The Obama administration’s recent review of the remaining detainees at Guantánamo Bay reported that there are still 48 individuals “too dangerous to transfer but not feasible for prosecution.” Europeans are generally scornful of the U.S. policy of detaining such men at Guantánamo Bay. Yet the quandary facing Washington over what to do with war on terror detainees is one that resonates across the continent.

Events in the United Kingdom last month confirmed this. Britain’s previous government had given futility its chance by trying to deport two al Qaeda operatives to Pakistan. As is often the case, the men could not be prosecuted as the evidence against them was intelligence based and unusable in a British court. The deportation request was rejected by the Special Immigration Appeals Commission in the first week of the new Conservative-Liberal coalition government. The verdict was meekly accepted. After all, deportation of terrorist threats to unpleasant countries is a breach of the European Convention on Human Rights (ECHR), and nothing strikes fear into the heart of self-respecting European governments like the idea of breaching the ECHR.

Post 9/11, the British government attempted to detain such individuals without trial. Al Qaeda veterans such as Abu Qatada were at least kept from openly calling for jihad on the streets, as they had done for much of the 1990s. Yet in December 2004, the House of Lords ruled detention without trial incompatible with the ECHR. Individuals acknowledged in British court as a “serious threat to the national security” were instead placed under a control order—legislation introduced in 2005 that involves a curfew, electronic tagging, a ban on travel abroad, and a variety of other restrictions.

There have been nearly 50 control orders issued since 2005. British citizens must now accept that they could be neighbors with a terrorist. What is more, they are expected to accept that their taxes pay to keep him here. European governments have conceded that those committed to their destruction—including those living here illegally—should be paid to stick around.

Our suicidal tendencies are being noted by our enemies. Consider the example of Muktar Said Ibrahim, who came to Britain from Eritrea in 1990. Within three years he had indecently assaulted a 15-year-old girl; a year later he attacked and robbed a 77-year-old woman; a year after that, he committed a series of robberies. His reward for all this, in 2004, was British citizenship. A year later he expressed his gratitude by trying to slaughter as many people as possible with a suicide bomb—which thankfully did not detonate—on the London underground. His reaction upon arrest was to loudly proclaim, “I have rights.”

There is a way around this. While accepting its verdicts most of the time, Italy has actually defied the European court on three occasions and deported foreign terror suspects. This led the pithily titled chairman of the Council of Europe Parliamentary Assembly Legal Affairs Committee to label Italy “totally unacceptable,” “disgraceful,” and guilty of displaying “intolerable behavior,” which had to “be condemned by the Council of Europe without delay.” Yet a condemnation from the Council of Europe carries about as much weight as a United Nations resolution. Britain’s independent reviewer of terrorist legislation has warned against following the Italian route, due to the “reputational damage” it would cause to the country. But you would struggle to find a British citizen who cares more about what Finland thinks of our immigration policy than about expelling al Qaeda from their doorstep.

This is a sign of the utter disconnect that exists between the political class and the rest of the country. This gulf is something that the United States has, for the most part, avoided. Guantánamo Bay is divisive. But at least Americans do know that the priority of their elected leaders is their safety from further terrorist attack. Every time terrorists are turned loose by the European court, the opposite signal is being sent. Elected leaders defer to the unelected.

Despite the bombings in Madrid and London, and the numerous disrupted terrorist plots that Europe has experienced since 9/11, most of the continent still interprets al Qaeda terrorism as a crime, not an act of war. The country that was closest to the United States in its interpretation of 9/11 was Britain under Tony Blair. It is unsurprising, then, that Britain has found it hard to reconcile national security with the demands of European law. This being the case, it is the law that needs to be changed, not sensible security policy. This is an unspeakable concept in much of Europe. And as long as this remains so, threats to European security can only increase.

Robin Simcox is a research fellow at the Centre for Social Cohesion.

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