Order Code RS22030
Updated October 16, 2006
CRS Report for Congress
Received through the CRS Web
U.S.-EU Cooperation Against Terrorism
Kristin Archick
Specialist in European Affairs
Foreign Affairs, Defense, and Trade Division
Summary
The September 11, 2001, terrorist attacks gave new momentum to European Union
(EU) initiatives to improve law enforcement cooperation against terrorism both among
its 25 member states and with the United States. Washington has largely welcomed
these efforts, recognizing that they may help root out terrorist cells and prevent future
attacks. However, the United States and the EU continue to face several challenges as
they seek to promote closer cooperation in the police, judicial, and border control fields.
This report will be updated as needed. For more information, see CRS Report RL31509,
Europe and Counterterrorism: Strengthening Police and Judicial Cooperation, by
Kristin Archick.
Background on EU Efforts Against Terrorism
The September 11, 2001, terrorist attacks on the United States and the subsequent
revelation of Al Qaeda cells in Europe gave new momentum to EU initiatives to combat
terrorism and other cross-border crimes. For many years, EU efforts to address such
challenges were hampered by national sovereignty concerns, insufficient resources, and
a lack of trust among law enforcement agencies. Immediate European efforts following
September 11 to track down terrorist suspects and freeze financial assets, often in close
cooperation with U.S. authorities, produced numerous arrests, especially in Belgium,
France, Germany, Italy, Spain, and the United Kingdom. Germany and Spain were
identified as key logistical and planning bases for the attacks on the United States. As a
result, European leaders recognized that the largely open borders within the then-15
member EU and Europe’s different legal systems enabled some terrorists and other
criminals to move around easily and evade arrest and prosecution.1
Since the 2001 attacks, the EU has sought to speed up its efforts to harmonize
national laws and bring down barriers among member states’ law enforcement authorities
1 The EU enlarged from 15 to 25 members on May 1, 2004. The 25 members are Austria,
Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal,
Slovakia, Slovenia, Spain, Sweden, and the United Kingdom.
Congressional Research Service ˜ The Library of Congress
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so that information can be meaningfully shared and suspects apprehended expeditiously.
Among other steps, the EU has established a common definition of terrorism and a list of
terrorist groups, an EU arrest warrant, enhanced tools to investigate terrorist financing,
and new measures to strengthen external EU border controls. The EU has been working
to bolster Europol, its fledgling joint criminal intelligence body, and Eurojust, a unit
charged with improving prosecutorial coordination in cross-border crimes.
The March 2004 terrorist bombings in Madrid injected a greater sense of urgency
into EU counterterrorism efforts, and gave added impetus to EU initiatives aimed at
improving travel document security and impeding terrorist travel. In the wake of the
Madrid attacks, the EU also created a new position of Counterterrorist Coordinator. Key
among the Coordinator’s responsibilities are enhancing intelligence-sharing among EU
members and promoting the implementation of already agreed EU anti-terrorism policies,
some of which have bogged down in the legislative processes of individual members.
The July 2005 terrorist attacks on London’s mass transport system prompted
additional EU efforts to improve police, judicial, and intelligence cooperation. In
December 2005, the EU adopted a new EU counterterrorism strategy outlining EU goals
to prevent, protect, pursue, and respond to the international terrorist threat. The EU also
set out a plan to combat radicalization and terrorist recruitment. And following the plot,
foiled in August 2006, to bomb airliners flying from the UK to the United States, the EU
reached political agreement on a package of new measures to improve and harmonize air
security among its 25 member states.
U.S.-EU Counterterrorism Cooperation: Progress to Date
As part of the EU’s efforts to combat terrorism since September 11, the EU has made
improving law enforcement cooperation with the United States a top priority. The Bush
Administration and Members of Congress have largely welcomed this EU initiative in the
hopes that it will help root out terrorist cells in Europe and beyond that could be planning
other attacks against the United States or its interests. This is in line with the 9/11
Commission’s recommendations that the United States should develop a “comprehensive
coalition strategy” against Islamist terrorism, “exchange terrorist information with trusted
allies,” and improve border security through better international cooperation. Some
measures in the resulting Intelligence Reform and Terrorism Prevention Act of 2004 (P.L.
108-458) mirror these sentiments and are consistent with U.S.-EU counterterrorism
efforts, especially those aimed at improving border controls and transport security.
Developing U.S.-EU Links. Contacts between U.S. and EU officials — from the
cabinet level to the working level — on police, judicial, and border control policy matters
have increased substantially since September 11, 2001, and have played a crucial role in
developing closer U.S.-EU ties. The U.S. Departments of State, Justice, Homeland
Security, and Treasury have been actively engaged in this process. The Secretary of State,
U.S. Attorney General, and Secretary of Homeland Security meet at the ministerial level
with their respective EU counterparts at least once a year, and a U.S.-EU working group
of senior officials meets once every six months to discuss police and judicial cooperation
against terrorism. Europol has posted two liaison officers in Washington, and the United
States has stationed an FBI liaison officer in The Hague, Netherlands to work with
Europol on counterterrorism. U.S. and EU officials have also bridged many gaps in their
respective terrorist lists and have developed a regular dialogue on terrorist financing. A
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U.S. Secret Service liaison posted in The Hague works with Europol on counterfeiting
issues. In addition, the United States and the EU have established a high-level policy
dialogue on border and transport security to discuss issues such as passenger data-sharing,
cargo security, biometrics, visa policy, and sky marshals.2
New Police and Judicial Cooperation Agreements. U.S.-EU efforts against
terrorism have produced a number of new accords that seek to improve police and judicial
cooperation. In 2001 and 2002, two U.S.-Europol agreements were concluded to allow
U.S. law enforcement authorities and Europol to share both “strategic” information (threat
tips, crime patterns, and risk assessments) as well as “personal” information (such as
names, addresses, and criminal records). U.S.-EU negotiations on the personal
information accord proved especially arduous, as U.S. officials had to overcome worries
that the United States did not meet EU data protection standards. The EU considers the
privacy of personal data a basic right, and EU regulations are written to keep such data
out of the hands of law enforcement authorities as much as possible.
In June 2003, the United States and the EU signed two treaties on extradition and
mutual legal assistance (MLA) to help simplify the extradition process and promote better
prosecutorial cooperation. The U.S. death penalty and the extradition of EU nationals
posed particular challenges in these negotiations. Washington effectively agreed to EU
demands that suspects extradited from the EU will not face the death penalty, which EU
law bans. U.S. officials also relented on their initial demands that the treaty guarantee the
extradition of any EU national. They stress, however, that the extradition accord
modernizes and harmonizes existing bilateral extradition agreements with individual EU
members. The MLA treaty will provide U.S. authorities access to European bank account
information, speed MLA request processing, and permit joint investigations. The treaties
must now be transposed into national law by EU members and be ratified by the U.S.
Senate before they can enter into force. In September 2006, President Bush transmitted
the EU-wide extradition and MLA treaties to the Senate for its advice and consent.3
Border Control and Transport Security. The United States and the EU have
been placing increasing emphasis on cooperation in the areas of border control and
transport security, as seen by the creation of the high-level policy dialogue on these issues.
Several agreements have also been concluded. In April 2004, the United States and EU
signed a customs cooperation accord; among other measures, it calls for extending the
U.S. Container Security Initiative (CSI) throughout the Union. CSI stations U.S. customs
officers in foreign ports to help pre-screen U.S.-bound cargo containers to ensure that they
do not contain dangerous substances such as weapons of mass destruction.
In May 2004, the United States and EU reached an agreement permitting airlines
operating flights to or from the United States to provide U.S. authorities with passenger
2 On the U.S. side, the State Department has the lead in managing the interagency policymaking
process toward enhancing U.S.-EU police, judicial, and border control cooperation, while the
Justice and Homeland Security Departments provide the bulk of the legal and technical expertise.
The Treasury Department has the lead on efforts to suppress terrorist financing.
3 The White House also transmitted for Senate ratification separate bilateral instruments signed
by the United States and individual EU member states that reconcile the terms of existing
bilateral extradition and MLA treaties with the new EU-wide treaties.
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name record (PNR) data in their reservation and departure control systems within 15
minutes of a flight’s departure. This accord was controversial because of fears that it
compromised EU citizens’ data privacy rights. As a result, the European Parliament
lodged a case against the PNR agreement in the EU Court of Justice; in May 2006, the
Court annulled the PNR accord on grounds that it had not been negotiated on the proper
legal basis. EU officials stressed, however, that the Court did not rule that the agreement
infringed on EU citizens’ fundamental rights with regard to data protection. In October
2006, the United States and the EU concluded negotiations on a new, interim agreement
to ensure the continued transfer of PNR data. U.S. officials appear pleased with this new
deal, which will allow U.S. Customs and Border Protection to share PNR data with other
U.S. agencies engaged in the fight against terrorism, such as the FBI. This latest
agreement will expire in July 2007; U.S. and EU negotiators are expected to continue
working on a more comprehensive and permanent PNR deal.4
The United States and the EU have also pledged to enhance international information
exchanges on lost and stolen passports and to promote travel document security through
the use of interoperable biometric identifiers. Cooperation on biometric identifiers is
aimed in part at minimizing U.S.-EU conflicts over new U.S. rules for its Visa Waiver
Program (VWP). U.S. law had initially set October 2004 as the deadline for VWP
countries to begin issuing machine-readable passports with biometric identifiers, but
Congress twice extended the deadline for biometric requirements in VWP passports to
give VWP countries more time to resolve technical issues. VWP passports issued after
October 2005 must contain a digital photograph, and those issued after October 2006
must include microchips capable of storing biographic information.5
The United States and the EU reportedly continue to discuss the use of armed air
marshals on some transatlantic flights. U.S. requirements issued in December 2003 for
countries to deploy armed marshals on certain flights to and from the United States were
contentious in Europe. Some European countries claimed that guns on board planes
would increase the security risks, while others — such as the U.K. and France — were
more receptive. In April 2004, U.S. officials pledged to consider alternative measures that
could be put in place for European countries opposed to armed air marshals, and U.S. and
EU officials agreed that cancelling flights should be a measure of last resort.6 In
November 2004, U.S. and EU officials agreed to exchange information about aviation
security technologies, such as airline countermeasures against shoulder-fired ground-to-air
missiles known as Man-Portable Air Defense Systems (MANPADs).
Ongoing Challenges
Despite U.S.-EU strides since 2001 to foster closer counterterrorism and law
enforcement cooperation, and a shared commitment to do so, some challenges remain.
Some U.S. officials doubt the utility of collaborating with EU-wide bodies given good
4 “EU, U.S. Clinch Air Passenger Data Deal,” Agence France Presse, Oct. 6, 2006.
5 Fifteen of the EU’s 25 members participate in the VWP, which allows short-term travel to the
United States without a visa. For more information, see CRS Report RL32221, Visa Waiver
Program, by Alison Siskin.
6 “U.S. Conciliatory in Air Marshal Demands,” Associated Press, Apr. 26, 2004.
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existing bilateral relations between the FBI and CIA (among other agencies) and national
police and intelligence services in individual EU member states. Many note that Europol
and Eurojust lack enforcement capabilities, and that national services are often reluctant
to share information with each other, let alone with U.S. authorities. Meanwhile,
European officials complain that the United States expects intelligence from others, but
does not readily share its own. Some suggest that the United States and the EU also need
to address security and legal impediments to using intelligence information in courts of
law. Other analysts point out that European opposition to the U.S. death penalty or
resistance to handing over their own nationals may still slow or prevent the extradition
of terrorist suspects. And some differences persist in the U.S. and EU terrorist lists. For
example, some EU members continue to resist U.S. entreaties to add suspected Hamas-
related charities or the Lebanon-based Hizballah to the EU’s common terrorist list.
Differences in the U.S.-EU data protection regimes have also complicated closer
cooperation on border controls and travel security. Washington would like to establish
an umbrella agreement in which the EU would largely accept U.S. data privacy standards
as adequate and permit the routine transfer of personal data between EU and U.S. law
enforcement. The EU resists this idea, claiming that only tailored agreements will
guarantee an “added level of protection” for EU citizens against possible U.S.
infringements of their privacy rights. They point out that it would be burdensome for EU
citizens to gain redress for any wrongs committed through the U.S. judicial system.
Some U.S. analysts assert that the Europol and PNR agreements establish U.S. data
protection “adequacy” in practice and predict that similar U.S.-EU efforts in the future
to improve information-sharing will face fewer hurdles. Others are more skeptical, noting
that the PNR accord continues to face opposition from some European Parliamentarians
and European civil liberty and privacy groups. At the same time, U.S. officials would like
to receive more PNR information before — not after — flights depart Europe; the new
PNR agreement reportedly will allow the United States time to access PNR data earlier
when there is an indication of a specific threat to flights bound for the United States.7
Another challenge confronting U.S. and EU officials is finding a balance between
improving border security and facilitating legitimate transatlantic travel. European leaders
worry that visa-free travel could become a larger sticking point. New EU members are
eager to join the VWP, and the EU would like to see all 25 members treated equally.
U.S. officials claim that most new members do not yet meet the VWP’s requirements but
have pledged to continue discussions on extending the program. Observers caution that
some EU members may ultimately press for retaliatory EU visa requirements on U.S.
citizens if they continue to be rebuffed by Washington. In October 2006, the European
Commission, as the EU’s executive, recommended that the EU impose visa requirements
on U.S. diplomats because of Washington’s failure to extend the VWP. EU members
have not backed this call, fearing that a visa war would result in a serious deterioration
of transatlantic ties. While some Members of Congress have expressed skepticism about
the continuation of the VWP in general because of security concerns, other Members are
7 “Homeland Security Secretary Chertoff Issues Statement on Passenger Name Record Agreement
with European Union,” U.S. Fed News, Oct. 6, 2006.
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more supportive of extending the VWP to new EU members in Central and Eastern
Europe, given their roles as U.S. allies in NATO and in the fight against terrorism.8
Some analysts suggest that transatlantic tensions could negatively affect future U.S.-
EU cooperation against terrorism. Differences in U.S. and European approaches to
countering terrorism have become more evident as Washington has broadened the war
against terrorism beyond Al Qaeda and Afghanistan. Most EU members continue to view
terrorism primarily as an issue for law enforcement and political action rather than a
problem to be solved by military means. Europeans are increasingly worried that the
United States is losing the battle for Muslim “hearts and minds” because of the war in
Iraq, past prisoner abuse at Abu Ghraib, and the detentions of terrorist suspects at
Guantánamo Bay. The EU has also expressed concerns about a November 2005
Washington Post report of alleged “secret” CIA prisons for terrorist suspects in some
eastern European member states and the U.S. practice of rendition; the European
Parliament has established a special committee to investigate these allegations. Despite
these frictions, others argue that Europe remains vulnerable to terrorist attacks, and law
enforcement cooperation will continue because it serves both EU and U.S. interests.
U.S. Perspectives and Issues for Congress
The Bush Administration and many Members of Congress have supported efforts
to enhance U.S.-EU cooperation against terrorism. Although some skeptics worry that
such U.S.-EU collaboration could weaken strong bilateral law enforcement relationships
with individual EU member states, the Bush Administration appears to have determined
that the political benefits of engaging the EU as an entity on police and judicial matters
outweigh the potential risks. U.S. officials say that the Union’s renewed initiatives in the
police and judicial field may be the first steps on a long road toward a common EU
judicial identity. Thus, they assert it is in U.S. interests to engage with the EU, given
Europe’s role as a key U.S. law enforcement partner. They also hope that improved U.S.-
EU cooperation on border controls and transport security will help authorities on both
sides keep better track of suspected terrorists and prevent them from entering the United
States or finding sanctuary in Europe. The new U.S.-EU high-level dialogue on border
and transport security also seeks to establish a forum in which each side can provide the
other with “early warning” of and input on emerging legislative proposals in these areas.
A salient issue for Congress will be whether the U.S.-EU agreements on extradition
and mutual legal assistance add value to the existing bilateral accords on these issues that
Washington already has with most EU member states. U.S. officials stress that the U.S.-
EU-wide treaties protect all U.S. bilateral agreements and merely update or strengthen the
existing accords; they do not reduce the existing accords to the level of the lowest
common EU denominator. Congressional decisions related to improving U.S. travel
document security and border controls may also affect how U.S.-EU cooperation evolves
in these fields. The U.S. Congress-European Parliament Transatlantic Legislators
Dialogue may offer a useful forum for enhancing consultations in these areas.
8 “EU Says New Members Will Have Visa-free Travel by June ‘08,” Associated Press, Oct. 5,
2006.