U.S.-EU Cooperation Against Terrorism
Kristin Archick
Specialist in European Affairs
April 22, 2013
Congressional Research Service
7-5700
www.crs.gov
RS22030
CRS Report for Congress
Pr
epared for Members and Committees of Congress
U.S.-EU Cooperation Against Terrorism
Summary
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 among its member states.
Other deadly incidents in Europe, such as the Madrid and London bombings in 2004 and 2005
respectively, injected further urgency into strengthening EU counterterrorism capabilities and
reducing barriers among national law enforcement authorities so that information could 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 both in Europe and elsewhere, and prevent
future attacks against the United States or its interests abroad. 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
curb terrorist financing and to strengthen 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. Some observers note that the July 2012 terrorist
attack on Israeli tourists in EU member Bulgaria—which has been linked to Hezbollah—serves
as a stark reminder that Europe remains vulnerable to terrorist activity.
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. Nevertheless, some challenges persist in fostering closer U.S.-EU cooperation in
these fields. Among the most prominent are data privacy and data protection concerns. The EU
considers the privacy of personal data a basic right and EU rules and regulations strive to keep
personal data out of the hands of law enforcement as much as possible. The negotiation of several
U.S.-EU information-sharing agreements, from those related to tracking terrorist financial data to
sharing airline passenger information, have been complicated by ongoing EU concerns about
whether the United States could guarantee a sufficient level of protection for European citizens’
personal data. Other issues that have led to periodic tensions include detainee policies, differences
in the U.S. and EU terrorist designation lists (especially regarding Hezbollah), and balancing
measures to improve border controls and border security with the need to facilitate 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 113th Congress.
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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 .......................................................................... 6
Designating Terrorist Individuals and Groups .................................................................... 6
Promoting Information-Sharing and Protecting Data Privacy ................................................... 8
The U.S.-EU SWIFT Accord .............................................................................................. 8
Passenger Name Record (PNR) Data ................................................................................ 10
U.S.-EU Data Privacy and Protection Agreement ............................................................. 14
Strengthening Border Controls and Transport Security ........................................................... 15
Aviation and Air Cargo Security ....................................................................................... 15
Maritime Cargo Screening ................................................................................................ 18
Visa Waiver Program (VWP) ............................................................................................ 19
Detainee Issues and Civil Liberties ......................................................................................... 19
U.S. Perspectives and Issues for Congress .................................................................................... 21
Contacts
Author Contact Information........................................................................................................... 23
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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 current 27
member states.1 The EU is the latest stage in a process of European integration begun in the
1950s to promote peace and economic prosperity throughout the European continent. As part of
this drive toward further European integration, the EU has long sought to harmonize policies
among its members in the area of “justice and home affairs” (or JHA). 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 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.
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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.2
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 May 2011, many terrorism
experts expect that the “Al Qaeda narrative” will likely continue to attract both European and
non-European followers. The July 2012 terrorist attack on Israeli tourists in Bulgaria, which
Bulgarian authorities have linked to the Lebanese Shiite Hezbollah organization, serves as a stark
reminder that Europe remains vulnerable to terrorist activity perpetrated by a number of groups in
addition to Al Qaeda. Consequently, EU officials assert that continued vigilance and enhanced
cooperation 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 (EP), a key EU institution composed of 754
2 For more information on EU efforts to counter radicalization, terrorist recruitment, and violent Islamist extremism,
see CRS Report RL33166, Muslims in Europe: Promoting Integration and Countering Extremism, coordinated by
Kristin Archick.
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elected members, in JHA policy-making by giving it the right to approve or reject most JHA-
related legislation.3
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 considerable lag times may 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
George W. 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
3 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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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 (especially with regard to Hezbollah), and balancing measures to improve border controls
and border security with the need to facilitate legitimate transatlantic travel and commerce.
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.4 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
4 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.
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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.5 These treaties, signed by U.S. and EU leaders in
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.6
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.
5 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
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.
6 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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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 1,800 leads resulting from the
SWIFT data with European governments, and U.S. and EU officials assert that many of these
leads have helped in the prevention or investigation of terrorist attacks in Europe.7 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. (For more information on the U.S.-EU SWIFT
agreement, see “Promoting Information-Sharing and Protecting Data Privacy” below).
Designating Terrorist Individuals and Groups
U.S. and EU officials have worked together successfully since 2001 to bridge many gaps in their
respective lists of individuals and groups that engage in terrorist activities, viewing such efforts as
important in terms of symbolically presenting a united U.S.-EU front, and in helping to stem
terrorist financing. For all those named on the EU’s “common terrorist list” or “blacklist,” which
contains individuals and entities based both in Europe and worldwide, EU members must assist
each other in related police investigations and legal proceedings. In addition, for those individuals
and entities based outside EU territory (such as Hamas), all EU member states must freeze the
assets of those named and ensure that financial resources are not made available to them.8
In order for a person or entity to be added to (or deleted from) the EU’s common terrorist list,
there must be unanimous agreement among all EU member states. Over the last decade, the
United States and other countries have successfully lobbied the EU to add several organizations—
such as the Turkish-based Kurdistan Worker’s Party (PKK), the Revolutionary Armed Forces of
Columbia (FARC), and some Palestinian groups—to the EU’s common terrorist list. The United
States has also taken some cues from the EU and has included a number of members of the
Basque separatist group ETA, among others, to its terrorist designation lists.9
Nevertheless, a few differences in the U.S. and EU terrorist designation lists persist. For example,
the EU remains hesitant about adding some suspected Hamas-related charities to its common
terrorist list because some EU members view them as separate entities engaged in political or
social work.10 And some charities that the United States has designated as being fronts for Hamas,
7 U.S. Department of the Treasury, “Terrorist Finance Tracking Program: Questions and Answers,” available at
http://www.ustreas.gov.
8 Although individuals and groups based within EU territory (such as the Real IRA or the Italian anarchist Red
Brigades) are subject only to the common list’s strengthened police cooperation measures, member state governments
generally seek to apply their own financial sanctions to such “internal” or “domestic” persons or organizations
designated as “terrorist.” Paul Ames, “EU Adopts Anti-terrorist Measures,” Associated Press, December 28, 2001.
9 “U.S. Takes Action with EU on Expanded Terror List,” Agence France Presse, May 3, 2002.
10 The EU has listed Hamas’ military wing on its common terrorist list since 2001, and its political wing since 2003. In
addition, the EU common terrorist list includes three charities that are believed to be related to Hamas: the U.S.-based
(continued...)
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such as the UK-based Interpal, have been investigated by national authorities but have been
cleared of funding Hamas terrorist activities. Given that such charities have passed scrutiny at the
national level, it is unlikely that EU governments would agree to blacklist them at the EU level.11
EU member states are also divided on whether the Lebanese-based Hezbollah organization should
be included on the EU’s common terrorist list. The United States considers Hezbollah, which is
backed by Syria and Iran, to be a foreign terrorist organization and applies financial and other
sanctions to the group and its members. While some EU member states, such as the United
Kingdom and the Netherlands, support adding either all or part of Hezbollah to the EU’s common
list, France and other members have objected in the past. (The Netherlands classifies all of
Hezbollah as a terrorist group on its own national list of proscribed terrorist organizations, and the
United Kingdom includes Hezbollah’s military wing on its national terrorist list.)
EU members that have been hesitant about putting Hezbollah on the EU’s common list argue that
doing so would be counterproductive to managing relations with Lebanon given Hezbollah’s role
in the Lebanese government and its representation in Lebanon’s parliament. Some EU member
states have also been reluctant to add Hezbollah to the EU’s list because they believe that the
group provides needed social services in some of Lebanon’s poorest communities; those of this
view tend to assert that there is a separation between Hezbollah’s political, military, and social
welfare wings. On the other hand, critics of Hezbollah’s absence from the EU’s list contend that
Hezbollah is a known terrorist group, responsible for numerous attacks in the Middle East and
elsewhere, and that Hezbollah has used Europe as a primary base for fundraising and financial
services for years. Those in favor of including Hezbollah on the EU’s list also note that Hezbollah
leaders themselves have reportedly admitted that if the EU were to blacklist the group, it would
have serious negative implications for Hezbollah’s financial and moral support in Europe.12
Several recent events have led to renewed U.S. (and Israeli) calls for the EU to add Hezbollah to
its common terrorist list. These include: the deadly July 2012 terrorist attack on Israeli tourists in
Burgas, Bulgaria, which Bulgarian authorities publically linked to Hezbollah in February 2013;
the March 2013 conviction in Cyprus of a Hezbollah operative (with dual Lebanese-Swedish
citizenship) involved in planning attacks on Israeli tourists there; and the group’s close ties to and
support for the Syrian government of Bashar al Asad, despite the regime’s violent response to the
popular uprising and civil war. In light of these new factors, analysts suggest that at least some
EU member states might be more inclined to include Hezbollah on the EU’s list.
Others point out that current prospects for adding Hezbollah to the EU’s list remain mixed given
that several EU members are still reluctant to do so. France in particular continues to worry that
putting Hezbollah on the EU’s list could fuel tensions in Lebanon. Some EU governments
reportedly remain unconvinced by the evidence presented so far by Bulgarian authorities with
respect to the Burgas bombing. A number of analysts suggest, however, that the Cyprus
(...continued)
Holy Land Foundation for Relief and Development; Stichting Al Aqsa (or Al Aqsa Netherlands); and Al-Aqsa, e.V. (or
the Al-Aqsa Foundation), located throughout Europe.
11 Of 11 charities currently designated by the United States as front organizations for Hamas, five are based primarily in
Europe (including Al-Aqsa, e.V.). For more information, see: U.S. Treasury Department,
http://www.treasury.gov/resource-center/terrorist-illicit-finance/Pages/protecting-fto.aspx.
12 Steven Weisman, “Allies Resisting as U.S. Pushes Terror Label for Hezbollah,” New York Times, February 17, 2005;
James Phillips, “Hezbollah’s Terrorist Threat to the European Union,” The Heritage Foundation, August 28, 2007;
Nicolas Kulish, “Despite U.S. Fear, Hezbollah Moves Openly in Europe,” New York Times, August 16, 2012.
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conviction may hold more weight with some EU member states because it represents a judicial
determination of Hezbollah terrorist activity in Europe. Recent press reports indicate that France
may now be willing to consider adding Hezbollah’s military wing to the EU’s common list, but
not the entire Hezbollah organization.13
Many Members of Congress have long urged the EU to include Hezbollah on its common
terrorist list. In the wake of the bombing in Bulgaria, individual Members and groups of
Members, in both the House and Senate, have sent several letters to EU officials and institutions
calling upon the EU to add Hezbollah to its common terrorist list. In early January 2013, at the
end of the 112th Congress, the House passed H.Res. 834, urging the governments of Europe and
the European Union to designate Hezbollah as a terrorist organization and to impose sanctions.
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 previously, 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.
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.14
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
13 Nicholas Kulish, Eric Schmitt, and Matthew Brunwasser, “Bulgaria Implicates Hezbollah in July Attack on Israelis,”
New York Times, February 5, 2013; “Bulgaria Puts Hezbollah on EU Foreign Minister’s Menu,” EurActiv.com,
February 15, 2013; Nicholas Kulish, “Cyprus Trial Offers a Rare Look Inside Hezbollah,” New York Times, February
20, 2013; “Bulgaria: EU Could Still Act Against Hezbollah,” Reuters, March 27, 2013; “EU Under Pressure To
Blacklist Hezbollah,” UPI.com, April 1, 2013.
14 “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.
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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 European Parliament gained the right to approve or reject
international agreements such as the SWIFT accord by majority vote. In February 2010, the
Parliament 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.15
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
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.16
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
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
recommended certain measures to help make the TFTP more transparent, including by providing
more information to Europol in writing. In December 2012, the Commission released the results
of a second review of the agreement. This second review concluded that the TFTP has provided
15 “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.
16 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.
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concrete benefits in the fight against terrorism (including for EU countries), that the agreement’s
safeguards were being properly implemented, and that the recommendations presented in the first
review report of 2011 had been followed up to a large extent.17
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 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.18 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. The
Commission has not yet put forth a concrete legislative proposal on the TFTS, 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.19
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.
17 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;
European Commission Press Release, “Terrorist Finance Tracking: Citizen’s Safeguards Are in Place,” December 14,
2012.
18 European Commission Press Release, “Commission Presents Options for Establishing a European System for
Tracking Terrorist Financing,” July 13, 2011.
19 James Kanter, “Europe Tries To Curb U.S. Role in Tracking Terrorists’ Funds,” New York Times, July 14, 2011.
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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.
The United States agreed, however, to reduce the number of fields from which data would be
collected, from 34 to 19.20
Although the 2007 U.S.-EU PNR agreement was provisionally in force since its signing, the
European Parliament had to approve it in order for the accord to be formally signed and remain in
force. Many MEPs, however, objected to key elements of the 2007 agreement, including: the
amount of PNR data transferred; the length of time such data could be kept; and what they
viewed as an inadequate degree of redress available for European citizens for possible data
misuse. Some MEPs also worried that U.S. authorities might use PNR data for “data mining” or
“data profiling” purposes. At the same time, many MEPs recognized 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 similar EU
agreements on PNR data pending with Australia and Canada) would be renegotiated to conform
to the new PNR standards put forth by the Commission.21
In September 2010, the European Commission issued its “global external PNR strategy”22 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
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.23
20 Paul Lewis and Spencer Hsu, “Travelers Face Greater Use of Personal Data,” Washington Post, July 27, 2007.
21 James Kanter, “Europe Acts on Privacy Front,” International Herald Tribune, April 7, 2010; “EP Suspends Vote on
PNR,” Agence Europe, May 6, 2010.
22 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.
23 EP Resolution P7_TA-PROV(2010)0397, November 11, 2010.
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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 2007 agreement. U.S.-EU negotiations on a
revised PNR accord were launched in December 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.24 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, a draft of which was leaked to the press. According to U.S. officials, this
draft PNR accord contained new innovations to enhance the protection of passengers’ personal
information. For example, regarding the retention of PNR data, the May 2011 agreement
introduced a new provision whereby after six months, portions of a passenger’s record would be
depersonalized and “masked” (or hidden); it decreased the time that PNR data would be stored in
an “active” database; and progressively restricted the number of authorized personnel with access
to the data. U.S. officials contended that the draft accord provided greater legal certainty and
clarity on a passenger’s rights to redress, and affirmed that the United States would not make a
decision to deny boarding based solely on the automated processing of PNR data. In addition, it
recognized that should the EU in the future develop its own PNR system, the parties would
consult to determine if it necessitated making any changes to the existing accord in order to
ensure full reciprocity between the two systems.25
Despite these revisions to the U.S.-EU PNR agreement, press reports indicated that some MEPs
remained unsatisfied. They pointed out that the May 2011 version of the accord still allowed the
United States to retain passenger data ultimately for up to 15 years (albeit in a “dormant” state
after five years), did not reduce the amount of data transferred (the 19 categories remained the
same as in the 2007 agreement), and increased 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
24 “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.
25 Although the European Commission first floated establishing an EU PNR system in November 2007, progress has
been slow because of different member state sensitivities about privacy rights and counterterrorism practices. In
February 2011, the Commission presented a new proposal for an EU-wide PNR system. In April 2012, EU member
states approved creating an EU PNR system that would oblige airlines to transfer the PNR data of passengers on
international flights into and out of EU territory to the member state of arrival or departure; member states would be
allowed to collect PNR data from intra-European flights but not required to do so (mandating the inclusion of PNR data
from intra-European flights was controversial for some EU members because of data privacy concerns). The European
Parliament, however, must still approve establishing this EU PNR system. “PNR-EU27 Outline European System,”
Agence Europe, April 27, 2012.
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MEPs worried that the new deal broadened the use of PNR data to more criminal offenses than
contained in the 2007 iteration.26
In October 2011, the House Homeland Security Committee’s Subcommittee on Counterterrorism
and Intelligence held a hearing on intelligence-sharing and terrorist travel, at which the
negotiations on the U.S.-EU PNR agreement figured prominently. U.S. officials testifying at the
hearing asserted that the May 2011 draft of the PNR accord was stronger than the 2007 version,
preserving and in some cases improving its operational effectiveness. At the same time, they
noted, it addressed all concerns raised by the EU, including those pertaining to data security and
protection, the scope of offenses covered, and the right of passengers’ to redress.27
Nevertheless, in an effort to further assuage European concerns, U.S. and EU negotiators
continued to work on revising the PNR accord. In November 2011, the United States and the EU
concluded a new draft PNR agreement, which the European Commission asserted contained “real
improvements” over the version leaked in May. Although the November 2011 iteration was
similar to the May 2011 version and retained many of its same provisions, two further changes
were included that were aimed at meeting EU demands: limiting the use of PNR data specifically
to terrorist or other serious transnational crimes that could result in three years or more in prison;
and varying the retention time depending on the type of crime under investigation (data would
still be retained ultimately for 15 years for terrorist investigations, but only 10 years for
investigations into other types of crimes).28
In December 2011, EU member states approved the new U.S.-EU PNR agreement, although
Germany and Austria abstained because they still viewed the data retention and redress provisions
in the new accord as insufficient. Some MEPs shared these concerns, maintaining that the
additional changes in the November 2011 PNR accord were largely cosmetic and that it should
therefore be rejected. Other MEPs backed the new agreement, noting European Commission
arguments that the accord contained stronger data protection guarantees than the 2007 version. A
number of MEPs asserted they would vote for the 2011 accord despite some misgivings regarding
the data privacy safeguards because in their view, it was better to have an agreement providing
the airlines with legal certainty than no agreement at all (the Commission contended that should
the Parliament reject this latest version of the PNR agreement, the United States had made clear
there would be no further negotiations).29
On March 27, 2012, the European Parliament’s Civil Liberties Committee endorsed the
November 2011 U.S.-EU PNR agreement by a vote of 31 to 23. On April 19, 2012, the full
Parliament approved the PNR accord by a vote of 409 to 226, with 33 abstentions. The United
States has welcomed the Parliament’s endorsement of the PNR accord; U.S. officials assert that it
reaffirms the shared commitment of the United States and the EU to countering terrorism and
26 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.
27 House Committee on Homeland Security, Subcommittee on Counterterrorism and Intelligence, “How DHS
Addresses the Mission of Providing Security, Facilitating Commerce and Protecting Privacy for Passengers Engaged in
International Travel,” 112th Congress, October 5, 2011.
28 “EU-US PNR Agreement,” Agence Europe, November 11, 2011; Valentina Pop, “Unhappy MEPs To Approve
Passenger Data Deal,” EUobserver.com, November 11, 2011.
29 “In’t Veld Says EU-US PNR Agreement Should Be Rejected,” Agence Europe, February 2, 2012; “PNR Agreement
Will Not Be Renegotiated, Warns Malmstrom,” Europolitics Transport, February 20, 2012; “MEPs Divided Over EU-
US PNR; S&D Very Cautious,” Agence Europe, February 29, 2012.
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other transnational threats while protecting privacy and other civil rights. The new U.S.-EU PNR
agreement took effect on June 1, 2012, and will be valid until 2019.30
U.S.-EU Data Privacy and Protection Agreement
Many U.S. and EU leaders believe that law enforcement 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 law enforcement arena. 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, the European Parliament called for a U.S.-EU framework agreement to help better
ensure the protection of personal data exchanged between the two sides in the fight against
terrorism and crime. In late May 2010, the European Commission proposed a draft mandate for
negotiating such an accord that could apply to all U.S.-EU data-sharing agreements in the law
enforcement context. The Commission hopes that an overarching deal on data protection will
bridge what it views as U.S.-EU differences in the application of privacy rights and guarantee that
all data transferred is subject to high standards of protection on both sides of the Atlantic. The
Commission noted, however, that any such framework agreement would not provide the legal
basis for the actual transfer of personal data between the EU and the United States, and that
specific agreements on SWIFT or PNR, for example, would still be required.31 EU member states
approved the Commission’s mandate in early December 2010.
In March 2011, the United States and the EU officially launched negotiations on a framework
Data Privacy and Protection Agreement (DPPA) to protect personal information exchanged in a
law enforcement context. The United States believes that this U.S.-EU accord should be based
broadly on the principle of mutual recognition of each other’s data protection systems, thus
making it clear that while the U.S. and EU regimes may differ, they both protect citizens’ rights to
privacy and other civil liberties effectively. As such, the United States hopes that the negotiations
will ultimately result in an EU finding of “adequacy” for U.S. data protection standards. Many
analysts believe that the DPPA will likely build on the common personal data protection
principles adopted by the United States and the EU in October 2009.32
U.S. and EU officials assert that considerable progress has been made in negotiating a DPPA,
including on provisions related to data security, the transparency of data processing, maintaining
the quality and integrity of information, and oversight. However, some controversial issues
remain, including purpose limitation, retention times, and redress. Many EU officials and MEPs
30 “Parliamentary Committee Approves EU-US PNR Agreement,” Agence Europe, March 28, 2012; Statement by U.S.
Ambassador to the EU, William Kennard, on the European Parliament’s Endorsement of the U.S.-EU PNR Agreement,
April 19, 2012; “MEPs Bring an End to PNR Agreements Saga,” Agence Europe, April 20, 2012.
31 European Commission Press Release, “European Commission Seeks High Privacy Standards in EU-US Data
Protection Agreement,” May 26, 2010.
32 For more information, see U.S. Department of State Press Release, “U.S., EU Reach Agreement on Common
Personal Data Protection Principles,” October 28, 2009.
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insist that European citizens need the right of judicial redress in the United States; some experts
believe that the EU will likely push 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 other U.S. laws, such as the U.S. Freedom of
Information Act.
Another possible point of contention in U.S.-EU negotiations may be whether or not the DPPA
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. The member states and the European
Parliament must ultimately approve any eventual U.S.-EU DPPA for it to take effect.33
Strengthening Border Controls and Transport Security
According to the U.S. Department of Homeland Security, roughly 30,000 passengers arrive daily
from Europe at U.S. ports of entry, as do more than 3,000 commercial containers.34 Over the last
decade, the United States and the EU have emphasized cooperation in the areas of border control
and aviation and maritime security, and have concluded several agreements on such issues. The
two sides have sought to enhance international information exchanges on lost and stolen
passports and to promote the use of interoperable biometric identifiers to enhance travel
document security. In January 2010, the United States and the EU issued a joint declaration in
which they pledged to intensify U.S.-EU efforts to strengthen aviation security measures
worldwide, and 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. Recently, the United States and the EU have placed considerable emphasis on
improving cargo security and strengthening global supply chain security. In a joint statement in
June 2011, the United States and the EU reaffirmed their determination to bolster supply chain
security and foster greater global cooperation on this issue. 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 in which airplanes were used as weapons, both the United States
and the EU have implemented a range of measures aimed at improving aviation security.35
33 “Data Protection: EP Debates Adoption of Common Framework,” Europolitics, October 27, 2010; U.S. Department
of Justice Press Release, “Joint Statement on the Negotiation of a EU-U.S. Data Privacy and Protection Agreement by
Attorney General Eric Holder and European Commission Vice-President Viviane Reding,” June 21, 2012.
34 Testimony of Mark Koumans, Deputy Assistant Secretary for International Affairs, U.S. Department of Homeland
Security, before the House Foreign Affairs Committee, Europe and Eurasia Subcommittee, “Overview of Security
Issues in Europe,” 112th Congress, May 5, 2011.
35 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 2008 and became fully applicable in April 2010.
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Several incidents over the last few years have brought aviation and air cargo security to the
forefront of U.S.-EU discussions again, especially 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).
The discovery in May 2012 of a plot to down a civilian aircraft using a device similar to the one
used in the December 2009 attempt highlights the continuing terrorist threat to aviation.
Many U.S. and EU rules and regulations implemented since 2001 have coincided closely, and the
two sides have sought to work together to bridge gaps in their respective policies given the
significant volume of transatlantic flights (more than 2,500 every week). For example, in 2003,
some EU countries objected to new U.S. rules requiring armed air marshals on certain flights to
and from the United States; U.S. officials pledged to consider alternative measures for European
countries opposed to armed air marshals. Moreover, in 2008, the United States and the EU
reached an agreement on coordinating air cargo security measures.36 Among other provisions, the
two sides pledged to institute commensurate systems to ensure the security of all cargo on
passenger flights between their respective territories, 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.37
In June 2012, the United States and the EU announced that they had reached an agreement on an
air cargo security partnership, in which each side will recognize the other’s air cargo security
regime, thereby eliminating duplication of security controls and the need to implement different
regimes depending on the destination of air cargo. U.S. and EU officials assert that this mutual
recognition of air cargo security regimes will enhance cargo security and result in huge savings
for U.S. and European cargo operators in terms of both time and money, improving the speed of
transatlantic shipments and reducing costs. As part of the agreement, both sides also pledged to
exchange information on the evolution and the implementation of their security regimes.
According to press reports, EU officials assert that this mutual recognition agreement will enable
European operators to meet the U.S. requirement for 100% screening of cargo on passenger
planes bound for the United States from abroad contained in the Implementing Recommendations
of the 9/11 Commission Act of 2007, noted above.38
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,
36 Ned Levi, “TSA To Finally Screen Air Cargo on Passenger Flights,” Consumer Traveler, November 4, 2008. The
text of the 2008 U.S.-EU agreement on air cargo security is available at:
http://www.tsa.gov/assets/pdf/eu_us_enhancing_air_cargo_security.pdf.
37 In the United States, the screening of all cargo on passenger flights, as called for in P.L. 110-53, has been
implemented in stages. The U.S. Transportation Security Administration (TSA) has required the screening of all cargo
transported on U.S. domestic passenger flights since August 2010, and the screening of all cargo on international
passenger flights inbound to the United States since December 2012. For more information, see CRS Report R41515,
Screening and Securing Air Cargo: Background and Issues for Congress, by Bart Elias.
38 European Commission Press Release, “EU-US Security Agreement Allows Cheaper and Faster Air Cargo
Operations,” June 1, 2012; U.S. Transportation and Security Administration Press Release, “TSA and EU Achieve
Unprecedented Air Cargo Security Through Agreement,” June 1, 2012; Nicola Clark, “U.S. and European Union Agree
on Air Cargo Security,” New York Times, June 1, 2012.
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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 supported installing body scanners at
European airports, other EU member states were hesitant due to concerns that the scanners could
compromise privacy rights and pose health dangers. Some Members of the European Parliament
expressed similar worries. However, in July 2011, the European Parliament backed the use of
body scanners at EU airports provided that safeguards were instituted to protect passenger
privacy and ensure passenger health; the safeguards recommended by the EP included the
requirement that scans only produce stick figure images and not body images, and a ban on x-ray
scans (an alternative millimeter wave scan was permitted instead). The EP also asserted that the
use of the scanners should be voluntary, with passengers having the right to opt for a manual
search. In November 2011, the European Commission adopted the EP’s conditions in setting
common standards for the use of body scanners at EU airports. However, member states are not
required to deploy such scanners and some are unlikely to do so.39
Some EU officials and European Parliamentarians have also been uneasy about the use of body
scanners at U.S. airports, given the large volume of European visitors to the United States.
However, at least some European privacy and health worries were likely assuaged in January
2013, when the U.S. Transportation Security Administration (TSA) announced that it would
remove all full-body scanners that produce detailed, revealing images by June 2013. Body
scanners will remain at U.S. airports, but only those that produce more generic body images will
be employed and most (but not all) of these scanners (either currently in use or contracted for by
the TSA) use millimeter wave technology rather than low-dose x-rays. Many Members of
Congress, like their counterparts in the European Parliament, had long expressed concerns that
the more revealing body scanners violated passengers’ privacy rights.40
Meanwhile, U.S. officials have been worried about planned changes to EU regulations governing
liquids and gels in carry-on baggage on board planes. Following the August 2006 disruption of a
plot to use liquid explosives to blow up transatlantic flights, the United States and the EU began
prohibiting passengers from carrying most liquids and gels on board planes. The United States
has worked with the EU and other countries to harmonize the small amounts of travel-sized
liquids and gels that are permitted in carry-on baggage in an effort to minimize inconvenience to
international travelers. In 2010, however, the EU announced plans to eliminate restrictions on
liquids in cabin baggage by April 2013, following the introduction of liquid screening equipment
in all EU airports. U.S. policymakers voiced concerns about the effectiveness of current liquid-
screening technology and argued that it was premature to ease the liquid and gel restrictions.
Some EU governments and segments of the airline industry expressed similar worries about
airline security and noted that the planned changes could result in potential flight delays.
In light of these various concerns, the EU has postponed the original 2013 deadline for
introducing liquid screening equipment and eliminating all restrictions on liquids and gels in
39 For example, the UK, the Netherlands, France, and Italy have been trying out full-body scanners at their airports, but
Germany, Spain, and some Nordic countries remain more cautious about using the scanners. “EU Puts Off Reply To
U.S. Request for Airport Body Scanners,” Agence France Presse, January 21, 2010; “Body Scanner Approved by EP,
with Conditions,” Agence Europe, July 7, 2011; “Europe Sets Rules for Airport Body Scanners,” Agence France
Presse, November 14, 2011.
40 Ron Nixon, “Unpopular Full-Body Scanners to be Removed from Airports,” New York Times, January 18, 2013; Jeff
Plungis, “Naked-image Scanners to be Removed from U.S. Airports,” Bloomberg.com, January 18, 2013. For more
information, see CRS Report R42750, Airport Body Scanners: The Role of Advanced Imaging Technology in Airline
Passenger Screening , by Bart Elias.
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carry-on baggage. The EU maintains that it is still committed to removing such restrictions in the
longer term, but acknowledges that the extent of the change could present “operational risks.”
Instead, the European Commission has proposed that EU restrictions on “duty-free” liquids and
gels in cabin baggage be lifted by January 2014, and that subsequent phases aimed at removing
all restrictions on liquids in carry-on baggage will be announced at the “earliest possible date.”41
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
participate in CSI.
In May 2012, the United States and the EU agreed to recognize each other’s trusted shipper
programs in an effort to improve supply chain security and boost trade opportunities. This mutual
recognition accord is intended to speed up customs procedures for some 15,000 U.S. and
European companies designated as “trusted traders” by either the U.S. Customs-Trade Partnership
Against Terrorism (C-TPAT) program or the EU’s Authorized Economic Operators (AEO)
regime. U.S. and EU officials hope this agreement will not only lower costs and simplify
procedures for trusted traders but also allow customs authorities to concentrate limited resources
on risky consignments and better facilitate legitimate transatlantic trade.
Recently, U.S.-EU tensions have receded over a provision in the Implementing Recommendations
of the 9/11 Commission Act of 2007 (P.L. 110-53) that set a five-year goal of scanning at foreign
ports of loading all containers bound for the United States for nuclear devices. Although
European leaders supported the use of radiation detection and container imaging to increase cargo
and freight security in principle, they viewed 100% container scanning as unrealistic, and argued
that it could disrupt trade and place a heavy financial burden on EU ports and businesses. U.S.
officials in both the Bush and Obama Administrations shared 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 pointed out that the United States and Europe
already had programs in place to identify high risk cargo shipments and target them for further
inspection. In May 2012, the U.S. Department of Homeland Security notified Congress that it was
extending the July 2012 100% scanning deadline by two years. Proponents of 100% scanning
continue to urge its full implementation, arguing that the manifest data currently used by U.S. and
European authorities to determine which containers need closer scrutiny is not an adequate basis
for determining risk.42
41 Nicola Clark, “Europe Postpones Easing Rules on Carrying Liquids on Planes,” New York Times, April 30, 2011;
Jonathan Stearns, “EU Abandons Plan to End Liquids Curbs in Air Travel in 2013,” Bloomberg.com, July 18, 2012;
European Commission, “Liquids, Aerosols and Gels,” January 2013,
http://ec.europa.eu/transport/modes/air/security/aviation-security-policy/lags_en.htm.
42 “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;
“New Customs Pact Spells Likely End to 100% Scanning Rule,” Europolitics, May 7, 2012.
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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 37 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 countries)
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
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.43
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 George W. Bush Administration, a number of U.S. policies were subject to
widespread criticism in Europe; these included: the U.S.-run detention facility at Guantánamo
43 For more 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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Bay, Cuba; U.S. plans to try enemy combatants before military commissions; and the use of
“enhanced interrogation techniques.” 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. Some individuals held at Guantánamo
and/or allegedly subject to U.S. rendition have been European citizens or residents.
Many European leaders and analysts viewed these U.S. terrorist detainee and interrogation
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 European 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 that such policies violated U.S. human rights
commitments. The Bush Administration officials 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 frictions over terrorist detainee policies 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. In March 2009, the U.S. State Department appointed a
special envoy to work on closing the detention facility, tasked in particular 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. Some EU members accepted
small numbers of released detainees, but others declined.
At the same time, the Obama Administration has faced significant challenges in its efforts to close
Guantánamo. Some observers contend that U.S. officials have been frustrated by the reluctance of
other countries, including some in Europe, to take in more detainees. Congressional opposition to
elements of the Administration’s plan for closing Guantánamo, and certain restrictions imposed
by Congress (including on the Administration’s ability to transfer detainees to other countries
amid concerns that some released detainees were engaging in terrorist activity), have also
presented obstacles. Consequently, the Obama Administration has not fulfilled its promise to shut
down Guantánamo. 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 in March 2011 an end to
its two-year freeze on new military commission trials for Guantánamo detainees. In January
2013, the duties of the State Department’s special envoy were assumed by a different office;
many observers have interpreted this latest move as signaling that the Administration recognizes
that closing Guantánamo is unlikely in the near future. Press reports indicate that 166 detainees
currently remain at Guantánamo.44
44 “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,” Washington Post, March
(continued...)
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Some European policymakers continue to worry that as long as Guantánamo remains open, it
helps serve as a recruiting tool for Al Qaeda and its affiliates. Some European officials have also
voiced concern about those detainees at Guantánamo who have been on hunger strikes since
February 2013, and recent clashes between prison guards and some detainees. In mid-April 2013,
during a plenary session, the European Parliament discussed the current situation at Guantánamo;
a number of MEPs representing several political groups introduced a joint resolution that
expresses concern for those on hunger strike, calls upon the United States to close the
Guantánamo detention facility, and recalls the willingness of EU member states to assist U.S.
authorities in shutting down Guantánamo.45
Many Europeans also remain concerned about the past role of European governments in U.S.
terrorist detainee policies and practices. In September 2012, the European Parliament passed a
non-binding resolution (by 568 votes to 34, with 77 abstentions) calling upon EU member states
to investigate whether CIA detention facilities had existed on their territories.46 The resolution
urged Lithuania, Poland, and Romania in particular to open or resume independent investigations,
and called on several other member states to fully disclose all relevant information related to
suspected CIA flights on their territory. Meanwhile, some U.S. and European officials worry 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.47
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 George W. Bush Administration essentially
determined that the political benefits of engaging the EU as an entity on police and judicial
matters outweighed the potential risks 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.
(...continued)
8, 2011; Charlie Savage, “Office Working To Close Guantánamo Is Shuttered,” New York Times, January 28, 2013.
45 See EP Joint Motion for a Resolution RC-B7-0168/2013, April 17, 2013.
46 See EP Resolution A7-0266/2012, September 11, 2012.
47 “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.
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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
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
counterparts in the Parliament, 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.48
48 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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Author Contact Information
Kristin Archick
Specialist in European Affairs
karchick@crs.loc.gov, 7-2668
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