BF-FieldManual-FEB13 -3.pdf - Bertelsmann Foundation

these delicately negotiated agreementsunder renewed scrutiny. 16 At the sametime, the US should also remaincognizant of patchwork implementationacross member states and be willing toraise these concerns both nationally andin Brussels.2. Understand institutionallimitations, particularly regardingindependent legislatures:Both sides need to recognize thatadministration negotiators are not theonly decision makers. Legislators havean important, often underappreciated,role. The EU has called for the US torepeal section 1021 of the NationalDefense Authorization Act (NDAA) andend indefinite detention of terroristsuspects. 17 It would also reopen thePrivacy Act to give European citizensjudicial redress regarding their personaldata. 18 But these efforts would requirecongressional revision, which isunlikely given their low priority forUS constituents and Washington’slegislative gridlock. Likewise, theEU’s institutional structure grants theEuropean Parliament an importantvoice in international agreements, andit is prepared to speak up. Concernsabout the US ignoring civil liberties orprivacy concerns, and its tendency todictate trans-Atlantic counterterrorismpolicy, resonate loudly in theEuropean Parliament.a) Pursue VWP reform early in 2013:The administration should seek areasin which progress with Congresscan be made. On VWP, the Obamaadministration should promote aretooling of the program so that it isat once more secure and practical. ThePolish remember the president’s pledgeto reform the VWP system to allow forPoland’s admission, made at his firstjoint press conference with PresidentBronisław Kamorowski in December2010 and renewed during Obama’svisit to Poland in 2011. A bipartisan,bicameral group of legislators introducedlegislation in 2011 that would facilitate apath to VWP for the remaining four EU“outs” (Poland, Bulgaria, Romania andCyprus) in the coming years. 19 Much ofthe most vociferous Senate oppositionto an expanded VWP dissolved in 2012.Implementing a more sound VWP regimefor Europe will have two constructiveconsequences: 1) it will fulfill theadministration’s commitment to Polandthat it would enter VWP during Obama’sterm in office and 2) it will hastenthe convergence of an EU-wide VWPregime that is consistent with the post-Lisbon mandate to introduce uniformvisa policies.3. Promote forward-lookingforums for discussion:Forums such as the High-LevelContact Group (HLCG) on privateand data protection are important forperpetuating talks on fundamentaldifferences between systems. Theseforums are the most effective vehicleto achieve agreement on methods thatsatisfy concerns on both sides of theocean. To strengthen US-EU ties, theDepartment of Homeland Security(DHS) and the Department of Justiceon the one hand and the JHA Council,DG HOME, and DG Just on the othercould aim for more exchanges betweenofficials. Greater interlocutor linksbetween the National CounterterrorismCenter (NCTC) and SitCen, the FBI andEuropol, the Department of Justice andEurojust, DG MOVE and the TSA are alsorecommended. 20 These working-levelrelationships help generate trust thatleads to cooperation. Mutual recognitionof certifications and standards in areassuch as cargo security, a most efficientpolicy tool for both sides, is a productof frequent operational meetings ofbilateral working-level forums. They canbe venues for talks on frontier topicssuch as civilian usage of repatriatedunmanned aerial vehicles (UAVs).Moreover, the EU is negotiating an intra-EU TFTP agreement, an intra-EU PNRagreement, Europol, and Eurojust in2013 and will reform its data-protectionregime in 2014. These could affect the USapproach to agreements with Europe.The forums would guarantee consistencyin rapidly evolving legal frameworks inthe US and the EU.4. Pursue the widest possibleagreement on data protectionand privacy with mutualrecognition at the core:The umbrella US-EU Data Protection andPrivacy Agreement under negotiationis an ambitious undertaking thatcould remove one of the most difficultbarriers to US-EU cooperation oncounterterrorism. The precedents set inthis agreement will have spillover effectson the commercial sector.Both sides should ensure that anagreement is as robust as possible. TheEU has the legal authority to negotiate[data protection and privacy] with thirdcountries, and the Commission and theEuropean Parliament have seized thismandate. European data transferredto a third country must be met by “anadequate level of protection” by thosecountries. This gives the Commissionauthority to decide whether the USappropriately handles EU citizens’personal data.The EU has the legalauthority to negotiate[data protection andprivacy] with thirdcountries, and theCommission and theEuropean Parliament haveseized this mandate.The HLCG has determined that majordifferences on redress principlesexist. 21 Some European leaders haveinsisted that all Europeans have theright to redress before an impartial andindependent tribunal regardless of theirnationality or place of residence, as theEU Data Protection Directive maintains.The US Privacy Act, however, limitsjudicial redress to US citizens and legalpermanent residents. 22 Even though theDHS privacy office offered administrativeredress to non-US persons in 2009, 23 keymembers of the European Parliamentprefer their citizens to have access tojudicial review. 24 The alternative toamending the Privacy Act is ensuringCounterterrorism and Homeland Security4 1