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Bush demands for EU cooperation on justice and home affairs

28 March 2012

Text of US letter from Bush with demands for EU for cooperation - a sweeping agenda covering unregulated and unaccountable powers affecting criminal investigations, suspects' rights, the retention of telecommunications data, border controls and asylum policies

In a letter to the European Commission (16.10.01) US President, Mr Bush, has presented a lengthy list of more than 40 demands to the European Union for cooperation on anti-terrorism measures. Some do concern anti-terrorism, but many do not - covering criminal investigations, data surveillance, border controls and immigration policies.

The letter addressed to Mr Romano Prodi, the President of the European Commission, from the US President Bush includes a demand that "data protection issues in the context of law enforcement and counter-terrorism imperatives" should be considered and that: "draft privacy directives that call for mandatory destruction to permit the retention of critical data for a reasonable period" should be revised. A US official is quoted as saying that: "This is not an US-EU issue, it is more a question of law enforcement versus a strict interpretation of civil liberties". But under United States law there is no similar obligation for the general data retention by telecommunications companies (see letter from NGOs below).

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

Under the heading "police and judicial cooperation" the US wants EU:

"police authorities and local magistrates of member and accession states to deal directly with US law enforcement authorities" (emphasis added)

and:

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

On border controls and migration the US makes some extraordinary proposals. First to:

"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)).

Second, to: "Establish procedures to share information on immigration lookouts for individuals associated with terrorist organisations". The Schengen Information System is not open to non-Schengen states, and is subject to detailed data protection safeguards. And, third to:

"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.

Tony Bunyan, Statewatch editor, comments:

"When the US letter was received the European Commission said most of the demands could be met. It is hard to see how many of them could be "met" without abandoning fundamental protections and rights under EU Directives, the European Convention of Human Rights and a number of EU Conventions.

Many of the demands are nothing to do with combating terrorism and would lead to unregulated and unaccountable cooperation and exchanges of data affecting suspects' rights and the rights of asylum-seekers and refugees."

Full-text of letter from Bush to European Commission: Letter
Statewatch analysis of the civil liberties, human rights, data protection and accountability implications of the US/Bush demands: Statewatch analysis

For the background information and full-text documentation please see Statewatch's "Observatory: In defence of freedom and democracy post 11 September: Observatory

NGOs letter to the EU Presidency

A letter signed by 31 US and European NGOs had been sent to the Belgian Presidency of the EU protesting at the US/Bush demand that telecommunications data be retained in the EU when a similar power does not exist in the US. The letter argues that this demand would endanger the rights of people in the EU and of US citizens if the law enforcement agencies there get access to data from the EU which would not be available to them domestically. The letter says:

"we believe it is inconsistent with well established international norms for communications privacy, such as Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights, for governments to compel the retention of private information for surveillance purposes. Confidentiality of communication is a central tenet of modern democratic society."

Text of letter: English
Text of letter: French