by Alexander Alvaro (ALDE), Jeanine Hennis-Plasschaert (ALDE), Renate Weber (ALDE), Sophia in 't Veld (ALDE) and Baroness Sarah Ludford (ALDE) to the Commission

Subject: US administration, closure of Guantanamo, secret eavesdropping programmes

On 22 January 2009, US President Obama signed three executive orders on the closure of Guantanamo Bay prison camp within one year, the review of military trials for terror suspects and a ban on harsh interrogation methods, including waterboarding. After 6 months, the resettlement of detainees from Guantanamo is proceeding at a slow pace, while the US Congress has rejected funds for Guantanamo closure, denouncing the lack of an overall strategy. The US administration is reviewing the 229 cases of terror suspects, but it continues to allow military trials and to argue for indefinite detention of aliens it considers a threat to public safety and national security (the President is reported to be considering issuing an executive order to indefinitely imprison some detainees), while officials would decide whether to release a detainee who has been tried and found innocent on the basis of their estimate of whether the prisoner poses a future threat. The administration has shielded CIA agents from criminal enquiries into any involvement with torture, the only enquiries in progress being one on the CIA’s destruction of videotapes of waterboarding and other brutal treatment during interrogation and another led by the Justice Department’s ethics office on the former department officials who wrote legal opinions justifying brutal interrogations. Furthermore, the media mention a report by the current CIA Director about the National Security Agency's eavesdropping, affirming that a number of surveillance programmes - that did not require warrants and did not undergo proper democratic or judicial scrutiny - were run during past administrations and now terminated; such programmes did not involve domestic intelligence activities and in the majority of cases had no connection with terrorism, which means that they have possible important implications for the EU and its Member States.

What does the Commission think about the lack of progress in the process of closure of Guantanamo? What will it do to express the EU's concerns about the fact that military trials are not in conformity with international law and human rights? Will it express the EU's view that torture should not be condoned and that criminal enquiries should be carried out? Will it request from the US authorities urgent clarifications on the eavesdropping programmes secretly run under the Bush administration and analyse their impact on EU citizens and conformity with EU law?


Answer given by Mrs Ferrero-Waldner on behalf of the Commission (30.09.2009)

The EU, including the Commission, has consistently called for the closure of the Guantanamo Bay detention facility, and therefore welcomed the decision by President Obama on 22 January 2009 to close it within a year from that date. The primary responsibility for closing Guantanamo and finding residence for the former detainees rests with the United States (US). However, as a close friend and partner of the US, the EU wished to respond to the US Government’s request to assist it in the process of finding residence for some of the persons cleared for release from Guantanamo. Accordingly, a common framework was adopted in June 2009 within which EU Member States can make the sovereign decision to receive ex-detainees should they so wish. The Commission contributed actively to the development of this framework.

The speed with which the US is able to close the Guantanamo facility depends to a large extent on the outcome of its bilateral negotiations with countries that may be to receive ex-detainees. It is not for the Commission to comment on the progress of such negotiations, in which it does not participate. However, since five Member States have so far received ex-detainees, it can be said that the EU has significantly facilitated the US’ task in closing the facility.

With regard to the Honourable Members’ question on US military tribunals, the EU has made clear its position that any individual accused of a crime must receive a trial before a body which is independent of the Executive and which conforms to international norms to conduct a fair trial.

The EU Guidelines on Torture make clear that the EU holds that torture and ill-treatment are among the most abhorrent violations of human rights and are under all circumstances forbidden. The EU expects the US to comply fully with all its obligations under the United Nations Convention Against Torture. The aforementioned Guidelines imply that the EU expects that all countries combat impunity by conducting prompt, impartial and effective investigations of allegations of torture and by bringing those responsible for torture to trial. It should be noted that on 25 August 2009, the US Attorney General appointed a special prosecutor to examine the alleged abuse of prisoners by the CIA.

Member States must make sure that no listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users takes places, without the consent of the users concerned. Directive 2002/58/EC on privacy and electronic communications[1] stipulates that restrictions to this rule of consent are allowed only when legally authorized in accordance with Article 15 (1). Article 15 (1) of said Directive allows for an EU Member State to lift the confidentiality of communications on the condition that (1) the interception is based on a law, and (2) when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security, defence, public security or to prevent, investigate, detect or prosecute criminal offences.

Lawful interception of (tele)communications to, from or on the territory of another State requires the assistance of that State. If the interception is necessary to collect evidence for the purpose of criminal prosecution in relation to certain, usually serious, offences, such assistance has to be requested by means of a rogatory letter under the applicable international treaties, including the relevant bilateral agreements between individual EU Member States and the US. In addition, the European Union and the US have also signed an Agreement on Mutual Legal Assistance on 25 June 2003, which however does not specifically cover assistance with interceptions and has not yet entered into force. This means that mutual legal assistance with regard to interceptions between the Member States of the European Union and the US are at present governed exclusively by the bilateral mutual assistance agreements.

The EU has an active dialogue with the US about the principles of international law relevant to counter-terrorism, in which the Commission participates. The EU takes the position that the fight against terrorism – which may include interception measures – must be conducted with respect for the rule of law.

[1] Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications); OJ L 201, 31.7.2002.

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