European Affairs

Less noticed but probably much more significant is the amount of convergence that ultimately emerged between the United States and the European Union and its member states on the transatlantic issues related to fighting terrorists. Much of the credit for leadership in Washington on this issue goes to Mr. Chertoff and his readiness to consult – really consult, not just advise – the European allies on issues such as visa waivers that were initially viewed in radically opposed ways on the two sides of the Atlantic. Then he succeeded in getting acceptance in Washington for the compromises among allied governments. With a formidable career as a criminal prosecutor and judge before he took over DHS, Chertoff proved to have the natural skills of a diplomat in developing the international dimensions of his brief time in fighting terrorism on the part of the U.S. – and every other country facing the threat. Shortly after leaving office in January 2009, he talked to European Affairs about this less-known international side of his work.

Excerpts of the discussion follow:

European Affairs: U.S. ideas on protecting domestic “homeland security” initially raised hackles in Europe, but many disputes have been ironed out and the rhetoric dialed back, especially on privacy and data exchange. Did you put a lot of personal effort into getting this change?

Michael Chertoff: I went overseas to Europe fairly early and over time I went often, including one occasion when I spoke to legislators at the European Parliament. A personal contact was partly the cause of that: a delegation of European parliamentarians came over [to discuss the then-controversial passenger name register, or PNR]. We had a good session – some obviously disagreed with our approach and others seemed to agree – and, the delegation’s leader, Jonathan Evans [a Member of the European Parliament from Great Britain who is charged with U.S.-EU relations] said “you should come over and speak to everyone.” I thought it would be good to let them understand the benefits we saw in the program. I was very well received and spoke to the committee and to people in small groups. I felt that everybody left with the feeling that we were taking a position that was reasonable and that there was a good factual basis for it because this kind of information [about airline passengers] had let us disrupt potential plots. That may have somewhat lowered the temperature level. On personal relationships, no matter how well things are set up institutionally, policy-makers are still human beings and knowing each other and developing trust helps make communication more effective. It doesn’t mean that that person is going to abdicate his or her responsibility to their principal and obviously they are going to look out for their country first. But a relationship sometimes enables us to be creative in finding solutions together. On a personal level, I dealt a lot with Franco Frattini [who was handling Justice, Freedom and Security at the European Commission], Charles Clarke [then Britain’s Home Secretary]. From working together, I’ve actually become quite good friends with John Reid [former Home Secretary in Britain], Jackie Smith [Britain’s Home Secretary] and others. Wolfgang Schäuble [Minister of the Interior, Germany] is also a dear friend, and Guliano Amato [former Italian Interior Minister] and then some people I’ve met more recently: Ivan Langer [Czech Minister of the Interior] and Dragutin Mate [Slovenian Interior Minister when Slovenia held the rotating EU presidency in 2008].

EA: Do you think that Europeans are coming closer to sharing American views about what is necessary to fight terrorists?

Chertoff: I have always thought the argument that we’re at odds with Europeans [on terrorism issues] was really an overstated position. When I came into this job in 2005, the government leaders in the departments that corresponded to mine all understood the problem. They all had the same responsibility: you are the one ultimately answerable if a terrorist attack occurs in your country. That shared sense of responsibility always kept us pretty much on the same page. I never detected any serious problem on the law enforcement side. Now there are some legal issues that sometimes create bumps in the road like when we were trying to get information from some of the European countries in the Moussaoui case. [Zacarias Moussaoui, a French citizen, was tried and convicted to life imprisonment in the United States in connection with the 9/11 attacks.] We had issues, for example, about how information they passed to us would be used in getting the death penalty, and we would give certain undertakings that we wouldn’t use that [evidence] in the phase of the case that might involve the death penalty. But on a personal level I didn’t find any real disjunction with my counterparts.

EA: What was the high point for you in developing cooperation with Europe?

Chertoff: I think getting the Visa Waiver Program expanded to bring in more European countries and getting the electronic system of travel authorization up and running and running well with a high rate of compliance by the time I left. That was a win-win for everybody. If anything, it makes it better for Europeans coming to the U.S. because if there’s a problem they get to find out about it before they get on the plane and not when they arrive and are told they can’t come in. And it has security benefits to us because it gives us information hours or days earlier than we used to get it at the port of entry. So coming up with that proposal, having the President be very supportive, getting Congress to pass it and then getting it negotiated, I think, was a huge accomplishment for everyone and a very gratifying outcome. I saw the effects of it up close on a trip to Europe not long after the change. I hadn’t been to Eastern Europe for many years and so to hear and feel the emotion, not just from the government leaders but from the public, was amazing to me. They greeted this opening of the visa door as the last milestone on their way to full partnership. Of course, I remember when the Berlin Wall came down and how meaningful that was, but at the time it was something I saw on television. Now talking to people who had experienced the whole historic process, it was apparent that the Visa Waiver Program for many people really was the capstone of that process of achieving identical status with the West European countries.

EA: There seem to be recurrent questions about whether Washington wants to negotiate these issues with Brussels or bilaterally with EU member states. What is the U.S. approach?

Chertoff: Our position was simple: we’re happy negotiating with the authority that has the ability to deliver the other side of a bargain. So on issues where the EU has the authority to say “if you agree to this, we’ll agree to that” we’re happy to negotiate with the EU. What we didn’t want to do was this, negotiate with the EU, make concessions and then have them say “well, we can’t do anything for you; you have to go to the individual states.” Obviously the line between what is a national competency and an EU competency is a little complex for an outsider; frankly, it’s sometimes complex for people in the EU. In the end we agreed that issues related to information-sharing, for example, are a national competency so we dealt bilaterally. Of course, we understood those nations would have their own responsibility to make sure they didn’t violate EU restrictions. I know there was a certain amount of conspiracy theorizing, about [Washington] trying to drive a wedge in the EU. Truthfully, what we want to do is find who is the right party on the other side, who can deliver what we need and then we can have a negotiation with that party. In the end, we worked out this issue very well, and Mate was very helpful as well as Frattini in working out a few of the last bumps.

EA: What was the issue you would have wanted to make more progress on during your tenure?

Chertoff: Honestly, we got it all done – in the sense of sketching a new framework for cooperation. When I went over and finalized the agreement on passenger data, it turned out that there were very few substantive transatlantic differences on the issue of data protection. There were a couple, but we were able to resolve them. The Europeans had some sensible points that we heeded. We shortened our period of data retention – from 40 years to less than ten, as I recall – and in return the Europeans accepted a little bit more flexibility in how we operate in our own governmental processes. I thought why don’t we do this for other things? Instead of going back and forth and rediscovering the wheel every time, why don’t we get together and agree on a basic set of principles? Then if we configure our programs to fit with that, the Europeans will basically say, “Yeah, that’s fine with us.” We were very close to an agreement, so I was very hopeful that we would get a general outline done. And we did get it in December. I have to thank my counterpart, the French Minister of Interior, Michèle Alliot-Marie, who was very good about making constructive suggestions. [The statement on Information Sharing and Privacy and Personal Date Protection between the EU and the U.S. was issued by the High-Level Contact Group on December 9, 2008.] Specifically, we agreed that if both sides satisfy these principles in the accords, we will treat their regime of data protection as adequate. We did two years of work on this and essentially got a joint declaration of principles. At some point, it will become a formal agreement.

EA: An irritant in transatlantic relations has been U.S. calls to be allowed to scan U.S.-bound containers at European ports. Where does that issue stand?

Chertoff: Basically we scan all incoming containers with an intelligence-based analysis to indicate which ones we want to open. Then there was a requirement passed by Congress – in 2007, I think – that we do 100% scanning overseas [of U.S.-destined containers]. The administration strongly opposed it as impractical. I said it was unnecessary and that to mandate something for other countries was too intrusive. The law passed nevertheless. I have continued to say that it’s not realistic. We have done some cooperation in overseas ports – in Pakistan and other places, and there are certainly other ports where I’d like to see it done. But in the near term I don’t see a high likelihood of a ship-borne attack. What I do worry about – very much – is a private aircraft coming across the Atlantic. A private jet with a nuclear bomb would never have to land: it could simply detonate itself over the United States. That’s a vulnerability that has not been addressed by Congress, but we addressed it in the Homeland Security Department and we put out some regulations before I left to begin a program for screening them before they take off. It’s an area where both we and the Europeans have a vested interest in making sure we know who is coming into our airspace.

EA: As a jurist, what are the concerns that should be borne in mind in closing Guantanamo?

Chertoff: It became a big symbolic issue, usually based on a view of a legal process that existed years ago but is no longer the current situation in Guantanamo. Everybody has acknowledged it would be great to close it – including President Bush. The question is what to do: the location of the facility is not the ultimate issue; it’s where the detainees go. The majority of those released have been returned to their home countries. The optimal way seems to be sending the ones back that can be sent back – either because they are not that dangerous or their home country has a way of de-radicalizing them or otherwise dealing with them that reduces the threat. Unfortunately a significant number of those reportedly have found their way back to the battlefield. One fellow who went back to Kuwait then blew himself up as a suicide bomber in Iraq. That’s obviously the worst outcome – to release somebody and have them kill another American or somebody else. [In the days following Chertoff’s comments, there were front-page U.S. news stories about a man handed back to Yemen who has re-emerged as commander of Al Qaeda in Saudi Arabia. Former Vice-President Dick Cheney cited intelligence reports showing that 61 of the released detainees have “gone back into the business of being terrorists.” Such recidivism was liable to occur at a higher rate among the remaining 200 or so detainees if they were released, he said.] But you’re going to have some that can’t go back because their country doesn’t want them or because they have a legitimate claim that they would be tortured in their home country. So then the question is, what do you do with them? [In World War II when we captured soldiers on the battlefield, we didn’t try them and they just sat in prisoner of war camps.] So how do you resolve that? Clearly, there is a lot of unhappiness with the current process. There are all kinds of proposals, involving civil or military proceeding. But these are practical problems, and there are problems with most potential solutions. We have put individuals on trial on terrorism charges in Federal court, and there’s no reason not to do that when it’s possible. But there are some cases where you won’t be able to. For example, terrific electronic surveillance comes from other countries, but they don’t want it to become public in court.

EA: Can’t the court offer a waiver about making the evidence public?

Chertoff: Not in Federal court, because the rules there are constitutional and you cannot make exceptions to them. Even if you have a tape, but the foreign government is unwilling to produce the person who recorded it and maintained the tape in custody [to satisfy legal requirements about an inviolable chain of custody], it would not be admissible evidence because of the constitutional requirements in a civilian court. With a military proceeding you have a little flexibility on some of these technical things.

EA: What about the most difficult category of detainees – where you know you don’t have enough evidence to convict them for a terrorist crime but you don’t want to release them?

Chertoff: There are some who are not going to be able to be tried because there’s no admissible evidence that they committed a war crime, but nevertheless there’s enough evidence that they’re dangerous individuals who are determined to kill you, so you don’t want to release them. My view is that you need to have a process for reviewing each case and the process has to have some credibility. Doing it entirely within the military organizations as we did, for better or worse, lost some credibility. In some future process, you would need at some stage to have a judge to look at it, a military judge or federal judge – not trial by jury, but trial without a jury – so that there was somebody reviewing the evidence to say, “yeah, I think there is [or is not] sufficient evidence to hold this person.” We’ve got precedent for that in the area of civil commitment for sex offenders. There’s a proceeding in front of a Federal judge allowing the authorities to hold a person, but it’s not like a criminal trial where they are being convicted of a crime. I think we could take people on both sides of the issue and get them in a room and sketch something out that got 80 percent agreement.

EA: Is it fair or is it hypocritical when Europeans object to the Patriot Act, often citing actions such as electronic bugging that they tolerate in their own countries?

Chertoff: In talking directly with Europeans about their views and knowledge of the Patriot Act. I often found that the only thing they really object to is the name. It comes back to my earlier point that we and the Europeans have fundamentally similar values, but we do have some differences in our legal systems and histories. In continental countries you have an inquisitorial system that in this country would be anathema because it would be unacceptable under our Constitution. Now I don’t criticize that the Europeans do that, but by the same token the fact we do some things under our law that they don’t do is also not a basis for criticism. For example, warrantless eavesdropping is legal in Britain, but you can’t put [the material] into court. In Belgium you have to have your national ID card; if you’re asked for it and you don’t have it, you’re taken to the police station. If someone suggested that in the U.S. – that you could be stopped to demand your ID – there would be an uproar. Does that mean Europeans are authoritarian? No, it means that culturally they are not particularly sensitive about that issue. On the other hand, they like to keep things in stove pipes to prevent sharing information. Our lesson from 9/11 is we don’t want to repeat a case where the CIA has some info and the FBI has some info, but they don’t talk to each other – and as a consequence 3000 people die. So our view on sharing information is formed by a very specific historical event. Similarly, Europeans’ concerns are probably formed by the memory of certain historical governments that used information for improper purposes. My point is: we all value privacy, so let’s recognize that there will be some differences in particular sensitivities without letting the rhetoric heat up to the point where one side is attacking the other with caricatures like “anti-civil liberty” or “pro-terrorist.” I find in general the discourse on these issues very disappointing in the public domain, because extreme people on the left and the right – this is true, too, in the U.S. – turn it into attacks on the other person’s motives and then into “fascist” or “coward.” We shouldn’t have discussions on those terms. We have a huge amount of commonality in terms of our fundamental values, but there are some differences in historical experience, and we all need to be respectful of those.

EA: Do Europeans and Americans differ basically in their attitudes about what measures to take against terrorist threats?

Chertoff: I can’t really generalize about the public in Europe, but from what I’ve read, Europeans are almost completely averse to using force unless you’re on the brink of an incoming attack. I was told in Germany that they considered it unconstitutional to shoot down a plane that had been hijacked and was about to be crashed into a building. I think Americans are much more prepared to use force and not just at that last minute. I think there is a good argument that Libya gave up their nuclear weapons because they looked at what the U.S. was doing in Afghanistan and Iraq. I think persuasion that is backed up by the potential to do something rougher is important. I believe in negotiation, but I can tell you from my time negotiating all kinds of different things as a lawyer, negotiation works better if people understand that you are prepared to say at some point, “Okay, but now we’re going to have to go in a different direction.” When I was a lawyer I was always ready to try a case: once I got that reputation I got a lot of deals. Whereas, in my experience, the lawyer with a reputation of being afraid to try a case, doesn’t get many deals from his adversaries.

EA: In an article in the current issue of Foreign Affairs magazine, you called for the international community to start thinking about a requirement for nations to accept “reciprocal sovereign obligations” to each other to prevent international terrorists from operating from their territory – with an implied threat of international intervention in countries that won’t or can’t enforce their responsibility to control their own sovereign territory. This sounds like a variant on calls for “the responsibility to protect” – which would involve international intervention to protect the civilian populations in countries where the leadership is exposing them to intolerable conditions.

Chertoff: In the article, I begin with this idea that the building block of international order is sovereignty. That’s particularly true in the case of a democratic country where the font of authority is the consent of government. But, there are exceptions to sovereignty where another country has the right to intrude, and in the article I lay out examples where I thought international law establishes that right – for example, in transnational things where we voluntarily agree that in order to cooperate we have to give a little piece of sovereignty. When people want to extend that to “responsibility to protect,” it seems to me to be a hard argument to make. But you do have the right to defend yourself: hence my question, “What happens if another state is incapable of preventing attacks on you from its own territory?” Let’s imagine what could happen in a place like Somalia: if terrorists are able to set up a base there for attacks on us, do we have to respect the state’s border and we can’t go in and do something about it? My argument in the article says: if you give this state the opportunity to exercise its obligation to take care of activities within its own borders and if the state is unwilling or unable to, then there has to be some international principle that allows a wider community to protect itself. You would never allow your neighbor, no matter how much you respect his property, to sit here with a hunting rifle and shoot at your children. And if your neighbor was infirm and sitting in the house but teenage kids were in his backyard shooting, you wouldn’t say “I can’t trespass on my neighbor’s lawn so I’m going to let them shoot me.” No, you’d act to get them out. That seems to me a pretty sensible legal principle.

Michael Chertoff was the U.S. Secretary of Homeland Security from February 2005 to January 2009.

This article was published in European Affairs: Volume number 10, Issue number 1-2 in the Winter/Spring of 2009.