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September 1, 2004
Council on Foreign Relations
Jonathan M. Winer[1]
Introduction
Spurred by the need to develop new instruments to combat international terrorism, on June 25, 2003 the U.S. and the European Union signed a treaty on legal cooperation. Being the first of its kind entered into between the EU and a third party, it was heralded as ground breaking.
The visible changes in global security arising out of the September 11 terrorist attacks, however, have tended to obscure larger changes in relationships in the law enforcement sector -- changes already well under way when global terrorism took center stage as the great threat to an interconnected world. Traditional forms of cross-border crime had already catalyzed re-configuration of domestic law enforcement operations in the developed world before dirty bombs, bioterror, cyberterrorism, and other threats to the homeland became a mainstream concern.
In the course of enlargement and the development of the weakest of its three post-Maastricht “pillars,” that of justice and home affairs, which included law enforcement and asylum policy, the European Union during the 1990s recognized that it needed new intra-EU institutions, as well as intensified cooperation across the Atlantic, to respond to illicit narcotics and narcotics trafficking, trafficking in persons, arms smuggling, major frauds, cross-border rings of motor vehicle theft, looting, hazardous waste dumping, and massive tax cheating. Similarly afflicted, the U.S. began intensive efforts to globalize its own domestic law enforcement agencies, opening U.S.-led international law enforcement training academies in Asia, Africa, and central Europe, while negotiating mutual legal assistance and extradition treaties at an increasingly vigorous pace.
Initially, some viewed these activities as threatening to existing interests on either side of the Atlantic. For instance, when the EU first established EUROPOL in The Hague as the successor intelligence agency to its predecessor, the European Anti-Drugs Unit, its German director had to apologize to representatives of the U.S. for his inability to share information with American law enforcement, given the limits the European Commission had initially imposed on such sharing with “outsiders.” Similarly, when the U.S. created its first International Law Enforcement Academy (ILEA) in Budapest in 1996, the EU refused to participate in the institution, due to the veto of France, whose foreign ministry took the position that a U.S.-led police training academy located in Europe was inherently inappropriate. Similar attitudes slowed US-EU cooperation on maritime security in the Caribbean to engage in “hot pursuit” of drug traffickers across U.S., British, French and Dutch-controlled waters, and EU participation in U.S. efforts against cocaine in the Andes. However, prior to the September 11 attacks, each of these disputes had been resolved, as technocrats in need of solving concrete problems found ways around obstacles and concerns such as perceived national interests, sovereignty, power, and prestige that had imposed political barriers to cooperation.
This chapter lays out the history of the political and technical development of the new transatlantic institutions prior to September 11, describes how they are being applied in the current security environment, and projects their likely further near-term evolution in light of that environment. It argues that despite powerful barriers to cooperation and some widening of political and policy differences since the September 11 attacks, the need to solve practical problems will eventually lead to continued progress in pursuing and persecuting terrorists across borders.
The World Before 9/11: Technocrats Pushing for Cooperation
To look at the pre-September 11 world of transatlantic law enforcement cooperation at the technocratic level is to see an infrastructure of considerable depth that had remained largely beneath the surface of political visibility. It included, for example, among its major elements:
This growing array of cooperative initiatives was designed to create a platform for law enforcement, customs, and judicial cooperation that would function irrespective of the particular predicate criminal activity to which such initiatives would be applied. Although some of them had arisen in response to a particular problem, such as international drug trafficking, tax evasion, or computer crime, in general, the initiatives were devised for general application, regardless of the nature of the problem they would address. Thus, when terrorism became the central overriding focus of transatlantic security discussions after September 11, 2001, these pre-existing initiatives provided a robust platform on which counterterrorism activities could be based.
The very strengths of these recent initiatives, however -- their technocratic design, their avoidance of the political, and their use to facilitate efficient sharing of information across political systems -- made them politically vulnerable once they were applied to high-visibility political ends, such as fighting terrorists. Across the board, the initiatives had sought to squeeze discretionary judgment (and local judges) out of the question of whether cooperation would occur, and on what terms. When it came time to use these mechanisms against terrorists in highly publicized cases, it would be inevitable that in some instances, local authorities would begin to question the underlying premise of such cooperation: that the requests, judgments, goals, needs, and demands of foreign enforcement officials are inherently as legitimate as those of one’s own.
On March 4, 2004, for example, Germany’s Federal Criminal Court overturned the conviction of the one person convicted of helping the group of hijackers involved in the September 11 terrorist attacks.[2] In overturning the conviction, the German judges ruled that the existing mechanisms for the sharing of evidence required the U.S. to make available to the defendant a witness -- alleged September 11 paymaster Ramzi Binalshibh -- held in U.S. custody not located in Germany. As presented in the media, the problem was that the U.S. chose not to produce sufficient evidence. However, as a legal matter, the possibility that Binalshibh could provide exculpatory evidence that was being withheld from the defense was at the core of the court’s decision. Rather than refusing to recognize the new international regime, whereby countries facilitate the provision of evidence and witnesses to one another, the German court in effect insisted that this regime be followed in order to insure that the accused terrorist conspirator receive a fair trial. Thus a regime designed to assist governments in prosecuting criminal cases regardless of the location of the crime, evidence, or witnesses, was now viewed as creating a right by accused criminals to such evidence and witnesses.
This surprising result, while unintended and counterproductive, to the extent that it has assisted a terrorist escape justice, reflects in some sense the rapid integration of the new transatlantic justice system into domestic legal norms and practices.
A History of Fragmentation
Internationalization and trans-border cooperation represent a major departure from the post-World War II law-enforcement realities on both sides of the Atlantic, which were more typically characterized by fragmentation.
Europe
In post-World War II Europe, the dangers of authoritarian control of law enforcement institutions were obvious, and postwar Europe largely chose not to replace deconstructed fascist authorities on the Continent with significant national, let alone pan-European, law enforcement and judicial institutions. The exceptions, such as the European Court of Justice, focused on the preservation and strengthening of individual human rights and civil liberties against local abuses, rather than on helping local law enforcement deal with cross-border problems.
The relative weight of these two missions was evident in the work of the Council of Europe (COE), whose membership included all of the European countries, with observer status for other states with related interests, such as the U.S., Canada and Switzerland. Over the course of five decades lawyers at the COE created numerous new regimes for legal affairs harmonization, including common standards for extradition and mutual legal assistance. But the COE’s enforcement mechanisms themselves focused solely on investigating and trying alleged cases involving human rights abuses. Individuals needed the protection of the COE and its new court. Nations having problems securing witnesses, evidence, and other forms of police and judicial assistance would have to work things out among themselves.
Meanwhile, within the nations of postwar Europe, police institutions were left deliberately weak. In Belgium, policing was divided between two types of law enforcement institutions, one Walloon in orientation, the other Flemish, with neither being considered especially capable, or able to exercise control over all parts of the country. In Germany, law enforcement was administered solely at the provincial level of the Länder, with no national police. The United Kingdom had a similar system of local constabularies, none of whom had national jurisdiction, with the result that the UK had to deal with serious cross-border crime either through customs investigations, or as an intelligence national security problem to be handled, as applicable, by MI-5 if it involved domestic crime or the Irish Republican Army (IRA), or by MI-6 if it was fundamentally continental in nature. Italian law enforcement was notoriously idiosyncratic and untrustworthy, with local police and judicial institutions recurrently infected by Italian organized crime, corrupt labor unions, and corrupt political parties. In France, the relationship between the police, organized crime, and political parties was, if less incestuous than Italy, still sufficiently self-referential to be not easily penetrated by those outside of France. And French willingness to assist other countries within Europe on major criminal matters, let alone those across the Atlantic, was notoriously iffy, the counter-narcotics operations of the French Connection notwithstanding. Throughout the EU, local law enforcement institutions functioned at least as well as or better than their counterparts anywhere else in the world. But cross-border cooperation remained inadequate even among neighbors.[3]
One consequence by the mid-1960’s was a Europe awash in serious cross-border crime, including heroin trafficking, trafficking in women, stolen art and cultural artifacts, gun-running, cigarette and liquor smuggling to avoid excise taxes, and recurrent corruption and financial scandals. In 1967, the then-European Economic Community (EEC) took its first regional steps to respond, creating a multilateral framework for mutual assistance among the customs authorities of the six countries of the EEC with the Naples Convention. This first “toe in the water” was followed eight years later by the creation of the Trevi Group for intergovernmental cooperation on immigration, asylum, police and judicial cooperation, which included working parties on terrorism and internal security.[4]
The Trevi Group did not accomplish a great deal substantively, but it provided the first forum for EU law enforcement and immigration officials to talk with one another on a multilateral basis. Previously, such discussions had largely been limited to the individuals performing a liaison function for their governments on such issues at INTERPOL, acting as a switching station to identify instances where other governments had evidence relevant to one another’s cases. In 1984, the Trevi Group work was elevated sufficiently to justify twice-a-year meetings of Justice and Home Affairs Ministers to discuss greater cooperation in these areas. These consultations helped prepare the way for a political declaration in 1986 at the time of the enactment of the Single European Act which created a single market with the free movement of goods, capital, services and workers in Europe. The political declaration created no new European institutions to deal with law enforcement or judicial issues, but confirmed the intention of all European member states to “co-operate on the entry, movement, and residence of nationals of third countries and in combating terrorism, crime, trafficking in drugs and the illicit trade in works of arts and antiques.” European-wide consultative groups came into existence on immigration (1986), narcotics (1989), and mutual legal assistance (1990). A common system for external border checks was established with the Convention Implementing the Schengen Agreement in 1990, which has gradually come to include 15 European countries.
As of 1990, the European Commission assessed that the existing forms of cooperation were uncoordinated, duplicative, and inadequately susceptible to monitoring and oversight. Accordingly, in the Treaty on European Union (Maastricht Treaty) in 1992, the EU added to the structure of the European Community a “Third Pillar,” (to accompany the first pillar of economic and customs union and the second pillar of a common security policy) relating to justice and home affairs policies, with cooperation centered on nine areas of common interest. These included drugs and drug addiction, international fraud, judicial cooperation in civil and criminal matters, and police and customs cooperation.
The entrance into force of Maastricht in late 1993 created an extensive and overlapping set of five-tiers of structure to undertake cooperation in these law enforcement and judicial areas, including cascades of working groups, steering committees, coordination committees, and councils. However, Maastricht had yet to create even a single, European wide structure to implement any decisions that these groups might take. As a consequence, EU member states had a growing burden of consultative mechanisms to discuss coordinated law enforcement activity, but no organization anywhere capable of actually carrying such activity out.
United States
For more than 200 years, the U.S. has struggled within its own federalist system to deal with criminal threats transcending state borders. As in the UK, U.S. Customs officials long had an investigative function to deal with smuggling and tax offenses; the Internal Revenue Service (IRS) also had a criminal investigative division. But the bulk of crime had always been local and handled locally. The U.S. had no federal law enforcement capacity prior to 1908, when President Theodore Roosevelt created the antecedents to today’s Federal Bureau of Investigation (FBI) to investigate the small number of federal crimes. Over time, the FBI’s focus and jurisdiction expanded from investigating trafficking in women pre-World War I, to espionage and sabotage during the war, to gunrunning and bootlegging alcohol during the 1920s and 1930s, before returning to the themes of espionage and sabotage during World War II. In the 1940s and 1950s, the Bureau dealt with the perceived domestic threat from Communist agents, which evolved into investigations of the civil rights and anti-war movements in the 1960s. While many of these threats included a perceived foreign element, the FBI’s investigations focused on their domestic elements. The need for cooperation from foreign authorities was minimal.
All of this changed radically during the 1970s and 1980s, as the FBI increasingly became called upon to deal with international organized crime and terrorism. In turn, these investigative foci pushed the FBI outward, so that it undertook the creation of liaison offices based overseas at U.S. embassies. This pattern was mirrored in other U.S. law enforcement agencies, including Customs for smuggling; the Immigration and Naturalization Service (INS) for immigration crimes and trafficking in persons; the Treasury Bureau of Alcohol, Tobacco, and Firearms (ATF) for gunrunning and smuggling; the Secret Service for international counterfeiting and financial crimes; and the new Drug Enforcement Administration (DEA).
Prior to the 1970s, the DEA had not even existed. By the early 1980sit had permanent overseas offices and agents engaged in investigations in Europe, Asia, and Africa as well as in Latin America, reflecting the reality that the U.S. narcotics problem was a subset of a global problem and could not be addressed solely within a domestic context.
As of 1994, the U.S. had a total of approximately 2000 federal law enforcement agents based at U.S. embassies around the world, accountable to no central U.S. authority, but functioning as local representatives of their individual U.S. agencies under a disorganized miscellany of arrangements which varied from formal government-to-government bilateral agreements to ad hoc agency-to-agency exchanges operating outside the context of any legal instrument or written agreement.
These decentralized activities were generally undertaken with no central coordination or intra-agency discussion. Accordingly, conflict between and among the law enforcement agencies when they operated internationally was common, as was further tension and conflict between the law enforcement activities and concurrent, but uncoordinated, intelligence and diplomatic activities relating to similar topics, persons, and incidents.
At the same time, the lack of any coherent framework for these activities also resulted in confusion and inefficiency for foreign governments needing assistance from the U.S. In the absence of formal judicial assistance agreements, most U.S. courts would only recognize foreign legal assistance requests that had been delivered from a foreign judge to that country’s foreign ministry for transfer to the U.S. Department of State, which in turn would work with the U.S. Department of Justice to obtain a letter rugatory from a U.S. court to authorize the provision of evidence to the foreign court.
Prior to 1977, the U.S. had negotiated several thousand treaties with foreign countries on a myriad of topics affecting legal relationships, including extradition treaties with most other countries, without ever undertaking a negotiation for mutual judicial assistance. The first such treaty, a 1977 MLAT with Switzerland, was followed by dozens of similar instruments negotiated with essentially every European state, as well as most other governments with functional law enforcement capacities and democratic governments. At the same time, the U.S. began to sign onto mutual judicial obligations in a number of multilateral settings, including various conventions issued by the Organization of American States (OAS), and the UN. However, it used such multilateral instruments only in extremis, when a bilateral agreement did not exist, strongly preferring to force mutual legal assistance requests to and from the U.S. central authority of the Department of Justice through these bilateral agreements. Meanwhile, even with the existence of the bilateral MLATs, police-to-police and customs-to-customs cooperation often continued to take place for the exchange of lead and investigative information not destined for court use on the basis of agency-to-agency arrangements outside the central authority structure. Often the U.S. Departments of Justice and State were not even aware of such agreements, learning about them only as crisis or circumstance caused them to surface.
As of the early 1990s, U.S. interagency cooperation and communication in the field of international law enforcement remained fragmented. Similarly, its relationships with other countries in these fields were governed by a host of decentralized arrangements, only some of which were memorialized in government-to-government agreements.
In sum, just as the member states of the new EU were concluding that existing arrangements were inadequate, the U.S. undertook work to centralize and integrate its domestic law enforcement capacities so that they could be brought to bear in a more coherent fashion internationally.
Existing Models and New Institutions for International Cooperation
As the dark side of globalization has become increasingly evident, the limits and strengths of the pre-existing international law organizations, primarily INTERPOL, founded in Vienna in 1923, and the World Customs Organization (WCO), also became increasingly evident, and new models were considered on both sides of the Atlantic. Both of these institutions had evolved to carry out four principal mechanisms:
Each of these organizations eschewed the risk of undertaking operational activities. They moved information and standards across borders. They did not undertake investigations. This was not the result of any unwillingness of the management of the organizations to investigate, but inherent in their charters. They had never been granted the legal right by the member states to carry out investigations. These remained with a few exceptions, generally involving bilateral task forces, a matter for the country in which a particular piece of evidence was located.
Although INTERPOL and the WCO have each undertaken some ambitious new initiatives in recent years, they have not tried to challenge the prohibition on participating in operational activities. They have, however, offered lessons. For example, in its array of bilateral liaison relationships, the U.S. both exploited and circumvented the INTERPOL model. Where INTERPOL operated as a single location where police from different countries could meet to address one another’s queries, U.S. local liaison offices operated in a similar fashion on a bilateral basis. Where INTERPOL provided data bases for counterfeit documents and currencies and for firearms, the U.S. maintained its own similar databases. Similarly,, where the WCO provided basic forms and formats for cross-border movements of goods, the European Union was able to adopt these approaches EU-wide as of the time of Maastricht, largely obviating any need to rework any of the formulations adopted by the WCO.
Other models were available from the area of international financial regulation and enforcement. The speed of movement of electronic money prompted the rapid acceleration of regulatory measures to harmonize financial transparency standards on a global basis over a relatively brief period.[5] The first of many complementary initiatives began with the inclusion of anti-drug money laundering and law enforcement commitments in the 1988 United Nations Convention to Combat Illicit and Psychotropic Drugs (Vienna Convention) and the creation of the Financial Action Task Force (FATF) by the G-7 in 1989.[6] They have since included the project undertaken by the Organization for Economic Cooperation and Development (OECD) against harmful tax competition in 1998,[7] the G-7’s creation of the Financial Stability Forum on February 22, 1999[8] , the 2000 UN Convention Against Transnational Organized Crime (Palermo Convention),[9] the Council of Europe’s GRECO program to assess and implement corruption prevention and prosecution mechanisms,[10] and the creation of various regional bodies to engage in a process of mutual assessment as a means to greater financial transparency.[11] Further, there have been related but separate initiatives to promote financial transparency undertaken by important sectoral self-regulatory organizations, such as the Basel Group of Bank Supervisors, in connection with its revisions of standards for assessing risk to bank capital,[12] the International Organization of Securities Commissions (IOSCO)[13] , and the Offshore Group of Bank Supervisors,[14] among others. Finally, a coalition of private sector financial institutions, denominated the Wolfsberg Group, established their own set of transparency standards, initially aimed in 2000 at preventing their banks and brokerage firms from being used to hide the proceeds of corruption, and extended in late 2001 to prevent terrorist finance.[15]
These initiatives have shared many common elements. They include the need to know one’s customers to ensure that they are not engaged in illicit activity; the need for financial institutions to share information pertaining to illicit activity with regulators, law enforcement, and when needed, with one another; to trace such funds; and the need of each country to assist all others in enforcing violations of their domestic laws. Principles initially used to combat drug trafficking and later extended to include all serious crimes and recently, terrorist finance and corruption, were extended to include fiscal offenses through a mutual recognition that a beggar-thy-neighbor approach to tax violations threatened to beggar all.
Similarly, even before the EU began creating EU-wide law enforcement institutions, newly developing regions undertook the creation of sub-regional organizations designed to create cross-border investigative and enforcement capacity to deal with threats that transcended a single country. For example, in the mid-1990’s, the Southeast European Cooperative Initiative (SECI) agreed to create a SECI-Center in Bucharest to develop integrated law enforcement capacities in the Balkans.
Created by a legal instrument signed by participating SECI member states, the SECI center serves as a regional mini-INTERPOL by which the nine participating countries can exchange law enforcement and customs operation through a single location. In its first year of operation, SECI handled more than 3000 requests for information relating to transborder crimes. Since then, it has coordinated specialized task forces aimed at combating drug trafficking, trafficking in persons, customs valuation fraud, financial and cyber crime, small arms violations, and trafficking in radioactive and other dangerous materials, thus providing strategic, tactical and operational capacities.
Europe: Between New Institutions and Old Political Obstacles
By the mid-1990s the new EU was faced with a significant problem. It had declared with the entry into force of the Maastricht Treaty that there would be cooperation in the areas of justice and home affairs under the EU’s Third Pillar. Yet there was no institution to make Third Pillar activities functional. Moreover, in many EU countries, most importantly including Germany, national institutions had yet to develop sufficient capability to carry out a justice and home affairs function adequate to a world where cross-border crime posed a serious threat. Moreover, an increasing number of EU member states had entered the Schengen area with a single external border, common rules on visas, asylum and external border checks, and free movement of persons. Yet Schengen remained an institution outside formal EU structures, thus creating an artificial bureaucratic division that prevented the EU’s administrative body, the European Commission, from directly addressing problems affecting its member states in the Third Pillar area.
At the same time, individual EU member states remained unable to deal with serious cross-border crime. The UK, for example, had created a new National Criminal Intelligence Service (NCIS) in the early 1990’s, to provide assistance to local police on a national basis for cases involving serious crime, and had then separately created a National Crime Squad (NCS) just a few years later to provide a national investigative capacity to complement the intelligence effort. Neither of these initiatives, however, addressed the problem of the UK’s difficulties in obtaining the information it needed about transnational organized crime and terrorism from France, Germany, or Italy.
To begin to address this problem, the EU created a European Drugs Unit in 1994 to study common narcotics issues and to serve as an incubator of a later Europol, should the EU member states decide to create one. It took the EU five years to grant Europol the requisite authority for it to function as a mechanism for cross-border coordination between EU national law enforcement agencies, including police, immigration and customs authorities. This took place after the EU entered into a further drafting exercise that resulted in the signing of the Amsterdam Treaty in October 1997, which entered into force in May 1999.
A key goal of the Amsterdam Treaty was to make the EU “an area of freedom, security and justice.” It sought to achieve this objective by giving the European Commission the right of initiative, that is, the right to develop proposals for the development of further EU legislation and institutions. It integrated the Schengen agreements into the framework of the EU. And it provided for a series of follow-on steps that included the development of mutual recognition of court decisions in criminal matters, the development for an overall strategy on migration, asylum and refugees. In turn, the Amsterdam Treaty engendered the Tampere Extraordinary European Council of October 1999, devoted exclusively to the building of institutions capable of carrying out these new missions. At Tampere, EU member states agreed to formalize the creation of a European-wide investigative organization, Europol, and a complementary institution, Eurojust, to improve coordination between legal and judicial authorities in the member states in investigating and prosecuting cross-border cases.[16] The EU also moved forward with common training of law enforcement personnel at a European Police College (CEPOL) and the creation of a common peacekeeping force, termed the European Rapid Reaction Force. With Tampere, the EU moved to create institutions whose sole goal was to deal with cross-border criminal threats.
Following Tampere, these institutions developed rapidly. For example, Europol began to function as the central police office for the support of member states for the collection, analysis and dissemination of information regarding illicit drug trafficking, illicit immigration networks, terrorism, illicit vehicle trafficking, trafficking in human beings, including child pornography, forgery and counterfeiting, and money laundering. As of 2003, Europol employed about 450 people whose functions included the facilitation of the exchange of information between European Liaison Officers (ELOs); providing operational analysis in support of member state investigations; generating strategy reports, such as threat assessments on major problems, and providing expertise and technical support for investigations being carried out by the individual EU member states. Significantly, Europol also created a vast computer database (TECS) allowing law enforcement agencies throughout the EU to share information on known and suspected criminals and on stolen objects.
The new Europol database complemented a number of other significant new repositories of EU-wide law enforcement related information. The first of these databases was the Schengen Information System (SIS), which had been in operation since 1995, but only under EU control after its integration into the EU with the Amsterdam Treaty on May 1, 1999. Two more databases collectively known as the EU Customs Information System (CIS) were created to provide EU customs agencies the ability to exchange and disseminate information on smuggling activities. Yet another database known as the FIDE (for its French acronym Fichier d’identification des dossiers d’enquêtes douanières) enables customs officials to determine whether a person or a business has been the subject of a criminal investigation in any member state. With the creation of these databases, the EU had entered a new area, where operational law enforcement information had been centralized to create a capacity well beyond the capability of any individual EU member state. With the existence of an array of human rights protections built into the EU’s constitution, as well as the constitutions of EU member states, these data bases also suggest that past anxieties about providing law enforcement with too much ability to gather information are no longer preventing the development of centralized EU law enforcement and judicial institutions.
The legal regime governing the cooperation of EU member states with one another kept pace with the rapid growth of these new EU functional institutions. In 1997, the EU completed the negotiation of a convention on Mutual Assistance and Cooperation between Customs Administrations of Member States, which requires them to cooperate with one another in cases of hot pursuit, cross-border surveillance, controlled deliveries, and covert investigations. In essence, the convention allows EU member states to pre-clear such activities, which otherwise would violate their sovereignty. The EU also adopted provisions criminalizing corruption in the private sector,[17] developing a EU-arrest warrant, and a decision on the execution throughout the EU of orders in any member state freezing property or evidence.[18] The arrest warrant replaced pre-existing bilateral extradition treaties between and among EU member states, providing for faster extraditions (rendition within 90 days of arrest) and simplified procedures.[19] Nevertheless, as of May 2004, two other proposed EU-wide provisions -- one governing mutual legal assistance, the other governing mutual recognition of criminal judgments -- remained stalled. In each case, too few member states had been able to secure ratification of the provisions by their domestic national legislatures. Touching on core areas of state sovereignty, the pace of EU activity on law enforcement integration had outrun the ability of domestic governments to secure acquiescence within their own national political systems.
At the same time, some of those involved in the new institutions have reported informally that substantial deficiencies remain in the practical operation of the new institutions.. A U.S. liaison to Europol, for example, told participants in a May 2004 seminar on terrorism and crime in Washington that many of the EU governments still provided relatively little information to others in the EU through Europol, and that bilateral agreements remained the foundation of information exchange.[20] The pace of institutional development may have temporarily outrun the capacity of the governments involved to absorb and take advantage of the new structures.
U.S. Initiatives: Before and After September 11
During the eight years of the Clinton Administration (1993-2000), the U.S. developed a number of initiatives designed to address the growing perception at both the political and the practitioner level that transnational law enforcement threats, including drugs trafficking, organized crime, and terrorism, needed to be addressed through enhancing the capacity of other nations, as well as the U.S. These initiatives included unilateral, bilateral, and multilateral law enforcement activity.[21]
The unilateral activities included conceptual elements, such as developing a national global anti-crime strategy in 1996 that for the first time created an integrated approach by all U.S. agencies to deal with transborder threats. They also included efforts to integrate information that had previously been segregated by different agencies, for instance through creating common databases on specific identified organized crime threats. These included new integrated databases targeting Russian organized crime, Nigerian organized crime, and cars stolen and found in other countries. The U.S. also engaged in bureaucratic reforms to facilitate greater coordination, such as undertaking a memorandum of understanding (MOU) between the U.S. Departments of State, Justice and Treasury governing the handling of law enforcement information overseas and the conduct of law enforcement liaison officers based in other countries. This MOU resulted in the creation of law enforcement teams in many embassies, whose function was to coordinate and de-conflict the activities of the law enforcement participants.
These U.S.-oriented activities were supplemented by those that looked outward. These included efforts to build counterpart relationships through training and placing hundreds of additional liaisons overseas from the wide array of U.S. law enforcement agencies, including the FBI, DEA, ATF, INS, Customs, Secret Service, and Coast Guard, while encouraging other countries to send their liaisons to Washington for reciprocal sharing. To build capacity and reliable partners in other countries, the U.S. established international law enforcement academies in Europe, Southeast Asia, Latin America and Africa for joint training involving U.S. and foreign law enforcement officials. The U.S. also negotiated dozens of additional mutual legal assistance treaties, mostly with countries in transition, such as in the former Soviet Union and Central Europe and in Latin America, to facilitate prompt sharing of evidence, as well as stronger extradition treaties, with narrower grounds for exclusion, and elimination of provisions forbidding extradition of nationals.
The U.S. also sought to create international cooperation in areas that previously had not been covered. For example, it developed and then negotiated new instruments governing the return of stolen cars from other countries and the exchange of information on stolen cars, and new arrangements for harmonizing a policy of prevention, protection (of victims), and prosecution (of smugglers) to respond to trafficking in women..
Working groups between the U.S. and selected partner countries on issues of particular concern such as drugs, organized crime and terrorism, including Canada, China, Italy, Russia, Ukraine, and the UK.
During the 1990s the U.S. also took advantage of multilateral initiatives, undertaking an array of initiatives through the new Lyon Group of the G8, established in 1995, to develop new arrangements to combat migrant trafficking, trafficking in women, cybercrime, corruption, stolen cars, Nigerian and Russian organized crime, firearms trafficking, credit card crime, and other forms of serious transnational organized crime.
Negotiation of significant new anti-crime and terrorism instruments in the OAS, COE, OECD, and UN, including such important instruments as the OAS Convention Against Illicit Firearms Trafficking of 1997, the OECD’s Anti-Bribery Convention of 1998, the COE’s Cybercrime Convention of 2000, the UN’s Convention Against Terrorist Financing of 2000, and the UN’s Palermo Convention. The last of these included three protocols that had been initiated by the U.S. -- on trafficking in women, migrant smuggling, and illicit firearms, each of which promoted practices already adopted in the U.S. to commit other signatories to do the same on a global basis. Other major multilateral activities included the U.S. actively promoting the NCCT process in the FATF to threaten countries with sanctions if they did not put greater protections into place against money laundering, and similarly aggressive participation in the OECD unfair tax competition initiative. The U.S. even initiated new multilateral mechanisms and instruments. For example, the U.S. convened the Global Forum Against Corruption in 1999, which in turn facilitated the negotiation of the UN Convention Against Corruption (2003), and undertook a new initiative for maritime cooperation in the Caribbean to facilitate hot pursuit by the U.S., UK and the Netherlands throughout Caribbean waters of drug traffickers.
Notably, this busy array of activities involved relatively little institution building. Other than the development of regional international law enforcement academies for training, the U.S. did not in this period initiate any fundamental new structures affecting its relationship with other countries in the law enforcement or judicial realm during the Clinton years. Existing cooperative efforts were intensified. Internal U.S. efforts were coordinated. New multilateral arrangements were initiated, and the U.S. signed and ratified a number of major new conventions creating broad new responsibilities for the U.S. to cooperate with other signatories. However, unlike the case of the EU, the U.S. during the 1990’s found itself consolidating and integrating existing institutions, rather than building new ones.
This approach changed radically following the September 11 terrorist attacks. Those attacks produced a rapid shift by the U.S. from its traditional international law enforcement operations focused on countering narcotics and organized crime, to those focused on countering international terrorism, a phenomenon previously left largely to the CIA in its international aspects.
As the special Commission created to investigate and review the U.S. government’s response to the September 11 terrorist attacks revealed, U.S. intelligence and law enforcement cooperation continued to have huge limitations. Information available in the field, especially at the FBI, was not shared with FBI headquarters in Washington, let alone with other agencies. Warnings from the CIA were not shared with federal law enforcement, let alone with local police. Persons who proved to have been in violation of U.S. immigration laws due to being “out of status,” that is, overstaying their visas, had been left freely able to move about the U.S without arrest. Moreover, strategic focus on preventing and detecting terrorism was almost entirely missing.
With the September 11 attacks, the U.S. undertook the largest reorganization of its law enforcement agencies in its history, consolidating Customs and INS into a single agency, and placing all border control functions into a single integrated Department of Homeland Security (DHS), that in turn had responsibility over such other disparate threats as cyberterrorism, and seaport, airport and airline security. The new DHS in turn accelerated existing border security initiatives, such as the Container Security Initiative, seeking to insure its early universal acceptance.[22]
The U.S. undertook aggressive new uses of the economic sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Treasury, to freeze terrorist assets and to demand that other countries do so. The OFAC sanctions named hundreds of organizations, entities and individuals as subject to sanctions, and threatened other countries with having the assets of their financial institutions and businesses subject to sanction in a secondary freezing if they did business with any of the named organizations, entities or individuals. This unilateral effort was swiftly endorsed by the UN in UN Resolution 1373, and thereby became a multilateral effort of supposed universal application, if inconsistent enforcement in practice.[23]
These actions were relatively non-controversial, applying to financial assets of mostly Middle Eastern foreigners, or goods in transit. More controversial were the unilateral actions taken by the U.S. to protect airline security. Here, the aggressive screening by the U.S. and its demands for passenger information prior to departure for the U.S. began to run afoul of the laws of other countries, especially the data protection laws of those in the EU. As a result, the new U.S. regime began to be treated in the EU as threatening rather than implementing harmonized global standards and norms. U.S. efforts to exempt some enforcement operations from legal norms entirely, such as those directed at persons the U.S. termed “enemy combatants,” resulted in strong criticism from the EU human rights community, but muted opposition by EU governments themselves.[24] A number of EU governments expressed stronger criticism for the ongoing efforts by the Bush Administration to require other countries to exempt U.S. persons from possible jurisdiction on the part of the International Criminal Court (“ICC”). Ultimately, the EU entered into a mutual pact, requiring each Member State to reject entering into any such agreements with the U.S.[25]
Conclusion: Cooperation or Conflict in Transatlantic Law Enforcement?
One can view the paths followed by the U.S. and by the EU regarding law enforcement institutions and judicial cooperation in recent years as either diverging or converging, and either the EU or the U.S. model as more powerful in shaping the world’s development of law enforcement and judicial assistance institutions.
Those who believe the EU represents the future might describe the situation as follows: Driven by the need to integrate and to enlarge, the EU has created new integrated institutions capable of simultaneously serving the 25 member states of the EU and in a subsidiary fashion, other invited guests, including the U.S., so long as the invited guests choose to abide by EU standards. These new institutions are developing growing capacities and over time will be the foundation of cross-border law enforcement and judicial cooperation not only for the EU, but perhaps globally.
An analysis that wished to focus on U.S. power might see a very different universe. In this vision, the U.S., through its continuing market power in a global economy, and a global infrastructure for financial services, information systems, and transport, continues unilaterally to develop standards and approaches that may or may not fit the needs of other nations, but which are being adopted regardless, because no nation -- not even a set of nations such as the 25 now within the EU -- is able to disregard standards for cross-border activity set by the U.S. The EU can develop institutions as it may wish. But the U.S. itself is an institution, and where Goliath walks, others will follow.
On the difficult issue of sharing of airline passenger information, for example, concern for combating terrorism (and the U.S. government’s ability to make airline travel difficult for EU passengers) ultimately appeared to trump privacy and liberty concerns, as the European Commission agreed to U.S. demands for the provision of passenger data prior to boarding. In mid-May 2004, the European Commission agreed to a transatlantic deal forcing European airlines to provide personal details of passengers to US authorities in the face of both objections by human rights groups and the European Parliament in Strasbourg.[26]
In practice, however, both US and EU approaches have shaped transatlantic developments since September 11, 2001 and will probably continue to describe the future transatlantic law enforcement partnership. It is true that the EU followed the U.S. lead in 2001 in imposing economic sanctions on terrorist targets identified by the U.S. in the days following the attacks. But by December 2001, the U.S. signed its first strategic cooperation agreement with Europol, thus enabling the U.S. to share in the EU’s growing development of databases and capabilities under EU terms. This agreement was followed a year later by a further agreement governing the handling and transfer of personal data between U.S. and Europol, thus requiring the U.S. to live up to the standards for data protection and privacy regarding that data already in place within the EU.
By June 25, 2003, the U.S. and EU had signed legal assistance and extradition agreements that represented a victory for both parties. On the one hand, the EU had secured U.S. agreement to treat the EU as a bilateral partner, capable of negotiating on behalf of all of its member states, despite previous U.S. insistence on negotiating bilateral agreements one-by-one with individual countries. On the other hand, the U.S. secured EU agreement for the formation of joint investigative teams, the use of video-technology for taking testimony, and the provision of information regarding the bank accounts of criminal and terrorist suspects that had previously been protected under EU law. The U.S. also secured agreement by the EU to allow the use of the new agreements to supplement, rather than replace the existing agreements. Thus each side would have the right to choose which agreement was more helpful to it in securing the assistance it wanted. The result was a win-win, and the most recent evidence that even now, reports of the divergence of trans-Atlantic interests may be premature.
Over the past few years cooperation in practice continued to intensify, even as mutual irritation ran high on the political level due in significant part to the separate security and human rights issues raised by the U.S.- led war in and reconstruction of Iraq.
But other practical obstacles remain. Internally, both the U.S. and the EU continue to struggle with creating coherent and effective policies and institutions. The U.S. has yet to digest the implications of either its law enforcement reorganization to create an integrated Department of Homeland Security, or its multifaceted approach to combating terrorism. The EU has to deal with a 25 nation common area for human freedom -- and the requirements for law enforcement within an immense space inhabited by 456 million people.
In practice, both the EU and the US thus face internal ongoing shortcomings that continue to substantially impair their efforts at effectively coordinating law enforcement within their borders and therefore also internationally. Internal information sharing remains spotty. Information systems remain only partially compatible. Cooperation between national law enforcement agencies and local ones remain more ad hoc than systemic. The periphery and the center continue to regard one another with skepticism. And these problems have been replicated in substantial part by U.S. liaisons working at the EU and EU liaisons operating in Washington. The principal limitations of transatlantic cooperation are not ideological, but pragmatic, just as the principal areas in which cooperation has worked well have arisen from pragmatic bureaucratics.
In sum, as of mid-2004, cooperation, conflict, and efforts to defer having to make decisions about either approach are all ongoing options within the framework of US-EU relationships involving law enforcement. Political and pragmatic hurdles remain despite significant progress. Still, in practice, the U.S. cannot protect itself unilaterally against criminal threats that include EU elements without EU member states choosing to cooperate with the U.S. In turn, the EU needs the U.S. for particular forms of
cooperation, including mutual legal assistance and extradition
In the end, police officers need to police, customs agents need to stop smuggling, financial regulators need to enforce their regulations, and politicians need to deliver a reasonable degree of security for the citizens to whom they are ultimately responsible. Ideologies and policies may come and go, but these enduring factors are likely to tilt the field towards cooperation in the long run.
NOTES
[1] Partner, Alston & Bird LLP, U.S. Deputy Assistant Secretary of State International Law Enforcement, 1994-1999
[2] German Federal Appeals Court, Hamburg, in re Mounir Motassadeq, March 3, 2004, ordering Motassadeq to receive a new trial in light of U.S. refusal to provide Ramzi Binalshibh as a witness to the case.
[3] Similar problems in the U.S. in the 1920s led to the creation of the FBI, as local police officers had been unable to cooperate across U.S. state borders. To this day, the FBI itself has found that securing the cooperation of individual FB I Bureaus located in different states has remained a formidable challenge.
[4] For a history of the Trevi Group, see Fact Sheet #2.1 and other documents issued by the Directorate-General of Justice and Home Affairs of the European Commission.
[5] See generally Transnational Control of Money-Laundering.” (2002) Strategic Survey 2001/2002.
[6] The member jurisdictions of the FATF currently include Argentina, Australia, Austria, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong (China), Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States, together with the European Commission and the Gulf Co-operation Council. In turn, the FATF has associated regional organizations whose members collectively include more than half the members of the UN.
[7] “Harmful Tax Competition: An Emerging Global Issue,” April 9, 1998 report published by OECD and available at http://www.oecd.org/EN/about/0,,EN-about-103-nodirectorate-no-no-no-22,00.html.
[8] The Financial Stability Forum (FSF) was convened in April 1999 to promote international financial stability through information exchange and international co-operation in financial supervision and surveillance. The Forum brings together on a regular basis national authorities responsible for financial stability in significant international financial centres, international financial institutions, sector-specific international groupings of regulators and supervisors, and committees of central bank experts. The FSF seeks to co-ordinate the efforts of these various bodies in order to promote international financial stability, improve the functioning of markets, and reduce systemic risk. It currently includes 25 member authorities. See http://www.fsforum.org/home/home.html.
[9] Resolution adopted by the General Assembly, [without reference to a Main Committee (A/55/383)]
55/25. United Nations Convention against Transnational Organized Crime, text published at http://www.undcp.org/pdf/crime/a_res_55/res5525e.pdf
[10] GRECO is responsible, in particular, for monitoring observance of the Guiding Principles for the Fight against Corruption and implementation of the international legal instruments adopted in pursuit of the Programme of Action against Corruption (PAC). So far three such instruments have been adopted, the Criminal Law Convention on corruption (ETS n° 173), opened for signature on 27 January 1999, the Civil Law Convention on corruption (ETS n° 174), adopted in September 1999, opened for signature on 4 November 1999 and Recommendation R (2000) 10 on codes of conduct for public officials, adopted on 11 May 2000.
[11] These include the Caribbean Financial Action Task Force (1990), the Asian-Pacific Group (1997), Financial Action Task Force on Money Laundering in South America (2000), the Eastern and Southern Africa (1999) to undertake assessments of anti-money laundering vulnerabilities and enforcement capacities. They also include Organization of American States conventions against money laundering (December 1995, amended October 1998), the European Unions 1st and 2nd Money Laundering Directives (1991 and 2001, respectively), and to some extent, the work undertaken by the Basel Committee of Bank Supervisors in its current initiative (2000-2003) to revise standards for the treatment of bank capital, which would include certain provisions pertaining to risks associated with non-transparency.
[12]“The New Basel Capital Accord: An Explanatory Note,” Secretariat of the Basel Committee on Banking Supervision, January 2001, available at http://www.bis.org/publ/bcbsca01.pdf.
[13] IOSCO’s current membership includes the securities regulators and enforcement agencies of approximately 60 countries.
[14] “Supervision of Cross-Border Banking,” working group, members of the Basle Committee on Banking Supervision and the Offshore Group of Banking, Basel Committee on Banking Supervision, October 1996.
[15] The Wolfsberg Group consists of the following leading international banks: ABN Amro N.V., Banco Santander Central Hispano, S.A., Bank of Tokyo-Mitsubishi, Ltd., Barclays Bank, Citigroup, Credit Suisse Group, Deutsche Bank AG, Goldman Sachs, HSBC, J.P. Morgan Chase, Société Générale, UBS AG. See http://www.wolfsberg-principles.com.
[16] Eurojust in turn builds on the European judicial network (“EJN”), created in 1998, a network of contact points in courts or prosecution offices whose function is to facilitate judicial cooperation, and who meet on a regular basis. EJN is now based in The Hague at the headquarters of Eurojust, which administers the EJN mechanism.
[17] OJ/C 192/54 31.7.2003, European Council
[18] EU Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures; EU Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.
[19] EU Framework Decision of 13 June 2002, see COM (2001) 522 final/2
[20] Communication to author, former FBI liaison to the EU, George Washington University conference, “Criminal-Terrorist Nexus,” May 20, 2004.
[21] This paper does not address the series of police actions the U.S. undertook involving military as well as law enforcement forces over the past two decades, such as that in Panama (1989), Haiti (1994), or the Balkans (1996-present).
[22] A detailed discussion of CSI is covered separately in Chapter 5 and hence does not appear here.
[23] Second Report of the Monitoring Group pursuant to resolution 1363 (2001) and as extended by resolutions 1390 (2002) on Sanctions against al-Qaida, the Taliban and their associates and associated entities, United Nations, December 2003.
[24] The new U.S. approach was articulated clearly by U.S. Vice President Richard Cheney.
[25] The requested US bilateral agreements under Article 98(2) of the ICC Treaty, would require a signatory Member State to send any American national sought by the Court to the United States instead of surrendering him or her to the ICC. The EU concluded that ICC States Parties and signatory states have a legal obligation that prevents them from entering into Article 98 agreements with non-State Parties, particularly the United States, the only country to have officially repudiated the Rome Statute. See Council of the EU, September 30, 2002, 12488/1/02 Rev, regarding the ICC.
[26] “EC Backs ‘Privacy Violation’ Deal with US, May 18, 2004, http://www.expatica.com/source/site_article.asp?subchannel_id=19&story_id=7634
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