaction is the moral judgment itself that some conduct is unethical. In other words, that we react rather instinctually to someone who presumes access to personal information or ignores personal space suggests that the right to privacy stems from a natural right built into being constituted as a human being. From this basis, both programs can be regarded as unethical—the Prism program being even more unethical than the phone program because of the additional contents being provided to the government.
That just suspecting that a stranger might be reading one’s personal email or seeing a personal photo from Facebook would make the typical person cringe suggests that something unethical is going on—that the person is being violated in a way that cannot be justified. As the news reports of the programs were being digested by the American people, a collective negative emotional reaction was palpable with such immediacy that it must have been natural, and thus triggered by the violation of a natural right. Even people who reasoned that security justifies the loss of privacy doubtlessly had the emotional reaction too. From this perspective, it can be predicted that the more privacy, or access to that which the person regards as person, is compromised, the more psychological harm to the person is incurred as a result. A person adopting the social-contract approach might agree to trade some privacy for security, but the natural right theory would stress the psychological cost and thus be much less inclined to “trade” the right.

In conclusion, whether or not the phone and Prism programs were unethical depends on not only judgment and which factors are included, but also the particular ethical theory being used. It is unlikely that a definite ethical “answer” can be obtained or even exists unless the breach of privacy was so grave (i.e., harmful to the individuals being spied on) that utilitarianism and natural rights would become inflamed. Even so, that the ethical theories analyzed above do not give the same answer suggests that at least some ethicists would still object. From my own analysis above, two factors strike me as decisive: how personal the information that being provided (and how much) is, and how useful a given amount of information is in preventing attacks. A trade-off is implied here, and it in turn is related to the long-standing trade-off between privacy and security, or, moreover, rights and related harms of individuals and the public good. Surely at some point, it becomes unethical to extract too much from certain individuals--especially if they are many--for the public good. Yet we should not be hoodwinked into thinking that all ethical theories speak with the same voice. This grayness can be expected to diminish as the harm increases. Also, the grayness may give way only on a gradual slippery slope, and thus not be detectable either by the general public. For example, when the Nazis invaded The Netherlands, Jews there were subject to a gradual tightening (i.e., adding) of restrictions--the purpose of the "bit by bit" approach was doubtless so the Jews would not raise an uproar, for who would for a slight change? Spying on citizens by the U.S. Government probably also increased by small iterations, each of which, on its own, could easily be justified in governmental circles. Herein lies a danger to liberty even in a democracy.  

1. Charlie Savage and Edward Wyatt, “U.S. Is Secretly Collecting Records of Verizon Calls,” The New York Times, June 5, 2013.

2. Charlie Savage and Edward Wyatt, “U.S. Maintains Vast Database of Phone Calls, Lawmakers Say,” The New York Times, June 5, 2013.

3. Ibid.

4. Siobhan Gorman, Evan Perez, and Janet Hook, “U.S. Collects Vast Data Trove,” The Wall Street Journal, June 7, 2013.

5. Ibid.

6. Charlie Savage and Edward Wyatt, “U.S. Is Secretly Collecting Records of Verizon Calls,” The New York Times, June 5, 2013.

7. Siobhan Gorman, Evan Perez, and Janet Hook, “U.S. Collects Vast Data Trove,” The Wall Street Journal, June 7, 2013.

Foreign Policy in International Business: BP Trading a Libyan Terrorist for Libyan Oil

Senator Kirsten Gillibrand, D-NY, claimed in July of 2010 that the UK government should investigate what role BP played in Britain’s decision to free Abdel Baset al-Megrahi in August 2009. Al-Megrahi is the only person convicted of carrying out the 1988 bombing of a Pan Am airliner in which 270 people were killed over Lockerbie, Scotland. This is not to say that he acted alone. In February, 2011, Gadhafi's justice minster, Mustafa Abdel-Jalil, who resigned in protest against Gadhafi's massacre of unarmed protesters, told a Swedish newspaper that Gadhafi had ordered the attack. Abdel-Jalil also claimed that Megrahi threatened to "spill the beans" unless his return to Libya were secured. It would appear that BP, a publically-traded stock corporation, played a vital role between Gadhafi and the British government. If so, then aside from Gadhafi's sordid role, this case presents us with an issue of business ethics. Specifically, does a corporation, which is essentially private wealth but with responsibility befitting the power that comes with such wealth, cross a line when its employees engage in foreign policy? The ethical problem inherent in interfering in a juridical sentence is troubling enough; if an unelected corporation becomes so powerful that it can affect international relations between (and foreign policies of) countries, then the issue involves not only business ethics, but also democratic governance. As the line between private and public blurs, the respective bases of legitimacy can become conflated or transposed.

In May 2007, BP signed a $900 million exploration agreement with Libya. Also that month, Britain and Libya signed an agreement that paved the way for al-Megrahi’s release from a Scottish prison. A spokesman for BP has admitted that people at the company lobbied the British government over the prisoner transfer deal with Libya in late 2007, but the company’s spokesman denied that the lobbying played any role in the government’s decision to release al-Megrahi nearly two years later. Senator Charles Schumer, D-N.Y., argued that ”the whole thing has deep circumstantial evidence that points to the fact that there was a trade-off — release the terrorist in exchange for an oil contract.” Schumer and three other US senators — Kirsten Gillibrand, Robert Menendez and Frank Lautenberg — wrote to Secretary of State Hillary Clinton asking that the State Department investigate whether BP had a hand in the release. “Evidence in the Deepwater Horizon disaster seems to suggest that BP would put profit ahead of people — its attention to safety was negligible and it routinely underestimated the amount of oil gushing into the Gulf,” they wrote. “The question we now have to answer is, was this corporation willing to trade justice in the murder of 270 innocent people for oil profits?” The answer appears to be “yes.”

In an interview with the Daily Telegraph (September 4, 2009), Jack Straw admits that when he was considering in 2007 whether the bomber should be included in a prisoner transfer agreement (PTA) with Libya, Britain’s trade interests were a crucial factor. When asked in the interview if trade and BP were factors, Mr Straw admits: “Yes, [it was] a very big part of that. I’m unapologetic about that … Libya was a rogue state… . We wanted to bring it back into the fold. And yes, that included trade because trade is an essential part of it and subsequently there was the BP deal.” In short, BP employees have admitted to the lobbying and Jack Straw has admitted that BP’s contract was a factor—the two sides meet and the knot is tied.

Analysis:

Even BP’s lobbying effort was not decisive in the exchange agreement, the involvement of BP managers even as they and BP stood to gain from an oil exploration contract evinces a conflict of interest that should have been barred by ethics guidelines at the company. Moreover, the company had no standing in the prisoner exchange matter such that it had any business in lobbying. At most, the legal person legal doctrine and the associated “money as free speech” doctrine pertain to a company’s main business. The doctrines ought not give a company all rights of citizens because corporate charters are delimited to particular domains or functions. Furthermore, to expect a company to put ethics ahead of profits is to conflate a firm with a human being.  To be sure, a company is made of people (and capital). However, the association is focused rather pointedly on one thing: maximizing shareholder value through profits. Accordingly, managers know legal requirements, whereas ought and should are more difficult to translate into cost-benefit analyses. In other words, a company is like a shark in that both are single-minded feeding machines. To expect a machine to obviate its next feeding because of an ought is to treat it as something other than what it is.  I suspect that as onlookers we tend to project our own values onto company managements—even companies themselves—instead of coming to terms with what a company is.  It is a feeding machine with one directionality and an expansive appetite, which includes venturing into other domains such as (hypothetically)  lobbying for an exchange of prisoners in exchange for a lucrative oil contract. In other words, companies are designed to transgress even their own charters. They are like Hal in the film 2001—the computer that took on a life of its own. Ideally, a company would convert anything in a given society into a commodity, with price being the universal measure. The US senators are objecting, in effect, to the commodization of the prisoner exchange, and to the “boundary issues” of BP.

The “so what” of this analysis is the following: it is particularly dangerous for a company or industry to be so powerful that it can unduly influence a government both in terms of a judicial sentence and in relation to other countries. Given the expansive nature of a company, society must have a means of keeping corporations within their proper domain of providing goods and services.  In a plutocracy (rule by wealth),  private wealth is the basis of government. This is not the case in republics, which are characterized by representative democracy.

Sources:
http://www.msnbc.msn.com/id/38256677/ns/world_news-africa/
http://www.heraldscotland.com/news/home-news/megrahi-threat-to-reveal-truth-over-lockerbie-1.1087516?utm_source=twitterfeed&utm_medium=twitter