Introduction
After the attacks on 9/11 both the European Union and the United States of America realised that something had to change. “One of the EU’s top priorities on the agenda after 9/11 was to enhance cooperation with the United States” (Grajny, 2008, p. 7). This chapter will analyse the EU-US counter-terrorism cooperation. Therefore, the second sub question of this thesis is:
2. What does the cooperation in the field of counter-terrorism between the European Union (and more specifically Europol) and the United States of America (and more specifically the FBI) look like?
The following parts of this chapter will discuss the EU-US counter-terrorism cooperation, including the cooperation between Europol and the FBI, as well as accomplishments challenges and recent developments.
General observations
As written before, “the EU made improving law enforcement and counter-terrorism cooperation with the United States a top priority after 9/11” (Archick, 2010, p. 3; Grajny, 2008, p. 7). The cooperation in the areas of law enforcement and counter-terrorism between the European Union and the United States has been broadened and deepened after 9/11 in the broader Justice and Home Affairs (JHA) field, which is, as mentioned before, referred to as the so-called Third Pillar of competencies within the European Union (Kerber, 2007). Although there remain political differences between the European Union and the United States, the fight against (global) terrorism has enabled the EU and the US to work together more closely than ever in the counter-terrorism field.
The EU initiative for improving law enforcement and counter-terrorism cooperation with the US was very much welcomed by the Bush administration from that time and many Members of Congress. It was their hope that it would help to eradicate EU terrorist cells that possibly might have plans to attack the US or its interests. Other than that this EU initiative was welcomed by the US, it was also in line with the 9/11 Commission’s recommendations . Part of the recommendations from the Commission for the US after 9/11 were namely that the US 1) “should develop a comprehensive coalition strategy against Islamist terrorism, 2) exchange terrorist information with trusted allies and 3) improve border security through better international cooperation” (Archick, 2010, p. 3). In November 2009 for example, at the US-EU summit in Washington, DC, the European Union and the United States reaffirmed their engagement to work together in the fight against terrorism. A few months later, in June 2010 to be precise, the EU and the US adopted a new ‘Declaration on Counterterrorism’. This declaration aims at deepening the already existing EU-US counter-terrorism cooperation. Besides this, it highlights the engagement of both parties to fight terrorism within the rule of law. (Archick, 2010)
The EU-US counter-terrorism cooperation has led to a new dynamic in the relation between the EU and the US. It namely fosters the dialogue on law enforcement and homeland security issues, which was first reserved for bilateral discussions. Most of the US policymakers and analysts see the developing relationship between the EU and the US in different areas such as law enforcement and homeland security as a positive thing (Archick, 2016, p. 6). In addition, the current Obama administration very much supports the cooperation between the US and the EU in the field of counter-terrorism (as mentioned before, just like its predecessor), but also in the fields of border controls and transport security. “In 2011, President Obama’s National Strategy for Counterterrorism asserted that in addition to working with European allies bilaterally, the United States will continue to partner with the European Parliament and European Union to maintain and advance CT efforts that provide mutual security and protection to citizens of all nations while also upholding individual rights” (Archick, 2016, p. 6). Moreover, the European Union has been an important partner to the United States in the Global Counterterrorism Forum, which consists of thirty members (countries) besides the EU and the US. It was founded in 2011 as a multilateral body. Its aim is “mobilizing resources and expertise to counter violent extremism, strengthen criminal justice and rule-of-law capacities, and enhance international cooperation against terrorism” (The United States Department of State, n.d.).
Accomplishments
There have been a few significant accomplishments in the EU-US counter-terrorism cooperation, which are worth mentioning. The accomplishments in the EU-US counter-terrorism cooperation can be divided in roughly two areas: 1) “investigating and prosecuting terrorism and 2) sharing (national) security information” (Kerber, 2007).
With regard to investigating and prosecuting terrorism, the signing of the treaty on extradition and Mutual Legal Assistance Treaty (MLAT) in 2003 is a significant accomplishment in the EU-US counter-terrorism cooperation (McGill & Gray, 2012, p. 79). This was the first time ever that the European Union signed agreements with a third country (Kerber, 2007). In addition, these complicated agreements were negotiated in a short amount of time. Only eight months to be precise. This shows how strong the political will from the EU and the US after 9/11 was to work together in the field of counter-terrorism. In 2002, prior to a summit, the EU and the US had a disagreement about the use of the death penalty. The aversion of the European Union with regard to the death penalty, led the EU not only to withhold information, but also to deny requests for extradition. Extraditions only took place when the US would guarantee that the person would not face the death penalty. However, the summit in 2002 brought the US and the EU closer together with regard to the use of the death penalty and extraordinary rendition. They namely agreed in principle to the treaty on extradition and Mutual Legal Assistance Treaty (MLAT) (McGill & Gray, 2012, p. 79). The treaties were ratified in 2003 and “the extradition treaty allowed for a blanket policy for European nations to grant extradition on the condition that the death penalty will not be imposed and the MLAT provided enhanced capability to gather and exchange information” (Bensahel, 2003, p. 49).
Among the key features of the above-mentioned agreements “is also the requirement for both the United States as the European Union to identify bank accounts of suspected terrorists in each other’s territory” (Kerber, 2007). In addition, the agreements allow for 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” (Kerber, 2007). Moreover, video-conferencing is also allowed by the agreements. First of all, this makes taking evidence in each other’s territory easier and second, it reduces time. It can thus be concluded that these agreements definitively provide added value over the existing bilateral extradition and Mutual Legal Assistance agreements.
Another accomplishment with regard to investigating and prosecuting terrorism is the cooperation between the US and EU law enforcement and judicial institutions, such as Europol and Eurojust (Kerber, 2007; Archick, 2016). In recent years, the United States and Europol have agreed upon two cooperative agreements with each other. These agreements allow for the sharing of data, including personal data. This should contribute to the detection and investigation of crimes, which also includes terrorism. In addition, two liaison officers from Europol work on terrorism-related projects at the headquarters of the FBI in Washington D.C. and in return the FBI has stationed fourteen of its officers at the headquarters of Europol in The Hague, the Netherlands (Kerber, 2007; Archick, 2016, p. 8). These fourteen officers represent eleven, different American federal law enforcement agencies. These include the FBI, but also the Secret Service. Europol supports about five hundred cases a year, which involve US authorities. This led to “operational successes in countering a range of transnational crimes, including the 2014 operation against online ‘dark net’ marketplaces selling illicit products such as drugs, weapons, and stolen personal data” (Archick, 2016, p. 8). Besides the cooperation between Europol and US authorities, the United States has also signed a cooperation agreement with Eurojust, “an agency that assists in the prosecution of cases involving two or more EU Member States”, and since 2006, an American liaison works at the Eurojust headquarters in The Hague (Kerber, 2007, Archick, 2016, p. 8). The stationing of a US liaison at the headquarters of Eurojust is part of a wider agreement between the US and Eurojust, which is meant “to facilitate cooperation between European and U.S. prosecutors on terrorism and other cross-border criminal cases” (Archick, 2016, p. 8).
When it comes to sharing (national) security information, the European Union and the United States have been trying to find ways to share security information “without either jeopardizing the information or compromising the rights of individuals” (Kerber, 2007). Both the EU and the US realize that sharing (national) security information is important in order to track and disrupt activities related to terrorism, but data privacy and data protection concerns as well as the sharing of information have been and continue to be the most significant challenges (as will be described later in this chapter). It can thus be concluded that this seems to be a rather difficult area for EU-US counter-terrorism cooperation. However, although this area seems a rather difficult one for EU-US counter-terrorism cooperation, there are several significant accomplishments with regard to sharing (national) security information, which are worth mentioning.
First of all, the EU-US SWIFT agreement is an accomplishment that must be explained. SWIFT, which stands for Society for Worldwide Interbank Financial Telecommunication, is a transaction database. It “establishes common standards for financial transactions worldwide” (European Commission, n.d.). The Terrorist Finance Tracking Programme (TFTP) is a program from the United States government, which gives access to the SWIFT transaction database. In addition, the TFTP must be seen as a tool in the global war on terrorism (European Commission, n.d.). “After the 9/11 attacks, the US Treasury Department introduced its Terrorist Financing Tracking Program (TFTP) and started using data processed via SWIFT’s network in order to identify terrorist suspects, allow targeted searches for counter-terrorism investigations and pursue their providers of finance” (Hillebrand, 2010). When in 2009 all information concerning the European Union and Switzerland remained stored in Europe, it was necessary for the US to make an agreement with the EU. This in order for the US to ensure continues access to the SWIFT data. The agreement soon became a power struggle within the EU between the Council of the European Union and European Parliament (Hillebrand, 2010). In addition, “European politicians and privacy groups remained worried about whether the program was consistent with EU rights and data protection standards” (Archick, 2016, p. 7). Many Members of the European Parliament (MEPs) were worried about the inadequate level of data protection; especially possible data abuse and the use of ‘bulk data’ transfers were seen as crucial concerns (Hillebrand, 2010; Archick, 2016). After many meetings and revisions, the European Parliament finally approved the new version of the EU-US SWIFT agreement in July 2010 (Hillebrand, 2010). The agreement entered into force in August 2010 for a period of five years. However, it was agreed that the agreement would be automatically extended for periods of one year, however, if one of the parties (either the EU or the US) would notify the other party at least six months in advance of its intention not the extend the agreement, this would not happen. Interesting is that the EU-US SWIFT agreement has a special role for Europol. “To ensure independent oversight, the agreement calls for a judicial public authority which should have the responsibility to receive the requests from the US Treasury, assess their compliance with the agreement and, where appropriate, require the provider to transfer the data on the basis of a ‘push’ system” (Hillebrand, 2010). The agreement assigned these tasks to Europol.
The agreement between the EU and the US on the transfer of Passenger Name Record (PNR) data is also something worth mentioning when it comes to sharing (national) security information (Kerber, 2007; Archick, 2016). “In May 2004, the United States and the European Union reached an initial agreement permitting airlines operating flights to or from the United States to provide U.S. authorities with passenger name record data in their reservation and departure control systems within 15 minutes of a flight’s departure (in order to comply with provisions in the U.S. Aviation and Transportation Security Act of 2001, P.L. 107- 71)” (Archick, 2016, p. 17). The PNR agreement was perceived as quite controversial in the European Union since one feared that it would violate the privacy rights of the European citizens. In addition, one was afraid that the PNR accord did not include sufficient protections, which were necessary to protect the personal data of the European citizens. Because of dissatisfaction from the European side, the European Parliament started a case against the Passenger Name Record agreement in the European Court of Justice. In May 2006, the European Court of Justice ruled that the PNR agreement was not valid since “it had not been negotiated on the proper legal basis” (Archick, 2016, p. 17).
In July 2007, the EU and the US concluded the negotiations on a new PNR agreement, which was meant to last for the next seven years (European Parliament, 2016). Officials from the US were pleased with the new PNR agreement since “it allowed the U.S. Department of Homeland Security to share PNR data with other U.S. agencies engaged in the fight against terrorism, it extended the length of time that the United States could store such data (from 31⁄2 to 15 years ultimately), and it permitted the United States to access sensitive information about a passenger’s race, ethnicity, religion, and health in exceptional circumstances” (Archick, 2016, p. 17). The agreement was in force since it was singed, however, the European Parliament still had to approve it in order for the agreement to be formally signed and stay in force, but again, problems arose. Many Members of the European Parliament (MEPs) did not agree with many of the key elements of the new PNR agreement, “including the amount of PNR data transferred, the length of time such data could be kept, and what they viewed as an inadequate degree of redress available for European citizens for possible data misuse” (Archick, 2016, p. 17). However, many MEPs were aware that a rejection of the PNR agreement could possibly lead to “legal uncertainties and practical difficulties for both travellers and air carriers” (Archick, 2016, p. 17). Therefore, in May 2010, the European Parliament decided to postpone its vote and asked the European Commission to negotiate and improve the PNR agreement, especially in the field of data protection (Hornung & Boehm, 2012, p. 5).
It then took many meetings and revisions between the United Sates and the European Commission before the new PNR agreement was approved on April 19, 2012 by the full European Parliament. It was officially adopted on April 26, 2012 and then entered into force at the beginning of August 2012. The PNR agreement will be valid for a period of seven years (until August, 2019) and can be renewed for a new period of seven years if both parties agree. According to the European Commission, the current PNR data involves “information provided by passengers during the reservation and booking of tickets and when checking in on flights, as well as collected by air carriers for their own commercial purposes. PNR data can be used by law enforcement authorities to fight serious crime and terrorism. The use of PNR data for law enforcement purposes involves the processing of personal data” (European Commission, n.d.).
Challenges to the EU-US counter-terrorism cooperation
Although there are many initiatives undertaken in the EU-US counter-terrorism cooperation, which led to several accomplishments, it seems that there are several challenges to the evolving EU-US counter-terrorism cooperation that hinder the ability to fully cooperate on law enforcement and counter-terrorism matters (Bensahel, 2003; Kerber, 2007; Grajny, 2008; McGill & Gray, 2012; Archick, 2016). It seems that the most significant challenge refers to data privacy and data protection concerns as well as the sharing of information (Kerber, 2007; McGill & Gray, 2012, p. 78; Archick, 2016, p. 7). It can be stated that “personal data is critical to counter-terrorism efforts, because it often provide(s) the only evidence of connections between members of terrorist groups and the types of activities that they are conducting” (Bensahel, 2003, p. 48). The European Union, however, has shown resistance when it comes to freely sharing personal data with the United States. This has mainly to do with the fact that the European allies of the United States have a stricter view on the protection of personal data (McGill & Gray, 2012, p. 78). In order to regulate both the storage and sharing of personal data, the European Union makes use of safeguards at a regional and national level (McGill & Gray, 2012, p. 78). According to Bensahel (2003): “by contrast, the United States protects personal information through legal precedents and procedures rather than (unified) legislation, which the Europeans find insufficient” (p. 48). Consequently, the EU has some concerns about how the US protects personal data. This resulted in the EU withholding information from the US. Understandably, withholding information with regard to personal data created and still creates a real challenge to the EU-US counter-terrorism cooperation. However, the 9/11 terrorist attacks, the Madrid bombings, the London Underground attacks and more recently, the terrorist attacks in Brussels and Paris, highlighted the political will to overcome such issues. Though, “there are still lingering limits to the EU’s willingness to share personal data with the US” (McGill & Gray, 2012, p. 78).
Although the challenge regarding data privacy, data protection and the sharing of information may be the most significant one to the EU-US counter-terrorism cooperation, there are more challenges. According to Kerber (2007), “the use of the death penalty, the application of the principle of double jeopardy, the extradition of nationals and the European perspective on combating terrorism as basically a law enforcement issue” also hinder the EU-US counter-terrorism cooperation. McGill & Gray (2012) & Archick (2016) endorse the finding of Kerber (2007) with regard to the use of the death penalty and the extradition of nationals. What McGill & Gray (2012) call ‘the rights of the accused’, are a challenge to the current cooperation (McGill & Gray, 2012, p. 79). “The United States and the European Union have had substantial disagreements on treatment and punishment of accused terrorists” (McGill & Gray, 2012, p. 79). Here, a reference to the use of the death penalty and ‘extraordinary rendition’ is made. In 2002, prior to a summit, the US and the EU had a disagreement about the use of the death penalty. The aversion of the European Union with regard to the death penalty, led the EU not only to withhold information, but also to deny requests for extradition. Extraditions only took place when the US would guarantee that the person would not face the death penalty. However, the summit in 2002 brought the US and the EU closer together with regard to the use of the death penalty and extraordinary rendition. They namely agreed in principle to “the treaty on extradition and Mutual Legal Assistance Treaty (MLAT)” (McGill & Gray, 2012, p. 79). The treaties were ratified in 2003 and “the extradition treaty allowed for a blanket policy for European nations to grant extradition on the condition that the death penalty will not be imposed and the MLAT provided enhanced capability to gather and exchange information” (Bensahel, 2003, p. 49). Though, problems concerning the death penalty and the handing over of European nationals still remain a challenge. As Archick (2016) states, “European opposition to the U.S. death penalty or resistance to handing over their own nationals may still slow or prevent the timely provision of legal assistance and the extradition of terrorist suspects in some cases” (p. 9).
Next to the challenges regarding data protection and the rights of the accused, the European perspective on the fight against terrorism seems to be a challenge to the EU-US counter-terrorism cooperation too. While most European Member States consider terrorism as a law enforcement issue, the United States reckons terrorism as a national security issue (Kerber, 2007). It is therefore that “these differing perspectives influence the approach to sharing highly classified national security information in the prosecution of terrorist cases” (Kerber, 2007).
Recent developments
The last two years, the EU-US counter-terrorism cooperation strongly focused on measures to fight the foreign fighter phenomenon (Archick, 2016, p. 7). This has to do with the growing concerns with regard to European and/or American Muslims that could be recruited to fight with the Islamic State in either Syria or Iraq. As written before, “security services are concerned about the potential danger such trained militants might pose should they eventually return to Europe; they also worry about those inspired by Islamist extremist propaganda to commit so-called lone wolf attacks at home without ever traveling abroad” (Archick, 2016, p. 7). In addition, the United States also expressed its concerns about European foreign fighters: “we have a mutual and compelling interest in developing shared strategies for confronting the influx of U.S. and European-born violent extremists in Syria. And because our citizens can freely travel, visa-free… the problem of fighters in Syria returning to any of our countries is a problem for all of our countries” (The United States Department of Justice, 2014). The growing concerns with regard to the foreign fighter phenomenon are motivated by a series of recent terrorist attacks in the European Union. Think of the terrorist attack at a Jewish museum in Brussels in May 2014, by a returned foreign fighter, the January 2015, terrorist attacks in Paris, the November 2015, terrorist attacks in Paris, but also the very recent terrorist attacks in March 2016, at the airport and a subway station in Brussels (NOS, 2015). The perpetrators were all linked and/or influenced to/by the Islamic State or other extremist groups.
The described above explains why there has been a focus on measures to fight the foreign fighter phenomenon for the last two years. In September 2014 for example, the EU and the US worked closely on “a wide range of measures focused on enhancing counter-radicalization, border security, aviation security, and information sharing to address the foreign fighter threat” (The White House, 2014). In addition, European Member States heavily supported the U.N. Security Council Resolution 2178 of September 2014 (Archick, 2016, p. 7). The aim of this resolution is to fight the foreign fighter phenomenon worldwide. Moreover, most of the European Member States also provide support to the US coalition against the Islamic State. This support can be expressed in military, political and/or humanitarian support. Besides this, both the EU and the US regularly attend each other’s meetings and conferences, which relate to the foreign fighter phenomenon, terroristic threats and/or countering extremism. (Archick, 2016, p. 7)
The United States has some concerns about the European Union and its largely open borders. It is therefore that officials of the US “have been encouraging European governments and the EU to bolster intra-European information exchanges and urging the EU to make greater use of existing EU-wide databases, such as the SIS and those managed by Europol” (Archick, 2016, p. 7). On top of that, the United States also expressed their hope and support for a European Passenger Name Record (PNR) system. “Following the November 2015 attacks in Paris, President Obama called on the EU to finally implement the agreement that’s been long in the works that would require airlines to share passenger information, so we can do more to stop foreign terrorist fighters from entering our countries undetected” (Duran, 2015). Finally, the EU and the US both realise that law enforcement ties with each other and information sharing arrangements, that relate to the tracking of terrorist financing for example, but also the sharing of airline passenger data, are key in order to combat the foreign fighter phenomenon.
What is also worth mentioning is that in the week of 21 September, 2015, the director of the FBI, James Comey, visited The Hague and in particular Europol to discuss the cooperation in the areas of cyber crime and counter-terrorism with the director of Europol, Rob Wainwright. Together they examined the possibilities for further cooperation. According to James Comey: “The perception that terrorism occurs only in major cities like New York, London or Paris is not true. There are disturbed individuals everywhere around the world, not only in the United States, and that is why collaboration is so important” (Security.nl, 2015). Europol director Rob Wainwright supports this argument: “the importance of border-transcending cooperation between law enforcement agencies to address global threats such as terrorism and cyber crime is now more important than ever” (Security.nl, 2015). In this respect, the cooperation between Europol, the FBI and international partners is a good example, particularly in combating cybercrime and online child sexual abuse. In addition, the cooperation between Europol and the FBI has increasingly become stronger in recent years. Since May 2015, the FBI has stationed a permanent liaison officer at the Europol headquarters in The Hague. This way, the organizations can exchange information quick and effective.
Conclusion
After the terrorist attacks on the 11th of September 2001 in New York and Washington by the Islamic terrorist group Al Qaeda, both the EU and the US realised that something had to change. Consequently, one of the top priorities on the agenda of the European Union was to enhance the counter-terrorism cooperation with the United States. It can therefore be concluded that 9/11 has been a catalyst to the EU-US counter-terrorism cooperation. Since then, there are a few significant accomplishments in the EU-US counter-terrorism cooperation, which can be divided in two areas, namely investigating and prosecuting terrorism, sharing (national) security information. Think of the signing of the treaty on extradition and Mutual Legal Assistance Treaty, but also the EU-US SWIFT agreement and the agreement between the EU and the US on the transfer of Passenger Name Record (PNR) data. Although there are definitely accomplishments, challenges to the EU-US counter-terrorism cooperation remain. The most significant challenge refers to data privacy and data protection concerns as well as the sharing of information, however, the rights of the accused and the European perspective on the fight against terrorism seem to be challenges to the EU-US counter-terrorism cooperation too.
When it comes to the counter-terrorism cooperation between Europol and the FBI, it can be concluded that the relationship is still developing. In recent years, the United States and Europol have agreed upon two cooperative agreements with each other. These agreements allow for the sharing of data, including personal data. In addition, two liaison officers from Europol work on terrorism-related projects at the headquarters of the FBI in Washington D.C. and in return, the FBI has stationed fourteen of its officers at the headquarters of Europol in The Hague, the Netherlands.
Although this chapter only discussed a selection of initiatives that are taken within the EU-US counter-terrorism cooperation, it can be concluded that the initiatives look impressive, however, the challenges to the EU-US counter-terrorism cooperation and the threat coming from Jihadist terrorism remain. It is therefore also that during her visit on the first of June 2016, at Leiden University, the American Minister of Justice, Loretta Lynch, said that “the United States and the European Union must cooperate more closely in the legal field, because terrorists and criminals increasingly operate international” (Universiteit Leiden, 2016).