Tiffany Walker

The United States and European Union: Cooperation on Counter-Terrorism

Introduction

The nature of security concerns has moved away from global power conflicts of the

Cold War to a more cloak and dagger conflict. Since 11 September 2001, terrorism has

become the United States’ top defense priority. However, terrorism has proven to not have

one face, at any given point the United States or European Union members may be engaged

with Al Qaida, the Islamic State of Iraq and Syria, or the Taliban. Therefore, implementation

of counter terrorism measures has an added dimension of complexity because one

approach may not fit all terrorist organizations. In this paper I hope to establish the flaws

in the counter terrorism cooperation between the United States and European Union.

Within the first section of this paper I will outline the overarching ideological differences

between the US and EU that hinder effective cooperation on terrorism. The second section

will analyze specific areas of cooperation between the two sides such as data collection and

intelligence sharing that have not produced effective results. Lastly, I will discuss the

institutional differences between the United States and European Union that cause delays

and barriers to successful cooperation.

Section I: Overarching Issues

The perceived nature of the terrorist threat is different between the United States

and the European Union, as well as between EU member states. These divergences in

opinion lead to differences in policing and the level of cooperation between the two bodies.

The United States, since 9/11, has viewed terrorism as a fundamental external threat to its

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national security. However, the European Union views terrorism as a problem of internal

security that should be dealt with by selecting appropriate policing measures.i One

fundamental difference in the way the EU and U.S. view terrorism is essentially that the U.S.

is not as exposed to internal threats as the EU.

Moreover, EU member states differ in their perceptions of the salience of modern

terrorist threats; the lack of coherence in opinion causes difficulty in formulating a clear

objective in order to combat terrorism. While the United States and the Europe Union have

many common values and security concerns, and both parties have grown interdependent

in terms of security as well as economic prosperityii, the differences in historical

experiences, demography, geography, and public opinion contribute to the lack of a

comprehensive analysis of the threat posed by terrorism. The EU member states are in

closer proximity to the Middle East than the United States. Some EU members, such as

France, have large ostracized Muslim populations within their borders. The geographical

proximity and demographical makeup of EU citizens has contributed to the differences in

perceptions of the terrorist threat.

The United States has seen itself as at war with al-Qaida and its terrorist affiliates

and has employed military action as a main component of the U.S. counter terrorism

strategy. The European Union and its member states focus their counter-terrorism efforts

primarily on policing measures and intelligence services.iii Ultimately the differences in the

parties’ interpretations of the nature of the terrorist threat translate into different

approaches to counter terrorism. Perceptions regarding the other party’s counter

terrorism efforts have hindered collective cooperation. American officials have viewed

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European officials as non-responsive, while European officials have viewed Americans as

rash responders.iv

Definitions play a large role in characterizing the nature of the security threat as

well as perpetrators. A common definition of terrorism, a terrorist, and a terrorist

organization is essential to counter terrorism cooperation between the United States and

the European Union. The European Union defines a terrorist offense as any act aimed at

“seriously intimidating a population; or unduly compelling a government or international

organization to perform or abstain from performing any act; or seriously destabilizing or

destroying the fundamental political, constitutional, economic or social structures of a

country or an international organization” in article 1 of the 2002 Framework Decision on

Combating Terrorism.v Under the Federal Criminal Code the United States defines

terrorism as “activities that involve violent or life threatening acts that are a violation of the

criminal laws of the United States or of any State and appear to be intended to intimidate or

coerce a civilian population; to influence the policy of a government by intimidation or

coercion; or to affect the conduct of a government by mass destruction, assassination, or

kidnapping; and occur primarily within the territorial jurisdiction of the United States.”vi

The United States applies more specific terms to terrorism, while the European Union has

more lenient standards. Subtle differences between the two definitions have translated into

tension over the creation of a common list of terrorist individuals or terrorist

organizations.

The two groups have determinedly worked to create a unified list of individuals and

groups that engage in terrorist activities to symbolize a strong EU-U.S. front. However,

there is no complete agreement on all of the individuals and groups listed. The European

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Union keeps two lists of terrorists and terrorist organizations; one list focuses solely on Al

Qaida, the Taliban, and their affiliated groups; the second list includes over 80 different

individuals and groups that are based all over the world.vii The second EU list or the

“blacklist” has been the subject of controversy between the United States and the European

Union. The United States has been able to nudge the EU into adding several organizations

to their blacklist such as the Kurdistan Worker’s Party (PKK), the Revolutionary Armed

Forces of Colombia (FARC), as well as the military wing of Hezbollah.viii

The process of harmonizing a shared list of individuals and groups associated with

terrorism activities continues to be a challenge. For example, the European Union has been

resistant to adding charities related to Hamas to their blacklist.ix Disagreement over what

groups or individuals should be considered associated with terrorism causes divisions in

approaches. In order to have effective cooperation, the United States and European Union

should have agreement on what organizations should be considered worthy of attention.

Section II: Flaws in Main Areas of Counter-Terrorism Cooperation

A. Data Collection and Sharing

Data collection has been a main area of coordination in the U.S and EU

counterterrorism effort. The SWIFT agreement has been an integral part of U.S.-EU

cooperation in the fight against terrorism. The Society for Worldwide Interbank Financial

Telecommunications allows U.S. authorities access to financial data held by a conglomerate

of international banks based in Belgium.x This agreement has caused controversy in Europe

because of privacy concerns following reports that U.S. authorities had been granted secret

access to SWIFT data since 2001.xi The United States government has used a program called

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the Terrorist Finance Tracking Program to access financial transactions through the SWIFT

network. While the SWIFT agreement is vital to the U.S.-EU counter terrorism measures,

disagreements have caused stalls in the productivity of the program. Moreover, issues over

whether the U.S. could guarantee a sufficient level of protection for European citizens’

personal data have caused the European Parliament to call for EU data protection

reforms.xii The European Court of Justice ruled for an end to the transatlantic agreement on

the transfer of data from the EU to the U.S. This agreement has significant implications for

intelligence agencies in the U.S. and EU that rely on the free transfer of information.xiii

The European Union prioritizes privacy and the rule of law over security measures

that infringe on EU citizens personal rights. The differences in privacy concerns between

the U.S. and EU have created discrepancies in what information the EU is willing to share

with the United States. The Passenger Name Record (PNR) has played an instrumental role

in counter terrorism cooperation between the U.S. and the European Union. Both parties

signed an agreement to allow the use and transfer of passenger name records to the US

Department of Homeland Security. The PNR agreement is designed to prevent and combat

terrorism offenses by allowing the Department of Homeland Security access to passenger

information in order to prevent, detect, investigate, and prosecute terrorist offenses.xiv

However, groups within the US and EU have objected to the agreement. The

protestors oppose the agreement because it violates the EU Data Protection Directive.xv The

European Commission was pushed to conduct a joint review of the transfer of passenger

information; the Commission found that the Department of Homeland Security has often

reviewed passenger records without any legal backing.xvi The Passenger Name Record is

important in counter terrorism cooperation because it provides the U.S. and EU with the

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information needed to track the movement of suspected terrorists. PNR is a strategic

advantage of transatlantic cooperation, however, disagreements over the ethicality of the

program may restrict the effectiveness of the program.

B. Financial Agreements and Measures

The United States and European Union have worked in tandem through global

forums such as the United Nations and intergovernmental Financial Action Task Force

(FATF). The Financial Action Task Force works to suppress terrorist funding and to

improve global financial investigations, while also monitoring its members in order to

guarantee implementation of necessary measures created by the Task Force.xvii However,

due to the size of the FATF, the United States and European Union cannot effectively work

one on one through this organization.

However, the United States and European Union have an Agreement on the

Processing and Transfer of Financial Messaging Data From the European Union to the

United States. The Agreement established the Terrorist Finance Tracking Program (TFTP),

which works in tandem with the Worldwide Interbank Financial Telecommunication. TFTP

allows the U.S. government to conduct pointed searches against the subdivision of records

provided by SWIFT. The narrowed searches allow the U.S. and EU to track financial

transactions associated with potential terrorist activity quicker.xviii The U.S. relies on the

European Union to ensure that providers of international financial payment messaging

services give the necessary financial data stored within the borders of the European

Union.xix However, many in the European Union perceive these agreements with the U.S. as

one-sided given that the U.S. has not traditionally shared information with the EU.

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The European Commission agreed to a gag order imposed on the EU’s Europol

agency. EU lawmakers and officials are not allowed to review a document written by

Europol’s internal data protection committee, known as the joint-supervisory body (JSB).

The restriction of access to EU lawmakers regarding its own agency makes the U.S. appear

as though it does not want transparent cooperation. Moreover, Europol is given the

requests from the U.S. for specific data and Europol has the authority to agree or not.

However, the JSB went further to state that most of the data given to the U.S. has been

regarding data from people not related to terrorist activity.xx

The European Union respects the privacy rights of its citizens, and any violation of

that privacy may lead to a total dismantling of essential counter terrorism measures such

as the Terrorist Finance Tracking Program. The European Commission has been forced to

request more transparency within the data transfer process due to outcry over privacy

concerns. The United States’ unwillingness to maintain transparency with the European

Union has created tension and distrust that hinders effective cooperation.

C. Military Cooperation

Broad cooperation on military counter terrorism operations between the U.S. and

EU is difficult on the most basic level. The U.S. and EU do not have the same sophistication

of technology. The United States appropriates significant funds from the Federal Budget to

defense, more so than members of the European Union. Moreover, the EU’s military action

is largely channeled through the North Atlantic Treaty Organization (NATO). EU member

states have contributed to forces in Afghanistan, but not as a collective European whole.xxi

The European Union does not have a defense wing, and therefore it cannot operate

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missions as an organization.xxii The lack of a military wing makes the EU only capable of

exercising soft power in the fight against terrorism. However, the United States needs a

strong militarily capable partner to stand with them against global terrorism; the fight

against jihadists from numerous countries is too large of a war to wage alone.

The European Union has had member states participate in military surveillance

operations such as NATO’s Operation Active Endeavour in the Mediterranean. The

operation included NATO patrol ships surveying the Mediterranean and monitoring

shipping activity to detect and protect against terrorist movement. EU participation in

military operations as an organized body is largely nonexistent, and most of the

cooperation is done through NATO. The EU’s use of NATO does not help the US-EU

cooperation because NATO has long faced a burden-sharing problem among its members.

The United States and European Union need to contribute relatively similar amounts of

capital, technology, and human forces in order for the cooperation to be successful.

European governments have experienced more difficult political and legal questions

regarding military involvement within Syria, and therefore the military action of European

countries is mostly limited to Iraq.xxiii Beyond restrictions due to national means,

international law restricts the ability of countries to engage in counter terrorism

operations over seas. The international legal requirements for the extraterritorial use of

force have to be met for a country to invade another in the name of counter terrorism.xxiv

Coherent cooperation between the U.S. and EU is difficult due to the military capabilities

gap, inability of the EU to act as one military power, and legal constraints on the use of

force. Cohesion of military force is a difficult task because the EU, since its conception, has

been focused on developing its soft power as means of diplomacy and foreign policy. Hard

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power, like use of force, has not been developed within the European Union like it has been

in the United States.

D. Intelligence Sharing and Coordination

U.S.-EU intelligence sharing and cooperation was largely expanded following the

9/11 terrorist attacks. However, the effort to improve intelligence exchange on terrorism is

not new; the effort to create comprehensive intelligence sharing has been in the works

since the 1970s.xxv While intelligence collection seems to be an integral part of counter-

terrorism efforts, intelligence sharing between the U.S. and EU has been one sided and

lacking. For example, the 11 March 2004 Madrid bombings demonstrated the lack of

communication between countries. Two of the suspects in the bombings in Madrid were on

a wanted list in Morocco for being connected to a series of café bombings.xxvi Moreover,

some of the suspects in the Madrid bombings were under suspicion by French and Spanish

Police three years prior, but they were released due to lack of substantial evidence.xxvii

During a joint EU-US statement on combating terrorism, one of the areas of

cooperation highlighted was access to information and exchange of electronic data,

however some argue that the follow through in this area is lacking.xxviii As referenced

earlier, the Safe Harbor Accord has been dismantled which may be contributing to the lack

of follow through. Intelligence sharing is essential to counter terrorism cooperation

because the network of terrorism has expanded from the Middle East to Northern Africa

and into Europe. The networked threat places importance on international cooperation

because meaningful results depend upon intergovernmental coordination.

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Section III: Institutional Barriers to Cooperation

A. Governmental Structures and National Security Concerns

Any agreement formulated by the United States and the European Union must pass

through each member countries’ national parliaments. The process of passing an

international agreement through Congress is relatively easy because there is only one

government in play. For the European Union, agreement on implementation and

cooperation from every member state is more difficult. National security concerns play a

vital role in the decision making process of member states’ parliaments. Moreover each

member country has its own perceptions and approaches to counter terrorism measures.

National constitutions are an integral obstacle to cooperation between the U.S. and EU

because member states have different legal restraints than others. For example, while

France has initiated airstrikes following the Paris Terror Attacks, Germany has only been

able to play a supportive role in the fight against ISIS because the German constitution

restricts German soldiers from fighting on foreign soil. However, the red tape is slowing

being peeled away.xxix

While the European Union can act as a single body in the economic arena, regional

security is an area of cooperation that is lacking cohesion. Due to the absence of a collective

security voice for the EU, national voices erupt loudly and forcibly. The European Union has

struggled to formulate the Common Security and Defense Policy (CSDP), which still lacks a

military force to implement the EU’s foreign policy.xxx States maintain complete autonomy

in the fields of foreign and defense policy.xxxi Moreover, there are differences in national

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security concerns of the United States and EU member states. The EU sees failing states as a

major threat to regional security. The United States, on the other hand sees rogue states as

a key threat to national security.

Fundamental differences in perceptions of security threats can translate into

differences in solutions to terrorism. U.S. and European officials largely agree that

terrorism, as well as Weapons of Mass Destruction (WMDs), poses the largest threats to

global security. However, the U.S. approach to terrorism highlighted in the National

Security Strategy of 2002 and 2006 is focused on the use of hard power, while the

European Security Strategy of 2003 and 2008 demonstrates the EU’s focus on soft power.

Moreover, the EU recent ruling on the Safe Harbor Accord demonstrates the differences

between the priorities of the U.S. as well as individual EU member states. For example,

Heiko Maas, the German Justice Minister, praised the ruling as a sign that the European

Commission will “fight for data protection standards internationally.”xxxii However, the

British government did not agree, and called the court ruling a disappointment.xxxiii

Conclusion

The United States and European Union appear to be working very closely on

counter terrorism efforts. However, the appearance of cooperation is not the same thing as

effective cooperation. Despite the numerous agreements between the two parties, many

have been placed under review or completely dismantled. Some have argued that counter

terrorism cooperation has been strong between European and U.S. officials because of the

open dialogue and historical transatlantic partnership. However, the ideological differences

between the two partners has created spilled over into the main areas of cooperation.

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Moreover, as explained in section II (B), cooperation is limited because of increasing

distrust due to American unilateralism and one-sided intelligence sharing.

Cooperation needs to come from both partners equally otherwise the collective

counter terrorism measures become largely ineffective. The United States needs to return

intelligence and financial information equally, in response the EU needs to begin to focus

on increasing its military capabilities. The state of cooperation between the U.S. and EU

against terrorism has shown that despite agreement on the overall threat, effective

cooperation is difficult to achieve due to differences in perceptions, privacy values, and

national security concerns. In the wake of the Paris Terror Attacks, EU countries have

slightly increased cooperation in order to counter the Islamic State. Hopefully this renewed

desire for cooperation is the beginning to meaningful reforms in transatlantic

counterterrorism effort.

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i Bendiek, Annegret, “At the Limits of the Rule of Law: EU-US Counter-Terrorism Cooperation.” German Institute for International and Security Affairs. Berlin, April 2011. ii Mix, E. Derek, “The United States and Europe: Current Issues.” Congressional Research Service. 3 February 2015. iii Bendiek, Annegret, “At the limits of the Rule of Law.”iv Shapiro, Jeremy, “US and European Counter Terrorism Strategies.” Brookings Institute, Security Studies Seminar. 9 November 2005. v European Union, “Framework Decision on Combating Terrorism” Article 1. 2002. vi “Definitions of Terrorism in the U.S. Code.” Federal Bureau of Investigation. vii Archick, Kristin, “U.S.-EU Cooperation Against Terrorism” Congressional Research Service. 1 December 2014. viii Ibid. ix Ibid. x Ibid. xi Ibid. xii Ibid. xiii Nakashima, Ellen. “Top EU court strikes down data-sharing pact between U.S. and Europe.” The Washington Post. 6 October 2015. xiv “Agreement between the United States of America and the European Union on the Processing and Transfer of Financial Messaging Data.” xv “EU-US Airline Passenger Data Disclosure.” Electronic Privacy Information Center. 2014. xvi Ibid. xvii Archick, Kristin, “US-EU Cooperation Against Terrorism.”xviii U.S. Department of the Treasury, “Terrorist Finance Tracking Program (TFTP).” Resource Center. xix “Agreement between the United States of America and the European Union on the Processing and Transfer of Financial Messaging Data.” xx Nielsen, Nikolaj, “US gag order on EU police agency stirs controversy.” EU Observer. 8 January 2015.xxi Kerchove, Gilles De. Hohn, Christiane. “Chapter 10: Counter-Terrorism and International Law Since 9/11.” Asser Press. 2015. xxii Kristin, Archikick “EU Questions and Answers.” Congressional Research Service. 4 September 2015. xxiii Kristin, Archikick “The United States and Europe: Current Issues.” Congressional Research Service. 21 November 2006. xxiv Kerchove et Hohn, “Chapter 10: Counter-Terrorism and International Law Since 9/11.”xxv Aldrich, Richard J. “Transatlantic Intelligence and Security Cooperation.” International Affairs. July 2004. xxvi Ibid. xxvii Ibid. xxviii “European Union-United States: Joint EU-U.S. Ministerial Statement on Combating Terrorism.” American Society of International Law. September 2001. xxix Borger, Julian. “Germany slowly comes to terms with sending its armed forces abroad.” The Guardian.18 September 2012. xxx Biscop, Sven. “CSDP: what is it good for?” Europeangeostrategy.org. 31 March 2015. xxxi Zakharchenko, Anna I, “The EU and US Strategies against Terrorism and Proliferation of WMD.” George C. Marshall European Center For Security Studies. January 2007.

xxxii Bodoni, Stephanie. “Trans atlantic data pact struck down by EU’s Highest Court.” Bloomberg Business. xxxiii Ibid.

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