Late last month, EU Home Affairs commissioner Cecilia Malmström announced the resumption of the Terrorist Finance Tracking Program (TFTP), under which American counterterror investigators have consulted and analyzed selected data on international bank transactions originating in Europe. (Note that it was not the Obama administration that announced the resumption of the program.)
The American public will indeed have largely been under impression that the program had already resumed earlier. On July 8, the European parliament voted to approve a revised version of the so-called SWIFT agreement laying out the terms of EU-U.S. cooperation in the program. In February, the parliament had rejected a first version of the agreement, thus bring the TFTP to a halt. In welcoming the parliament’s approval of the revised agreement, President Obama mentioned that it was slated to enter into force on August 1, “thus fully restoring this important counterterrorism tool and resuming the sharing of investigative data that has been suspended since January 2010 [sic].”
But the president spoke to soon. Under Article 12 of the revised agreement, the program is to be placed under the oversight of “a person to be appointed by the European Commission.” (The full text of the agreement is appended to the European Council decision here.) In her August 27 press release, Commissioner Malmström announced that a provisional “European overseer” had been appointed, thus allowing the program finally to resume. According to the Agence Europe news agency, no transfer of data had occurred prior to the appointment of “overseer.”
Malmström, however, did not reveal the name of the person appointed to the post. According to Agence Europe and other scattered reports in the European media, this was on account of “security reasons.” A permanent appointment is to be made later on. Presumably, whatever “security reasons” led the commission to keep the identity of the provisional appointee secret will also apply in the case of the permanent appointment.
But given the powers that Article 12 confers upon the European “overseer,” the identity of the person wielding them is obviously of great significance for the program’s functioning. Indeed, just whether the TFTP has in fact been “fully restored,” as President Obama confidently asserted it would be, will depend entirely on his or her discretion. Article 12 of the agreement gives the “overseer” the authority to “review” and “query” data searches and to demand “additional justification” of them from American investigators. Above all, as the article itself emphasizes, the “overseer” has the authority to block “any or all searches” as he or she sees fit. There is no mechanism laid out in the agreement for appealing the decision of the “overseer.” The word of the European “person” will apparently be final.
This represents a monumental change both from the original TFTP and from the terms laid out in the original SWIFT agreement that was rejected by the parliament. Since the data in question had previously been stored on servers in the United States, under the original TFTP, American investigators did not need European cooperation and could undertake data searches at their own discretion. Now, their investigations will be at the mercy of the anonymous European person.
The new agreement takes pains to describe the overseer as “independent.” So too does Malmström’s press release. But “Independent of what?” is the question. The fact of the matter is that the “overseer” will be a European Commission official on the European Commission payroll. The appointment will undoubtedly be subject to all the lobbying and horse-trading among interested European national governments that is part and parcel of the commission’s appointment process when it is a matter of politically sensitive posts such as this one.
Given that France has proven to be a generally reliable partner in counterterror operations, a French “overseer” could be expected to be sympathetic to the needs of American investigators. Given that Germany decidedly has not been, a German “overseer” could be expected to be far less so.