Brussels, 30/10/2001 (Agence Europe) - Contacts at every level are underway between Europeans and Americans with a view to ensuring effective cooperation against terrorism. While many Union and Member State bodies concerned are, however, wondering what response they should give to the suggestions made by Washington, it appears increasingly clear that, despite the diligent treatment reserved to this approach, the response from Brussels will take time coming and will not be positive on every point. "For some recommendations, the Americans' requests cannot be met, because they come up against aspects of our culture, our own right to defend and protect personal data, plus the question of extradition to a country that still has the death penalty", one European source told EUROPE on Tuesday, wishing to remain anonymous. The Commission, which traditionally leads the partnership with the United States via the high level transatlantic group, came up against the demand of the Fifteen that they should have a say in this tricky and important relations chapter, which they definitely seem to wish to keep under their control. Thus, each Council formation was entrusted with detailed examination of the points coming under its specific competence, while the Executive does the same on its side with a view to making its own suggestions on each area.
At this stage, nothing is considered unacceptable in Brussels, where it is recalled that many American suggestions are already covered by initiatives taken by the Union after 11 September or about to be taken, mainly concerning insider dealing and money laundering. However, certain ideas put forward in the list forwarded by the US mission in Brussels (see EUROPE of 24 October, p.10), look as though they will be somewhat difficult for the Union and its Fifteen Member States to digest. Such is the case of Washington's wish to benefit from treatment close to the European arrest warrant that the Member States plan to create as a replacement for extradition within the Union. One of the difficulties is that the Community project rests on mutual recognition at the level of Member State judicial administration, in other words on "confidence", and also on a legal base, namely the Amsterdam Treaty. Unless of course if the United States becomes a Union Member State, it is stressed in Brussels. Another major problem is the death penalty that is applied in several US States, and totally banned by most of the EU15 Constitutions, whereas the European Charter of Fundamental Rights excludes all extradition or expulsion towards a State that practices the death penalty. The Commission has recalled this principle relentlessly over the past few days. As far as data protection is concerned, American expectations can also prove difficult to meet. Such is the case, in particular, concerning Washington's suggestion to: - have access to data that Europeans hold on individuals "on file"; - review the "Telecom" package under discussion at the EU Council with a view to allowing critical data to be held during a "reasonable" lapse of time rather than carrying out compulsory destruction of data. The Fifteen have already come to agreement on the principle of the compromise formula along these lines, which would allow them to take exceptional measures to preserve data from telecommunications traffic for specific criminal investigation needs or in order to avoid an adverse effect on national security. One question, however, is now posed - whether it is enough to just mention retention of data in the preliminary part of the texts under the current circumstances or whether there should be operational provisions, and, if such is the case, how to ensure the tricky balance between the protection of citizens against terrorism and the protection of their civil rights. The Telecommunications Council, on 6 December, will attempt to find an answer.
In answer to questions on this letter and the expected follow-up to it, the American side is beginning to give diplomatic assurance that it is not a matter of requests but of a summary "established at the request of the EU", of all the fields of cooperation on which the EU and the United States are "working or plan to work", and for which point-by-point responses are not expected. American officials stress the "quality of work already accomplished", and insist on the need to seek pragmatic solutions to be able to cooperate where the systems are different, mainly for extradition, linked to the question of the death penalty, and for data protection. US officials thus reject the criticism concerning US rules on data protection, and the "obstacle" to extradition represented, for Europeans, by the death penalty. "The death penalty should not be an obstacle for extradition", said one US official, specifying that if a country requests assurance that the death penalty will not be applied to a person for whom Washington demands extradition, the United States will "take this request very seriously, and, where possible, will give its assurance through instructions to the prosecutor or the judge himself".
Discussion on Data Protection - Negotiating Agreements between Europol and the US
The question of data protection is an issue of considerable importance when it comes to signing agreements between the European Police Office (Europol) and US agencies. One US source said that there were differences in the two systems but that they were working towards a "common approach" and "it was false to say that the US are less strict". Europeans are critical of the multitude of different investigation agencies and police bureaux existing in the US. One European diplomat exclaimed that, "When we send data, we don't know where its going to". A certain amount of annoyance has been expressed by some Americans towards the European attitude; "there isn't a single authority but the rules are strict; it is necessary to try and find out if the principles are the same or not, rather than trying to find a system that mirrors their own, which is what the Europol Convention is presently doing". The US also emphasises that this is not just a question that relates to Europol but also to more general legal and police fields and hopes that it won't take years to resolve. The objectives set by Member States on their scoreboard in the war against terrorism is to reach an agreement between Europol and the American agencies on data exchange, before the end of the year.
Gilles Leclair, one of the four Assistant Directors at Europol, believes that one way of sorting out the problem of the numerous different federal agencies, which prevent any chance of there being one centralised data exchange agency, would be to establish specific agreements for every agency depending on the type of information it processes: one with the FBI, one with the agency against drug trafficking, one for the fight against counterfeiting and forgery etc. Leclair believes that as well as signing a technical agreement, they will also move closer to signing a number of different agreements that are being prepared and organise an exchange of one or two Europol and US liaison officers. Member States should normally give Europol a mandate to negotiate at the Council of 6-7 December, aware that EU sources are stressing the need for a general agreement establishing the main rules before any other agreements with other agencies are reached. The first agreement, which focuses on analysis sharing and does not involve data exchange, may be submitted to the European Union at the Justice and Internal Affairs Council on 16 November or (more likely) on 6 December. Washington and Europol have already given it the green light.
US officials pointed out that co-operation between EU Member States was always intensive because they were experienced in such matters, whereas co-operation with Europol was still in its infancy.