by Frank Kerber
Many observers think that political and philosophical differences have driven the United States and Europe further apart in recent years. This is not the case with regard to law enforcement cooperation to counter terrorism, according to the recently retired point person for counter terrorism in the U.S. Mission to the European Union. In fact, he says, we are working together more closely than ever in this vital sector.—JRB
Member States still have the bulk of competence in the JHA area, although they have ceded competence to the Commission in certain border security areas like visas and immigration. In addition, it is important to note that EU law enforcement and counter terrorism institutions have no operational capacity; that is, the EU staff in these organizations do not have field law enforcement authority similar to agents of our FBI, Customs, Immigration or Drug Enforcement Agency. With some notable exceptions, both the Commission and the JHA Council Secretariat are largely staffed with people who have no practical field experience in law enforcement.
The U.S. perspective on cooperation with the EU
The United States faces a double challenge in working with the EU and its institutions on law enforcement and counter terrorism: We must strive to maintain productive bilateral working relationships with the individual Member States of the EU while at the same time working to forge cooperative relations with the emerging law enforcement and judicial institutions being established by the EU. These include Europol, Eurojust and the newly created border agency Frontex. The overall U.S. objective is to ensure that any cooperative arrangement with the EU and its institutions provides “value added” to existing bilateral law enforcement relationships. Since these are fledgling organizations still earning the confidence of the Member States, it is clear that any exchange of information or assistance will initially flow largely from the United States to the EU. Over time, it is expected that the flow will become more reciprocal.
Obstacles hampering increased cooperation
There are a number of significant procedural and philosophical differences between the United States and the European Union that hamper our ability to cooperate fully on law enforcement and counter terrorism matters. Among these are EU policies on data protection and the sharing of information, the use of the death penalty, the application of the principle of double jeopardy, the extradition of nationals, and the EU view of terrorism as basically a law enforcement issue.
Data protection and the sharing of information
Data protection is the single overarching issue that prevents closer enforcement cooperation. The EU operates under a data protection regime which it expects other countries to adopt before sharing information. The U.S. system of data protection for law enforcement information, while largely having the same objectives as the EU system, is more decentralized and permits sharing with other U.S. enforcement agencies even for purposes that go beyond the original purpose for which it was collected. While the EU system is largely confined to First Pillar matters (economic, social and environmental policies) where the Commission has competence, there is pending legislation that would extend its data protection regime to the Third Pillar (Justice and Home Affairs).
Use of the death penalty
The EU has adopted a blanket prohibition against the use of the death penalty as part of its mandatory acquis for all Member States. Historically the impact of this ban has been to make it impossible for the United States to obtain extradition from anywhere in the EU of a fugitive facing the death penalty unless the United States provides assurances that the death penalty would not be utilized. Some countries, such as Portugal, forbid even the use of the sentence of life in prison. This EU policy is a concern for both the U.S. Department of Justice and the prosecuting offices of most states.
Application of the principle of double jeopardy
As part of its integration process in law enforcement, the EU is adopting the principle of mutual recognition of the final judgments of all EU courts in criminal justice matters. Accordingly, a final judgment by a criminal court in one EU Member State will bar extradition to another Member State or any third country such as the United States involving the same person for the same criminal offense.
Extradition of nationals
The United States extradites its nationals to other countries, unlike many of the EU Member States that have a total ban on such extraditions to non-EU Member States. While these countries provide for domestic jurisdiction over their own citizens for crimes they may commit anywhere in the world, as a practical matter such countries rarely if ever mount domestic prosecutions. Thus, they provide their nationals with a form of “safe haven” for crimes they commit outside the EU.
EU perspective on combating terrorism
Many EU Member States regard terrorism as basically a law enforcement issue. On the other hand, the United States views terrorism as a national security issue. These differing perspectives influence the approach to sharing highly classified national security information in the prosecution of terrorist cases.
Highlights of U.S.-EU cooperation
Despite these obstacles, since 9/11 there have been significant accomplishments in U.S.-EU cooperation in combating terrorism and organized crime. These can be divided into three broad areas: investigating and prosecuting terrorism, sharing national security information, and cooperation on border and homeland security.
Investigating and prosecuting terrorism
At the annual U.S.-EU summit in June of 2003, the United States signed unprecedented agreements with the EU on Extradition and Mutual Legal Assistance (MLA). These were the first agreements ever signed by the EU with a third country. The fact that these complicated agreements were negotiated in only eight months speaks to the strong political will on both sides to work together following 9/11. Among the key features of these agreements is the requirement for each side to identify bank accounts of suspected terrorists in each other’s territory. The agreements permit the establishment of joint task forces under the direction of the United States or an EU Member State consisting of personnel drawn from different countries. And the agreements allow for the taking of evidence in each other’s territory by means of video-conferencing, thereby reducing the time required to obtain evidence. These agreements clearly provide the “value added” sought by the United States over existing bilateral extradition and MLA agreements. To reconcile existing bilateral agreements with the new U.S.-EU agreements, it was necessary to go back to each EU Member State and negotiate “blended” agreements that meld or update the articles of the existing bilateral agreements. This process was concluded in spring 2006 and the entire package of 52 agreements sent to Congress in fall 2006 for ratification. (The package includes the two U.S.-EU agreements and the 50 new bilateral agreements—two for each of the then 25 Member States). It is hoped that the package will be ratified and the agreements operational by the U.S.-EU summit in June.
The United States is working to establish and broaden working relationships with EU law enforcement and judicial institutions. In recent years we concluded two cooperative agreements with Europol that permit the sharing of data, including personal data, for the purpose of detecting and investigating crimes, including terrorism. We have assigned Secret Service and FBI agents to work directly with Europol in The Hague. The ATF (the Alcohol, Tobacco and Firearms Agency) is also interested in stationing an agent at Europol. We regularly participate in seminars and conferences on terrorism at Europol, and have brought a Europol analyst to FBI headquarters in Washington for extended periods of time to work on terrorism-related projects. For its part, the EU has stationed two Europol agents at its Commission offices in Washington to work with U.S. law enforcement agencies. Finally, we recently signed a cooperation agreement with Eurojust in The Hague. This relatively new agency assists in the prosecution of cases involving two or more EU Member States.
Sharing of national security information
The United States has been working with the EU to explore ways of sharing national security information with EU analysts as well as investigators and prosecutors without either jeopardizing the information or compromising the rights of individuals. As noted above, this is a difficult area for cooperation and will take considerably more work before a smooth and regular exchange of such information becomes possible.
Border and homeland security
After extended and difficult negotiations, the United States reached agreement with the EU on the transfer of Passenger Name Record (PNR) data. PNR is personal passenger data collected by the airlines. This was a significant achievement given EU policies on personal data protection described above. Agreement was reached on the use of biometrics to secure travel documents such as passports. We jointly created and fund a database of lost and stolen passports housed at Interpol in Lyon. The agreement on the Container Security Initiative addresses the security of shipping containers coming from the EU or transiting its territory en route to U.S. ports. Finally, the United States is seeking ways to cooperate with the new EU border agency Frontex, based in Warsaw. We have a robust and growing dialogue on border and homeland security issues, including frequent visits to Brussels by the attorney general, the secretary of homeland security and the director of the FBI.
It is evident that U.S.-EU cooperation provides a sterling example of working cooperatively to ensure our collective security. What the United States does with the EU in the fight against crime and terrorism, and what the EU does internally to arm itself for this fight, have a global impact since these are phenomena not bounded by national borders. The policy of the United States is to continue this important effort through enhancing existing arrangements as well as exploring new opportunities to increase our cooperation.
Frank Kerber retired last year from the Foreign Service of the U.S. Department of State with 26 years of service. His last posting was at the U.S. Mission to the European Union in Brussels from 2002-2006 where he was the Counselor for Justice and Home Affairs and the point-person on cooperation with the EU on counter terrorism. His other overseas assignments included Tunisia, Canada, the Central African Republic and Jamaica. He is currently an adjunct professor at the University of Pittsburgh Graduate School of Public and International Affairs.