Sophie In't Veld

Anti-Terror Political Oversight & Transparency Essential

Sophie In't Veld

“If we accept the principle that the mere request for secrecy by a third country to classify a document means it is secret, it is denying access to citizens, but also to MEPs, that is ridiculous. There is no political oversight. America would not tolerate that,” said Dutch Liberal MEP, Sophie In’t Veld, ALDE, Vice Chair of the Committee on Civil Liberties, Justice and Home Affairs (LIBE).

Where I grew up, writes Brian Maguire, the very street of my childhood, one man’s terrorist was another man’s freedom fighter. I don’t remember anyone ever saying one uniform was good and another bad, but as a child, if someone was hiding in the shadows, they were bad. The more visible they were, the less intimidating they seemed. No one ever said, as best as I recall, as a child, ‘the police are good’ and ‘the IRA, bad’, but that’s what I understood. The shadows were scary, breach of secrecy, deadly.

Today, they’re in government, the shadows, in Northern Ireland, in suits, without masks, and too visible, sometimes supping at the White House, the people who killed and maimed family of friends. In Europe, we think we know terrorism when we see it.

In Hungary, still part of the European Union despite Viktor Orban, this EU Member State tolerates a member of the third largest political party in Parliament calling for the creation of a Jewish list. Bloomberg reported: “Jobbik, the third-biggest party in the Hungarian Parliament, held a demonstration on the eve of the World Jewish Congress meeting in Budapest to “commemorate the victims of Zionism and Bolshevism.” One of its lawmakers, Marton Gyongyosi, on Nov. 26 called for a list of Jewish legislators and government members who pose a “national security risk.” Bloomberg Article

Terrorism today is as contrived a phrase as pornography. We think we know it when we see it, but legislating to prevent the destruction of terrorism is almost as impossible as legislating to prevent the exploitation of pornography; in the end, we are compelled to cliche, and in any parliamentary chamber one man’s terrorist is presented as another man’s freedom fighter. Which, is why, despite the obvious benefits of data mining, excessive secrecy and lack of transparency are a risk to democracy. Daylight exposes fascism and abuse of power, excessive secrecy undermines stability and freedom.

This week in the European Parliament, GUE/NGL MEP, Kyriacos Triantaphyllides said: “The EU-US TFTP (Terrorism Finance Tracking Programme) agreement must be suspended. This agreement has been clearly used to send massive amounts of personal data in bulk, something the agreement was supposed to make impossible. It should be suspended. At the very least, we would like a revision of core article 4 of the agreement, and much stricter conditions for transfer combined with much more stringent control on the EU side.”

Dutch Liberal MEP, Sophie In’t Veld, ALDE, Vice Chair of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), said: “If we accept the principle that the mere request for secrecy by a third country to classify a document means it is secret, it is denying access to citizens, but also to MEPs, that is ridiculous. There is no political oversight. America would not tolerate that.”

“My party is one of the strongest advocates of a more integrated Europe. I am in favour of Europol developing into a fully-fledged European police force, but within a framework of all the normal transparency rules, due process, democratic oversight, and that is not the case, it is kind of in a democratic twilight zone, where they operate as a quasi-federal police force. They have agreements with Russia, for the exchange of personal data. Parliament should be more concerned about this.”

Addressing Parliament’s Civil Liberties Committee, MEP Cornelia Ernst also expressed outrage at the complete classification of the report. “Citizens have the right to be able to see if the data protection standards that are there to protect their personal data are upheld. It is urgent that we ensure that Europol is in compliance with the relevant regulations and can guarantee the rights of individuals in the handling and exchange of the extensive amounts of information on EU citizens in its possession.”

The conclusions by the Joint Supervisory Board – the body that monitors whether Europol is adequately implementing the TFTP agreement on data protection grounds – were set out by the board’s Chair Nataša Pirc Musar, but that’s small comfort for libertarians when told that the shadows are only the movement of light. Those who have seen the light, they say all is well, and we just have to believe them. The gatekeepers are neither, directly elected or clearly accountable. But, it’s all about fighting terrorism, so transparency… well, that’s a bit risky.

Except that on February 26 2012, Danish newspaper Berlingske reported the confiscation of $26,000 belonging to a Danish national. The wretched terrorist was transferring the cash from a Danish bank to a German bank to pay for a batch of Cuban cigars. The cigars had been imported into Germany by a German business. The United States Treasury maintained the Dane had violated the United States embargo against Cuba. One man’s terrorist is another man’s urbane gent with a lung problem.

The United States Treasury responded to European Business Express stating that: “These U.S. Treasury Department efforts have not only disrupted terrorist networks, they have saved lives. Since the start of the program, the TFTP has provided thousands of valuable leads to U.S. Government agencies and other governments, including in Europe, that have aided in the prevention or investigation of many of the most visible and violent terrorist attacks and attempted attacks of the past decade.”

In case you want to skip reading the Agreement, the U.S. Treasury remarked: “The 2010 U.S.-EU TFTP Agreement provides for an important role for Europol in verifying that U.S. requests for data transmitted from the European Union comply with the requirements of the Agreement. The U.S. has complied fully with its obligations under the TFTP Agreement to provide appropriate information to allow Europol to make an informed judgment on verification.”

And if you are afraid of the shadows, Treasury has some soothing words: “The U.S. continues to work tirelessly to ensure that we are meeting all our obligations under the Agreement, and our requests for data are fully in compliance with the Agreement. In this regard, we have coordinated closely with Europol since the adoption of the Agreement and will continue to do so. When Europol has asked for additional clarifying information, the U.S. Government has been fully responsive.”

A Treasury spokesman added: “The U.S. is commitment to full and robust implementation of all of the safeguards contained in the TFTP Agreement is reflected in the positive outcomes of the February 2011 and October 2012 joint reviews conducted pursuant to Article 13 of the Agreement. With respect to the Europol verification mechanism in particular, the EU delegation to the October 2012 joint review concluded that “the application of Article 4 has now reached an entirely satisfactory level, and that Europol is fully accomplishing its tasks pursuant to Article 4.”

OK, breathe easy. Somebody is checking stuff. Well, two people. It used to be one, but now there are two. Two European Commission officials sitting in a U.S. Treasury building in Washington checking each and every request, it’s what many MEPs wish upon Commission officials, but it’s May, and the cherry blossoms have been out, so when they’re not checking TFTP, they can walk the Mall. Though, maybe it’s worth checking the math on this and asking how carefully the checks are done.

How many checks are done? Thousands, perhaps, we just don’t know. By how many people? Two scrutineers, in a Treasury building in Washington. On the plus side, that’s the most effective job creation programme to come out of the Commission recently – but don’t tell Olli, or it’ll be back to one.

Transparency is not the only issue bugging MEPs this week. The big chip on political shoulders was the bulk transfer of data. However, European Commission sources said: “In 2010, when we signed the agreement, and when you read the agreement, it is about the transfer of bulk data. That is the only way to do proper analysis.”

The Commission source said: “A good example of how this works is the terrorist attack in Norway by Anders Breivik. The Americans were asked to do the analysis, but to do the analysis they need bulk data, and to do that they need all the data on Anders Breivik. So they got the name of the person who made the wire transfer, and it goes like this, one after the other. To do proper analysis, you need bulk data it is the essence, the core of the agreement. Issues relating to bulk data are, understandably, why the Parliament didn’t like the agreement when first presented, and why it was so difficult to get the votes, but at the end of the day they were convinced of the value of the TFTP.”

In terms of transparency, the European Commission source remarked: “It is true that one of the problems is that a lot of the data is classified because it relates to on-going terrorist investigation. It’s true that the access is limited, so there is some degree of frustration. Behind closed doors some cases have been shown, to demonstrate the added value of the agreement. However, the classification of data is an issue, because the Americans classify data very quickly, and so that limits, to some extent, the flow of information to the Parliament.”

They added: “We are trying to have more dialogue with the Americans to avoid too strict an approach to classification. But, it’s important to remember, the Americans are doing the job for us. A lot of the Member States, as soon as they have a terrorist suspect, they ask the Americans to do the analysis, it’s real partnership. The British, French, German intelligence will tell you they have used this system.”

“Europe has looked closely at developing its own software, and the Commission was required to check to see if we could develop our own, essentially so that we could limit the transfer of data to the US. We did look at this and it was proving very costly, a response which the Commission communicated to Parliament.”

Parliamentarians have complained they have little option but to complain, and perhaps be ignored. In the immediate term, they may have to live with the shadow, but the Agreement stands for five years, and is due for renewal in 2015, on an automatic roll-over unless there is an objection by either party. To terminate or suspend the Agreement requires six months notice, during which time opportunity must be given for dialogue and a mutual agreeable resolution.

Article 21 of the Agreement deals with its suspension or termination, It provides that: “1. Either Party may suspend the application of this Agreement with immediate effect, in the event of breach of the other Party’s obligations under this Agreement, by notification through diplomatic channels. 2. Either Party may terminate this Agreement at any time by notification through diplomatic channels. Termination shall take effect six (6) months from the date of receipt of such notification. 3. The Parties shall consult prior to any possible suspension or termination in a manner which allows a sufficient time for reaching a mutually agreeable resolution. 4. Notwithstanding any suspension or termination of this Agreement, all data obtained by the U.S. Treasury Department under the terms of this Agreement shall continue to be processed in accordance with the safeguards of this Agreement, including the provisions on deletion of data.”

The European Parliament rolled over on Passenger Name Records late last year, Parliament allowing a blatant imbalance in reciprocal rights for European citizens, fearful of the consequences if they denied the United States the Agreement it sought.

A tougher stance would have been a risk, but would have enhanced the European Parliament as a serious negotiating partner and a defender of European rights. Instead, it proved itself afraid of the shadows. Europe wants and needs the Terrorism Finance Tracking Programme, but it needs also to ensure a stronger application of good law, guided by reality, not afraid of the shadows. More transparency is needed.

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