Warch out, America knows everything

If Americans are from Mars and Europeans are from Venus, as the writer Robert Kagan once put it,
D-66 – named after the summer of love year when it was formed - represents much of what is best, most emblematic about Europe. The Dutch social liberal party may only capture 2 percent of the Dutch electorate, but its voters are post-materialistic, urban, young, highly educated, secular, and comprise a high proportion of women. This profile couldn't be more different from the materialistic , middle aged, male, small town, nationalistic, poorly educated American person of faith who makes up the bedrock of president Bush's support, and support for his "War on Terror". I didn’t say there was a difference in waistlines.
It is not surprising that these two world views will clash if given a rare chance. Not violently, that's impossible, but in this case over the civil liberties of European citizens and travellers. Europeans’ civil liberties is an issue close to the hearts of D-66’s internationalist and youthful politicians. It’s somewhat less close to the hearts of aforementioned American patriots, especially when there is a “War against terrorism” to be won. Unfortunately it has also become a war against tourism.
D-66’s member of the European parliament is Sophia int’veldt, an auburn-haired, youthful history graduate aged around 40 who speaks five languages and has all those traits attributed to her voters, who was given the responsibility to monitor the EU-US passenger name records agreement, up for negotiation this summer. We had a long conversation where she gave me the benefit of her views on the subject.
As a justice and civil liberties issue, the transfer of passenger details from airlines to the US immigration authorities for analysis is not an issue over which the European parliament has co-competence. Yet. It will be once the new constitution in disguise becomes law in 2009. Then, the EP will have what is known as co-decision powers on justice and home affairs, an equal say compared to the European commission and the council of the EU member states’ justice ministers and home secretaries. It represents a considerable, perhaps the most considerable, formal shift in powers to a new institution in the new treaty: justice and home affairs issues after all lie at the heart of sovereignty. Yet the way int’veldt tells it, this empowerment in two years time is important, because it will actually be a dilution and a check on a vast amount of powers currently concentrated on the commission’s justice directorate, powers that have de facto if not de jure accreted informally and slowly over the years, especially on transnational issues such as terrorism – a concentration of unmonitored power that the Americans, wanting to get things done, have learnt how to exploit. Or to put another way: when it comes to a single telephone number for Europe, there is already one, in justice and home affairs. Franco Frattini, the commissioner in charge of such things.
Int’veldt says; “Frattini is a nice man, not particularly liberal, not particularly conservative. But the powers he has would go to anyone’s head. Terrorism is one of those transnational issues where is a vacuum in responsibilities, and here the commission – without quite having a European competence for it, has stepped in to take responsibilities.” Some governments are either keen on terror legislation themselves (because they are convinced, wrongly, that their peoples are) and benefit from playing the time-honoured game of pushing stuff through Brussels rather than national parliaments; other countries either don’t know what’s going on in Brussels, or dare not exercise their veto.
The picture for European private individuals is a slightly worrying one. Admittedly it is being facilitated by the commission, a European body. And it is not as bad in disregard for international norms as the Geneva convention denial seen over Guantanamo bay or Abu Ghraib, but it’s motivated by it’s in the same spirit of unilateralism as those two administration low points and entirely consistent with the pull out from the Kyoto treaty further back, the torpedoing of NATO, or the rejection of the international criminal court.. The original treaty, signed in May 2004, was about the US customs and immigration having access to the passenger name record (PNR), created on each booking, so as to get people’s addresses, credit card numbers , travel history, and travel companions as an adjunct in the fight against terrorism. As one security expert told me recently: “The advanced passenger information record tells you who you are. The PNR is much more interesting for the authorities: it tells them what you have been doing.” It allows law enforcement theoretically to find out terrorists, say, who have shared phone numbers, used the same credit card for bookings or who have travelled with each other. The information could in exceptional cases be used by other authorities and even other countries. The data could only be kept for 3.5 years, and would eventually be supplied on a case by case basis – from the airlines – known as push – rather than on a pull basis.
At the time the no fly list and the selectee list (which either stopped the person from flying or put them through enhanced security procedures, and was a few thousand names. There was no provision for the right of European citizens to inspect files on them or correct them if they had been stopped from flying and they thought there had been mistaken for someone else of similar name.
Up to the point when the new agreement was negotiated a few weeks ago, many things had happened in the security field. The passenger watch list, the widest dragnet comprising all intelligence reports gleaned from the widest possible and therefore least reliable sources, had grown to nearly half a million names; from this list, the no fly and selectee lists are drawn; the former is estimated at 30,000; the latter a larger number but classified and shifting. Further there were a growing number of anecdotal reports about the hassle endured by travellers both to and within the States, related to general rudeness as well as to a growing number of misidentifications where people, some quite prominent, were being mistaken for terrorists of same or phonetically resembling names. These individuals included Edward Kennedy, a US marine returning from Iraq, an Emmy-winning TV correspondent and outspoken critic of the Bush administration. Further, on the European side there was concern about the American authorities’ trustworthiness when it emerged that the Americans scored also for avian flu risk – not in the original protocols - and that the original promises contained get-out clauses that allowed for huge leeway in cancelling the modest guarantees the European Union had been given about what was done with their travelers’ data. The rumours that Americans were illegally scanning intra-European flights for terrorists and the fact that most of them were still surfing European airline records freely, having still not implemented the push system, did not help relations.
Most damagingly, there was the revelation in November last year that the US was using a parallel security system, originally used for determining the security risk of cargo, to create a data base of suspects far wider than anyone thought possible: in fact, using not only PNR information but an unspecified amount of other factors – at one point it was rumoured the DHS used passengers’ credit ratings and employment histories – to determine whether passengers were a security risk: every visitor – and that means you too - is scored for potential to do terror or cause nuisance to the United States. That represents a big difference to the system as supposed as implemented; which used PNRs as a auxiliary tool to determine terrorist suspects already on the watch list further connections. This hitherto unknown system made everyone a suspect. There was no recourse to correction insight into people’s files (whether American or European), and the scheme went ahead despite congress specifically voting against appropriations for schemes that profiled travellers as well as stopping a programme called secure flight for domestic travel over privacy redress concerns.
Perhaps it was because European airlines feared that they would be denied landing rights if EU governments refused to allow information on European travellers be read by US authorities – the usually profitable Atlantic air travel business is in trouble as it is – having dropped by 15% since 2000, falling even last year, partly because of the perception of tighter security controls. May be it was the commission’s eagerness to implement an intra European PNR monitoring scheme with extensive data mining operations of its own.
Anyhow, the agreement concluded between the US and the EU at the end of June is possibly worse from European citizens’ perspective than the 2004 deal.
Data will now be retained for up to an astonishing 40 years, not 3.5. There was no mention of the ATS system, or complaints about abuses. No restrictions how the info would be distributed, even to other US friendly countries. (Israel? Uzbekistan? ) The letter of intent has no legal basis, as before. And there is no talk of congressional approval that would bind the US to its commitments. There is redress for PNR mistakes – the privacy act is now extended to non US citizens – but as America’s main terror fighting mechanism is the scrutiny-free ATS, that doesn’t seem to matter. The push system is to be implemented, but there are still caveats which make it effectively akin to the much wider pull system. It’s as if the powers that be were unconcerned about Europeans’ privacy.
What would the consequences have been if European airlines refused to forward CRS PNR data. Of course, much of this information would still be available on US servers. But such a political act of insubordination might have consequences: ban on landing rights, a cancellation of the open skies agreement that allow US and EU airlines to fly all over each others territories, with much commerce to be gained. The EU might be punished by a draw down of commercial and other relations, eventually.
There is an argument that the EU has a far stronger hand than it thinks. That the US needs the EU as much as vice versa.
But it was clearly not evident at the negotiations. And one wonders in what other areas Europe’s surrender to America will be manifested: America is united and determined while Europe is fragmented and weak: the nation states for various reasons have given up their competences, but the EU political mechanisms are not strong enough to withstand US pressure, if even people like Frattini were willing. The Europeans don’t believe they are fighting a war, there is no single (rogue, many believe) administration, and there is no common European public opinion that could be swayed either away, Europe is divided and conquered by the US (an issue never spoken of whereas Russia’s games are often complained about). And no one knows what goes on in Brussels anyway, a single one-stop-shop godsend for America wanting to strike favourable deals.