In an article here yesterday, we mentioned a report earlier this month by Andrej Hunko, a member of the German national legislature (“Bundestag”) , based on responses to his information access requests to the German government about its collaboration with DHS and use of PNR data.  There was more about this in DHS testimony at yesterday’s hearing in the U.S. House of Representatives. The following is an English translation of Andrej Hunko’s report, republished by permission of the author:

How the US Department of Homeland Security imposes travel bans within the EU

by Andrej Hunko, September 28, 2011

Naturally enough, the website of the NoPNR campaign regularly contains material about the retroactive legalisation of exchanges of passenger name record (PNR) data between EU Member States and the United States, Canada or Australia. Members of Parliament in the EU from several parties have already done some important work on this issue and have been levelling fierce criticism at the planned agreements, which, in point of fact, have long been applied on a ‘provisional’ basis.

I believe, however, that it is all too easy to lose sight of the fact that the US Department of Homeland Security (DHS) employs hundreds of staff who operate at airports and sea ports within the EU. This practice came to light in the summer after Mark Koumans, Deputy Assistant Secretary for International Affairs, presented a report on security issues in Europe and Eurasia before the House of Representatives Subcommittee on Europe and Eurasia.

According to that report, 394 employees of various DHS departments and agencies are deployed in the EU, including US Customs and Border Protection (CBP), US Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), the US Secret Service (USSS), the US Coast Guard (USCG), the US Citizenship and Immigration Service (USCIS), the DHS Office of Policy, the Federal Emergency Management Agency (FEMA), the Federal Law Enforcement Training Center (FLETC) and the National Protection and Programs Directorate (NPPD). Mr Koumans describes their activities as “securing and managing our borders, enforcing and administering our immigration laws, safeguarding and securing cyberspace, and ensuring resilience to disasters of all kinds” – in other words a whole raft of activity areas, including the transport sector, where the DHS cooperates with airlines and shipping lines at seven airports and 23 sea ports within the EU. DHS staff carry out pre-boarding checks on passengers at these airports and sea ports, a practice that is brushed off as the identification of ‘high-risk travellers’. According to Koumans, in the first four months of 2011 alone, a total of 1,323 travellers were prevented from boarding aircraft or ships. It is common knowledge that travel bans cannot be imposed by the DHS itself, since the authority has no sovereign powers in the Member States. Instead, these curtailments of freedom of movement are described as ‘no-board recommendations’. In practice, however, such a recommendation is tantamount to a diktat that no carriers can defy, because they would thereby run the risk of having to provide return transport for incriminated persons or even being denied permission to enter US airspace or head for a US port.

In order to analyse this practice in greater detail, at least with regard to Germany, I submitted a minor interpellation to the Federal Government on the activity of US authorities in this domain in Member States of the European Union. According to its reply, no fewer than 75 of the 394 persons working for the Department of Homeland Security are operating in Germany, chiefly in the realms of border surveillance, customs and transport. I received little specific information regarding the airports and sea ports where staff employed by the DHS are working, but Frankfurt, Hamburg and Bremerhaven are certainly among them.

As was only to be expected, the Federal Government has no problem with this. On the contrary, it stated that “transatlantic partnership” was the “main pillar of German foreign policy” next to European integration. The Air Transport Agreement of 30 April 2007 between the European Union and the United States is regarded as the legal basis for cooperation, the work of the DHS being interpreted as the “tangible expression of the security cooperation envisaged therein”.

On the basis of an extrapolation, it is likely that some 4,000 persons will be affected in 2011 by these measures, which, according to the Federal Government, are intended to “guarantee the security of flights to the United States” and to “avert dangers to aviation from international terrorism”. These travel bans are plainly being imposed on a precautionary basis, that is to say when individuals on passenger lists have previously been flagged as ‘risks’ in other data stockpiles. The way in which the people concerned are filtered out by the carriers is a matter of indifference to the Federal Government. By its own admission, it “does not know with which US databases passenger data are reconciled”, and there is also a gap in its knowledge regarding the other booking systems, such as those based outside the EU, that are checked as part of this ‘analysis’.

It goes without saying that the precautionary ‘proactive’ refusal of permission to board a ship or aircraft will also entail consideration of criteria such as ethnic origin and religious affiliation. This would mean curtailing freedom of movement on the basis of prejudiced selectivity. Once again, the Federal Government plays innocent, stating that it has “no evidence that such profiling is carried out”. And indeed, how can it provide any information when it denies all responsibility, declaring that no-board recommendations are made within the framework of the legal relationship between the airlines and the US authorities? This is why the Federal Government says it has “no knowledge of any specific details”.

Accordingly, the question of the number of no-board recommendations that have been followed and overruled at German airports and sea ports has also been left unanswered. It may at least be safely assumed that the figure zero would feature in the answer, because carriers are ultimately left with no choice but to follow the so-called recommendations. It would surely be difficult, however, to challenge this practice in a civil or criminal court, because most DHS staff enjoy diplomatic status and are thus beyond the reach of parliamentary bodies and the German judiciary.

The uncontrollable operation of the US Department of Homeland Security at airports and sea ports within the EU must be halted without delay. The DHS must reveal the criteria used by its ‘advisory service’ to curtail people’s freedom of movement. The Federal Government itself points out that profiling on the basis of ethnic or religious criteria would be in breach of existing agreements. Using criteria rooted in prejudice to curtail freedom of movement constitutes an unacceptable encroachment on fundamental rights.

The nebulous pre-boarding checks on passengers, however, account for only a fraction of the extensive range of cooperative activities between the US police and the German police or other police forces in the EU. The German Ministry of the Interior as well as the Office for the Protection of the Constitution and the Federal Criminal Police Office maintain intensive cooperation with US authorities, not only in various working groups but also, for example, in the framework of joint research projects, many of which have already reached the implementation stage. Frontex, the EU enforcement agency for migration control, is also seeking closer cooperation with the DHS, to which end it has concluded two working agreements. Following exploratory talks in November 2011, Frontex intends to learn about US militarised measures to prevent immigration from Mexico, to organise joint missions, to exchange existing technology, to accelerate research in this field and develop new technological solutions and to promote ‘interoperability’ between EU border-police authorities and the DHS. This might well entail the partial integration of US authorities into the highly armed EU external-border surveillance system Eurosur, which is scheduled to become operational in 2014 and is to have its base at the Frontex headquarters in Warsaw.

Fundamental rights and freedoms are secondary concerns in the context of transatlantic police cooperation. The planned renewal of the EU-US agreement on the communication of passenger data has not yet taken place. At the current negotiations, the main stumbling block, besides the long data-retention period, is the lack of legal redress for those who are penalised. At the same time, the stalled negotiations between the EU and the United States on a basic data-protection agreement illustrate the fact that transatlantic security cooperation is a one-way process, for the Federal Government, according to its own statements, has not even received any information about the content of these negotiations.

As I mentioned at the start, numerous Members of Parliament in the EU have long been pressing for consideration of fundamental rights and freedoms in the context of the ‘transatlantic partnership’. At the same time, I consider it important to point out that my criticism is not confined to the transfer of sensitive data to the United States. I am even more concerned by the explosive growth in the police ‘database society’. Back in 2007, the High-Level Advisory Group on the Future of European Home Affairs Policy, also known as the Future Group, noted in a position paper that some EU ministers of home affairs had created an informal discussion group under German chairmanship in which they were discussing the best possible way for police forces to harness the ‘digital tsunami’. I firmly oppose the constant growth of police data stockpiles as well as their increasing automated use by ‘data-mining’ software, which scans them for ‘risk factors’. For these reasons, I am not only opposed to the transatlantic transfer of police data but also consider that the European Union’s own PNR system which it intends to establish in the future is not an alternative.

(Translated by Raymond Kerr in cooperation with the Language Service of the German Bundestag)