Testimony before the
Subcommittee on Europe and Eurasia
Committee on Foreign Affairs
House of Representatives
May 5, 2011
My name is Sally McNamara. I am Senior Policy Analyst in European Affairs in the Margaret Thatcher Center for Freedom at The Heritage Foundation. The views I express in this testimony are my own and should not be construed as representing any official position of The Heritage Foundation.
Mr. Chairman, Ranking member Meeks, and distinguished Members of the House Committee on Foreign Affairs’ Subcommittee on Europe and Eurasia, with your agreement I would like to request that my prepared testimony be entered as my formal statement for the record and offer brief remarks before you today.
America needs allies to win the war on terrorism. Many of America’s strongest allies in the fight against transnational terrorism are in Europe—most notably the United Kingdom. In addition to individual nation-states, the EU is also a partner of significance to the United States for purposes of counterterrorism.
Since the 9/11 terrorist attacks, the EU has become a major counterterrorist actor. Some EU policies have had a positive impact on the global war on terrorism—especially the production of a list of persons, groups, and entities whose financial assets will be frozen and to whom financial services are denied. However, many EU policies have obstructed U.S. counterterror efforts. For example, Brussels has long opposed U.S. renditions policy and has even threatened to sanction member states for hosting CIA sites in Europe. The EU also refuses to designate Hezbollah as a Foreign Terrorist Organization, which would deny the terrorist entity a primary fundraising base. And the European Parliament has legally stalled two vital data-transfer deals—the SWIFT data-sharing agreement and the EU–U.S. Passenger Name Records (PNR) Agreement.
Overall, the EU–U.S. counterterrorism relationship has been marked as much by confrontation as it has by cooperation. The U.S. must therefore continue to invest in its bilateral relationships with individual EU states, as well as formulating a new agenda for cooperation with the EU.
The Growth of EU
Competency for Counterterrorism Policymaking
Before 9/11, just six of the EU’s then-15 member states recognized terrorism as a special offense. In the aftermath of 9/11, EU member states began coordinating their national counterterrorism laws with one another and agreed to a common definition of terrorism. This common definition of terrorism effectively denied terrorists the sanctuary of border-hopping to another member state where terrorism was not previously regarded as a specific offense. Crucially, the European Council also produced a list of persons, groups, and entities whose financial assets would be frozen and to whom financial services would henceforth be denied. This has proved to be one of the EU’s most valuable contributions to counterterrorism to date since it has denied terrorists the freedom to operate and raise funds in Europe.
In 2004 and 2005, Europe was confronted with two major terrorist attacks on its soil. In March 2004, an al-Qaeda–affiliated group remotely detonated 10 bombs on four Madrid commuter trains at the height of rush hour, killing 191 people and injuring more than 1,800. In July 2005, “homegrown” al-Qaeda operatives acted as suicide bombers on multiple London public transportation targets, killing 52 people.
In light of these attacks, the EU implemented a number of additional counterterror measures. In 2004, EU leaders appointed a counterterrorism coordinator to audit members’ implementation of EU policies. In 2005, the EU adopted a British-inspired comprehensive counterterror strategy, outlining four strategic “strands of work” to prevent, protect, pursue, and respond to terrorism. And in 2008, the EU formally expanded its common definition of terrorism to criminalize three specific new offenses which had become necessary in light of the 3/11 and 7/7 attacks: (1) public provocation to commit a terrorist offense, (2) recruitment for terrorism, and (3) training for terrorism.
The EU has also advanced several unnecessary programs under the guise of countering terrorism. The EU has given greater authority to, and has gradually expanded the mandates of, ineffective institutions such as the European Police Office (Europol), Eurojust, and SitCen. The EU’s flagship European Arrest Warrant (EAW) program—whereby EU member states are obliged to render citizens to another member state upon request, without prima facie evidence—was justified as a key counterterror measure. However, it has been used to extradite people for overwhelmingly far less serious offenses than transnational terrorism, including leaving a gas station without paying.
Complying with these measures diverts the anti-terrorism resources of EU member states away from what they should really be doing and merely seeks to advance the EU’s integrationist agenda.
The EU’s Strategic Approach to Counterterrorism: A Radical Legislative Agenda
The 7/7 attacks revealed that Europe is now facing “homegrown” terrorist attacks as well as those directed from abroad. Research carried out by The Heritage Foundation (June 2008) and the U.K.-based Change Institute (February 2008) demonstrated that foreign-born hate preachers and extremist clerics such as Abu Hamza, Tolga Duerbin, and Omar Bakri Mohammed have acted as primary recruiters of homegrown terrorists and inciters to terrorist acts. They have been responsible for sending European recruits to terrorist training camps—particularly in Afghanistan and Pakistan—for the purposes of further radicalization and logistical training.
This phenomenon is best addressed in two ways: (1) the exclusion of foreign-born hate preachers and extremist clerics and (2) the eradication of terrorist training camps. The EU has chosen instead, however, to focus its activism on two other issues: (1) combating the beliefs, ideologies, and narratives that underpin violent radicalization and (2) combating “Islamophobia.” In November 2008, the EU’s “Strategy for Combating Radicalization and Recruitment for Terrorism” was published, which recommended identifying and encouraging moderate foreign imams to present a counterradical case. However, this has already been tried—and has failed—in several EU member states. The previous U.K. Labour government courted foreign imams such as Sheikh Yusuf al-Qaradawi on the basis that al-Qaradawi is “a highly respected Islamic scholar.” The former government has since had cause to regret that decision after discovering that al-Qaradawi has defended suicide bombings, called for the execution of homosexuals, and advised European Muslims to create “Muslim ghettos where they can avoid cultural assimilation and introduce Shari’a law.”
Member states should also be wary of attempts to legislate against “Islamophobia,” which was recommended by the Change Institute. Europe has behind it a catalog of failed public policies when it comes to promoting “equality.” German Chancellor Angela Merkel is just one European leader who has come to the conclusion that multiculturalism has failed. Crippling human rights legislation has also been pursued in pursuit of “tolerance,” including the EU’s Charter of Fundamental Rights and the Council of Europe’s European Convention on Human Rights (ECHR). These policies have weakened, not strengthened, members’ counterterrorism efforts. For example, British judges refused to make full use of control orders mandated under the U.K.’s 2000 Terrorism Act on the grounds that 18-hour curfews may breach the convention’s Article V clause on the right to liberty.
The U.S. should be wary of the EU’s radical political agenda and of the way it spends money inside the United States for the purposes of furthering its favored political causes. This includes the funding of nonprofits and advocacy organizations to advance such controversial issues as:
- U.S. membership on the International Criminal Court,
- America’s abolition of the death penalty,
- The standardization of international legal norms,
- The closing of the U.S. Guantanamo detention facility, and
- Debating U.S. detention and rendition policies.
The EU–U.S. Counterterrorism Relationship
Despite an unprecedented display of transatlantic solidarity following the 9/11 terrorist attacks, the EU–U.S. counterterrorism relationship has been marked as much by confrontation as by cooperation. The Lisbon Treaty, which was introduced in 2009, has also seen a huge boost in powers for the European Parliament, which has flexed its legislative muscle to frustrate key U.S. counterterror policies.
Passenger Name Records (PNR) Agreement. The U.S. Air Transportation Safety Act of 2002 requires that the PNR data of travelers to the U.S. are provided to American authorities before the arrival of planes in the U.S. In May 2004, the EU and the U.S. agreed that airlines operating U.S.-bound flights would provide the U.S. authorities with travelers’ data contained in their reservation systems before the flight’s departure. Being able to analyze the personal and financial data of passengers prior to departure, in conjunction with U.S. and international intelligence databases, allows analysts a further opportunity to spot any red flags and ultimately screen out potential terrorists.
However, the European Parliament argued that the 2004 agreement violated EU citizens’ privacy rights. The European Parliament’s objections revolved around the amount of PNR data transferred to the U.S. authorities, the length of time such data could be kept, the degree of redress available to European citizens in cases of data misuse, and the potential for profiling by U.S. authorities. The 2004 agreement was annulled in May 2006 on a technicality, and an interim agreement was provisionally agreed.
In July 2007, the EU and the U.S. agreed on a third iteration of the PNR agreement, and a seven-year deal was signed which reduced the pieces of shareable information from 34 to 19. Originally, the U.S. had asked for 38 data elements to be shared. However, the European Parliament has still not given its approval, which is required for the accord to be formally enforced. In January 2011, the EU and U.S. formally entered into renewed negotiations for a fourth iteration of the PNR agreement.
There is little doubt that the EU–U.S. PNR agreement is of significant value to European and American counterterror efforts—as testified to by Assistant Secretary for the Department of Homeland Security’s Office of Policy David Heyman; former U.S. Secretary of Homeland Security Michael Chertoff; and even Baroness Ashton of Upholland, the current EU foreign minister. Moreover, providing PNR data pre-travel is mandated under U.S. law, and to restrict this transfer contravenes what Congress has stated is necessary to protect American security.
Terrorist Finance Tracking Program (SWIFT). The Society for Worldwide Interbank Financial Telecommunication (SWIFT) is a Belgium-based syndicate of international banks, which started sharing large amounts of its processed data with the U.S. after 9/11 for the purposes of tracking terrorists’ finances. When media reports revealed the existence of this program in 2006, the European Data Protection Supervisor ruled that the transfers breached EU data protection laws, and in February 2007, the European Parliament resolved that proposed U.S. improvements to the program were insufficient to adequately protect the personal data of EU citizens. U.S. negotiators were once again sent back to the drawing board.
In July 2009, SWIFT announced changes to its data storage which necessitated yet another EU–U.S. agreement. A new interim agreement was formally concluded in November and ratified by the European Council. Nevertheless, in February 2010, the European Parliament’s Civil Liberties, Justice and Home Affairs Committee voted down the agreement, and the parliament as a whole refused to give its consent on the basis of privacy concerns, proportionality, and reciprocity. Acting under powers granted to them by the Lisbon Treaty, the European Parliament’s vote rendered the agreement legally void. A center-right Polish MEP told me after the vote that there was significant “cheering and whopping” among parliamentarians after the vote.
The U.S. Mission in Brussels has stated that from 2001 through February 2009, the SWIFT agreement had resulted in more than 1,500 reports and numerous counterterror leads being given to European governmental authorities. The Spanish Interior Minister further revealed that SWIFT data had been used to investigate the Madrid train bombers and that the data were integral to preventing a later attack on Barcelona.
It was not until June 2010 that the European Commission was able to conclude a new draft agreement with Washington, and only with the inclusion of a number of new restrictions, including (1) oversight roles for both the European Commission and Europol to oversee the transfer of information and (2) limiting information requests to make them as narrow as possible.
Foreign Terrorist Organizations (FTOs). The EU’s common definition of terrorism and designation of terrorist individuals and groups has acted as a powerful sanction against the free flow of terrorist finances. An individual or organization that is designated terrorist by both the EU and the U.S. is effectively being denied access to the world’s biggest financial markets.
In 2005, Congress passed a bill urging the EU to add Hezbollah to the EU’s wide-ranging list of terrorist organizations. The EU’s refusal to proscribe Hezbollah as an FTO is impossible to understand. The Lebanon-based group is a radical transnational terrorist entity responsible for several acts of mass murder, especially against U.S. targets, including (1) the April 1983 bombing of the U.S. embassy in Beirut which killed 63 people, including 17 Americans; (2) the October 1983 suicide truck bombing of a U.S. Marine barracks at Beirut Airport, which killed 241; and (3) the 1996 Khobar Towers bombing in Saudi Arabia, which killed 19 U.S. servicemen. Hezbollah also serves as a terrorist proxy for the Iranian government, which has ramped up its attacks on Israel in recent years.
Europe’s willingness to turn a blind eye to Hezbollah’s activities in Europe, especially its extensive fundraising efforts, is unconscionable. Hezbollah’s “secretary general” Hassan Nasrallah recently stated that without European support “our funding [and] moral, political, and material support will…dry up.”
The United States rightly considers Hezbollah “a direct and growing threat to the United States and Latin America.” The EU should finally list Hezbollah as an FTO and effectively freeze Hezbollah’s terrorist operations in Europe and erode one of its primary fundraising bases.
Detention and Renditions Policy. The EU has been categorical in its condemnation of U.S. detention and renditions policies. In 2006, EU Counter-Terror Coordinator Gils de Vries stated:
In the fight against terrorism popular support is critical, including among Muslims. The struggle against terrorism is first and foremost a conflict over values. To win the battle for hearts and minds our policies to combat terrorism must respect the rights and values we have pledged to defend, including the rights of prisoners. Abu Ghraib, Guantanamo and CIA renditions have damaged America’s standing in the world and have compromised our common struggle against terrorism. Credibility matters. The European Union continues to believe that in this battle we should be guided by established international legal standards, including international human rights law. Any war paradigm should operate within these standards.
In November 2005, the Washington Post and Financial Times published reports stating that the U.S. Central Intelligence Agency (CIA) was operating covert detention facilities in Central and Eastern Europe, where terrorist suspects were being interned without charge and then rendered to third countries for the purposes of torture. In January 2006, the European Parliament set up a 46-member committee to investigate these allegations, pledging to leave “no stone unturned” in their year-long investigation to find out whether or not the CIA had used European countries to transport and illegally detain terrorist suspects. Poland and Romania were identified as alleged host countries of the U.S. detention facilities, and EU Commissioner Franco Frattini warned them that their voting rights in the European Council would be suspended if they were found guilty of hosting any such facilities.
In December 2005, U.S. Secretary of State Condoleezza Rice made a detailed speech to clarify the Administration’s policy on rendition, and U.S. Attorney General Alberto Gonzales met with Commissioner Frattini in Vienna in May 2006 to personally reassure him that the U.S. neither tortured nor was complicit in the torture of suspects. Nevertheless, in its final report, the parliamentary committee concluded that the “excesses” of “the so-called ‘war on terror’,” have produced, “a serious and dangerous erosion of human rights and fundamental freedoms.”
No statement has been issued to clarify this position in light of reports that CIA sites in Europe could have played a key role in the successful operation against Osama bin Laden in May 2011, which EU presidents Herman Van Rompuy and José Manuel Barroso said in a joint statement “makes the world a safer place.”
Despite Brussels’ increased role in counterterror policymaking, the EU has not replaced the bilateral relationships that have been formed between lawmakers, intelligence officers, and the security services over many decades. The Anglo–American relationship stands out in particular for the remarkable ease with which intelligence officers operate together. For example, in August 2004, the joint U.S.–U.K. investigation known as Operation Rhyme, which prevented multiple al-Qaeda attacks on key financial institutions in the U.S. and the U.K., was cited in congressional testimony by FBI director Robert Mueller as one of a number of “unclassified examples of successes in the war against terrorism that would not have been possible without extensive cooperation and coordination with our partners.” Mueller and President Bush also cited Operation Crevice as a major success of British–American intelligence-sharing which thwarted an al-Qaeda plot to detonate fertilizer bombs in a British shopping center and a London nightclub.
British and American intelligence officers were also in close contact for months, tracking and subsequently preventing the transatlantic airline bomb plot in summer 2006, which would have resulted in a projected death toll of at least 1,500. After the arrest of 21 men, then-Prime Minister Tony Blair stated: “There has been an enormous amount of cooperation with the U.S. authorities which has been of great value and underlines the threat we face and our determination to counter it.”
To achieve a cooperative EU-U.S. relationship in counterterrorism, I would recommend the following policies to the EU:
The European Parliament should approve the 2007 EU–U.S. PNR Agreement without modification. The EU should also consider extending the agreement for an additional seven years in light of the substantial evidence supporting its critical role in countering terrorism.
The current EU-U.S. negotiations to adopt an umbrella agreement on data-sharing should accept U.S. data privacy standards as adequate. An umbrella agreement should not seek to limit future agreements by restricting how and when information can be used, or imposing onerous monitoring requirements.
The EU should add Hezbollah to its list of foreign terrorist organizations. The EU and the U.S. should coordinate their FTO lists as closely as possible, and the EU should add Hezbollah as a designated terrorist entity.
EU member states should exclude foreign-born individuals who engage in terrorist activities. If a foreign-born individual is convicted of a terrorist offense in one EU member state, s/he should thereafter be excluded from all EU member states.