Row Between European Union And United States Over Passenger Checks

US-government vetoed access to document; leaked document contains no confidential information

The European Council denied access to the minutes of a meeting between American en European officials concerning border controls. Releasing the documents would lead to a 'breach of confidence', the Council argued. What is it the EU and the US are trying to hide for the public?

Telepolis reported last Saturday the refusal of the European Council to release copies of the agendas of the 'Senior Level Group' and the 'EU-US Task Force', as requested by the British organisation Statewatch. The US government vetoed the release of the documents, because it considered the documents to be 'government-to-government documents' not intended for publication. The European Council concluded it had no option than to refuse access to the documents, because otherwise it would disturb the good functioning of the cooperation between the European Union and the United States. Statewatch concluded that this decision confirmed their worst fears on the implementation of the new Regulation on public access to EU documents, namely that third states will have an absolute right to veto access by EU citizens to documents which third parties have co-authored.

The Dutch organisation Eurowatch, which is in the same line of work as Statewatch, requested a few weeks ago access to the minutes of a meeting between European and American officials on border controls in the wake of the events of 11 September 2001. The European Council also denied this request. The Council stated: 'Access to this information would be seen as a 'breach of confidence' by the American counterparts, because they assume that this kind of meetings are of a confidential nature. If they knew the information would be made public, they wouldn't have spoken so frankly, which would be contrary to the common interest to take effective measures to make travelling safe.'

The US delegation asked the European Union to terminate airside transit operations. The US has terminated airside transit and now all passengers have to pass through immigration and customs controls on arrival. The US called on the European Member States to 'increase police presence in airport transit areas with a view to preventing document and identity swapping in those areas and to tightening the screening of all passengers entering or departing from transit areas in international airports in Europe'.

The European delegation refused this option. It said terminating airside transit would have 'major repercussions' for European airports and underlined the need to distinguish between intelligence based policing of transit areas and the blanket control of all passengers.

The delegations also had different views on the exchange of data on visa applications. The US has developed a database, which includes subsets of names of persons involved in various kinds of activities 'giving rise to concern'. The database is available to visa-issuing services, which have to check the database before granting a visa. The European Union is working on the development of an on-line information system on visas issued. The United States wants an exchange of this data, but the European Member States expressed the view that the sharing of this kind of information could give 'rise to difficulties at the level of data protection requirements'.

A more controversial issue was the suggestion of the US delegation to make more use of the expulsion possibilities contained in the aliens' legislation, rather than having to recourse to extradition procedures. Sometimes extradition to the United States runs into problems, because of the death penalty in the US. But also this idea was rejected by the European Member States. They were 'reserved and insisted on the need to keep the concepts of expulsion and extradition separate, since their finality, objectives and legal consequences were totally different'.

Further, the US announced its intention to introduce from October 2003 an obligation for passengers to use machine-readable identity documents. Persons who are exempt from a visa requirement (such as citizens of the European Union) must be in the possession of a machine-readable document; otherwise they are required to request a visa for the United States.

So why is this document kept secret? It doesn't reveal any secrets. It just highlights a discussion, and some disagreement, between the United States and the European Union on border control issues. Discussions, which are the basis of, or an influence on, EU decision-making. And therefore the document should be public, so the public can engage in the policy discussion, as is normal in democracies. Because what is on stake here, in the words of the American delegation, is the 'developing of a new approach on the whole system of visas, border controls and management of legal migration'.

The document is kept secret, because the United States wants it to be secret. And it doesn't seem the European Union is pledging many tears on it. The 'worst fears' of Statewatch seems to be true. Whole swatches of documents on all aspects of international policy making and practice will be removed from public scrutiny.