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Europol-USA agreement: Was it really needed?

28 March 2012

In the aftermath of 11 September 2001 an agreement between the USA and Europol for the exchange of information and intelligence was rushed through by 6 December 2001. This was supplemented by a further agreement on 20 December 2002 to allow the exchange of personal data.

At the time of the adoption of these two agreements great concern was expressed: i) that the USA did not (and still does not) have a data protection law covering non-US citizens and ii) that the USA was unable to provide a list of all the agencies who could request or have access to data provided by Europol (said to be around 1,500 agencies at federal, state and local level).

The supplementary agreement of December 2002 said that a "joint evaluation" should be carried out within two years. The Management Board of Europol produced a "mutual evaluation" report on 13 July 2005, which was sent to the Council's Article 36 Committee (high-level interior ministry officials). However, this report still remains secret (EU doc no: 11502/05 - full text of report). The question is why?

Europol set up an office in Washington DC, USA in August 2002, to transmit requests from Europol and EU member states. The picture is complicated by the fact that seven EU member states have their own seconded officers based in the USA - Belgium, France, Germany, Italy, the Netherlands, Spain and the UK. Moreover, the USA has a network of attaches of US federal authorities based in EU member states. In practice what is happening is that responses to requests from Europol in Washington go either to back to it or "directly to EU Member States with copies to the liaison officers". But requests from the USA's multitude of agencies are made through individual EU member states by established channels.

The Europol US Liaison Office sent requests covering 509 cases to US agencies and 266 case requests were sent to the Europol office by US agencies (these appear to concern requests for Europol itself particularly access to its Analysis Work Files, AWFs). But:

"From the US perspective Europol remains to be of limited immediate value if its core function is to provide for making requests to the USA on behalf of MS. The USA anticipated that Europol would provide EU wide analytical assessments about crime as well as information on particular transnational cases impacting on the USA."

In reality:

"operational information and law enforcement intelligence requests from US authorities reach EU MS [Member States] directly through long established bilateral channels"

this is because:

"US law enforcement agencies have well established liaison relationships with most if not all the EU MS."

and:

"the actual added value gained by US law enforcement authorities through the application of the cooperation agreements between Europol and the USA is deemed to be limited" (emphasis added)

and:

"there appears to be uncertainty and even distrust concerning the information/law enforcement intelligence process applied by Europol among the law enforcement community in the US."

This "distrust" extends to information/intelligence concerning terrorism where Europol is viewed as a
"police" agency (which it is) rather than a security agency (which it is not):

"Original efforts following the tragedy of the terrorist attacks of 11 September 2001 in the USA aimed at enhancing cooperation between Europol and the FBI in the context of the Counter Terrorism Task Force (CTTF) at Europol were unsuccessful as MS - according to the assessment of the USA - were unwilling to share information with the USA via the Europol channel... Eventually, the FBI withdrew the liaison post it had assigned to the CTTF at Europol after three months."

Equally damning are the admissions that while Europol is able to provide figures of the number of
"correspondences" (2,582 in 2004) which it handled the report gives no details on the number of requests/responses
made direct to/by the USA without going through Europol and:

"No centralised statistics are collected by the USA on the number of transactions engaged in by agencies of the USA and Europol"

Thus the USA, in this joint evaluation, is "not in a position to adopt" the figures in the Europol report.

Where the Europol US Liaison Office is able to give figures the largest crime category in the "correspondence" (almost a third) concern drugs, only 18.6% concern terrorism.

If bilateral channels through long-established agreements between the USA and individual EU member states was already working well why were the Europol-USA agreements needed? If the USA only really wanted access to, and to be "associated" with, Europol's Analysis Work Files why was an agreement on this precise issue not concluded?

Tony Bunyan, Statewatch Editor, comments:

"This is a good example of the need for post-legislative scrutiny and review by parliaments. Why is this report not public? Have national and European parliaments seen it and, if not, why not?"

Source: EU doc no: 11502/05 - full text of report

Footnote:

The report includes the “handling codes” used by Europol (like other police forces) raise interesting questions: How are sources under C and D codes handled? What if sources under C and D are combined with “reliability” under no 4?

Evaluation codes (assessment of the source and of the information)

1. The source of the information shall be indicated as far as possible on the basis of the following criteria:

(A) Where there is no doubt of the authenticity, trustworthiness and competence of the source, or if the information
is supplied by a source who, in the past, has proved to be reliable in all instances;
(B) Source from whom information received has in most instances proved to be reliable;
(C) Source from whom information received has in most instances proved to be unreliable;
(D) The reliability of the source cannot be assessed.

2. The reliability of the information shall be indicated as far as possible on the basis of the following criteria:
(1) Information whose accuracy is not in doubt;
(2) Information known personally to the source but not known personally to the official passing it on;
(3) Information not known personally to the source but corroborated by other information already recorded; (4) Information which is not known personally to the source and cannot be corroborated.