U.S.-EU Cooperation Against Terrorism
Kristin Archick
Specialist in European Affairs
July 18, 2011
Congressional Research Service
7-5700
www.crs.gov
RS22030
CRS Report for Congress
P
repared for Members and Committees of Congress
U.S.-EU Cooperation Against Terrorism
Summary
The September 11, 2001, terrorist attacks gave new momentum to European Union (EU)
initiatives to combat terrorism and improve police, judicial, and intelligence cooperation among
its 27 member states. 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 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
common list of terrorist groups, an EU arrest warrant, enhanced tools to stem terrorist financing,
and new measures to strengthen external EU border controls and improve aviation security.
As part of its drive to bolster its counterterrorism capabilities, the EU has also made promoting
cooperation with the United States a top priority. Washington has largely welcomed these efforts,
recognizing that they may help root out terrorist cells and prevent future attacks against the
United States or its interests abroad. U.S.-EU cooperation against terrorism has led to a new
dynamic in U.S.-EU relations by fostering dialogue on law enforcement and homeland security
issues previously reserved for bilateral discussions. Contacts between U.S. and EU officials on
police, judicial, and border control policy matters have increased substantially since 2001. A
number of new U.S.-EU agreements have also been reached; these include information-sharing
arrangements between the United States and EU police and judicial bodies, two new U.S.-EU
treaties on extradition and mutual legal assistance, and accords on container security and airline
passenger data. In addition, the United States and the EU have been working together to clamp
down on terrorist financing and to strengthen aviation and transport security. Despite the death of
Al Qaeda leader Osama bin Laden in May 2011, both the United States and the EU maintain that
continued vigilance against terrorism remains essential.
Nevertheless, some challenges persist in fostering closer U.S.-EU counterterrorism and law
enforcement cooperation. Data privacy has been and continues to be a key sticking point. In
February 2010, the European Parliament (EP) rejected a U.S.-EU agreement—known as the
SWIFT accord—that would have continued allowing U.S. authorities access to financial data
stored in Europe to help combat terrorism on the grounds that it did not contain sufficient
protections to safeguard the personal data and privacy rights of EU citizens. Although the EP
approved a revised U.S.-EU SWIFT agreement in July 2010, some Members of the European
Parliament—for many years and for similar reasons—have also challenged a U.S.-EU agreement
permitting airlines to share passenger name record (PNR) data with U.S. authorities. U.S. and EU
officials have negotiated some revisions to the existing PNR accord in an effort to assuage EP
concerns. Other issues that have led to periodic U.S.-EU tensions include terrorist detainee
policies, differences in the U.S. and EU terrorist designation lists, and balancing border security
with legitimate transatlantic travel and commerce.
Congressional decisions related to improving border controls and transport security, in particular,
may affect how future U.S.-EU cooperation evolves. In addition, given the European Parliament’s
growing influence in many of these policy areas, Members of Congress may be able to help shape
Parliament’s views and responses through ongoing contacts and the existing Transatlantic
Legislators’ Dialogue (TLD). This report examines the evolution of U.S.-EU counterterrorism
cooperation and the ongoing challenges that may be of interest in the 112th Congress.
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U.S.-EU Cooperation Against Terrorism
Contents
Background on European Union Efforts Against Terrorism.......................................................... 1
U.S.-EU Counterterrorism Cooperation: Progress to Date and Ongoing Challenges ..................... 3
Developing U.S.-EU Links.................................................................................................... 4
New Law Enforcement and Intelligence Cooperation Agreements ......................................... 4
Tracking and Suppressing Terrorist Financing ....................................................................... 5
Promoting Information-Sharing and Protecting Data Privacy................................................. 6
The U.S.-EU SWIFT Accord........................................................................................... 7
Passenger Name Record (PNR) Data............................................................................... 9
U.S.-EU Framework Agreement on Data Protection ...................................................... 11
Strengthening Border Controls and Transport Security ........................................................ 12
Aviation and Air Cargo Security.................................................................................... 12
Maritime Cargo Screening ............................................................................................ 14
Visa Waiver Program (VWP) ........................................................................................ 15
Detainee Issues and Civil Liberties...................................................................................... 16
U.S. Perspectives and Issues for Congress ................................................................................. 17
Contacts
Author Contact Information ...................................................................................................... 18
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U.S.-EU Cooperation Against Terrorism
Background on European Union 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 European Union (EU) initiatives to combat
terrorism and improve police, judicial, and intelligence cooperation. The EU is a unique
partnership that defines and manages economic and political cooperation among its 27 member
states; the EU is the latest stage in a process of European integration begun in the 1950s to
promote peace and economic prosperity.1 The EU has long sought to harmonize policies among
its members in the area of “justice and home affairs” (or JHA) as part of the Union’s drive toward
further integration. Efforts in the JHA field are aimed at fostering common internal security
measures while protecting the fundamental rights of EU citizens and promoting the free
movement of persons within the EU.
Among other policy areas, JHA encompasses countering terrorism and other cross-border crimes,
police and judicial cooperation, border controls, and immigration and asylum issues. For many
years, however, EU attempts to forge common JHA policies were hampered by member state
concerns that doing so could infringe on their national legal systems and national sovereignty.
Insufficient resources and a lack of trust among member state law enforcement agencies also
impeded progress in the JHA area.
The 2001 terrorist attacks changed this status quo and served as a wake-up call for EU leaders
and member state governments. In the weeks after the attacks, European law enforcement efforts
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 EU’s largely
open borders and Europe’s different legal systems enabled some terrorists and other criminals to
move around easily and evade arrest and prosecution. For example, at the time of the 2001
attacks, most EU member states lacked anti-terrorist legislation, or even a legal definition of
terrorism. Without strong evidence that a suspect had committed a crime common to all countries,
terrorists or their supporters were often able to avoid apprehension in one EU country by fleeing
to another with different laws and criminal codes. Moreover, although suspects could travel
among EU countries quickly, extradition requests often took months or years to process.
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 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 stem terrorist financing, and new measures to strengthen external EU border
controls and improve aviation security. The EU has been working to bolster Europol, its joint
1 The 27 members of the EU are Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland,
Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. For more information on the EU, its
institutions, and policies, see CRS Report RS21372, The European Union: Questions and Answers, by Kristin Archick
and Derek E. Mix.
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criminal intelligence body, and Eurojust, a unit charged with improving prosecutorial
coordination in cross-border crimes in the EU.
The March 2004 terrorist bombings in Madrid and the July 2005 attacks on London’s metro
system injected a greater sense of urgency into EU counterterrorism efforts, and gave added
impetus to EU initiatives aimed at improving transport security, impeding terrorist travel, and
combating Islamist extremism. In the wake of the Madrid attacks, the EU created the 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 member states. Following the London attacks, the EU adopted a new counterterrorism
strategy outlining EU goals to “prevent, protect, pursue, and respond to the international terrorist
threat,” as well as a plan to combat radicalization and terrorist recruitment.
Over the last several years, the EU has continued working to strengthen its counterterrorism
capabilities and further improve police, judicial, and intelligence cooperation among its member
states. In 2008, the EU expanded its common definition of terrorism to include three new
offenses: terrorist recruitment, terrorist training, and public provocation to commit terrorism,
including via the Internet. Among other recent initiatives, the EU has been seeking to improve the
security of explosives and considering the development of an EU-wide system for the exchange
of airline passenger data. In February 2010, the EU issued its first-ever internal security strategy,
which highlights terrorism as a key threat facing the EU and aims to develop a coherent and
comprehensive EU strategy to tackle not only terrorism, but also a wide range of organized
crimes, cybercrime, money laundering, and natural and man-made disasters. Despite the death of
Al Qaeda leader Osama bin Laden in Pakistan in early May 2011, many terrorism experts expect
that the “Al Qaeda narrative” will likely continue to attract both European and non-European
followers and that continued vigilance against terrorism remains essential.
Most observers view the EU as having made rapid progress since 2001 on forging political
agreements on many counterterrorism initiatives and others in the JHA field that had been
languishing for years. Indeed, the pace has been speedy for the EU, a traditionally slow-moving
body because of its intergovernmental nature and largely consensus-based decision-making
processes. Until recently, most decisions in the JHA field required the unanimous agreement of all
27 member states. However, the EU’s new institutional reform treaty—the Lisbon Treaty, which
entered into force in December 2009—allows member states to use a qualified majority voting
system for most JHA decisions in a bid to strengthen JHA further and speed EU decision-making.
In practice, experts say that EU member states will likely still seek consensus as much as possible
on sensitive JHA policies, such as those related to countering terrorism. The Lisbon Treaty also
strengthens the role of the European Parliament, a key EU institution, in JHA policy-making by
giving it the right to approve or reject most JHA-related legislation.2
2 The Lisbon Treaty also adds an “emergency brake” that allows any member state to halt certain JHA measures it
views as threatening its national legal system, and ultimately, to opt out. Despite these safeguards, the UK and Ireland
essentially negotiated the right to choose those JHA policies they want to take part in and to opt out of all others;
Denmark extended its existing opt-out in some JHA areas to all JHA issues. The Lisbon Treaty technically renames
JHA as the “Area of Freedom, Security, and Justice,” although JHA remains the more commonly-used term. For more
information on the Lisbon Treaty, see CRS Report RS21618, The European Union’s Reform Process: The Lisbon
Treaty, by Kristin Archick and Derek E. Mix.
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Despite the political commitment of EU leaders to promote cooperation in the JHA field and to
improve the EU’s collective ability to better combat terrorism, forging common internal security
policies has been challenging. Implementation of EU policies in the JHA field is up to the
member states, and, as noted above, considerable lag times often exist between when an
agreement is reached in Brussels and when it is implemented at the national level. In addition, EU
member states retain national control over their law enforcement and judicial authorities, and
some national police and intelligence services remain reluctant to share information with each
other. Consequently, efforts to promote greater EU-wide cooperation against terrorism and other
cross-border crimes remain works in progress.
U.S.-EU Counterterrorism Cooperation:
Progress to Date and Ongoing Challenges
As part of the EU’s efforts to combat terrorism since September 11, 2001, the EU made
improving law enforcement cooperation with the United States a top priority. The previous Bush
Administration and many Members of Congress largely welcomed this EU initiative in the hopes
that it would help root out terrorist cells in Europe and beyond that could be planning other
attacks against the United States or its interests. Such growing U.S.-EU cooperation was 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) and in the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-
53) mirrored these sentiments and were consistent with U.S.-EU counterterrorism efforts,
especially those aimed at improving border controls and transport security.
U.S.-EU cooperation against terrorism has led to a new dynamic in U.S.-EU relations by fostering
dialogue on law enforcement and homeland security issues previously reserved for bilateral
discussions. Despite some frictions, most U.S. policymakers and analysts view the developing
partnership in these areas as positive. Like its predecessor, the Obama Administration has
supported U.S. cooperation with the EU in the areas of counterterrorism, border controls, and
transport security. At the November 2009 U.S.-EU Summit in Washington, DC, the two sides
reaffirmed their commitment to work together to combat terrorism and enhance cooperation in
the broader JHA field. In June 2010, the United States and the EU adopted a new “Declaration on
Counterterrorism” aimed at deepening the already close U.S.-EU counterterrorism relationship
and highlighting the commitment of both sides to combat terrorism within the rule of law. In June
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.”
Nevertheless, some challenges remain in the evolving U.S.-EU counterterrorism relationship.
Among the most prominent are data privacy and data protection concerns, which have
complicated a range of U.S.-EU information-sharing agreements. Other issues that have led to
periodic tensions include detainee policies, differences in the U.S. and EU terrorist designation
lists, and balancing measures to improve border controls and border security with the need to
facilitate legitimate transatlantic travel and commerce.
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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 2001, and have
played a crucial role in developing closer U.S.-EU ties. The U.S. Departments of State, Justice,
Homeland Security, and the Treasury have been actively engaged in this process.3 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.
In addition, the United States and the EU have developed a regular dialogue on terrorist financing
and 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. In
2010, U.S. and EU officials began expert-level dialogues on critical infrastructure protection and
resilience, and preventing violent extremism.
U.S. and EU agencies have also established reciprocal liaison relationships. Europol has posted
two liaison officers in Washington, DC, and the United States has stationed an FBI officer in The
Hague, Netherlands, to work with Europol on counterterrorism. A U.S. Secret Service liaison
posted in The Hague also works with Europol on counterfeiting issues. In November 2006, a U.S.
liaison position was established at Eurojust headquarters in The Hague as part of a wider U.S.-
Eurojust agreement to facilitate cooperation between European and U.S. prosecutors on terrorism
and other cross-border criminal cases.
New Law Enforcement and Intelligence 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. EU data protection concerns also reportedly slowed negotiations
over the 2006 U.S.-Eurojust cooperation agreement noted above. In April 2007, the United States
and the EU also signed an agreement that sets common standards for the security of classified
information to facilitate the exchange of such information.
In February 2010, two new U.S.-EU-wide treaties on extradition and mutual legal assistance
(MLA) entered into force following their approval by the U.S. Senate and the completion of the
ratification process in all EU member states.4 These treaties, signed by U.S. and EU leaders in
3 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.
4 In September 2006, former U.S. President George W. Bush transmitted the U.S.-EU treaties on extradition and MLA
to the Senate for its advice and consent, along with separate bilateral instruments signed by the United States and
individual EU member states that reconciled the terms of existing bilateral extradition and MLA treaties with the new
(continued...)
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2003, seek to harmonize the bilateral accords that already exist between the United States and
individual EU members, simplify the extradition process, and promote better information-sharing
and prosecutorial cooperation. Washington and Brussels hope that these two agreements will be
useful tools in combating not only terrorism, but other transnational crimes such as financial
fraud, organized crime, and drug and human trafficking.
In negotiating the extradition and MLA agreements, the U.S. death penalty and the extradition of
EU nationals posed particular challenges. 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 initial demands that the treaty guarantee the extradition of any EU national. They
stress, however, that the extradition accord modernizes existing bilateral agreements with
individual EU members, streamlines the exchange of information and transmission of documents,
and sets rules for determining priority in the event of competing extradition requests between the
United States and EU member states. The MLA treaty will provide U.S. authorities access to
European bank account and financial information in criminal investigations, speed MLA request
processing, allow the acquisition of evidence (including testimony) by video conferencing, and
permit the participation of U.S. authorities in joint EU investigations.5
Despite these growing U.S.-EU ties and agreements in the law enforcement area, some U.S.
critics continue to doubt the utility of collaborating with EU-wide bodies given good existing
bilateral relations between the FBI and CIA (among other agencies) and national police and
intelligence services in EU member states. Many note that Europol lacks enforcement
capabilities, and that its effectiveness to assess and analyze terrorist threats and other criminal
activity largely depends on the willingness of national services to provide it with information.
Meanwhile, European officials complain that the United States expects intelligence from others,
but does not readily share its own. Others contend that 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.
Tracking and Suppressing Terrorist Financing
The United States and the EU have been active partners in efforts to track and stem terrorist
financing. The two sides cooperate frequently in global forums, such as the United Nations and
the intergovernmental Financial Action Task Force, to suppress terrorist financing and to improve
international financial investigative tools. The United States and the EU both benefit from an
agreement that allows U.S. authorities access to financial data held by a Belgian-based
consortium of international banks—known as SWIFT, or the Society for Worldwide Interbank
Financial Telecommunications—as part of the U.S. Treasury Department’s Terrorist Finance
Tracking Program (TFTP). U.S. authorities have shared over 1,550 leads resulting from the
SWIFT data with European governments and many of these leads have helped in the prevention
(...continued)
EU-wide treaties. The Senate gave its advice and consent in September 2008. All EU member states also had to
transpose the terms of the U.S.-EU extradition and MLA accords into their national laws. Following the completion of
this process in all EU members, the United States and the EU exchanged the instruments of ratification for both
agreements in October 2009, thus allowing them to enter into force in 2010.
5 U.S. Department of Justice Press Release, “U.S./EU Agreements on Mutual Legal Assistance and Extradition Enter
into Force,” February 1, 2010.
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or investigation of terrorist attacks in Europe.6 However, the TFTP and the U.S.-EU agreement
permitting the sharing of SWIFT data remains controversial in Europe due to ongoing data
privacy concerns. The European Parliament has been particularly vocal in defending EU data
protection standards and attempting to safeguard the privacy rights of EU citizens. (For more
information on the U.S.-EU SWIFT agreement, see the “Promoting Information-Sharing and
Protecting Data Privacy” section below).
U.S. and EU officials have also worked together successfully since 2001 to bridge many gaps in
their respective lists of individuals and groups that engage in terrorist activities. The United States
views doing so as important not only for the symbolic value of presenting a united front, but also
because of the financial sanctions that the EU attaches to those on its common terrorist list. All
EU member states must freeze the assets of those named and ensure that financial resources are
not made available to those on its common terrorist list.
Nevertheless, some differences in the U.S. and EU terrorist designation lists persist. Most notably,
some EU members continue to resist U.S. entreaties to add the Lebanon-based Hezbollah to the
EU’s common terrorist list. The United States considers Hezbollah, which is backed by Syria and
Iran, as a Foreign Terrorist Organization and applies financial and other sanctions to the group
and its members. Those EU member states opposed to including Hezbollah on the EU’s common
list argue that doing so would be counterproductive to managing relations with Lebanon and
promoting peace and stability in the region. They note that some Lebanese consider Hezbollah a
legitimate political force (it has members in the Lebanese parliament) and that the group provides
needed social services in some of Lebanon’s poorest communities. In the past, the EU has also at
times resisted U.S. calls to add suspected Hamas-related charities to its common terrorist list;
some EU members have long viewed many of these charities as separate entities engaged in
political or social work.7
Promoting Information-Sharing and Protecting Data Privacy
Although the United States and the EU both recognize the importance of sharing information in
an effort to track and disrupt terrorist activity, data privacy has been and continues to be a key
U.S.-EU sticking point. As noted above, the EU considers the privacy of personal data a basic
right; EU data privacy regulations set out common rules for public and private entities in the EU
that hold or transmit personal data, and prohibit the transfer of such data to countries where legal
protections are not deemed “adequate.” In the negotiation of several U.S.-EU information-sharing
agreements, from those related to Europol to SWIFT to airline passenger data, some EU officials
have been concerned about whether the United States could guarantee a sufficient level of
protection for European citizens’ personal data. In particular, some Members of the European
Parliament (MEPs) and many European civil liberty groups have long argued that elements of
U.S.-EU information-sharing agreements violate the privacy rights of EU citizens.
6 U.S. Department of the Treasury, “Terrorist Finance Tracking Program: Questions and Answers,” available at
http://www.ustreas.gov.
7 The EU has listed Hamas’ military wing on its common terrorist list since 2001, and its political wing since 2003. In
2005, the EU added two charities believed to be related to Hamas to its common terrorist list. All 27 EU member states
must agree in order for a group or individual to be added to the EU’s list.
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The U.S.-EU SWIFT Accord
Controversy over Europe’s role in the U.S. Terrorist Finance Tracking Program surfaced
originally in 2006, following press reports that U.S. authorities had been granted secret access to
SWIFT financial data since 2001. In an attempt to assure Europeans that their personal data was
being protected, U.S. officials asserted that SWIFT data was used only for counterterrorism
purposes, was obtained by the U.S. Treasury Department by administrative subpoena, and that no
data mining occurred as part of the TFTP. In June 2007, the United States and the EU reached a
deal to allow continued U.S. access to SWIFT data for counterterrorism purposes, but it remained
worrisome for some European politicians and privacy groups.8
In 2009, changes to SWIFT’s systems architecture—including a reduction in the amount of data
stored on U.S. servers and the transfer of a large portion of data critical to the TFTP to a storage
location in Europe—necessitated a new U.S.-EU agreement to permit the continued sharing of
SWIFT data with the U.S. Treasury Department. In November 2009, the European Commission
(the EU’s executive) reached a new accord with the United States on SWIFT. However, under the
EU’s new Lisbon Treaty, the 736-member European Parliament (EP) gained the right to approve
or reject international agreements such as the SWIFT accord by majority vote. In February 2010,
the EP rejected this new version of the U.S.-EU SWIFT agreement by a vote of 378 to 196 (with
31 abstentions); those MEPs who opposed the accord claimed that it did not contain sufficient
protections to safeguard the personal data and privacy rights of EU citizens. Given the EP’s long-
standing concerns about SWIFT and the TFTP, many observers were not surprised that some
MEPs took the opportunity to both assert the Parliament’s new powers and to halt U.S. access to
much of the SWIFT data until their views regarding the protection of data privacy and civil
liberties were taken on board more fully.
In May 2010, the European Commission and U.S. authorities began negotiating a revised U.S.-
EU SWIFT agreement that could garner the necessary EP support for approval. Two key EP
concerns related to guaranteeing judicial remedy for European citizens in the United States in the
event of possible data abuse, and the use of “bulk data” transfers. Many MEPs wanted more
targeted transfers and less data included in any transfer, but U.S. and EU officials contended that
such “bulk” transfers were essentially how the SWIFT system worked and had to be maintained
for technical reasons. Some MEPs also called for greater supervision by an “appropriate EU-
appointed authority” over U.S. access to SWIFT data.9
In mid-June 2010, U.S. and EU officials concluded a new draft SWIFT agreement. Among other
provisions, the draft provided for the possibility of administrative and legal redress for EU
citizens in the United States and gave Europol the authority to approve or reject U.S. Treasury
Department requests for SWIFT data. Press reports indicated, however, that some MEPs were still
unhappy with several of the draft’s provisions. In order to avoid another “no” vote by the EP, EU
and U.S. officials reportedly agreed to two additional changes to the draft: effectively
guaranteeing that an independent observer appointed by the European Commission would be
based in Washington, DC, to oversee, along with SWIFT personnel, the extraction of SWIFT
8 “Frattini Claims Major Advance in Data Privacy Dispute,” European Report, June 29, 2007; David S. Cohen, U.S.
Treasury Department Assistant Secretary for Terrorism and Financial Intelligence, Remarks to the Washington Institute
for Near East Policy, April 7, 2010.
9 “MEPs Hail Historic Rejection of SWIFT Deal,” Agence Europe, February 13, 2010; “Countering Terrorist Threats—
In the Air and on the Ground,” EU Insight, April 2010; “SWIFT: Commission To Negotiate Under Pressure from EP,”
Europolitics, April 23, 2010.
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data; and requiring the European Commission to present plans for an EU equivalent to the U.S.
TFTP within a year. Such a “European TFTP” would be aimed at enabling the EU to extract
SWIFT data on European soil and send the targeted results onward to U.S. authorities, thereby
avoiding “bulk data” transfers to the United States in the longer term.10
The EP approved the latest iteration of the U.S.-EU SWIFT accord on July 8, 2010, by 484 votes
to 109 (with 12 abstentions). The agreement entered into force on August 1, 2010, for a period of
five years. Some MEPs, however, continue to be concerned about the EU’s role in the U.S. TFTP
and whether the SWIFT accord is being properly implemented. Several MEPs, for example, have
recently criticized Europol for too readily approving vague U.S. requests for SWIFT data. As part
of a review of the U.S.-EU SWIFT agreement released in March 2011, the European Commission
has recommended certain measures to help make the TFTP more transparent, including by
providing more information to Europol in writing; the United States is reportedly considering the
Commission’s recommendations.11
As part of the new SWIFT accord, the United States pledged its support and assistance in the
event of an EU decision to develop its own terrorist finance tracking program and promised
further consultations with the EU to determine whether the existing U.S.-EU SWIFT agreement
might need to be adjusted as a result. In mid-July 2011, the European Commission issued a
preliminary study with several options for establishing what it has termed a European Terrorist
Finance Tracking System (TFTS). According to a Commission press release, a European TFTS
would have two main objectives: to limit the amount of personal data transferred to the United
States; and to contribute significantly to stemming terrorist financing.12 U.S. officials will likely
be keen to ensure that any eventual European TFTS does not compromise the operational
effectiveness of the U.S.-EU SWIFT agreement.
EU development of a European TFTS, however, may face significant challenges. A concrete
legislative proposal from the Commission on the TFTS is not expected until 2012 at the earliest,
and any such proposal must ultimately be approved by both the member states and the EP. Some
observers point out that member state and EP agreement on a European TFTS may be difficult
given the technical complexities involved and differing views between and among the member
states and the EP on its purpose and scope. Some member states and MEPs have also expressed
concerns about the potential costs of such a system; in its preliminary study, the Commission
estimated that creating a European TFTS would cost €33-47 million (about $47-67 million) and
that annual operating costs would run €7-11 million (roughly $10-16 million), depending upon
the option chosen. Others are skeptical about the implementation of an eventual European TFTS,
noting that it would likely entail more intelligence-sharing among EU member states, which some
members and national intelligence services have long resisted.13
10 Toby Vogel, “SWIFT Deal on Data Sharing with U.S. Reopened,” European Voice, June 24, 2010; “SWIFT:
Rapporteur Announces Last-Minute Agreement,” Europolitics, June 25, 2010.
11 European Parliament Press Release, “Parliament Gives Green Light for SWIFT II,” July 8, 2010; James Kanter,
“Europe Seeks More Openness from U.S. Anti-terror Program,” International Herald Tribune, March 18, 2011.
12 European Commission Press Release, “Commission Presents Options for Establishing a European System for
Tracking Terrorist Financing,” July 13, 2011.
13 James Kanter, “Europe Tries To Curb U.S. Role in Tracking Terrorists’ Funds,” New York Times, July 14, 2011.
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Passenger Name Record (PNR) Data
In May 2004, the United States and EU reached an initial agreement permitting airlines operating
flights to or from the United States to provide U.S. authorities with passenger name record (PNR)
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). This accord was controversial in Europe because of fears that it violated the privacy
rights of EU citizens and did not contain sufficient protections to safeguard their personal data. 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 European privacy rights.
In July 2007, the United States and the EU concluded negotiations on a new, seven-year
agreement to ensure the continued transfer of PNR data. U.S. officials appeared pleased with
several provisions of this new deal, such as: allowing the U.S. Department of Homeland Security
to share PNR data with other U.S. agencies engaged in the fight against terrorism; extending the
length of time that the United States can store such data (from 3½ to 15 years ultimately); and
permitting the United States to access sensitive information about a passenger’s race, ethnicity,
religion, and health in exceptional circumstances. The new accord also required airlines to send
data from their reservation systems to U.S. authorities at least 72 hours before a flight departs. In
a concession to the EU, the number of fields from which the United States will collect data were
reduced from 34 to 19.14
Although this latest U.S.-EU PNR agreement has been provisionally in force since 2007, the
European Parliament must still give its approval in order for the accord to be formally signed and
remain in force. Many MEPs, however, object to key elements of the 2007 agreement, including:
the amount of PNR data transferred; the length of time such data can be kept; and what they view
as an inadequate degree of redress available for European citizens for possible data misuse. Some
MEPs also worry that U.S. authorities might use PNR data for “data mining” or “data profiling”
purposes. At the same time, many MEPs recognize that rejecting the U.S.-EU PNR agreement
would create legal uncertainties and practical difficulties for both travelers and air carriers. As
such, in May 2010, the EP agreed to postpone its vote on the 2007 PNR deal, calling instead upon
the European Commission to present a “global external PNR strategy” setting out general
requirements for all EU PNR agreements with other countries; the EP also essentially expected
that the EU PNR deal with the United States (as well as ones pending with Australia and Canada)
would be renegotiated to conform to the new PNR standards put forth by the Commission.15
In September 2010, the European Commission issued its “global external PNR strategy”16 and
called for the renegotiation of the EU’s PNR agreements with the United States, Australia, and
Canada. Among other general principles proposed in the “external PNR strategy,” the
Commission asserted that PNR data should be used exclusively to combat terrorism and other
serious transnational crimes, passengers should be given clear information about the exchange of
14 Paul Lewis and Spencer Hsu, “Travelers Face Greater Use of Personal Data,” Washington Post, July 27, 2007.
15 James Kanter, “Europe Acts on Privacy Front,” International Herald Tribune, April 7, 2010; “EP Suspends Vote on
PNR,” Agence Europe, May 6, 2010.
16 Communication from the Commission on the Global Approach to Transfers of Passenger Name Record (PNR) Data
to Third Countries, COM/2010/0492, September 21, 2010.
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their PNR data and have the right to effective administrative and judicial redress, and that a
decision to deny a passenger the right to board an airplane must not be based solely on the
automated processing of PNR data. The Commission also proclaimed that the categories of PNR
data exchanged should be as limited as possible and that PNR data should be retained no longer
than absolutely necessary. In November 2010, the European Parliament welcomed the
Commission’s PNR strategy and endorsed the opening of new PNR negotiations with the United
States. The EP emphasized, however, that the exchange of PNR data must be both “necessary”
and “proportional,” reiterated that PNR data must not be used for data mining or profiling, and
called on the Commission to also explore less intrusive alternatives.17
Although many U.S. officials had been wary about reopening negotiations on the PNR accord,
the Obama Administration assented to discussing at least some adjustments, largely in recognition
of the fact that the EP was unlikely to approve the existing 2007 agreement. U.S.-EU negotiations
on a revised PNR accord were launched on December 8, 2010. U.S. officials continued to
maintain that the 2007 accord sufficiently protected both the data collected and individual privacy
rights; they noted that two joint reviews conducted by the U.S. Department of Homeland Security
(DHS) and the European Commission since 2004 confirmed that the United States had not
misused the PNR data. U.S. policymakers asserted that any revised PNR agreement must not
degrade the operational effectiveness of the current PNR program and should permit further
enhancements. U.S. officials also cautioned that any new PNR agreement with the EU must not
invalidate bilateral PNR deals that the United States had concluded with various EU member
states.18 In mid-May 2011, resolutions were introduced in the House (H.Res. 255) and passed in
the Senate (S.Res. 174) essentially supporting the existing 2007 U.S.-EU PNR accord and urging
DHS to reject any efforts by the EU to modify the agreement in a way that would degrade its
usefulness in the fight against terrorism.
In late May 2011, the United States and the European Commission concluded negotiations on a
revised PNR agreement. According to U.S. officials, this latest PNR accord contains new
innovations to enhance the protection of passengers’ personal information. For example, the 2011
agreement introduces a new provision whereby after six months, portions of a passenger’s record
will be depersonalized and “masked” (or hidden); it also decreases the time that PNR data will be
stored in an “active” database from seven to five years (at which point, the data will be
transferred to a “dormant” database for up to ten years), and progressively restricts the number of
authorized personnel with access to the data. U.S. officials contend that the new accord seeks to
provide greater legal certainty and clarity on a passenger’s rights to redress, and affirms that the
United States will not make a decision to deny the right to fly based solely on the automated
processing of PNR data. In addition, it recognizes that should the EU in the future develop its
own PNR system, the parties will consult to determine if any changes are needed to the existing
accord in order to ensure full reciprocity between the two systems.19
17 EP Resolution P7_TA-PROV(2010)0397, November 11, 2010.
18 “Will Napolitano Change 2007 PNR Accord?,” Europolitics Transport, October 12, 2010; Edward Cody, “Armed
with New Treaty, Europe Amplifies Objections to U.S. Data-sharing Demands,” Washington Post, October 26, 2010;
“MEPs Assent to Talks on Airline Passenger Information-sharing,” Agence Europe, November 13, 2010.
19 Although the European Commission first floated establishing an EU PNR system in November 2007, progress has
been slow because of different member state sensitivities regarding privacy rights and counterterrorism practices. In
February 2011, the Commission presented a new proposal for an EU-wide PNR system that would: oblige airline
carriers to transfer the PNR data of passengers on international flights into and out of EU territory to the member state
of arrival or departure; set out common rules among EU member states for how to use PNR data; and establish
guidelines for transferring PNR data between member states. Press reports suggest that there is broad EU member state
(continued...)
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Despite the revisions to the U.S.-EU PNR agreement, press reports indicate that some MEPs
remain unsatisfied. They point out that the May 2011 version of the accord still allows the United
States to retain passenger data for up to 15 years ultimately, which they view as disproportionate
and in stark contrast to the five and one-half year data retention period agreed to in the recently
concluded EU-Australia PNR accord. They also note that the new U.S.-EU agreement does not
reduce the amount of data transferred (the 19 categories remain the same as in the 2007 accord)
and increases the requirement that airlines transmit the data to U.S. authorities from 72 hours
before a flight departs to at least 96 hours. Furthermore, some MEPs believe that the new deal
broadens the use of PNR data to more criminal offenses than contained in the previous iteration;
others remain concerned that DHS will continue to supervise the protection of PNR data, rather
than an independent authority. As it did with the U.S.-EU SWIFT agreement, many observers
believe that the EP will press hard for further changes to the renegotiated U.S.-EU PNR accord;
some suggest that there is a good chance that the EP may still reject the revised agreement.20
U.S.-EU Framework Agreement on Data Protection
Many U.S. and EU leaders believe that information-sharing agreements such as SWIFT and PNR
are vital tools in the fight against terrorism. At the same time, U.S. officials have often been
frustrated by the need for painstaking and often time-consuming negotiations with the EU on
every individual agreement that involves sharing personal data between the two sides. For many
years, Washington has sought to establish an umbrella agreement in which the EU would largely
accept U.S. data privacy standards as adequate and thus make the negotiation of future data-
sharing accords easier. In the past, EU officials had largely resisted this idea, claiming that only
tailored agreements could guarantee an “added level of protection” for EU citizens against
possible U.S. infringements of their privacy rights.
In 2009, however, the European Parliament called for a U.S.-EU framework agreement to help
better ensure the protection of civil liberties and personal data privacy. In late May 2010, the
European Commission proposed a draft mandate for negotiating a broad accord with the United
States on personal data protection that could apply to all U.S.-EU data-sharing agreements. The
Commission asserted that any such framework agreement would not provide the legal basis for
specific transfers of personal data between the EU and the United States; in other words,
agreements on SWIFT or PNR would still be required. EU member states approved the
Commission’s mandate in early December 2010; U.S.-EU negotiations on the data protection
accord were officially launched on March 28, 2011. The member states and the European
Parliament must ultimately approve any eventual U.S.-EU agreement for it to take effect.
(...continued)
support for expanding the Commission’s proposal to also include intra-EU flights, but a few EU countries remain
hesitant to do so amid concerns about costs and data protection. EU members are currently discussing various options
for including intra-EU flights in an EU PNR regime. Any proposed EU-wide PNR system would also ultimately require
the approval of the European Parliament, which some view as more resistant to including intra-EU flights. See “EU
Wants Air Passenger Data for Terrorism Probes,” Reuters, February 2, 2011; Valentina Pop, “Member States To Clash
with EU Parliament on Passenger Data,” EUObserver.com, April 4, 2011; “European PNR, Broad Support for
Including Intra-European Flights,” Agence Europe, April 13, 2011.
20 Alan Travis, “U.S. To Store Passenger Data for 15 Years,” The Guardian, May 25, 2011; Statement by U.S.
Ambassador to the EU, William Kennard, on the U.S.-EU PNR Agreement, May 26, 2011; “Euro MPs Miffed at U.S.-
EU Passenger Deal,” Agence France Presse, May 27, 2011.
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Many analysts believe that a U.S.-EU framework agreement on data protection will likely build
on the common personal data protection principles adopted by the United States and the EU in
October 2009. However, one key outstanding issue that the United States and the EU were unable
to agree upon in the common principles is that of redress. Many EU officials and MEPs insist that
European citizens need the right of judicial redress in the United States; some experts believe that
the EU will likely push in negotiations over the new framework agreement for the U.S. Privacy
Act of 1974 to be amended to extend judicial redress to EU citizens (currently, the U.S. Privacy
Act limits judicial redress to U.S. citizens and legal permanent residents). U.S. experts doubt that
the Obama Administration would agree to this potential EU demand, given that Congress would
probably not be inclined to pass such an amendment to the Privacy Act. The Administration has
long maintained that EU citizens may seek redress concerning U.S. government handling of
personal information through agency administrative redress or judicial redress through the U.S.
Freedom of Information Act.
Another possible point of contention in U.S.-EU negotiations may be whether or not an eventual
framework agreement should be applied retroactively to previous U.S.-EU data sharing
arrangements. Some EU leaders and MEPs support its retroactive application. However, the
United States opposes doing so, arguing that it would create unnecessary legal uncertainty.21
Strengthening Border Controls and Transport Security
For many years, the United States and the EU have emphasized cooperation in the areas of border
control and transport security. The United States and the EU have pledged to enhance
international information exchanges on lost and stolen passports and to promote travel document
security through the use of interoperable biometric identifiers. Several U.S.-EU agreements
related to border controls and transport security have been concluded. At the same time, U.S. and
EU officials continue to grapple with finding the appropriate balance between improving border
security and facilitating legitimate transatlantic travel and commerce.
Aviation and Air Cargo Security
Since the 2001 terrorist attacks, both the United States and the EU have implemented a range of
measures aimed at improving aviation and air cargo security.22 Although many U.S. and EU rules
and regulations have coincided closely, the two sides have sought to work together to bridge gaps
in their respective policies given the significant volume of transatlantic flights. For example, in
2008, the United States and the EU reached an agreement on coordinating air cargo security
measures, in part to comply with a provision in the Implementing Recommendations of the 9/11
Commission Act of 2007 (P.L. 110-53) that mandates 100% screening of cargo transported on
U.S. domestic and U.S.-bound international passenger flights equivalent to the level of security
used for checked baggage.23 Among other measures in the 2008 accord, both sides pledged to
21 U.S. Department of State Press Release, “U.S., EU Reach Agreement on Common Personal Data Protection
Principles,” October 28, 2009; “Commission Seeks Comprehensive Data Protection Agreement,” Europolitics, May 27,
2010; European Parliament News, “Data Protection in Transatlantic Relations: Searching for a Framework
Agreement,” October 27, 2010.
22 The EU first adopted common rules on aviation security in 2002, detailing measures regarding access to sensitive
airport areas, aircraft security, passenger screening and baggage handling, among others. These measures were revised
and updated in April 2010.
23 Ned Levi, “TSA To Finally Screen Air Cargo on Passenger Flights,” Consumer Traveler, November 4, 2008.
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institute commensurate systems to ensure the security of all cargo on passenger flights between
their respective territories by the end of 2010.24
Two recent events have brought aviation and air cargo security to the forefront of U.S.-EU
discussions again: the December 2009 attempt by a Nigerian passenger to blow up an airliner en
route from Amsterdam to Detroit with a device concealed in his underwear; and the thwarted
October 2010 “Yemen bomb plot,” in which two Chicago-bound printer cartridge packages
containing explosives were shipped from Yemen on various cargo and passenger flights (one
package was transferred in Germany before being intercepted in the UK). In January 2010, the
United States and the EU issued a joint declaration on aviation security, pledging to intensify
U.S.-EU efforts to strengthen aviation security measures worldwide. In October 2010, U.S.-EU
collaboration played a key role in forging an International Civil Aviation Organization (ICAO)
declaration on aviation security, agreed to by 190 countries, aimed at better protecting the entire
global aviation system from terrorist threats; as part of the ICAO declaration, signatories
committed to work on further enhancing air cargo and supply chain security. In June 2011, the
United States and the EU issued a joint statement reaffirming their determination to bolster
supply chain security and foster greater global cooperation on this issue.
Despite a shared commitment to promote U.S.-EU cooperation in the areas of aviation and air
cargo security, some differences in perspective remain. In the aftermath of the failed 2009 attack,
the United States accelerated installation of body scanners at U.S. airports and encouraged the EU
to follow suit. Although some EU countries and leaders support installing body scanners at
European airports, other EU member states have been hesitant due to concerns that the scanners
could compromise privacy rights and pose health dangers.25 Some European Parliamentarians
have also expressed similar worries about body scanners. However, in early July 2011, the
Parliament backed the use of body scanners at EU airports provided that safeguards are instituted
to ensure passenger health and protect passenger privacy; the safeguards recommended by the EP
include a ban on x-ray scans and the requirement that such scans only produce stick figure images
and not body images. The EP also asserted that the use of the scanners should be voluntary, with
passengers having the right to opt for a manual search instead. Parliamentarians largely expect
that the European Commission will incorporate these conditions in the proposal it is currently
developing for a common EU body scanner policy.26
Following the discovery of the “Yemen bomb plot,” the EU has also been taking steps to
strengthen its existing air cargo security standards and controls, in particular with respect to
transfer cargo originating outside EU territory. Like some Members of Congress, some European
politicians have called for 100% physical screening of cargo transported on all-cargo aircraft.
Most EU officials, however, contend that such 100% screening would be impractical, pose
24 While not all cargo transported on international passenger flights inbound to the United States is currently being
screened as mandated in P.L. 110-53, the U.S. Transportation Security Administration (TSA) has requested industry
comment on the feasibility of complying with a proposed December 31, 2011 deadline to screen 100% of such cargo,
two years earlier than it previously anticipated achieving compliance with this mandate. See Statement of John
Sammon, Assistant Administrator for Transportation Sector Network Management, TSA, before the U.S. House of
Representatives Committee on Homeland Security, Subcommittee on Transportation Security, March 9, 2011.
25 For example, the UK, the Netherlands, France, and Italy reportedly plan to try out full-body scanners at their airports,
while Germany, Spain, and some Nordic countries appear more cautious about using the scanners. See “EU Puts Off
Reply To U.S. Request for Airport Body Scanners,” Agence France Presse, January 21, 2010; Robert Wall, “Body
Scanner Policy Another Year Away for EU Airports,” Aviation Daily, July 2, 2010.
26 “Body Scanner Approved by EP, with Conditions,” Agence Europe, July 7, 2011.
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significant technical hurdles, and impose heavy financial burdens on the air cargo industry.
Instead, they prefer implementation of risk-based approaches that seek to identify those
shipments that require greater scrutiny and physical screening. Many U.S. homeland security
policymakers agree with the risk-based approach, but some European officials worry of a
potential conflict with the United States should Congress ultimately pass legislation requiring
100% screening of all air cargo.27
Meanwhile, some U.S. officials are concerned about planned changes to EU regulations
governing liquids on board planes. Following the August 2006 disruption of a plot to use liquid
explosives to blow up transatlantic flights, the EU—like the United States—began prohibiting
passengers from carrying most liquids on board planes. In November 2006, the United States
adjusted the small amounts of travel-sized liquids and gels permitted in carry-on baggage in an
effort to harmonize its rules with those of the EU and other countries. In 2010, however, the EU
announced plans to eliminate all restrictions on liquids in cabin baggage by 2013, following the
introduction of liquid screening equipment in all EU airports. Some U.S. policymakers question
the adequacy of such liquid-screening technology and believe it is premature to ease the liquid
restrictions. Some European officials apparently share such concerns; in late April 2011, the
European Commission deferred plans to lift EU restrictions on “duty-free” liquids in carry-on
baggage (the first phase of its plan to eliminate all liquid restrictions by 2013) amid concerns
about airline security and flight delays from some EU governments and segments of the airline
industry. The United States and the EU are reportedly discussing the issue of relaxing EU liquid
restrictions in an effort to meet the EU’s 2013 goal.28
In addition, the United States and the EU continue to discuss the use of armed air marshals on
transatlantic flights. Some European countries objected to U.S. requirements issued in December
2003 for armed marshals on certain flights to and from the United States, viewing guns on board
planes as increasing the security risks. Others, such as the U.K. and France, were more receptive
to deploying armed air marshals. In April 2004, U.S. officials pledged to consider alternative
measures for European countries opposed to armed air marshals. 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.29
Maritime Cargo Screening
In April 2004, the United States and the European Union signed a customs cooperation accord;
among other measures, it calls for extending the U.S. Container Security Initiative (CSI)
throughout the EU. CSI stations U.S. customs officers in foreign ports to help pre-screen U.S.-
bound maritime cargo containers to ensure that they do not contain dangerous substances such as
explosives or other weapons of mass destruction. Ten EU member states currently have ports that
27 In November 2010, in the 111th Congress, legislation was introduced in both the House (H.R. 6410) and Senate (S.
3954) that would have required physical screening of cargo transported on all-cargo aircraft, including U.S.-bound
international flights. For more information, see CRS Report R41515, Screening and Securing Air Cargo: Background
and Issues for Congress, by Bart Elias. Also see, Daniel Michaels, “EU To Step Up Air-cargo Rules,” Wall Street
Journal, November 30, 2010.
28 Nicola Clark, “Europe Postpones Easing Rules on Carrying Liquids on Planes,” New York Times, April 30, 2011.
29 “U.S. Conciliatory in Air Marshal Demands,” Associated Press, April 26, 2004; John M. Doyle, “U.S., EU To Trade
Information on Sensors, MANPADS Defense,” Homeland Security and Defense, November 24, 2004.
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participate in CSI. Both the United States and the EU have also instituted programs with leading
importers to pre-screen cargo shipments.
However, EU officials remain concerned with a provision in the Implementing Recommendations
of the 9/11 Commission Act of 2007 (P.L. 110-53) that sets a five-year goal of scanning all
container ships bound for the United States for nuclear devices. Although European leaders
support the use of radiation detection and container imaging to increase cargo and freight security
in principle, they view 100% container scanning as unrealistic, and argue that it could disrupt
trade and place a heavy financial burden on EU ports and businesses. Some U.S. officials share
these concerns about the cost and effectiveness of 100% scanning, suggesting that it could result
in lower profits and higher transportation costs for U.S. importers; they also point out that the
United States and Europe already have programs in place to identify high risk cargo shipments
and target them for further inspection. Proponents of 100% scanning counter that the manifest
data that U.S. and European authorities currently rely upon to determine which containers need
closer scrutiny is not an adequate basis for determining risk. U.S. authorities will likely seek an
extension of the 2012 100% scanning deadline.30
Visa Waiver Program (VWP)
For many years, the United States and the EU were at odds over the U.S. Visa Waiver Program
(VWP) and the EU’s desire to have it applied equally to all EU members. The VWP allows for
short-term visa-free travel for business or pleasure to the United States from 36 countries, most of
which are in Europe. New EU members were eager to join the VWP, but most were excluded for
years due to problems meeting the program’s statutory requirements. Although some Members of
Congress had long expressed skepticism about the VWP in general because of security concerns
(noting that terrorists with European citizenship have entered the United States on the VWP),
other Members were more supportive of extending the VWP to new EU members (especially
those in central and eastern Europe) given their roles as U.S. allies in NATO and in the fight
against terrorism.
In July 2007, Congress passed the Implementing Recommendations of the 9/11 Commission Act
of 2007 (P.L. 110-53), which included changes to the VWP aimed at both strengthening the
program’s security components and allowing more EU members (and other interested states) to
qualify. Among other measures, P.L. 110-53 called on VWP participants to meet certain security
and passport standards and to sign on to a number of information-sharing agreements; at the same
time, it eased other admission requirements to make it easier for some EU member states to join
the VWP. As a result, 23 of the EU’s 27 member states now belong to the VWP. The EU,
however, continues to encourage the United States to admit the remaining four EU members
(Bulgaria, Cyprus, Poland, and Romania) to the VWP as soon as possible.
Some European policymakers also remain irritated by new rules requiring visitors entering the
United States under the VWP to submit biographical information to U.S. authorities through the
web-based Electronic System for Travel Authorization (ESTA) at least two days before traveling.
The creation of ESTA was mandated by Congress in P.L. 110-53 as one way to help increase the
security of the VWP; ESTA became operational for all VWP countries in January 2009. ESTA
checks the biographical information submitted against relevant law enforcement databases; those
30 “EU Hits at U.S. Plan To Scan Containers,” Financial Times, August 2, 2007; “U.S. Cargo Scanning Law Unfair,”
Reuters, March 10, 2008; “Underwear Bomber Could Have Evaded Full Body Scanner,” Europolitics, March 29, 2010.
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individuals not approved under ESTA must obtain a U.S. visa. Some EU officials contend that
ESTA essentially comprises a new type of visa requirement, is a hardship for some last-minute
business travelers, and infringes on EU privacy and data protection rules; many European
policymakers and citizens also bristle at the $14 fee for ESTA processing imposed since
September 2010. U.S. authorities counter that ESTA only requires the same information as that
required on the current I-94W paper form that VWP visitors must complete en route to the United
States, and that ESTA approval is good for two years and valid for multiple entries.31
Detainee Issues and Civil Liberties
U.S. and European officials alike maintain that the imperative to provide freedom and security at
home should not come at the cost of sacrificing core principles with respect to civil liberties and
upholding common standards on human rights. Nevertheless, the status and treatment of
suspected terrorist detainees has often been a key point of U.S.-European tension. Especially
during the former Bush Administration, the U.S.-run detention facility at Guantánamo Bay, Cuba;
U.S. plans to try enemy combatants before military commissions; and the use of “enhanced
interrogation techniques” came under widespread criticism in Europe. The U.S. practice of
“extraordinary rendition” (or extrajudicial transfer of individuals from one country to another,
often for the purpose of interrogation) and the possible presence of CIA detention facilities in
Europe also gripped European media attention and prompted numerous investigations by the
European Parliament, national legislatures, and judicial bodies, among others.
Many European leaders and analysts viewed U.S. terrorist detainee, interrogation, and
“extraordinary rendition” policies as being in breach of international and European law and as
degrading shared values regarding human rights and the treatment of prisoners. Moreover, they
feared that such U.S. policies weakened U.S. and EU efforts to win the battle for Muslim “hearts
and minds,” considered by many to be a crucial element in countering terrorism. The Bush
Administration, however, defended its detainee and rendition polices as important tools in the
fight against terrorism, and vehemently denied allegations of violating U.S. human rights
commitments, including the prohibition against torture. Bush Administration officials also
acknowledged European concerns about Guantánamo and sought agreements with foreign
governments to accept some Guantánamo detainees, but maintained that certain prisoners were
too dangerous to be released.
U.S.-EU tensions over terrorist detainee policies and practices have subsided to some degree
since the start of the Obama Administration. EU and other European officials welcomed President
Obama’s announcement in January 2009 that the United States intended to close the detention
facility at Guantánamo within a year. They were also pleased with President Obama’s executive
order banning torture and his initiative to review Bush Administration legal opinions regarding
detention and interrogation methods.
At the same time, the Obama Administration has faced significant challenges in its efforts to close
Guantánamo. In March 2009, the U.S. State Department appointed a special envoy tasked with
persuading countries in Europe and elsewhere to accept detainees cleared for release but who
could not be repatriated to their country of origin for fear of torture or execution. Although some
31 For more information on the VWP, see CRS Report RL32221, Visa Waiver Program, by Alison Siskin. Also see,
Julia Werdigier, “European Officials Broadly Criticize U.S. Airport Security Methods,” New York Times, October 28,
2010.
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EU members have accepted (or pledged to accept) small numbers of released detainees, others
have declined. Some observers contend that U.S. officials are frustrated with European reluctance
to take in more detainees. Congressional opposition to some elements of the Administration’s
plan for closing Guantánamo has also posed obstacles. As a result of these various difficulties, the
Obama Administration’s original one-year deadline for shutting down Guantánamo was not met.
The Administration asserts that it remains committed to closing the detention facility, but in
March 2011, President Obama signed an executive order that in effect creates a formal system of
indefinite detention for those detainees at Guantánamo not charged or convicted but deemed too
dangerous to free. The Administration also announced an end to its two-year freeze on new
military commission trials for Guantánamo detainees. European reaction has been largely muted,
but some European policymakers worry that as long as Guantánamo remains open, it helps serve
as a recruiting tool for Al Qaeda and its affiliates. Meanwhile, some U.S. and European officials
remain concerned that allegations of U.S. wrongdoing and rendition-related criminal proceedings
against CIA officers in some EU states (stemming from the Bush era) continue to cast a long
shadow and could put vital U.S.-European intelligence cooperation against terrorism at risk.32
U.S. Perspectives and Issues for Congress
Successive U.S. administrations and many Members of Congress have supported efforts to
enhance U.S.-EU cooperation against terrorism since the 2001 terrorist attacks. Although some
skeptics initially worried that such U.S.-EU collaboration could weaken strong U.S. bilateral law
enforcement relationships with EU member states, the Bush Administration essentially
determined that the political benefits of engaging the EU as an entity on police and judicial
matters outweighed the potential risks. U.S. officials suggested that the Union’s renewed
initiatives in the police and judicial field might be the first steps on a long road toward a common
EU judicial identity. Thus, they asserted it was in U.S. interests to engage with the EU, given
Europe’s role as a key U.S. law enforcement partner. They also hoped that improved U.S.-EU
cooperation on border controls and transport security would help authorities on both sides keep
better track of suspected terrorists and prevent them from entering the United States or finding
sanctuary in Europe.
At the same time, some observers note that U.S.-EU counterterrorism cooperation is complicated
by different EU and member state competencies, and U.S. policy preferences. An increasing
number of policy areas relevant to counterterrorism—including data protection, customs, and
visas—fall under the competence of the Union (i.e., EU members adopt a common policy, agree
to abide by its terms, and negotiate collectively with other countries). However, at times, the
United States continues to prefer to negotiate on some issues—such as the VWP—bilaterally, and
observers assert that this disconnect can lead to frictions in the U.S.-EU relationship.
Nevertheless, both the United States and the EU appear committed to fostering closer cooperation
in the areas of counterterrorism, law enforcement, border controls, and transport security. As
noted above, the Obama Administration has largely continued the Bush Administration’s policy
32 “EU Investigation of CIA Flights May Threaten Intelligence Cooperation,” Associated Press, February 28, 2007;
“The Dark Pursuit of the Truth,” The Economist, July 30, 2009; “Europeans Still Resisting Obama Over Guantanamo
Inmates,” Deutsche Welle, February 17, 2010; Peter Finn and Anne Kornblut, “Obama Creates Indefinite Detention
System for Prisoners at Guantánamo Bay,” Washington Post, March 8, 2011.
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U.S.-EU Cooperation Against Terrorism
of engagement with the EU in these areas. Congressional decisions related to improving U.S.
travel security and border controls, in particular, may affect how future U.S.-EU cooperation
evolves. Data privacy, aviation and cargo security, and visa policy will continue to be salient
issues for Congress in this respect.
In addition, given the European Parliament’s growing influence in many of the areas related to
counterterrorism and its new role in approving international agreements—such as the U.S.-EU
SWIFT and PNR accords—Members of Congress may increasingly be able to help shape
Parliament’s views and responses. Some Members of Congress have ongoing contacts with their
EP counterparts, and the existing Transatlantic Legislators’ Dialogue (TLD) brings members of
the European Parliament and the U.S. House of Representatives together twice a year to discuss a
wide range of topical political and economic issues. Some Members of Congress and European
Parliamentarians have recently expressed interest in strengthening ties and cooperation further.
Such exchanges could provide useful opportunities for enhancing transatlantic dialogue on the
wide range of counterterrorism issues facing both sides of the Atlantic.33
Author Contact Information
Kristin Archick
Specialist in European Affairs
karchick@crs.loc.gov, 7-2668
33 For more information, see CRS Report R41552, The U.S. Congress and the European Parliament: Evolving
Transatlantic Legislative Cooperation, by Kristin Archick and Vincent Morelli.
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