Counterterrorism & International Human Rights Archives | Page 7 of 8

Despite International Protest, Trump Issues Order to Keep Guantanamo Bay Open Indefinitely

January 31, 2018 by Madeline Henshaw-Greene Leave a Comment

On January 30, shortly before delivering his first State of the Union address, President Trump signed an executive order rolling back efforts by his predecessor, Barack Obama, to close Guantanamo Bay, vowing instead to keep it open indefinitely. Trump also indicated that he intends to use the prison to detain future terrorism suspects, which would be the first time in a decade that new prisoners have been brought into the facility. Although President Obama was unable to overcome opposition in order to close the facility for good, his administration was able to transfer a total of 196 of its prisoners overseas. Now 41 detainees remain, only a small minority of who have ever been charged with a crime or completed trial in a military court.

In the order itself, the Trump administration insists that keeping Guantanamo open is consistent with the law, as outlined in the 2001 Authorization for Use of Military Force. The AUMF was a response to the 9/11 terrorist attacks and gave the United States full authorization “to detain certain persons who were a part of… al-Qa’ida” as well as “associated forces engaged in hostilities against the United States”. Because the United States is still at war with al-Qa’ida, as well as the Islamic State, the administration argues that it is necessary that the facility remain in use. Furthermore, the order states that all detainees transferred to Guantanamo in the future will have to undergo “procedures for periodic review”, in order to “determine whether continued law of war detention is necessary” in the interests of U.S. national security.

The New York Times reports that the immediate effect of the order is not as important as the message it sends, and warns that “it may intensify criticism from those who argued that the prison is a stain on America’s global reputation”. Wells Dixon, an attorney at the Center for Constitutional Rights who represents some of the prison’s detainees, argues that the closure of Guantanamo is not only necessary for humanitarian purposes, but also “‘imperative to the national security of the United States’”. Even President George W. Bush eventually came to the conclusion that the prison was doing more harm than good, according to his former legal adviser John Bellinger. Others worry that the administration is exposing itself to court challenges over its implementation of U.S. counterterrorism law, or that keeping Guantanamo open will endanger Americans abroad, particularly those in the Middle East, by subjecting them to retaliation.

For more on the possible legal implications of this order, see Bruce Zagaris’ article entitled “Motion Challenges Indefinite Detention of 11 Guantanamo Detainees for 16 Years Without Charges or Trial”, in the January 2018 edition of the International Law Enforcement Reporter.

Treasury Issues CAATSA Reports on Russian Senior Foreign Political Figures and Oligarchs

January 30, 2018 by Bruce Zagaris Leave a Comment

On January 29, 2018, the U.S. Department of the Treasury, pursuant to the Countering America’s Adversaries Through Sanctions Act of 2017 (CAATSA), delivered five reports to the designated Congressional committees:

Sec. 241: Report on Senior Foreign Political Figures and Oligarchs in the Russian Federal;

Sec. 104(e): Report on Contributions to Iran’s Ballistic Missile Program:

Sec. 242: Report on Effects of Expanding Sanctions to Include Sovereign Debt and Derivative Products;

Sec. 273: Examining the Counter-Terror Financing Role of the Department of the Treasury in Embassies; and,

Sec. 311(d): Designation of Additional Persons Related to North Korea.

Section 241 of CAATSA required Treasury, in consultation with the Department of State and the Director of National Intelligence, to provide a report regarding senior political figures and oligarchs in the Russian Federation and Russian parastatal entities.

The names of senior political figures and oligarchs in the unclassified version of the report were selected based on objective criteria drawn from publicly available sources.

Senior political figures: The report included individuals who are: i) senior members of the Russian Presidential Administration; ii) members of the Russian Cabinet, Cabinet-rank ministers, and heads of other major executive agencies; iii) other senior political leaders, including the leadership of the State Duma and Federation Council, other members of the Russian Security Council, and senior executives at state-owned enterprises.
Oligarchs: The report included Russian individuals with an estimated net worth of $1 billion or more.
Parastatals: The report analyzed entities that are at least 25% owned by the Government of Russia and that had about $2 billion or more in revenues in 2016.

Treasury’s press release states the report is not a sanctions list. The inclusion of individuals or entities in any portion of the report does not impose sanctions on those individuals or entities. Nor does it create any other restrictions, prohibitions, or limitations on dealings with such persons by either U.S. or foreign persons. Treasury states that inclusion in the report does not constitute the determination by any agency that any of the individuals or entities meet the criteria for designation under the sanctions program.

The law is designed to punish Russia for its alleged interference in the 2016 U.S. elections and its actions in Ukraine.

The unclassified sections has 210 https://www.cnn.com/2018/01/30/politics/full-us-list-of-russian-oligarchs-with-putin-ties-intl/index.html names, 114 senior political figures and 96 oligarchs.

On Jan. 30, 2018, the Trump administration said it will not implement Russia-related sanctions mandated by Congress last year because the threat itself is acting as a “deterrent.”

Although inclusion on the so-called “Putin” list does not mean the persons have been sanctioned, the consequences are potentially significant; (1) financial institutions who subscribe to anti-money laundering and international enforcement watch lists will now encounter their names and some compliance officers will likely determine that the individuals are “high-risk” persons, requiring financial institutions to either close their accounts or pay enhanced due diligence; (2) some of the listed individuals may encounter problems when they travel internationally; and (3) some of the listed persons will likely have trouble doing business, because of the potential negative taint of doing business with listed persons, especially due to the risk that the may be sanctioned in the future.

A more comprehensive discussion will appear in the February issue of the IELR.

Federal Judge Orders Military to Notify ACLU before Transferring Suspected ISIS Fighter and US Citizen

January 26, 2018 by Madeline Henshaw-Greene Leave a Comment

A federal judge for the District Court for the District of Columbia ruled on January 23^rd that the Department of Defense must give both the court and the ACLU three days’ notice before it seeks to transfer a United States citizen and suspected ISIS fighter into the custody of another nation. The individual that the ACLU is representing is believed to be a dual citizen of the United States and Saudi Arabia and was turned over to American troops after being caught by a Syrian militia last September. He has since been imprisoned in Iraq for more than four months under suspicions of being an enemy combatant with ties to the Islamic State.

The individual in question, who has remained unidentified, asked for a lawyer last month after being informed of the Miranda rights and the American Civil Liberties Union (ACLU) offered to meet with him. Although the Trump administration argued that the ACLU had no connection to the man and therefore no right to represent him, the court ordered them to allow the ACLU “immediate and unmonitored access to [the] Petitioner to determine whether he wanted the ACLUF to pursue… action on his behalf”. The ACLU notified the court on January 5^th that the man had agreed to allow them to represent him in a habeas corpus lawsuit challenging his detention.

The point at issue was whether or not the petitioner should be transferred to another country’s custody before the court reached a decision on his petition and, if so, whether or not he should be allowed to contest the transfer. Although the Defense Department did not give any specific details as to whether or not the petitioner would be transferred, they admitted they “may seek to transfer him prior to [the] court’s decision”. The ACLU, on the petitioner’s behalf, requested that the court forbid the government from completing the transfer until a decision is made.

In reviewing the case, the court first determined that the petitioner had shown “a likelihood of success on the merits of his claim”, the claim being that restrictions should be placed on the ability of the Defense Department to transfer him in the middle of litigation. Furthermore, the Defense Department failed to establish that delaying the transfer would disturb relations between the United States and the country in question. However, the court noted that it did not deem it necessary to restrict the transfer altogether, because the Department of Defense had not yet officially announced its intention to transfer the petitioner.

The court ultimately decided that although it could not delay or prevent the transfer itself, it would be prudent to compel the Defense Department to notify both the court and the petitioner’s counsel at least three days prior to the scheduled transfer, in order to give the petitioner time to contest it should he so desire. As the New York Times noted, this case is significant because it introduces important implications into the rights of American citizens and the extent of power wielded by the government in cases related to national security. As Jonathan Hafetz, the ACLU attorney representing the petitioner, stated after the court’s decision was made: “‘this ruling helps to ensure that this citizen’s rights are respected and that he will receive due process in an American court.’”

Motion Challenges Indefinite Detention of 11 Guantanamo Detainees for 16 Years Without Charges or Trial

January 15, 2018 by Bruce Zagaris Leave a Comment

On January 11, 2018, on the 16^th anniversary of the Guantánamo prison’s opening, the Center for Constitutional Rights (CCR), Reprieve, and co-counsel filed a motion on behalf of 11 men held at the military facility for 16 years, challenging indefinite detention without charges or trial.

The motion argues that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to “perpetual detention for detention’s sake.”

In a press release CCR Senior Staff Attorney Pardiss Kebriaei, who represents Sharqawi Al Hajj, said that “continuing indefinite detention after all this time is unprecedented and experimental. Another three or seven years under President Trump may mean a death sentence for men like Sharqawi Al Hajj, who is in poor health and damaged by past torture.”

According to the filing the continued detention is unconstitutional because any legitimate rationale for initially detaining these men has long since expired. Detention 16 years into Guantánamo’s operation, is based only on Trump’s raw antipathy towards Guantánamo prisoners – all foreign-born Muslim men – and Muslims more broadly.

Some of the men participating in the filing allegedly have been detained in Guantánamo for nearly 16 years without charge or trial—detention that has spanned three presidential administrations and five presidential terms.

Two of the petitioners have even been approved for transfer, narrowly missing their chance at release in the final days of the Obama administration.

The CCR press release states that Reprieve attorney Shelby Sullivan-Bennis, who represents prisoners at Guantánamo, said, “Since Guantánamo opened, it’s been clear to all – including U.S. officials – that the detainees were being held on the basis of mistakes, faulty evidence, and forced ‘confessions’. The U.S. has had 16 years to build a case against these men, and yet 28 of 41 prisoners are held without charge or a trial of any kind – a shocking violation of America’s founding principles.

On January 11, 2018, human rights activists, torture survivors, Guantánamo attorneys, 9/11 family members, and members of diverse faith communities rallied outside the White House to mark the 16th anniversary and the continued operation of the Guantánamo Bay prison. The coalition issued a press release about the rally. The coalition included the Center for Constitutional Rights, Close Guantanamo, Codepink, Council on American Islamic Relations, Defending Rights and Dissent, Justice for Muslims Collective, National Religious Campaign Against Torture, No More Guantanamos, Reprieve, September 11th Families for Peaceful Tomorrows, Torture Abolition and Survivors Support Coalition, Veterans For Peace, Voices for Creative Nonviolence, Witness Against Torture, and World Can’t Wait.

Meanwhile, a spokeswoman for the Department of Justice declined to comment, saying that officials were reviewing the filing.

As defense counsel to United States citizens abroad, I used to be able to successfully argue that the foreign government had detained my clients for days and weeks without filing charges and/or affording them right to counsel, consular access, etc. In view of conduct by the U.S. government with respect to Guantánamo detainees, such arguments no longer resonate.

Another consequence of the continued detentions is that, in extradition requests by the U.S. government, especially with respect to national security and Muslim defendants, courts from democratic countries no longer accord the U.S. the benefit of the doubt as they did previously.

Russia Blocks U.N. Efforts to Investigate Use of Chemical Weapons by Syrian Government

November 17, 2017 by Madeline Henshaw-Greene Leave a Comment

Efforts on behalf of the United States to extend the U.N. Security Council investigation into the use of chemical weapons by the Syrian government came to an abrupt halt on Thursday, November 16th, when Russia vetoed the resolution that the US had put forth in order to extend the Joint Investigative Mechanism (JIM) for another year, according to the Washington Post. Without the resolution, the JIM effectively expired on midnight of the same day. The decision to veto this resolution is one of ten separate actions that Russia has taken to shield its ally, the Syrian government led by President Bashar al-Assad, from the consequences of its use of chemical weapons on civilians. The purpose of the JIM was to investigate whether al-Assad’s government was behind the attack on a Syrian village in April, which has become more difficult, although not impossible, now that the body has disbanded.

U.S. Ambassador to the United Nations Nikki Haley has acknowledged that the investigation may be continued by other fact-finding entities such as the International Commission of Inquiry on Syria, but is nevertheless angered by Russian attempts to impede efforts to get to the bottom of the crisis. She commented that the Russia veto was a “deep blow” to the investigation and its efforts to hold those responsible accountable. She warned that the United States government is on standby to intervene if there are any further attacks, the same way they did back in April when they launched an array of Tomahawks at the military airbase that the planes carrying the weapons had departed from. “As we did in April, we will do it again if we must,” Haley stated.

Russia is defending its actions by claiming that it is in favor of extending the investigation but insists there must be certain changes first. The Russian government reportedly took offense at a report published by the JLM in October that blamed the Syrian military for the attack in April on the village of Khan Sheikhoun that resulted in the deaths of over 90 civilians. Russia referred to the findings as “amateurish”, since the investigators had never visited the site in question and had instead relied on evidence from photos, interviews, and analyzed soil samples. The Russian ambassador to the UN, Vassily Nebenzia, concluded that the investigators were biased against the Syrian government and drafted his own resolution for the purpose of remedying these flaws. Due to a lack of votes, the resolution failed to pass.

The back and forth between the respective UN ambassadors from Russia and the United States is a continuation of the increasing divide that the Syria issue has created between these two countries. President Trump, despite his reportedly friendly relationship with Russian President Vladimir Putin, took to Twitter hours before the vote to urge the renewal of JLM, adding that it was necessary “to ensure that Assad Regime does not commit mass murder with chemical weapons ever again.” When the resolution failed to pass, scathing criticism poured in from ambassadors to the United States and other allied countries. Nikki Haley offered perhaps the most poignant censure, stating that it was a shame “that Russia has revealed itself to have allegiances to the Syrian regime, not to the truth or the protection of innocent victims.”

Spanish Prosecutor Requests European Arrest Warrant for Deposed Catalan President

November 2, 2017 by Zarine Kharazian 1 Comment

Image result for puigdemont

Spain’s state prosecutor has requested that a national high court issue a European arrest warrant for deposed Catalan president Carlos Puigdemont for his failure to return to Madrid to testify before the national court, the Guardian reported this morning.

Spain’s national court had summoned Carlos Puigdemont to testify with regards to the Catalan parliament’s declaration of independence from Spain last Friday. Puigdemont and 13 members of his administration face possible charges of rebellion, sedition, and misuse of public funds.

On Monday, just hours after Spanish officials announced that they intended to prosecute leaders of the Catalan separatist movement on rebellion charges, the Spanish press reported that Puigdemont, along with several other Catalan ministers, had arrived in Belgium. Speculation ensued that Puigdemont intended to seek political asylum from Brussels. The ousted president refuted the claims at a Tuesday press conference.

As several senior members of his administration, among them the speaker of the Catalan parliament, Carme Forcadell, and five other deputies arrived in Madrid to testify at a Thursday morning hearing, Puigdemont remained in Belgium. His attorney, Paul Bekaert, emphasized that his client would cooperate with Spanish and Belgian authorities if asked.

The Belgian government has extended no overtures to Puigdemont thus far. “He will be treated like any other European citizen,” Belgian Prime Minister Charles Michel stressed in a statement. “He has the same rights and duties… no more, no less.” EU citizens can apply for political asylum in Belgium, but such cases are rare. Only 49 such applications were filed last year, according to the Financial Times.

Does the EAW Apply to Political Crimes?

The Council Framework Decision of June 13, 2002, the document establishing the legal basis of the European arrest warrant, states that EU Member States have an obligation to execute an EAW issued by a fellow Member State “on the basis of the principle of mutual recognition.”

The Framework Decision also notes grounds for exceptions to this obligation, however. In particular, the decision explicitly states that it does not prohibit Member States from refusing to surrender a person “for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.”

Puigdemont faces an uphill legal battle to demonstrate to Brussels that he would not be guaranteed a fair trial or subject to discrimination in Spain. While discrimination on the basis of political opinion may be grounds for non-execution of the EAW, serious criminal charges of a political nature, such as rebellion and sedition, are usually extraditable offenses.

U.S. Lifts Visa Ban on Magnitsky Activist Bill Browder

October 25, 2017 by Zarine Kharazian Leave a Comment

Bill Browder, a billionaire hedge fund manager known for his full-throated criticism of the Kremlin’s human rights abuses, has had his U.S. visa restored after an initial ban triggered as a result of an INTERPOL red notice issued against him.

Browder, who traded his American citizenship for British citizenship to avoid paying US taxes on foreign investments, rose to prominence in 2008 when his Russian tax attorney and friend, Sergei Magnitsky, died under mysterious circumstances in a Russian prison just days after his scheduled release. In 2008, Magnitsky had uncovered and publicized a $230 million tax fraud scheme implicating the Russian government, and had been investigated and imprisoned by Russian authorities as a result. Following Magnitsky’s death, Browder initiated a campaign calling for the international community to punish Russian government officials linked to Magnitsky’s death.

Browder’s campaign proved largely successful. In 2012, Congress passed the Magnitsky Act, which imposed sanctions and asset freezes on at least 18 individuals implicated in Sergei Magnitsky’s death, as well as other human rights abuses. Russia responded to the legislation by banning U.S. adoptions of Russian children.

Interest in the Magnitisky Act resurfaced in recent weeks following revelations in July 2017 that Donald Trump Jr. met with a Russian attorney, Natalia Veselnitskaya, during the elder Trump’s campaign. Trump Jr. has claimed that the meeting primarily concerned discussion of the Magnitsky Act, which Veselnitskaya had lobbied against in 2012.

In an interview with Newsweek, Browder said that he learned of the ban when the U.S. Department of Homeland security denied his application for an Electronic System Travel Authorization. According to statistics released by DHS, over 99% of all ESTA applications are approved within 5 seconds. Browser took to Twitter to voice his frustration on Saturday:

Not only did Putin add me to the Interpol list, but the US simultaneously revoked my visa. @jaynordlinger explains https://t.co/d8KskJ5CTK

— Bill Browder (@Billbrowder) October 22, 2017

Browder believes that the ban was triggered by an INTERPOL Red Notice issued against him at Russia’s request. INTERPOL’s infamous red notice “is the closest instrument to an international arrest warrant in use today,” according to the Department of Justice’s U.S. Attorneys’ Manual. The Kremlin has attempted to use the international police agency’s red notice system to punish Browder four times before, but all prior attempts had been rejected by INTERPOL’s internal oversight body on the grounds that they were politically motivated.

The International Enforcement Law Reporter has covered the abuse of INTERPOL’s notice system in recent issues. For more analysis of the phenomenon, see “INTERPOL Red Notice Abuse: Which Member Countries are the Primary Offenders?” and “Mass Prosecutions and INTERPOL Red Notice Abuse,” both by Yuriy Nemets, in the International Enforcement Law Reporter.

Two Judges Temporarily Suspend Third Iteration of Trump’s Travel Ban

October 18, 2017 by Madeline Henshaw-Greene Leave a Comment

President Trump’s latest version of the travel ban his administration has been trying to implement since the first days of his taking office has come to yet another halt mere hours before it was set to take effect. This third iteration called for the complete suspension of travel into the United States for individuals from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea, and Venezuela in the interests of national security amidst the ongoing threat of international terrorism. The order was set in go into effect on Wednesday, October 18, but was temporarily blocked on Tuesday by Judge Derrick K. Watson of Hawaii, the same judge responsible for freezing the second version of the ban in March. U.S. District Judge Theodore D. Chuang of Maryland followed up with another, albeit less complete, halt early Wednesday morning.

According to Judge Watson, the latest travel restrictions suffer “from precisely the same maladies as its predecessor”, namely that it “plainly discriminates based on nationality” in direct contradiction to the principles set forth by the Founding Fathers. He also argued that the Trump administration had not given direct evidence to support that this ban was in America’s best national security interests, in particular because they failed to show a connection between a person’s nationality and the threat they presented. Judge Chuang responded with a partial block of the directive by ruling that the administration could not enforce its restrictions on any individual with a “bona fide” relationship with the United States, meaning anyone with family members or a professional or legitimate engagement within the country. He reasoned that the president’s language both on the campaign trail and on Twitter had convinced him that this was yet another attempt at a Muslim ban and was therefore unconstitutional.

Ian Prior, the spokesperson from the Department of Justice, commented that the rulings represented a violation of the separation of powers between the executive and judicial branches, and that the Trump administration intended to appeal. This marks the third time that the government will have to go to court against the state of Hawaii in order to defend its directive. It is important to note that both of these rulings are only temporary and are intended to maintain order during the legal battle until the appeals court can make its decision. While Judge Watson’s previous ruling was upheld by the appeals courts, the government then appealed to the Supreme Court, which allowed the ban to go into partial effect.

Sources:

New York Times – Judge Temporarily Halts New Version of Trump’s Travel Ban

Washington Post – Second judge rules against latest travel ban, saying Trump’s own words show it was aimed at Muslims

Ireland’s High Court Refers Schrems II to Europe’s Highest Court: Implications for E.U.-U.S. Relations

October 11, 2017 by Zarine Kharazian Leave a Comment

Austrian privacy activist Max Schrems | Photograph: Christian Bruna/AFP/Getty Images

Ireland’s High Court has asked the European Court of Justice to rule on the legality of Facebook and other U.S.-based technology companies’ transfer of EU citizens’ data to the United States. The case, called The Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems, has huge implications for data privacy and E.U.-U.S. relations.

Background

Schrems I – Safe Harbor

In June 2003, Austrian law student Max Schrems filed a formal complaint against “Facebook Ireland LTD,” Facebook’s Ireland subsidiary, before Ireland’s national data protection authority. Schrems, a Facebook user, alleged that Facebook Ireland LTD was violating the Irish Data Protect Act by outsourcing the processing of his data to “Facebook Inc.,” the social media giant’s U.S. headquarters. Section 11 of the Irish DPA states:

The transfer of personal data by a data controller to a country or territory outside the European Economic Area may not take place unless that country or territory ensures an adequate level of protection for the privacy and the fundamental rights and freedoms of data subjects in relation to the processing of personal data.

Schrems argued that, following the Snowden revelations that identified “Facebook Inc.” as a voluntary participant in the NSA’s PRISM mass surveillance program, the Ireland DPC could not guarantee that Schrems’s data was subject to “an adequate level of protection” upon transfer to the United States.

Initially, the DPC declined to take Schrems’s case, citing the 2000 Safe Harbor Decision, under which the European Commission determined that companies participating in the U.S.-E.U. Safe Harbor Framework provided “an adequate level of protection” with regards to data privacy. But an appeal from Schrems eventually brought the case before the High Court, which in 2014 agreed to refer several questions to the CJEU. In a landmark ruling, the CJEU invalidated the U.S.-E.U. Safe Harbor Agreement, finding that the framework did not adequately guard against “interference, founded on national security and public interest requirements or on domestic legislation of the United States, with the fundamental rights of the persons whose personal data is or could be transferred from the European Union to the United States.”

Schrems II—Standard Contractual Clauses

The case made its way back to the Irish High Court, which in turn remitted the complaint back to the DPC. The DPC started an investigation into the case, and invited Schrems to reformulate his complaint in light of the ECJ ruling on the Safe Harbor Agreement.

For his reformulated complaint, Schrems contacted Facebook, requesting that the company identify all of the legal bases upon which it relies to transfer user data to the United States. Facebook referred to a data transfer and processing agreement dated November 2015, which relied on the European Commission’s standard contractual clauses decision of 2010. Standard Contractual Clauses (SCCs, also called “Model Clauses” or “Model Contracts”) are sets of clauses issued by the Commission in order to provide adequate data privacy safeguards during the transfer of personal data from the E.U. to third countries who do not guarantee “adequate” protection per E.U. standards. Companies based in third countries, including the United States, can employ the clauses verbatim to ensure timely approval of their data transfer protocols.

In his reformulated complaint, Schrems attacks the legitimacy and binding status of the SCCs. In particular, he argues that the DPC is not bound to respect Facebook’s cited SCC because U.S. surveillance programs, namely PRISM, violate Article 7 and 47 of the Charter of Fundamental Rights of the European Union as well as the Irish Constitution, and, further, that all SCCs, including the cited SCC, provide an “emergency clause” that “takes account of a situation where national laws of a third country override these clauses and allows [data protection authorities] to suspend data flows in the situation.”

In May 2016, the Irish DPC’s office announced that, after conducting its investigation into the matter, it did not find that SCCs could adequately address the data protection deficiencies of U.S. law. Since the SCCs were established by the European Commission, however, the DPC acknowledged that it did not have the authority to unilaterally declare them invalid. It thus brought the case back before the Irish High Court, seeking a referral to the CJEU. Last Tuesday, the High Court agreed to refer the case to Europe’s highest court.

So What?

Implications for U.S.-EU Trade

The E.U.-U.S. trade relationship is the most robust trade relationship in the world, accounting for 30-40% of global trade in goods and services. The transatlantic flow of data underpins and sustains this relationship. Multinational companies in the U.S. and E.U. regularly send data to and receive data from their subsidiaries across the Atlantic for communications, human resources, and research and development purposes. Furthermore, many goods and services, such as online banking, telecommunications, and advertising are now primarily delivered over the Internet. According to a Brooking Institution report, these “digitally-deliverable services” constitute over 60 percent of exports for the U.S. and over 55 percent of exports for the European Union.

Cases such as Schrems I and Schrems II risk disrupting the free flow of data between the United States and the European Union. By creating legal and regulatory uncertainty about proper data transfer protocol, these cases raise the costs and risks to U.S. companies of doing business in Europe. These increased costs and risks in turn discourage U.S. companies from engaging with European businesses and consumers. Legal and regulatory barriers to transatlantic data flows prove particularly costly for small businesses, which often lack both the financial and human capital required to navigate cumbersome regulations.

Implications for Transatlantic Law Enforcement and Intelligence Cooperation

While the potential implications of the E.U.’s fervent data protectionism on trade and the global economy have been extensively discussed, the potential effects on another area of strong E.U.-U.S. cooperation – law enforcement and intelligence sharing – have thus far been largely neglected.

U.S. intelligence capabilities, especially with regards to signals intelligence (SIGINT), dwarf those of E.U. member states, and the E.U. has heavily relied on U.S. intelligence for decades. Washington and London have had a long-standing intelligence sharing pact called the UKUSA Agreement since 1946. Both are key members of the Anglo-American intelligence sharing group known as Five Eyes, alongside Canada, Australia, and New Zealand. Furthermore, documents leaked by Edward Snowden reveal several tiers of intelligence-sharing alliances that count both the United States and several European countries as members, among them Denmark, Germany, Italy, Sweden, Spain, and Switzerland. Following the November 13, 2015 terror attacks in France, Washington also agreed to boost its sharing of raw operational and military intelligence with Paris.

In short, if Brussels continues to erect barriers to data flows to and from Washington, many E.U. member states may have to forfeit some of their VIP access to American intelligence as well.

INTERPOL General Assembly Adopts Data Processing Policy on Refugees

September 29, 2017 by Madeline Henshaw-Greene Leave a Comment

The INTERPOL General Assembly met in Beijing for a four-day conference, which concluded today and convened as many as 1,000 senior law enforcement officials as well as government ministers from a total of 156 countries. The General Assembly is the chief governing body of INTERPOL, whose mission is to serve as “the natural custodian of global law enforcement interests”.

According to an INTERPOL media release, one of the outcomes of the conference was to adopt a policy on data processing on refugees, with the primary purpose of preventing criminals and terrorists from abusing refugee status. This resolution was overwhelmingly approved by delegates at the convention, and puts forth a series of measures that member countries would be required to enforce during the asylum application process. This would involve “systematically checking INTERPOL’s databases”, as well as using and expanding access to the INTERPOL Information System so that all relevant authorities can more easily exchange information.

The policy also asks that member countries inform either INTERPOL’s General Secretariat headquarters or the Commission for the Control of INTERPOL’s Files when “an individual has been granted refugee status” as well as “on the outcome of an asylum application review”. This requirement corresponds to the national laws and confidentiality requirements that the General Assembly already has in place.

Jürgen Stock, INTERPOL’s Secretary General, is confident that this resolution will help maintain a balance between improving international police cooperation and improving safeguards to ensure the protection of the rights of refugees. It also serves to formalize a policy set forth by INTERPOL’s Executive Committee in June 2014 that has already “been applied to the processing of Red Notices and diffusions against refugees”. Finally, it directly relates to the United Nations Security Council resolutions that encourage countries to take action to safeguard refugee status against abuse “by the perpetrators, organizers or facilitators of terrorist acts”.

The conference concluded with the delegates reaffirming their support for INTERPOL’s seven global policing goals for 2030. These key security topics involve countering terrorism, promoting border integrity, protecting vulnerable communities, securing cyberspace, promoting global integrity, curbing illicit markets, and supporting environmental security. Secretary General Stock closed the conference with a call for a united effort to address these evolving security threats, which is needed now more than ever.