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Analysis of the effects of the US/Bush letter of 16.10.01

28 March 2012

Analysis of the PROPOSALS FOR US-EU COUNTER-TERRORISM COOPERATION

Comments, where relevant, on the implications for civil liberties, human rights, data protection and accountability are in italics

Suppression of Terrorist Financing

- Share with the United States and among member and accession states, through established financial, intelligence and law enforcement channels, all possible information regarding financial activities or accounts of terrorists.

There is no explicit reference to data protection and other safeguards which must apply when sharing such information. In particular, Article 8 ECHR, the Council of Europe data protection convention and EU data protection measures may limit the sharing of such data if the US does not have adequate data protection standards

- Implement fully UNSC Resolution 1333 targeted at the Taliban and UNSC Resolution 1373.

The EU has implemented the additional sanctions imposed by the Security Council via recent adoption of Commission Regulations.

- Adopt draft EU Directive on prevention of the use of the financial system for money laundering and the framework decision on the execution in the EU of orders freezing assets or evidence (the scope of which should be extended to terrorist related crimes).

It should not be forgotten that the EU has had a directive to prevent money laundering since 1991; the recent proposal was intended to amend the existing Directive. While the EP and Council have now reached agreement on this proposed amendment, its explicit extension to terrorism is to be asserted in a declaration of the Commission and the Council. According to consistent case law of the Court of Justice, such declarations are not relevant when interpreting EU legislation.

Article 2(g) of the draft framework decision on freezing assets or evidence refers to freezing funds in connection with "terrorism", but offers no common definition of the term, even by reference to other instruments (doc. 12445/01).

- Block activities linked to terrorism within the framework of the draft EU Directive on insider trading currently under discussion in the EU Council.

No evidence has ever been presented to indicate that any "terrorist" groups were engaged in insider trading in September 2001. It is not at all clear how such activities could be identified and "blocked", as distinct from other measures taken to prevent and punish insider trading. Again, it should be recalled that EC legislation to prevent and punish insider trading was adopted in 1989; the current proposal is intended to update that legislation.

- Reinforce exchange of information between financial intelligence units in EU member states to enhance ability to take preventative action against terrorism.

There is no reference to data protection safeguards.

- Ask that future members (i.e. candidate countries, Association Agreement countries, others) undertake the above commitments now

All of the applicant countries are also bound by Article 8 ECHR, and most have also ratified the Council of Europe data protection Convention.

Police and Judicial Cooperation

- Authorize and encourage police authorities and local magistrates of member and accession states to deal directly with US law enforcement authorities.

There is no reference to procedures to ensure data protection and the legality and accountability of such contacts, and to provide for liability in the event of illegal conduct, as provided for in the Schengen Convention and the EU Mutual Assistance Convention as regards direct contacts between police and judicial authorities in the EU.

It appears to be a general demand for cooperation and not one limited to terrorism.

- Revise the EU draft framework decision on recognition of arrest warrants to eliminate discrimination against United State and third countries' extradition requests to member states.

This request is based on a wholly false presumption. The proposed Framework Decision would replace the Council of Europe European Convention on Extradition (ECE) with a "backing of warrants" system, as the ECE provides. It would operate by means of sending arrest requests through the Schengen Information System. The case for greatly simplifying extradition proceedings between Member States is based on the shared ratification of the European Convention on Human Rights (ECHR) and the protection of human rights as one of the general principles of EU law, in particular the abolition of the death penalty by all Member States (as confirmed by a Declaration to the Treaty of Amsterdam).

The United States is not a signatory to the ECE, the Schengen Convention or the ECHR, is not a Member State of the EU, and most significantly, has not abolished the death penalty. There is no "discrimination" against United States or other third-country warrants because the United States and other third countries (except Norway and Iceland) are not in the same situation as Member States.

- Mandate EU extradition of nationals for terrorist offences and urge member and accession states to remove remaining "political offense" defenses to extradition in terrorism cases.

The logic of proposing, in the draft framework decision on arrest warrants, that Member States must allow extradition of their own nationals to other EU Member States, is that there is a common "citizenship of the Union" created by the EU Treaty, and that there is a common commitment to the ECHR, including its Sixth Protocol entailing complete abolition of the death penalty. These considerations do not apply to third states, in particular third states which apply the death penalty.

The "political offence" exception was removed for persons carrying out specified and precisely defined violent "terrorist" offences in the Council of Europe Terrorism Convention of 1977, which has been ratified by all Member States. There are exceptions to this Convention, but they are applied stringently in the EU, by virtue of the 1996 extradition convention between the EU Member States. So, within the EU, the "political offence" exception only remains for those persons being persecuted solely on grounds of their opinions or beliefs. There is no convincing case for removing this remaining protection, which is in any event closely connected with the right to asylum.

There is no consideration of the alternative "extradite or prosecute" approach to these issues.

- Explore alternatives to extradition including expulsion and deportation, where legally available and more efficient.

It is manifestly clear from the case law of the European Convention of Human Rights that it is a breach of the ECHR to use expulsion or deportation proceedings as "disguised" extradition proceedings (Bozano v France (A 111, 1986).)

Mutual Legal Assistance

- Permit expedited access to critical bank records and other financial records in member states.

Exchange of this information between Member States will be greatly expedited by the recently signed protocol to the EU Mutual Assistance Convention. Member States are bound by the data protection provisions of that Convention, Article 8 ECHR and the Council of Europe Convention on data protection, and it is doubtful that it would be legal to exchange such data with third states which do not observe equivalent standards.

- Whenever possible, permit urgent MLAT requests to be made orally, with follow-up by formal written requests.

Exchanging information solely on the basis of an oral request runs a huge risk that law enforcement authorities will act illegally, if the information is transmitted before the written request is received. This system will also make prior judicial or other official supervision of the legality execution of requests effectively impossible.

This proposal would give unacceptable powers of "self-regulation" to law enforcement agencies.

- Overcome dual criminality obstacles to the rendering of mutual legal assistance.

Between EU Member States, there is only a dual criminality requirement as regards search and seizure requests in the context of mutual legal assistance. Since search and seizure requests involve coercive action similar to arrest and extradition, this limitation is appropriate.

Data protection

- Consider data protection issues in the context of law enforcement and counter-terrorism imperatives.

The EU data protection directives, and the data protection rules in the Schengen Convention, the Europol Convention, the Customs Information System Convention and the EU Mutual Assistance Convention, already grant extensive derogations from their rules to facilitate law enforcement. Similarly, Article 8 ECHR and the Council of Europe data protection Convention also contain provisions permitting expedited exchange of data by law enforcement agencies.

However, the US is not a signatory to any of these instruments.

- Establish adequate capabilities for investigating terrorism cases that involve the use of the internet.

There is no reference here to data security and data protection issues, to safeguards that must be provided by judicial supervision, or any recognition that the usefulness of such capabilities to law enforcement agencies must be balanced against privacy rights and the extensive costs to industry. There is extensive case law concerning Article 8 ECHR that must be observed when carrying out any such investigations within the EU.

- Revise draft privacy directives that call for mandatory destruction to permit the retention of critical data for a reasonable period.

Any call to change the EU Directives on data protection and privacy (1995 and 1997) to allow for the mandatory retention of data would greatly undermine rights and liberties.

It is doubtful whether this demand is compatible with Article 8 ECHR.

Europol

- Make available to the United States all information, including information on individuals, that Europol may have on relevant terrorist cases, and susbsequently broaden such cooperation to other criminal cases.

Europol cannot exchange information unless its partners have an adequate level of data protection. Even if Europol rules are revised to weaken such safeguards, Member States, as the "parents" of Europol, are bound by the data protection safeguards of Article 8 ECHR.

This demand explicitly refers to extending "such cooperation to other criminal cases" which, by implication, have nothing to do with terrorism.

- Encourage exchanges of information at both the bilateral and Europol level

Again there is no reference to data protection safeguards.

Eurojust

- Share with U.S. authorities summaries of terrorism cases that are within the Provisional Eurojust Docket and updates thereto.

Eurojust will be bound by data protection safeguards by its constituent legislation and by Article 8 ECHR.

Export control/Nonproliferation

- Develop U.S.-EU cooperative measures to forestall intangible transfers of technology and expretise (inadvertent transfer of weapon-related knowledge through training, conferences, exchanges, etc.)

It is well known that one of the main stumbling blocks to conclusion of a protocol to the UN biological weapons Convention to ensure its effective enforcement is the objection of the United States, which aims to protect the financial interests of its pharmaceutical industry.

Border controls

- Establish procedures to share information on immigration lookouts for individuals associated with terrorist organizations.

The Schengen Information System is not open to non-Schengen states, and is subject to detailed data protection safeguards.

- Coordinate external US-EU cooperation projects in the area of border security.

It is quite unclear how this relates to terrorism, it appears to refer to "illegal" immigration. It assumes that the US and EU have a common border which defines who is to be denied entry.

- Coordinate U.S. and EU efforts to encourage other nations to utilize secure, machine-readable passports and visas and explore further use of biometrics.

This refers to a form of cooperation which is much wider than dealing with terrorism.

- Inform the United States and other key partners when a breach of passport or visa security has been detected (especially when passport blanks are lost).

Hundreds of thousands of passports or identity cards are lost or stolen every year in the EU and, if reported and recorded, are logged on the Schengen Information System. The Schengen Information System is not open to non-Schengen states, and is subject to detailed data protection safeguards.

- Improve cooperation on the removal of status violators, criminals and inadmissibles.

There is no reference to the Geneva Convention on refugee status, Articles 3 and 8 ECHR or the UN Convention against Torture, all of which impose limitations on such removals. The demand refers to the "removal" from the US and the EU to the third world of "inadmissibles", a term which has little or no legal meaning.

The demand is also clearly not limited to "terrorism" unless it is assumed that "status violators", criminals in general, and so-called "inadmissibles" are all potential terrorists.