December 1, 2004

On September 11, 2001, the world was introduced to a new type of terrorism, one that was truly global in its organization and its impact. In both Europe and the United States, it was immediately clear that an effective response would require new levels of cooperation across the Atlantic and around the world.

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Executive Summary

The initial response was in part military, as NATO invoked its mutual defense clause for the first time ever and a military campaign began in Afghanistan. But equally important was the decision by both the European Union and the United States to boost the capacity of their domestic law enforcement agencies and judiciary to respond to global terrorism and to look for ways to cooperate with each other in doing so. Since then, U.S.-EU cooperation in combating terrorism has been one of the success stories of transatlantic relations.

It has not always been a trouble-free collaboration, however. There have been conflicts over the sharing of information on airline passengers, the need for biometric data on passports, screening of shipping containers at ports, and the use of armed marshals on airline flights. And, while both the European Union and the United States recognized the severity of the challenge presented by global terrorism, they differed considerably in their assumptions and views on the most appropriate strategy of response. Many in the U.S. government saw terrorism as something to be eradicated and military force as an effective and proportionate tool in that struggle. European attitudes, tempered by their own experience of national terrorism, tended to see terrorism as first and foremost a crime, albeit a heinous one that might require special measures by law enforcement and the judiciary. In this view, eradication is likely to prove impossible; instead governments need to balance strict protective measures with efforts to address the socio-economic roots of such violence.

Both the United States and the European Union have undertaken ambitious domestic programs aimed at strengthening their ability to meet the terrorist challenge at home. In the United States, the USA PATRIOT Act and the Department of Homeland Security have been the lead elements in a significant reorganization of U.S. government efforts in this area. In the EU, the member states have adopted — and now seek to implement — new legislation dealing with a wide array of issues, from border security and arrest warrants, to terrorist financing and police investigations. Moreover, the pressure for additional legislation and reforms continues on both sides of the Atlantic. As a result, efforts to collaborate have sometimes been overtaken by pressures from the domestic agenda, and new domestic measures are still too frequently designed without consultation, causing unnecessary complications in the transatlantic arena. These domestic efforts have also brought to the fore a major difference between the EU and the United States: while the U.S. government can implement and enforce laws throughout the country, the EU institutions must rely on member states to do so. This has added another layer of complexity to building collaboration, as U.S. officials attempt to discern whether a bilateral or multilateral approach is likely to be most effective on each specific issue.

Despite these differences — and the increasing strains in transatlantic relations in the broader diplomatic sphere — the United States and the European Union have shared a commitment to making their evolving collaboration against terrorism a success. During the past three years, they have reached agreement on many new arrangements, such as the Container Security Initiative and Passenger Name Records (PNR), but also on terrorist financing, sharing of evidentiary information, extradition of suspected terrorists, and many others. They have built close ties between parts of their bureaucracies that had rarely been in contact before, and involving officials from working level to Cabinet secretary and European commissioner.

The question now before the United States and the EU is whether and how to build on the cooperation achieved thus far and ensure that this post-9/11 partnership continues into the future. This will not be easy. Legislation and other agreements must be implemented and enforced. Existing areas of cooperation must be extended, and collaboration in new areas must be explored and developed. The good news is that the United States and the European Union have established basic mechanisms for building cooperation through regular consultations and have successfully concluded some basic agreements. Now they must build on that beginning in four key areas.

Information and Privacy

The tension between the need for comprehensive information about potentially suspect individuals and the obligation to protect individual privacy is one of the most difficult elements — but also one of the most important — to reconcile across the Atlantic. Understandings must be reached on how to share intelligence information generated by covert methods, as well information gathered through law enforcement methods and suitable for use in a court of law. The United States and European Union must also find ways of integrating a growing number of databases while maintaining adequate protections on privacy. To date, many of these efforts have proceeded on two separate tracks, sometimes leading to incompatible practices and policies that have heightened transatlantic tensions. In the future there must be more transatlantic consultation as these policies and practices develop. In particular, the United States and the EU should:

  • Build on the experience of the PNR agreement by establishing general “rules of the road” concerning at least three issues: time-frame and criteria for deleting information from a data base; procedures for sharing information with third parties; and establishing appropriate redress for individuals who wish to challenge information about themselves.
  • Develop procedures for the appropriate sharing of personal data between governments and the private sector. The example of banks participating in anti-money laundering schemes may be instructive, along with the role of the national security exemption in the Safe Harbor accord.

Law Enforcement and Judicial Cooperation

Officials in both Europe and the United States acknowledge the importance of collaboration in law enforcement and judicial policy, an area that encompasses sharing information among police forces, joint investigative teams, and compatible criminal statutes and court procedures (including rules of evidence). Given that terrorists increasingly operate in international networks, law enforcement authorities must also be able to coordinate across borders. But actual progress in building that cooperation has been excruciatingly slow. As with information collection, the U.S. and European efforts have moved in parallel but largely separate tracks, with the emphasis on building collaboration within the United States and the European Union, rather than reaching out across the Atlantic. Efforts have also been hindered by persistent tensions over whether bilateral or multilateral arrangements are most effective. U.S. law enforcement has long had bilateral relationships with equivalent agencies in individual EU member states, but has been slow to recognize the shift toward cross-border cooperation in the EU. Yet, the attack in Madrid has demonstrated the need for greater cooperation in this area and provided an impetus to everyone to move forward. To reinforce this trend, the United States and the EU should:

  • Bring the multilateral legal assistance treaties (MLATs) and extradition treaty into effect as soon as possible, reconciling them with existing bilateral agreements.
  • Launch an ongoing set of expert discussions on various law enforcement and judicial issues, including sharing investigative and intelligence information, treatment of evidence, investigative and judicial procedures, etc. These could be reinforced by exchange programs among U.S. and EU law enforcement officials aimed at broadening their knowledge of criminal law and investigative methods on the other side of the Atlantic.
  • Re-engage with Europol by ensuring that the new FBI liaison officer is someone knowledgeable about European law enforcement and the changes it is undergoing. But U.S. efforts will only be effective if European member states commit to making Europol a successful institution.
  • Appoint a full-time liaison to Eurojust, as a way of supporting its very practical efforts to build cooperation among judicial authorities; this should entail the appointment of someone with a judicial or prosecutorial background and network.
  • Expand U.S.-EU cooperation into new areas of criminal investigation, including cybercrime, trafficking in humans and drugs, and arms smuggling, not only to reinforce existing cooperation, but also to impede the terrorist networks which seem increasingly connected with these other cross-border crimes.

Borders and Infrastructure

Efforts to protect borders and key infrastructure, especially transportation facilities, have already caused controversy in the transatlantic relationship, including such issues as biometric passports and screening of shipping containers. Nevertheless there has been a developing transatlantic understanding of the importance of this issue that has led to growing cooperation. Although they lack a common land border, the United States and EU still experience a huge amount of “cross-border” traffic, both in people and goods. Along with tracking suspicious cargos and individuals, they must also protect port and transportation facilities which are vulnerable to attack. These tasks are complicated by the fact that they must involve multiple agencies with many different mandates, who must engage in several interlinking strategies. To address these challenges, the United States and the EU should especially focus on some key priorities. In particular, they should:

  • Strengthen efforts to develop global standards for technologies and procedures that can be used worldwide. Such standards could be developed on a bilateral basis and then adopted by international standards-setting bodies.
  • Collaborate on research and development of technologies that will aid in preventing terrorism or alleviating its effects. Separate R&D efforts may lead to the development and adoption of incompatible technologies that hinder and frustrate transatlantic cooperation.
  • Reinforce joint efforts to strengthen port security and expand this to intermodal transport networks. In the immediate future, the priorities will include: sharing best practices; joint training of inspectors, perhaps through exchange programs; and enhancing methods of identifying high-risk vessels, especially among those who transit U.S. and EU ports without taking on or off-loading cargo. Addressing intermodal transport will be much more difficult, but enhanced cooperation on technology, procedures, and intelligence could help make vital transport networks safer.
  • Engage the private sector more fully on both sides of the Atlantic. The private sector should not be viewed merely as the recipient of government advice and requirements, or even simply the recipient of funds to develop new anti-terrorism technologies. Especially in terms of protecting transport networks and key infrastructure, the private sector is clearly an essential partner. Government officials in both the United States and the EU need to consider how to work with the private sector most effectively, especially given the strong corporate links across the Atlantic and the interconnectedness of the two economies. The TransAtlantic Business Dialogue may be able to play an important role in creating a stronger dialogue between U.S. and European companies on this issue.

Beyond the U.S.-EU Partnership

Even though much remains to be done in strengthening U.S.-EU bilateral efforts, it is also essential that the transatlantic partners take on a leadership role in the global fight against terrorism. Yet transatlantic differences, especially over policy toward the broader Middle East, have made it more difficult for the United States and the EU to work together in this area and have limited their credibility, especially that of the United States, in the region. Intra-European differences, and the continuing evolution of European institutions in the foreign policy arena, also hinder coordinated action across the Atlantic. Nevertheless, if the United States and the EU are to exercise global leadership, they must convince others to take specific, sometimes difficult, steps against terrorism, despite serious political differences and even suspicion about U.S. and European motives. In reaching out beyond their bilateral partnership, the United States and the European Union should:

  • Bring NATO into the transatlantic partnership aimed at fighting terrorism. Despite the distinctly different U.S. and European views on the utility of military force in combating terrorism, NATO does have some specific strengths that it could bring to bear if permitted to fully engage in the struggle against terrorism. NATO is well placed to engage in such military operations as interdiction of suspicious cargos and perhaps even quick strikes at terrorist training camps. Engaging NATO more fully and appropriately will make the U.S.-EU partnership that much stronger and better prepared if circumstances arise in which a military response to terrorism is required.
  • Assist third countries in combating terrorism. An effective effort at coordinating foreign assistance programs must be more narrowly focused on specific anti-terrorist measures, such as helping developing country ports to meet the port security code of the International Maritime Organization (IMO) or their airports to purchase and maintain appropriate security equipment and training. Other types of assistance aimed at generating political and economic reforms will be critical in the long-term, but the immediate focus of U.S.-EU coordination should be on building the capacity of third states to implement specific anti-terrorist measures and policies.
  • Cooperate fully in advancing anti-terrorist efforts in a range of international organizations, especially the United Nations and the G-8. At the United Nations, for example, the Counter-Terrorism Committee (CTC) has sought to ensure that members have effective legislation, especially in the area of preventing financial support for terrorist groups, while the G-8 has issued recommendations on a range of issues related to terrorism. The United States and the European Union should cooperate in ensuring that the fight against terrorism remains prominent on the UN and G-8 agendas, and that their recommendations are implemented as widely as possible.
  • Finally, the United States and the European Union must reach out more effectively to their most important constituency — their publics. There is a fine line between raising awareness and involving the public as active participants in the fight against terrorism without causing undue alarm, but the United States and Europe can learn much from each other as they strive to achieve that balance. They must also boost public understanding of the extent of cooperation, both across the Atlantic and around the world. Only by increasing awareness of the successes to date can governments create a constituency for the challenges ahead, both in the struggle against terrorism and on other issues facing the post-9/11 transatlantic partnership.

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