Watch out for non-dangerous terrorists!

Ever since the beginning of the month I had to think about a curious announcement I saw in the EUobserver which reported on an interview in the German Bild:

“Germany’s interior minister Hans-Peter Friedrich told Bild newspaper on Monday that there are almost 1000 people in Germany that could [be] classed as "possible Islamic terrorists". Of those, 128 seem to be "dangerous" and have the potential to commit attacks.”

I don’t have much to say on the German Minister’s original statement. except what is this supposed to mean? That Germany is confronted with “only” 128 potential dangerous Islamic terrorists? Then what about the other 872? Are we saying that there are actually non-dangerous terrorists out there? Why do we care about them? Or do we maybe mean that there are 872 people from the Islamic community in Germany that, though not dangerous in a violent sense, are dangerous in that they might hold radical ideas? That we cannot trust them? Or that for one reason or another they simply are personae non gratae, someone the German government would rather not have among society?

It is absolute nonsense but I am not sure anyone still notices it with this decade-old terrorist hypebole: Either something is wrong with our definition of the very word “terrorist” or with our understanding of democracy.

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Taking the (ir)responsibility for Western wrongs: what the West owes humanity

Among all this political correctness, political lies and widespread citizens’ apathy and moral stagnation, it sometimes feels good to hear a provocative voice that, if it cannot shake up the establishment, might at least be able to shake up a bit the public debate. Today that a first series of articles went online commemorating the approaching 10^th year anniversary of 9/11, I want to be this provocative voice: It is time for the West to stop pretending as if we were the only victims of 9/11 and that non-Western lives are worth less than Western ones. And as a first step of this enlightenment, Guantanamo has to go.

Policy options are simple: Give every Guantanamo detainee that you cannot legally convict of a crime in a US federal court based on untainted evidence obtained according to criminal justice standards acceptable for a liberal democracy a “US Greencard”. Yes, the right to permanently live on US soil among US citizens with the prospect of one day acquiring US citizenship. You think I am joking? Hardly. How to transfer the detainees in the absence of budget allocated by Congress to such an action? Have Europeans pay for the transfer of detainees to the US mainland. Paying is what we seem to be capable of best anyway! Too ambitious? Well, alternatively I could suggest have Europeans accept the transfer of Guantanamo detainees to European soil granting them a right to live there freely if we cannot legally detain them subject to the condition that the US accepts the institution of an effective UN Special Tribunal for the US War on Terror to try low-level and high-level US citizens suspected of having committed War Crimes and Crimes against Humanity and subject to the condition that the US agrees to fully cooperate with such a tribunal.

Why am I suggesting this? Because. Because the cheering and chanting of Americans in the streets of Washington DC and New York on May 1 to celebrate the death of Osama Bin Laden shows a twisted sense of justice. Because in mid April 2011, the Red Cross released a Survey that found that 59% of Americans between the age of 12 and 17 “believe there are times when it is acceptable to torture the enemy.” The survey was released just about a week after it was known that the Obama administration would fail to try the alleged conspirators of the 9/11 attacks in a civilian court and that trials are now due to start at the disgraced US military detention facility at Guantanamo Bay, Cuba, instead. At the same time and related to this, news confirmed the Obama administration’s intention to close disgraced GITMO not by relocating the detainees to US soil, but by convincing other States to take them in in return for other favors such as money, the lifting of visa bans and others. It seems ironic that almost at the same time new secret documents were released by Wikileaks that show the unprofessionalism with which US interrogators tried to gain valuable intelligence from Guantanamo detainees by using techniques tantamount to torture that would be considered invalid if submitted for scrutiny to a civilian court.

Finally, another blow to justice was given by the US Supreme Court’s refusal to hear an appeal from Chinese Muslims whose detention at Guantanamo could not be ended due to a lack of an agreement on where to settle them. But note, this despite the fact that their detention was recognized as being “without lawful cause.” Confronted with these defeating news one has to conclude that Guantanamo detainees are apparently relegated to a desperate fate in limbo in the absence of countries willing to take them in. They are going to stay on the infamous military base. Not only that, but with US President Obama’s determination to “look forward, not backwards”, they do not even have a chance of ever seeing their alleged torturers be prosecuted let alone condemned if found guilty since no one in the US who is in a meaningful position seems to advocate for putting US soldiers and high-ranking ex-Bush administration officials on trial for having engaged in and promoted what has been euphemistically renamed “enhanced interrogation techniques”. At the same time, the consensus of the political elite to look forward is not even countered by anything that could be defined as an American public eager to look backwards.

While feeling sorry for all those Americans that look at the above-mentioned developments with the same disgust as I do, I cannot help but to feel that at some point in time American political culture must have gone completely morally bankrupt. How can a presumed-to-be enlightened people tolerate injustices they would never allow to happen to their own kind? As I hinted at in a post commenting on Osama bin Laden’s death, it seems as if the American people has become completely self-absorbed by an antagonizing civic religion that foments an uncritical image of an unjustified war perceived to be launched by the evil “them” against the good “us”. This has to stop. Americans need to understand that crimes against humanity are being perpetrated also in their name. They have to recognize that justice requires them to make up for it and pay the consequences for their country’s action. They should understand that Americans too, have to submit to the laws and recognize that even non-Americans and non-Whites deserve respect for their lives and dignity as human beings. And it is time for the world, and especially America’s Western allies to get this message across to them to cause a course correction. If we fail to do so, I provocatively dare to say, we can unfortunately only expect worse to come from the other side of the Atlantic now that it’s suffering from what some have called “imperial overstretch, perpetual war, and insolvency” and a polarization of their political landscape.

Admittedly, I have been particularly harsh here and this is not to say that Europeans are saints. On the contrary, our absolute and unquestioned allegiance to the Unites States, our cowardness to find our own European ways made us partake in US actions for which also Europe should seek moral redemption. It is time for Europe to show the world that we are not just good at symbolically and hypocritically condemning American wrongs that we in the best case condoned, in the worst case outright welcomed. Indeed, Europe made itself a complicit when it pretended not to see the secret US flights and black sites on European soil, used Guantanamo detainees as a bargaining chip, and failed to act in diplomatic protection of its own citizens illegally detained there, when some European countries (e.g. Spain, or Germany) backed off from prosecuting American war criminals and torturers or to otherwise try to force the US to close the detention facility as well as reinstate the rule of law. With this Europe bears a share of the guilt for the crimes committed against Guantanamo detainees, at least some guilt for willful blindness and acquiescence. And as such Europe too should pay – not just with its money but with a commitment to make the right choices in the future, to call the US up on its actions by offering constructive though outrageous policy solution, even if this sets us on a path of confrontation with our closest ally. If you take the time to think about it, a feared but unlikely-to-really-happen deterioration of our strategic transatlantic partnership is a little price to pay in exchange for at least a tiny little bit of more global justice.

More entries to follow-up on this more in detail will follow soon.

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Osama bin Laden – is it about Football?

I know the media sometimes tend to exaggerate certain phenomena that are maybe not as widespread throughout society as they might want to make you believe through their media coverage. Nevertheless am I the only one irritated by the cheering and chanting of Americans on the streets all across the United States, by the t-shirts and costumes displaying the US flag, by the waving of American flags, the holding up of signs "USA winning," "USA 1 – Osama 0"and by the facebook statuses some of my American friends posted to celebrate the death of Osama Bin Laden? By seeing such a strong emotional reaction I cannot relate to, I am troubled up to a point that I find it almost antagonizing to see such a display of national identity. Who is winning what anyway? And winning against whom? Some self-congratulating newspaper articles or tweets seem to know the answer, while only few people such as the ones here and here question American reactions. What people seem to care less about is that the terrorist threat will not go away, some even speculate there might be an at least short-term increase in terrorist activity as a backlash in response to the terrorist's death. There are still two wars going on, one in Iraq, one in Afghanistan, none with an end or a stable solution in sight. There are drone strikes in Pakistan and in Yemen. Osama's death will stop neither the wars nror the drones. Decentralized networks of terrorists are still plotting new attacks, yet Americans are cheering as if their favorite sports team had just won the Super Bowl!

Another sign says "Obama 1 – Osama 0" (What a boom for the economy, buy the t-shirt here!), and someone explains "Yes, as it's done in sports, we always keep score." But what are we counting here? The rounds each side has won? Well, in that case I would say it stands "USA 1 – Osama 1" (at least) because of the 9/11 attack, not to mention the 1998 bombings on US Embassies in Kenya and Tanzania and the attack on the Navy destroyer Cole, 9/1 in the year 2000. So maybe the count should actually be 1-3 for Osama? Or should we rather count the death toll in which case we would have about 1:3000 for Osama for the killing of innocents in the 9/11 incident? And what about the other terrorists the US already eliminated? This should push up the score of the US if only it were possible to quantify the number! And to be fair, we would also need to add the civilian losses, i.e. deaths, caused in collateral damage in the above-mentioned terrorist attacks, wars and drone strikes. This will be a tough one though: Should I count them as scores for the USA or Osama? Who "deserves credit" for their deaths?

USA winning: I wish I could experience the same relief so many Americans seem to be feeling. Instead, I am feeling the same discomfort I felt when seeing the images broadcasted by Western Media on September 11^th, 2001, with veiled Muslim Women cheering with sounds of Islamic ululation, Muslims holding up flags of Arab countries while others were burning American ones to celebrate the collapsing of the Twin Towers which killed thousands of people. I find both reactions grotesque. If back then I was alienated by what seemed to me a madness and injustice animated by religious fundamentalists, now I feel just as distressed by seeing such a powerful display of a civic religion that appears to me just as fundamentalist and alien. If we consider all the tragedies the war on terror and the terrorists have caused, are causing and will continue to cause all across the globe, doesn't our celebration seem misplaced no matter how important or unimportant terrorist Osama bin Laden might have been? Doesn't it feel like an over-reaction that shows that there must be something awfully wrong about the fundamentals of our societies?

The war and the threat are not over. Everyone is just as safe as before. No one is winning. No one can. It is not football. Yet, I hope I am wrong. I hope I underestimate the importance of Osama's death which would change things for the better. May the best man have finally won?

Unfortunately every time a football season ends, a new one is just around the corner. It's never ending.

I wonder who will be next season's winner?

Wikileaks and the struggle for sovereignty

At the end of 2010, the entire world seemed to talk about one thing: Wikileaks. And among the many things that have been said, I am puzzled that one of the most basic questions doesn't seem to have been explored at all, namely under what pretense does the United States seek the extradition to US authorities of Wikileaks' founder Julian Assange? Leaving aside the political question of Wikileaks' and Assange's morality and the limits of the freedom of press, I grew up in a society that believes in the rule of law. Therefore, whoever wants to prosecute Assange for undesirable actions has to first state the legal basis on which this is supposed to happen. Put differently, what law defines the elements of a crime that Assange is said to have committed? The US Foreign Intelligence Surveillance Act? The US Espionage Act? I reformulate my question: what relevant law did Assange actually breach in a way to commit a crime that would give authorities in Europe the legal right to extradite him to the United States? 

Let's take a look at the basics: Citizens are commonly believed to owe certain obligations to their State such as those that can be grouped under the category of "loyalty" or "civic duty". Generally, they are bound to comply with the laws of their country wherever they are. Moreover, also those merely being present in the country are called on complying with the country's laws and customs. Conversely, a State can lay no claim on the behavior displayed in another State's territory by non-citizens not residing in the former. It is for this conception of the international system based on the concept of citizenship that, as a general rule, as an Australian citizen residing in Europe, Mr. Assange couldn't care less about US law: He doesn't owe any obligation whatsoever to the US, let alone has a duty to safeguard US national security, interests or secrecy. Therefore, only if the domestic law of Assange's country of citizenship (or of usual residence) or the law of the country on the territory of which his actions were carried out defined the leaking of a foreign government's secret correspondence as a crime, would Assange's actions amount to unlawful conduct. If this were the case, then he could be prosecuted, but even then, only in these countries.

For his prosecution in the US one would instead have to prove a tie between Assange and the US that legitimately subjected him to US law, or prove that his acts constituted crimes under international criminal law. (The only other law that could be said to matter in that it is universally applicable, notwithstanding possible practical limitations of its applicability due to constitutional constraints and safeguards.) Without such a proven tie, from a legal point of view Assange is out of reach of US jurisdiction, rendering all US law inapplicable and hence completely irrelevant to the Wikileaks case as far as the weighing by authorities in Europe of a US extradition request is concerned. Any other conclusion would endanger our very understanding of the rule of law and our basic principles of criminal law that we in the West pretend to hold so dear. 

More so, one could even argue that in case the US tried to apply US law to Assange, the US would itself incur in a breach of law – a breach of international law to be precise. Indeed, according to the principle of non-interference a State who seeks to extend its jurisdiction beyond its border or citizens breaches international law by interfering in the internal affairs or sovereignty of another state – in this case by pretending its law should apply to someone who has no tie based on citizenship or territorial presence to the State enacting the law. This problem is well known to scholars of international law under the name of "extraterritorial effects of national jurisdiction". 

In that sense, fighting Assange's extradition to the US isn't just a matter of agreeing or disagreeing with Wikileaks. It is part of a much broader fight to safeguard our democracy by saying no to the extraterritorial effects of US law: US Congress does not hold and should never be given the power to rule over non-citizens residing abroad or to criminalize behavior held by non-citizens far away from US territory. These other States' citizens aren't subject to the jurisdiction of the United States of America and should never be. The message to the US government should be clear: Hands off of other States' citizens! 

[Comment one: For those believing that the US has a legitimate interest in prosecuting Assange because he violated US law, I would ask you to consider if you allowed Thailand to demand the extradition of US citizens smoking pot in a Dutch coffee shop, or Iran to seek the extradition of unmarried European women for "adultery"? I did not want to make these analogies, as these prospects sound too ridiculous to even be worth contemplating. Yet, the analogy holds. One could ask: But aren't Assange's acts about terrorism? About international security? Don't they constitute a special type of crime? Maybe a transnational crime? A crime that is globally relevant? Well, do they? Really? How so? Disseminating information should never be defined as an act of terrorism or a crime of global relevance – of global relevance, yes, but not a crime. And for sure it shouldn't be defined so unilaterally!]

[Comment two: Given the breadth of this topic and the sometimes complicated interplay between national and international law, I hope people understand why I hardly provide any links in this entry. For most of my statements here I make reference to my international and constitutional law classes at university, but I encourage everyone to read some good law books to make up your own mind.]

Paying twice for the same meal: “visa-free” travel to the US

It has been a while since I have last written an entry here. Several things make me upset about politics, and it is difficult to break them down into short and readable blog posts. The problem is each time I read about what Europe should do to draw the US' attention back to Europe, I can only shake my head for incomprehension. Europeans don't get it, do they? The questions should not be "what can Europe offer to the US", but "what can the US offer to Europe"? But Europeans never ask that question with the consequence that they hardly get anything in return from the US for concessions they make. Here is just one small example that I would like to address today: visa-free travel.

Let's just assume for a second that the visa-free travel to the United States of America granted to Europeans under the Visa-Waiver-Programme (VWP) and all its related requirements deserves to be qualified as visa-free travel. Let's assume that here, for the sake of argument.

To start with, visa-free travel agreements are usually based on a mere principle of reciprocity. Probably this is how it can be explained why Americans had to grant visa-free travel in the 80s to an increasing number of Europeans when Europe recovered from World War II and asserted itself with new economic power. Otherwise, Europe maybe would have stopped granting Americans the right to visit Europe without a visa. A similar shift in confidence can currently be seen in Russia who just announced to toughen its visa requirements for EU citizens travelling to Russia. By explicitly citing the principle of reciprocity, Russia thus demonstrates that it is not willing anymore to let Europeans get away with requirements that are so much more lenient to fulfill than the corresponding ones that are imposed on Russians wanting to come to Europe. It is a new confidence and awareness on Russia's part that it does not need to dwell in a situation of inferiority where it should be thankful for any visa-facilitation Europe might grant to Russian citizens. 

Another application of the principles of reciprocity relates to countries' visa fee practice. For instance, some countries such as Argentina determine their visa fees based on the amount that their citizens have to pay for visas in other countries. In that sense reciprocity is a benchmark, where respecting it is the cost for visa-free travel or visa-facilitations. And it seems that based on the principle of reciprocity also Americans and Europeans have found a way to grant each other visa-free travel – with only some few exceptions still in place for the citizens of some new EU Member States for whom the European Commission is still working on achieving full visa-reciprocity. Hence, by allowing the visa-free travel of Americans, Europeans have paid the price for their corresponding privilege in the US. 

Yet, the US at some point in time decided to believe they deserve more in order to uphold Europeans' right to visa-free travel to the US. In a trial of strength, they forced European Member States to grant US authorities access to Passenger-Name-Records (PNRs) held by European carriers operating flights to and from the US. The troubled history of blackmailing, threat of retaliation, the bypassing of the European Commission in this matter of Community competence, and the current state in limbo of the to-be-renegotiated EU-US PNR agreement would be too long to address here. What becomes clear though is that even if no explicit link is being made, the question of who can travel under the VWP is strictly considered in relation to the PNR question and recognized by all stakeholders. In that sense one has to read the statement of the Council of the European Union of March 2008 that affirms that: 

"5. The Commission and the relevant working bodies of the Council are requested to urgently examine the different elements of the ongoing implementation of the VWP legislation […] In the meantime, in their contacts with the US on the matter, Member States should be guided by the following elements: 

a. Regarding passenger record data, the recently signed EU-US PNR Agreement should suffice and no additional requirements should be added as compared with that Agreement."

This statement wasn't worth the paper it was written on, since some new EU Member States were lured nevertheless into disregarding it. In order to accelerate their accession to the VWP, these countries decided to conclude bilateral agreements with the US that would provide for the transfer of certain personal sensitive information contained in the PNRs even though their transfer to the US had been blocked by the European Court of Justice and were not covered by the EU-US PNR agreement. 

But the story doesn't end here. The statement cited above continues:

"b. No commitments as to access for the US to EU/EC data bases or information systems."

Maybe EU Member States had better internalized this statement to avert what was to come: At the beginning of October 2010 it became known by the Austrian press that our dearest ally, the honorable United States of America, had blackmailed Austria to either grant US authorities access to Austrian police data bases or to have Austrians' right to travel to the US under the VWP revoked. Austria eventually ceded to the pressure, and it is highly speculated that other EU Member States have done so too. (For reports in English, see here and here.)

When I read this, I couldn't help but to feel ashamed for being a European. Are we just stupid or incompetent? How is it that Europeans constantly fail to make Americans pay for the data they require us to submit? Or do we just value visa-free travel to the US above everything else, so much that we are even willing to let the US blackmail us with it, that we are willing to give up the integrity of our personal data and fundamental rights? Or do we really believe we don't have any other choice? 

Europeans have paid their dues for visa-free travel when they upheld the rights of US citizens to enter Europe without a visa. This is not a given and could be revoked at any time if the US does not honor its end of the bargain. Therefore, if the US wants access to European PNR data and national police databases, we should ask them what they are willing to pay for it. Visa-free travel is nothing "given in return" since Europeans already benefitted from this anyway on a strict basis of reciprocity. It would be more than urgent to finally know how much our data are actually worth to the US before we give them out for free. I'd even go further and would recommend that Europeans have at least a tiny little bit of self-esteem to dare retaliation against the US' blackmail. But, of course, we don't do any of this.

At the end of the day all I can therefore do is congratulate the United States of America for their bargaining talents which are truly amazing: By now you have made Europe paid not twice but thrice for the very same meal! (Or maybe it is just Europe's bargaining "un-talents" that are amazing?) I understand that terrorism must have caused some inflation in the price for visa-free travel, but I wonder nevertheless how the US can remain competitive: With all the other terrorism related security measures that you impose on EU citizens, the meal with inflated prices certainly doesn't taste any better... It actually tastes worse by the day, and personally, if I were in charge, I wouldn't be willing to pay for it: Thanks but no thanks. Let's all get a visa, Americans and Europeans alike, and we get to keep our data. Now we can negotiate!

The tragic story of SWIFT: Hope dies last

What basically everyone interested in these matters had already expected became true: despite the civil liberty concerns that it raises, the European Parliament approved the so-called SWIFT-agreement that would give the United States access to innocent European citizens' banking data in order to track money used for terrorist financing. 
 

To give a brief recap (though I assume that everyone is at least somewhat familiar with the debate): Despite a moving speech by Vice-President Joe Biden to sweet-talk the European Parliament (EP), the EP had voted down the first draft agreement in February 2010 for insufficient data protection standards, thus forcing the European Commission (EC) to go back to the negotiating table with the US. A second draft-agreement was subsequently presented to the EP and the European Public which, as explained in my earlier post, did still not meet one of the most crucial requests that the EP had set as a condition for approving the agreement. Therefore, additional concessions had to be made, until the EP eventually felt comfortable with giving its consent to the SWIFT agreement on July 8^th.

As has been reported to the public, one could not say that the MEPs did not have their reasons for approving the agreement, especially if one considers their legitimate interest in strengthening their negotiation position with regard to the Council and the Commission for future negotiations on foreign affairs issues by positioning itself as a reasonable and mature partner capable of balancing opposing interests in the delicate realm of international relations.

Yet, at a closer look it appears that most of their reasons are good enough for the uninformed public but not for someone who really bothers with the details of it. Hence, before the vote, I wrote three Members of the European Parliament (MEPs) to express my doubts regarding the agreement. The two immediate replies I received, namely from Manfred Weber (Christian-democrat/EPP) and Alexander Alvaro (Liberal/ALDE), both maintained that yet another rejection of the agreement could not be mandated. Unfortunately, they failed to give me an appropriate answer of why this was the case or to seriously dwell on my concerns.

Indeed, ignoring my arguments, the answer I got from them was simply that contrary to the draft rejected in February, European citizens' privacy and data protection rights were now more clearly regulated and that relevant civil liberty concerns had hence been sufficiently addressed to allow for the approval of the SWIFT agreement (whose very need for existence no one seems to question!): Whereas Mr. Weber just made a general statement, Mr. Alvaro was more specific and underlay its position by referring to article 16 (Right to Rectification, Erasure, or Blocking) and 18 (Redress) of the agreement to make his point. I would have hoped for more founded arguments, considering that, anticipating their answers, I had already indicated to them that I would not accept the enumerating of these articles as evidence that appropriate data protection was now accorded to Europeans in the US because, as I read the agreement, these articles have a merely symbolic meaning. (I hoped they would prove me wrong, but so far they haven't).

For those of you who are not very familiar with the agreement and the underlying context: It is true that article 16 and 18, as cited by Mr. Alvaro, generously name data protection rights. The one of special interest here is the one of article 18 as it is the one that should provide for the mechanism that is absolutely necessary for you to be able to enforce the rights accorded to you by article 16 against the US. Article 18 solemnly proclaims: 

"Any person who considers his or her personal data to have been processed in breach of this Agreement is entitled to seek effective administrative and judicial redress in accordance with the laws of the European Union, its Member States, and the United States, respectively."

What is wrong with this is precisely the fact that effective judicial redress (for the rights embedded in article 16) in accordance with the laws of the United States is an empty promise if you hold the wrong citizenship or have the wrong residence. I can only repeat over and over again that without a green card or US citizenship, you only have "the right to request access to federal agency records or information" according to the US' Freedom of Information Act (FOIA). It is true that this right is enforceable by EU citizens in US Courts, and in that sense judicial redress is available. But as a European, in a US court judicial redress is not available to enforce the more meaningful

"right to request the amendment of records that are not accurate, relevant, timely or complete; and [..] the right of individuals to be protected against unwarranted invasion of their privacy resulting from the collection, maintenance, use, and disclosure of personal information[,]"

or to sue the government for violations of these rights because these rights are provided only to people that qualify as "individuals" under the US Privacy Act of 1974, in which "individuals" are defined as those people that either hold US citizenship or a green card. Hence, the rights generously mentioned under article 16 and 18 are empty promises because, even if the US might commit to granting Europeans these rights, no corresponding right to enforce them in a US court is provided under domestic US legislation, and neither article 16 nor 18 change this. Indeed, as article 20 of the agreement states,

"[t]his Agreement shall not create or confer any right or benefit on any person or entity, private or public."

Anyone who knows a little bit about international treaty law knows that this article can't be interpreted but to mean that the EU and the US explicitly exclude the possibility that the SWIFT agreement might be self-executing. That is, the SWIFT agreement does not create rights that are directly actionable by individuals, but only a promise given to the EU by the US that European citizens' data protection rights will be respected. Therefore, whereas the EU can now request the US to respect European citizens' data protection rights lest to revoke the SWIFT agreement, as an individual there is nothing I can do if the US denies me effective judicial redress to enforce my privacy rights enshrined in the agreement, since the US does not owe any obligation directly to me or any other EU citizen. (For some general free background reading on the direct applicability of treaties in domestic US law, see here for instance.)

Moreover, the way the agreement is phrased means that the US' current legal framework is already enough to ensure the automatic compliance of the US with the obligations it owes to the EU. Indeed, the above-cited article 18 continues:

"For this purpose and as regards data transferred to the United States pursuant to this Agreement, the U.S. Treasury Department shall treat all persons equally in the application of its administrative process, regardless of nationality or country of residence. All persons, regardless of nationality or country of residence, shall have available under U.S. law aprocess for seeking judicial redress from an adverse administrative action." [emphasis mine]

The difference in the wording of "its administrative process" and "a process for seeking judicial redress" is crucial. As I see it, it can only be interpreted in the sense that no discrimination is permissible in granting administrative redress to data subjects, but that discrimination in the application of judicial redress is acceptable, as long as Europeans are granted some other type of judicial redress mechanism even if it is not the one granted to US citizens. In that sense, the US legal framework as defined by the FOIA and the Privacy Act does live up to the promise contained in article 18 of the SWIFT agreement, in that domestic US law provides for some judicial redress mechanism for the data protection rights of EU citizens. No article anywhere defines what characteristics such a mechanism should foresee or what rights should be enforceable with it to meet the article 18 requirement: To say it once again, the FOIA might foresee a judicial redress mechanism accessible by EU citizens, but only for the rights granted by that legislation which are absolutely insufficient for enforcing effective privacy and data protection safeguards. The more far-fetching privacy rights that US citizens are granted under the Privacy Act, most importantly the right to sue the US government for an unwarranted invasion of one's privacy, are still not accessible by Europeans.

Admittedly, one might spot a positive sign indicating that the US might consider changing its domestic privacy legislation in what results from a comparison between an earlier June draft of the SWIFT-agreement and the one that was eventually submitted to the EP for approval: whereas the earlier draft specifically stated that "[t]his Agreement is not intended to and shall not derogate from or amend the laws of the United States…", this has now been removed from the agreement which now says that "[e]ach Party shall ensure that the provisions of this Agreement are properly implemented. Maybe this gives some hope that the US might finally be willing to move towards recognizing the human right to privacy also of non-American human beings by extending the scope of its Privacy Act, or that the EU might at least informally require the US to adjust its legal framework. This might also be seen in the fact that the EP, when giving its consent to the conclusion of the agreement, explicitly instructed

""its President to enter into inter-parliamentary dialogue with the Speaker of the United States House of Representatives and the President pro tempore of the United States Senate on the future framework agreement on data protection between the European Union and the United States of America." 

Yet, as MEP Jan Albrecht pointed out, by approving the SWIFT agreement without a general data protection framework agreement having been concluded between Europe and the US, or without requiring changes to US domestic legislation as a necessary prerequisite for the SWIFT agreement's entry into force, the European Parliament has lost much of its leverage it could have had on the US Congress and government to amend the Privacy Act. The hope that the US might nevertheless remove the current discrimination thus seems illusionary, also because it would probably result in the illegality of many of the procedures with which the US is generally treating foreigners (US-VISIT just to mention one example). 

At this point, faced with a European Parliament that did not live up to its expectations of being a guarantor of EU citizens' interests and fundamental rights, all that there remains is to hope that my predictions are wrong and that despite the huge legal costs that this would involve, some European will make the effort to bring a lawsuit all the way up to the European Court of Justice to have the SWIFT agreement declared null and void for breaches of Europeans' fundamental freedoms and EU privacy laws. Hope dies last, so let's lean back and wait. And I will keep you posted on it.

[Comment: I met MEP Weber at a recent privacy event on September 15^th, 2010. I don't think he connected my name to the email, but I approached him to ask if he knew why the US did not want to change the US Privacy Act to encompass every person in its scope independent from nationality or residence. His reply was that the US cannot afford higher protection standards to EU citizens than it does to US citizens, which would happen if the US agreed to grant Europeans European protection standards. (European data protection standards are commonly seen as more demanding than the corresponding US standards.) While from a US perspective this is a justified position, it does not explain however why the US refuses to apply the standards it already grants to US citizens also to Europeans, and why the EP did not insist on this issue. And this was all I was asking for. Even though demanding the US to adopt EU data protection standards for the handling of EU data should be mandatory, I would settle for less: What an easy request to fulfill for the US to just extend the Privacy Act's scope to every human being! Is that a too high price to pay for widespread access to European data?]

Misunderstanding Arizona: II) the unfree foreigner

As mentioned in my earlier post, Arizona has enacted a new law, the SB1070, which requires foreigners but not US citizens to always carry an ID card on them as failure to do so constitutes a crime, and which allows any law enforcement officer during a legitimate stop of a person to check that person's immigration status if there is a "reasonable suspicion" that he or she is in the country illegally. The law has created an intense debate and several lawsuits. One of the main issues heatedly debated by the American public opinion has been the question of what constitutes a "reasonable suspicion", and how this cannot not result in racial profiling and in hassles especially for foreign-looking Americans. In that sense the SB1070 has been accused of being a racist law. The law - opponents claim - will deny (irregular) immigrants the "equal protection of the law" as mandated by the US constitution and make communities unsafer rather than safer. Regardless of the merits that this criticism might have, unfortunately no one seems to elaborate it enough or to bring the charge of racism or hostility towards foreigners (which seems to be a more appropriate term) against the very idea that underlies the law, namely that only a certain part of the population has to carry an ID card on them at all times lest to commit a crime. No one of the public opinion seems to question the basic fact that only foreigners be imposed such a burden. (Actually I came across one interesting and read worthy exception even though the author's reasons might be more connected to the effectiveness and racial profiling arguments, which I explored in my earlier post.) Could the reason for this be that SB1070 in many parts just repeats federal law? Indeed, many parts that SB1070 is criticized for are not that different at the federal level. So maybe rather than criticizing SB1070 it would be better to first examine what the federal law says before accusing Arizona of racism.

In the US, US citizens are not required to have or carry an ID card, and a national ID card system does not even exist. In the meantime, for foreigners, the Immigration and Nationality Act Section 264 (INA §264), as consolidated by 8 USC 1304 (e) and which goes back to the Alien Registration Act of 1940, (for an explanation, see here), foresees that:

"Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."

Hence, be it according to federal law, be it according to the Arizonan law, the situation that is of our interest here is the same: Whereas US citizens under both legislations do not have the duty to have, let alone carry along an ID card, aliens do not only need to have an ID card, but they have to have it in their own personal possession at all times. More importantly, failure to do so does not just constitute a civil infraction sanctioned by some administrative fine, such as crossing a red light or speeding, but constitutes a misdemeanor, i.e. a crime. As such, I assume, it will result in an entry in the alien's criminal record. This seems like a huge imbalance of rights in favor of US citizens and like an obviously unequal treatment. I assume few people would disagree. Yet, can this sort of discrimination really be called racism?

People all over the world seem to accept the notion that foreigners be granted less rights than citizens in certain aspects. In that sense, few people would think that restricting voting rights to citizens constitutes racism. Yet, the reason for this is because the rights in question are political rights which by their very definition are reserved to people belonging to a certain group. But the problem with the Arizonan law and the US federal law that the former replicates is that none of them is about political rights. They are about rights that in American belief should safeguard an individual's life from undue interference from the government, and ensure that one be free to live his or her life. They are about privacy rights. This is also something that the German Minister of Interior Thomas de Maiziere explained to the European public when defending the US commitment to privacy protections. He was cited as explaining that:

"While Germans are perfectly comfortable with showing their ID cards with all personal data to a police officer, [...] the very idea of such a document is outrageous to Americans and Britons." (emphasis added)

And the engrained link between privacy rights and the opposition to ID cards was also confirmed by the US ambassador to the EU William Kennard when he explained in an interview,

"America is seen by some as not caring about privacy as much as those in Europe. But this portrayal is a caricature [..] When I arrived in Belgium a few months ago I was told that I had to have an identity card and that I would have to carry it with me everywhere. This is something that would be unthinkable in the US." (see page 7; emphasis added)

Yet, it is not unthinkable – not if you are non-American. And this is where the charge of racism comes in: Privacy rights and fundamental freedoms are conceived of as human rights and have their roots in the Enlightenment tradition that continues to shape both Europe and the US. As such, there is no legitimate distinction that can be made between citizens and non-citizens: If Americans don't want to be obliged to carry along an ID card as this might expose them to governmental tyranny and infringe on their fundamental freedom, then why do their representatives impose this on others? This is also in contradiction to the "Golden Rule", widely accepted by all major civilization as a compass to what can be considered moral, and which in its negative formulation states: "Do not do to others as you would not have them do to you." In that sense, it is precisely because of the very meaning Americans themselves attach to ID cards, whose rejection is perceived as a guarantee of their fundamental freedoms, that the Arizonan and the US legislation can be accused of racism: Why should foreigners not be allowed to lead a life free from undue governmental interference? Why is their private and undisturbed life not worthy of protection? Civil and privacy rights might be conceived of differently in different places, but they can't differ on the basis of what type of human being you are. Yet, this is what the current legal framework in the US – be it SB1070 or the INA §264 – does, and why it appears to be racist: it constitutes an illegitimate discrimination insofar as it restricts certain human rights to a certain category of human beings only. That such a discrimination has no foundation was also recently recognized by U.S. District Judge Susan Bolton when she blocked parts of the SB1070 before they could enter into effect, when she judged that the law "burdens lawfully-present aliens because their liberty will be restricted while their status is checked."

So let's be clear, defenders of Arizona are right when they say that for the most part, SB1070 just repeats federal law and that the harsh way in which Arizona is currently criticized is unjust. I agree, and I want to defend Arizona: its legislation might be considered racist, but we shouldn't apply double-standards. Everyone who accuses Arizona's legislation of racism, should also pick a bone with the related US legislation. It is a burden to have to carry an ID card on you at all times under the threat of criminal punishment, and it is not clear why this burden should be imposed only on a certain part of the population (especially since only an indiscriminate application of that law to everyone would make the law an effective tool for national security and in the fight against illegal immigration as seen in my earlier post).

Maybe some of you can find some reasons or don't think it is a burden to carry an ID card around, but in any case some people have the choice, while others don't. It is a pity that in the proud land of the free, some people are simply freer than others.