(DRAFT) MISSION REPORT Summary on the LIBE Delegation to Washington DC. on October 2009

Transcription

1 EUROPEAN PARLIAMENT Committee on Civil Liberties, Justice and Home Affairs (DRAFT) MISSION REPORT Summary on the LIBE Delegation to Washington DC. on October 2009 Following the authorisation by the EP President Buzek, a LIBE Delegation had a mission in Washington on October The following are the main elements which characterised the works of the delegation. 1. Composition of the delegation 1[1] The Delegation was led on 26th and 27th of October by Mr Juan Fernando López Aguilar (S_D), Chairman of the Committee on Civil Liberties, Justice and Home Affairs and on 28th of November by Mr Stavros Lambrinidis (S_D) ('hors quota'), Vice-President of the EP was composed by: Members 'in quota' Mr Salvatore IACOLINO - LIBE Vice Chairman, PPE (IT), Mr Claude MORAES, Coordinator, S_D (EN), Mrs Jeanine HENNIS-PLASSCHAERT, Coordinator, ALDE (NL) Mr Axel VOSS, PPE (DE) Mr Ernst STRASSER, PPE (AU), Mr Petru Constantin LUHAN, PPE (RO) Members 'hors quota' Mr Kyriacos TRIANTAPHYLLIDES, GUE/NGL (CY), Mr Jan Philipp ALBRECHT, Verts (DE) 2. Background and objectives The main objective of this delegation was to provide LIBE members (as well as some members of the EP Delegation for relations with the United States, who were by this time on a parallel delegation to US) with the opportunity to attend the Ceremony for the conclusion of the Agreements between the European Union and the United States 1[1] Took also part at the Delegation works :Political Groups Staff: Mr Michael Alexander SPEISER, PPE, Ms Fabrizia PANZETTI, S_D, Mr Anders RASMUSSEN, ALDE Assistants to the Members: Mr Íñigo ECHEVERRIA-TORRES MONASTERIO (Mr López Aguilar), Ms Laura PEARSON (Mr Moraes), Mrs Kerstin MAIER (Mr Strasser), Mrs Ouarda BENSOUAG (Mrs Gallo (EU-US Delegation)) LIBE Secretariat Staff Mr Emilio DE CAPITANI, Head of Unit, Ms Maria LAZAROVA, Assistant Interpreters (EN-IT) Mrs Annalisa VENTURI, Mrs Livia RIBOLDI

2 of America on extradition and mutual legal assistance in criminal matters and to establish closer relations with the US administration and with the Congress in view of the entry into force of the Lisbon Treaty. During the three days of official work participants to the delegation had the occasion to meet representatives of the US Congress, Senators' Staff, representatives of the current US Administration as well as representatives of NGOs working in policies linked with the European Freedom, Security and Justice area (fundamental rights, data protection visas and border protection, migration and asylum, police and judicial cooperation). 3. The meetings 3.1 On Monday, 26 October 2009 the members were briefed by Mr Robert C. Whiteman, Senior Advisor, Congressional and Parliamentary Liaison at the Delegation of the European. During the briefing some general aspects on the US Congress working methods have been raised. 3.2 A first meeting took place from 12:00 to 13:00 - meeting with the US State Department Legal Advisor Harold Koh. The main focus of the meeting with Mr Koh was to discuss the possible impact of the entry into force of the Lisbon treaty in the transatlantic relations notably in the freedom, security and justice related issues. Having regard also to the Stockholm Programme and to the draft ministerial declaration on the EU-US relations in the coming years it has been suggested that LIBE develop closer contacts with the US administration as well with the Congress. Mr Koch will probably be in the EU for the EU-US Summit (NDR currently scheduled for April 6th/7th in Madrid). It has to be checked if it will be possible to meet him also during a LIBE meeting during this period. 3.3 A second meeting at the Department of Homeland Security took place. Following officials took the floor for short presentation on several topics of interest which was followed by a question -answer session: - Mr David Heyman, Assistant Secretary for Policy will chair the meeting - Mr Robert Mocny, Director of US-VISIT (who made clear that the DHS is reexamining the measures taken since 2001 to check if they are still proportionate and effective) - Ms Mary Ellen Callahan, Chief Privacy Officer (she gave some general information on the implementation of the EU-US PNR agreement by stressing the fact that the US administrative redress mechanism is less formal but more expedited than the European one). She also touched the subject of the joint PNR review (that took place in December 2008) and noted - with regret - that it had taken place without the COM involvement. - The Members clarified with the CPO whether she would be able to block legislation and genuinely check privacy compliance. Mrs Callahan replied that it was indeed within her remit and that she had already made a number of critical remarks to DHS which had been taken into account before implementing the relevant Bill. The meeting was very informative on factual aspects and political questions have been postponed to a meeting with US Secretary for Homeland Security Janet Napolitano (NDR the meeting with the US DHS Secretary took place in Brussel on November 6th, 2009).. 2

3 3.4 Late in the afternoon a third meetings with Congressman Jerrold Nadler, (D) New York, Senior Member of the Committee on the Judiciary took place. - The PATRIOT act was discussed, where Mr Nadler raised the problem that key provisions of the PATRIOT act will be expiring The new Administration is keen to renew these and at present there is not a majority to oppose these. - The use of the State Secrets Act, which enables the Administration to deny evidence on the basis of state secrets, was discussed. The Bush administration had used these provisions to set up unlawful wiretaps, and gave the example that court cases, where the government was sued in tort had been dismissed as hearing the case would reveal secret info. 3.5 On Tuesday, 27 October 2009 the working session started by a Meeting with Congressman Bennie G. Thompson (D), Mississippi's Second District, Chair of the House Committee on Homeland Security. The following points have been raised: - Members raised the issue of the balance between fighting terrorism and crime while ensuring respect for fundamental rights. The Congressman agreed fully with the Members, but noted that at present there is not a solid majority in either Congress or Senate to really change the way the US administration has dealt with the terrorist threat. With the Health Reform going through, there is reluctance to create any additional problems. - Visa waiver was discussed, and the link to the $10 TPA was criticised by the Members, and noted by the Congressman. As a follow up the Congressman was invited to attend a LIBE meeting in Brussels, which could include ranking Members from both parties as well as representatives from a wider range of the committees involved in the JHA field. 3.6 The morning of the same day a briefing of Vice President Barrot, followed. During the meeting the different issues debated the same days during the ministerial troika have been raised and the Vice President praised the LIBE initiative to establish closer and more permanent contact with the Congressional counterpart as in some cases the US administration initiatives implement requests from the Congress (such as the creation of an exit system or the establishment of a fee of 10 dollars + fee for the ESTA application. The Vice President stressed the importance to grant full protection of the European citizens (and adequate redress mechanism) when data protection is at stake and also raised his criticism of the proposed $10 TPA bill, and suggested that reciprocity might be considered. He noted a willingness of the White House to work with Congress to find a compromise that would not upset the EU. 3.7 In the afternoon two-hours roundtables organised by Professor Marc Rotenberg, Executive Director of the Electronic Privacy Information Center (EPIC) took place with some ONGs dealing with the LIBE related policies such as: Human Rights, First, American Civil Liberties Union, etc.), engaged in the field of privacy and human rights to discuss topics of mutual interest. Mr Rotenberg expressed the support from the "Public Voice" group of ONG for the developement of global standards as discussed during the incoming International Conference of data protection and privacy. 3

4 Another issue debated during the meeting was the US legal framework allowing intelligence led searches. Reference has been made to recent legislative initiatives linked with the extension of some intelligence-related rules of the Patriot Act (see the September 2009 Congressional Research Service report "Intelligence Issues for Congress"). In this perspective Professor James Bamford presented also a report on the organisation of the National Security Agency (NSA) and on its role in the global surveillance. 3.8 In the evening a meeting with Congressman Daniel Lungren (R), California's 3rd District, Member of the Judiciary Committee took place... During the meeting the issue of the implementation of the EU-US agreements on extradition and mutual legal assistance was raised as well of the relations between the two EU agreements and the 54 national bilateral agreements. 3.9 On Wednesday, 28 October [2], the Delegation continued its work under the chair of EP Vice President Stavros Lambrinidis and had a first meeting with Ms Zulima Espinel, Senior Staff of Senator Patrick Leahy, (D) Vermont, Chairman of Judiciary Committee, Subcommittee on Immigration, Refugees and Border Security. During the meeting the issue of the closure of Guantanamo was raised, where Ms Espinel noted that "a disconnect of communication" had taken place, and that while the deadline of January 2010 would probably not be met, it was clear that the commitment to close Guantanamo was very strong and would be met during the course of The delegation extended an invitation for a seminar/conference mid 2010, which Ms Espinel would pass on to Senator Leahy A meeting with Congresswoman Loretta Sanchez (D) California, Chairwoman, Subcommittee on Border, Maritime and Global Counterterrorism followed. During the meeting the following points have been raised: - the Immigration Reform should have been proposed before the Health reform, as there is a risk that the Health reform would fail, which in turn would block any reform of the Immigration Reform. - the link between the Visa Waiver Programme and immigration is a very sensitive subject, and the fact that for some countries included in the VWP there is a relatively high overstaying rate is something used by the opponents of the VWP. - US-VISIT was discussed, where a number of problems remain, which will likely limit the extension of the VWP programme. This includes the fact that there is no exit-component that is currently in place, that DHS is a young department in charge of US-VISIT and that there is not a corresponding budget to develop US-VISIT properly. - the $10 TPA will likely have to be restarted again, as the way it was introduced was without an appropriation bill linked to it. Mrs Sanchez was asked to attend a LIBE meeting in Brussels, which she accepted, and proposed to organise joint meetings once a year in Washington and in 2[2] LIBE members were given the option to meet with Congressman Bill Delahunt, (D) 10th District of Massachusetts, Chairman of the Subcommittee on International Organizations, Human Rights, and Oversight, which was in the agenda of the EP Delegation for relations with the US. 4

5 Brussels, as she was a strong supporter of better transatlantic dialogue especially in the Justice and Home Affairs field The Ceremony the for the conclusion of the Agreements between the European Union (represented by the Swedish Presidency and the EU Commission) and the United States of America on extradition and mutual legal assistance in criminal matters was organised in the House of Sweden and started at about 12:15 p.m. Four members, political staff and staff of LIBE Secretariat were allowed to follow the ceremony. The same day a US-EU ministerial Declaration has been adopted (see also attached) After the Ceremony at the Swedish House) from 15:00 to 15:40 - Meeting at the Department of Justice, where the delegates met Ms Nancy C. Libin, Chief Privacy and Civil Liberties Officer, Mr Kenneth Harris, Lead negotiator of the US-EU Agreements and related bilateral instruments as well as Mrs Mary Lee Warren, Senior Counsel for the EU and International Criminal Matters. During the meeting reference was made to the Mutual Legal Assistance agreement as well to the way how access to bank accounts could be given not only via art. 4 of the Agreement but also in the framework of administrative cooperation (art. 8). In this framework reference has been made to administrative or judicial redress available under U.S. law for mishandling of personal data exchanged for security purposes (3) as well to a EU-US recent seminar on this subject. 4. Conclusions Even if the delegation has been organised in a short period of time the meetings have been considered extremely helpful. It has clearly appeared that notably after the entry into force of the Lisbon Treaty the US administration is particularly very keen in establishing a dialogue with the European Parliament in the new policies falling in the LIBE remit. Also on the Congress side the meetings showed a growing interest in developing further the Transatlantic Legislative Dialogue in the FSJA domains (NDR This has been confirmed (*) at the following TLD meeting in New York on December 4-7, 2009). A number of issues are on the table which will need to find a solution in the course of 2010, such as the TPA, the VWP and the lacking exit part in the US-VISIT programme, and a general framework for the different EU-US data protection frameworks. As a follow-up of the work of this delegation, on Friday 6th November 2009, LIBE has organised a meeting, with Mrs Janet Napolitano, United States Secretary of Homeland Security, followed by a press conference. She will make a presentation of the President Obama's Administration and will discuss with LIBE members various topics falling upon the committee competences. (*) 3 See: Administrative Procedure Act of 1946 (5 U.S.C. 701 et seq.), the Inspector General Act of 1978 (5 U.S.C. App.), the Implementing Recommendations of the 9/11 Commission Act of 2007 (42 U.S.C. 2000ee et seq.), the Computer Fraud and Abuse Act (18 U.S.C. 1030), and the Freedom of Information Act (5 U.S.C. 552), as amended, among others) 5

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7 ANNEX: EU-US Joint Statement on "Enhancing transatlantic cooperation in the area of Justice, Freedom and Security" The European Union (EU) and the United States of America (U.S.) share common values of democracy, rule of law and respect for human rights and fundamental freedoms. We recognize that transnational crime and terrorism pose a threat to these shared values. We thus seek to deepen transatlantic cooperation in the pursuit of greater justice, freedom and security. This statement is adopted at a time when the EU is setting out new ambitions for its policy for the area of Justice, Freedom and Security with the adoption of a new multiannual policy programme by the end of 2009, the Stockholm Programme. This process will lead to an update of EU policies, many of which have a transatlantic dimension. The U.S. has reaffirmed a foreign policy based upon its values and ideals, while also protecting the American people and building new justice and home affairs programs and partnerships in furtherance of this policy. We would like to take this opportunity to renew our partnership for the next five years. We welcome this opportunity to reflect upon our progress over the past years. The EU and the U.S. have benefitted from a long-standing, productive partnership in the areas of justice, freedom and security. Our progress is reflected in our agreements on extradition and mutual legal assistance, information on flight passengers, customs cooperation, collaboration in tracking terrorist financing and EU assistance in facilitating the closure of the Guantanamo Bay detention facility. We also recall our close operational partnership leading to international agreements and working arrangements between the U.S. and Europol, Eurojust and Frontex, respectively, and the posting of liaison officers at each other's diplomatic representations and at Europol and Eurojust. We take note that transatlantic cooperation between the U.S. and EU and EU s Member States takes place in many ways, formal and informal, and on a daily basis, including through ongoing operational cooperation. Our partnership will benefit our people and address our common challenges of maintaining security and individual rights while facilitating travel, business, and communication. We face common threats from those who seek to commit acts of terrorism and transnational crime. Our partnership must be balanced, agile, creative and forwardthinking. In the spirit of mutual respect and partnership, we commit to enhancing our policy and operational cooperation to meet common challenges with due regard to reciprocity. To this end we will further enhance the exchange of information on policy and operational initiatives, share experiences and best practices, reinforce cross-border law enforcement and judicial cooperation, and organise, when relevant, joint training and expert meetings. Whenever appropriate, we will foster cooperation with the private sector. We will seek early consultations when new policy developments may affect the other partner. We highlight our common commitment to work together in international fora towards full implementation of multilateral obligations and work cooperatively where issues of common interest arise. We will endeavour to enhance transatlantic dialogue with and between our legislative bodies and support the expansion of their discussions on justice and home affairs issues in the context of the Transatlantic Legislators' Dialogue, among others. Scientific and technological cooperation is indispensable to enhance the security of our societies. We will therefore further deepen our cooperation in the area of civil security research, in particular via our newly extended and amended Agreement for Scientific and Technological Cooperation. Together we will translate these commitments into concrete actions illustrating the value of our partnership to the American and European people. Facilitating mobility in a secure environment 7

8 We are committed to the facilitation of legitimate travel and trade in a secure environment which is essential for maintaining close ties between the citizens and businesses of the United States and the European Union. We have cooperated to enhance travel document security and to establish biometric passports as the international standard. We recall our agreement on airline passenger data to enhance air travel security including our commitment to undertake joint reviews of the agreement in order to assure the effective operation and privacy and personal data protection of our respective systems for collecting and analyzing such data. We remain committed to addressing the challenge of terrorist and criminal mobility while providing a welcoming travel experience for legitimate travellers while safeguarding their personal data, including through registered traveller systems. We acknowledge the social and economic benefits to EU and U.S. citizens from visa-free travel in a secure environment between our two continents. We will work together to complete visa-free travel between the US and the EU as soon as possible and increase security for travellers. We will develop our working relationship on mobility and security matters, including border, readmission and travel document security policies. We look forward to close cooperation and the exchange of best practices, as we develop and implement technical border entry and exit systems. We will work closely to implement the Working Arrangement between the U.S. Department of Homeland Security and Frontex. We intend to improve our common understanding of the global phenomena of migration and refugee issues and look for joint responses in areas where we are both affected. To this end we commit to expand our dialogue. Strengthening law enforcement We re-affirm our commitment to protect our people from the common threats of serious transnational crime. We seek to expand and intensify our cooperation notably in the areas of: trafficking in human beings smuggling of migrants sexual exploitation of children, including depictions of such abuse of children on the Internet drug trafficking trafficking of other illicit goods financial crime cyber crime corruption tracing and confiscating the proceeds and instrumentalities of criminal activity We recognize that the fight against terrorism requires coherent and coordinated action. We recall our joint statement on the closure of the Guantanamo Bay detention facility and to future more expansive counter-terrorism cooperation. The prevention of violent radicalisation and recruitment is critical to enhancing citizens' safety from the threat of terrorism. The misuse of the Internet for disseminating violent and radicalizing messages is a worrisome phenomenon that we need to consider within the context of legal restraints and operational needs. We support compliance with international standards to combat the financing of terrorism, including the Special Recommendations of the Financial Action Task Force. We recall our continuing dialogue and practitioners' workshops on terrorist financing and reducing the vulnerability of non-profit organisations for financial crimes. We recognize that terrorist sanctions in support of the United Nations Security Council designations have greatest effect when implemented internationally and will continue our efforts to 8

9 strengthen legal protection of individuals in listing and delisting procedures. We will also continue to cooperate in tracking the misuse of the financial system for terrorist purposes. We will continue to conduct seminars and workshops on the threats posed by the malicious use of explosives and chemical, biological, radiological or nuclear materials and will continue to encourage the ongoing beneficial relationships that these seminars and workshops foster. We recall our close law enforcement cooperation, including coordinated operations, joint training, cooperation among our law enforcement training institutions, cooperation on threat analyses, identification of best practices and research. We commit to strengthen and deepen cooperation between the United States, Europol and Eurojust. Annual crime specific meetings between relevant U.S. prosecutors and law enforcement officers and representatives of Eurojust and Europol will serve to increase the effectiveness of our cooperation. We will look for ways to take the profit out of crime through freezing and confiscating ill-gotten assets and instrumentalities of crime. Strengthening judicial cooperation We have worked to improve judicial cooperation to help detect, investigate and prosecute transnational criminals and terrorists. We look forward to the entry into force in early 2010 of the EU-U.S. agreements on extradition and mutual legal assistance and the conforming bilateral instruments. These agreements will provide for new tools for cooperation between U.S. police authorities and prosecutors and the EU Member States and Eurojust, such as the setting up of joint investigation teams (JITs), using video teleconferencing technology to take testimony and providing prompt response to requests on suspects banking and other financial services records Together with the updated extradition and mutual legal assistance agreements between the U.S. and individual EU Member States, these agreements will facilitate and expedite assistance. An EU-U.S. working group will promote implementation of the agreements, and seminars are planned to help practitioners employ the agreements to their fullest and monitor implementation. We note the benefits of enhancing our dialogue on judicial cooperation in civil law matters. We will deepen our policy exchange between relevant experts on civil law matters and share information on new legislation and initiatives. Safeguarding human rights and fundamental freedoms, including civil liberties The fight against transnational crime and terrorism often requires the sharing of personal data for law enforcement and public security purposes, which compels us to protect the human rights, fundamental freedoms and civil liberties in all fields of transatlantic cooperation. We recognise the critical importance of providing a high level of effective protection of personal data. Our common values and attention in this area are borne out by our history of effective cooperation with scrupulous attention to protecting personally identifiable information. Furthermore, we strive to increase confidence in our respective legal frameworks. We acknowledge the completion of the High Level Contact Group s more than two years of work to foster mutual understanding and identify a core set of common principles that unite our approaches to protecting personal data while processing and exchanging information for law enforcement purposes. We have important commonalities and a deeply rooted commitment to the protection of personal data and privacy albeit there are differences in our approaches. The negotiation of a binding international EU-U.S. agreement should serve as a solid basis for our law enforcement authorities for even further enhanced cooperation, while ensuring the availability of full protection for our citizens. 9

10 We share the conviction that the EU-U.S. cooperation to increase public security in general needs to be linked to increased joint efforts to strengthen freedom and justice in the transatlantic space. Fostering preparedness and resilience Given the damage to our critical infrastructure that would result in the event of a manmade attack or natural disaster, and the consequent impacts on public health and safety, and economic and national security, we commit to enhance our capabilities, e.g., to identify fundamental interdependencies, assess risks and protect critical infrastructure, key resources and vital supply chains. We will undertake efforts that foster resilience to prevent the disruption of critical infrastructure functions thereby ensuring that our people and economies recover as quickly as possible. Recent cyber attacks are a reminder of the urgent need for action. We are resolved to prevent attacks against our information systems and develop means to swiftly respond to threats of an increasingly global nature. We will work cooperatively to recover from major critical information and communication system failures. Working together internationally We are inspired by the principles of liberty, democracy and justice and are committed to working together internationally to foster these principles around the world. We have achieved a great deal in our cooperation on the ground in third countries and international fora such as the United Nations. Cooperation between liaison officers and delegations has proved to be fruitful, e.g., in the Western Balkans, Afghanistan and Pakistan. In order to help us ensure that our actions are complementary and also to increase the impact of our work with third countries, we will engage in close consultation and coordinate technical assistance. We will continue donor and operational cooperation, particularly in Latin America and West Africa, to help tackle drug trafficking and other challenges. We will build upon our strong partnership and work together to strengthen global and regional institutions, to ensure they play a vital role. Also, we will continue to cooperate in promoting and implementing key international instruments, in particular the UN Convention on Transnational Organised Crime and its supplementing Protocols, and the UN Convention against Corruption. We will work closely together to build a strong review mechanism that will allow for effective monitoring of the implementation of the Convention against Corruption. We will also promote the accession to and effective implementation of the Council of Europe Convention on Cybercrime. We fully support the ratification and implementation of the UN conventions and protocols against terrorism. Recalling the general principles of good cooperation, we undertake to make our dialogue as effective as possible. We seek to foster in-depth discussion and frank exchange, meeting as often as necessary, and promptly following up after meetings. To this end, we will examine and adapt the structure and format of our dialogue to include intensified consultations and regular joint meetings at Ministerial and senior officials' levels and more operational contact and exchanges at the expert level, using videoconferencing whenever suitable. This statement pays tribute to our past accomplishments and points the way for further strengthening transatlantic cooperation in the areas of freedom, security and justice. We strive to make our people secure against the challenges of transnational crime and terrorism while safeguarding freedom and justice, building on a foundation of shared values, ideals and objectives. Finding practical solutions will guide our action as we continue to make our partnership more operational in maintaining security, facilitating legitimate movement, and protecting human rights and fundamental freedoms. 10