Tuesday, 15 May 2007

Did Chertoff lie to the European Parliament?

USA Secretary of Homeland Security Michael Chertoff was in Brussels Monday to testify before a hearing of the European Parliament’s LIBE [Civil Liberties] Committee about Chertoff’s department’s desire for access to Passenger Name Records (PNRs) for flights between the USA and the European Union.

After initially trying to ignore the questions raised by Members of the European Parliament (MEP’s) and exclude them from debate on USA government access to PNR data collected in the EU — and after having the Europarl bring a successful lawsuit to have the initial “agreement” between the DHS and the European Commission invalidated by the European Court of Justice — the DHS has gradually recognized the necessity to extend its diplomacy to European legislators if it wants a new PNR agreement, to give at least a fig leaf of legality to its systematic monitoring of European travellers after the present “interim” agreement expires at the end of July.

Chertoff’s personal mission to Brussels came in the wake of a high-profile March hearing on PNR transfers by the LIBE Commitee, a rare April visit to Congress by a delegation of MEP’s from the LIBE Committee (largely snubbed by official Washington), and most recently an attempt at fence-mending in Brussels by tag team of DHS Privacy Officers.

Chertoff’s prepared statement is a mix of the untrue, the irrelevant, and the unresponsive (to the questions MEP’s on the LIBE Committtee have been asking). What comes through most clearly is Chertoff’s presumption of administrative authority to make, and to enforce, conclusive extra-judicial determinations of “dangerousness”, and to use them as the basis for denial of fundamental human rights .

Anyone suspected by the DHS, on the basis of PNR data and/or any other (secret) information, is presumed to have been guilty. The words “suspected” and alleged” do not appear in Chertoff’s statement, and there is no mention of whether any of the suspects and allegations he uses as examples has ever been brought before a court of law. Indeed, the very idea of subjecting any of these allegations to normal judicial process appears never to have occurred to Chertoff. His approach is that of a battlefield commander administering martial law, not a civilian official of a democratic state. According to one report :

He was asked to consider the oft-repeated criticism of the US “war on terror”, that it was being fought at the expense of the fundamental rights of the citizens it claims to protect.

In answer, Chertoff … suggested the Anglo-Saxon legal principle that “it is better that a thousand guilty go unpunished lest one innocent man be wrongly punished” might be outmoded.

Of course, if you watch all of the people (or all of the travellers) all of the time, you will eventually observe some crimes. Many of Chertoff’s examples, however, relate to drug smuggling and other ordinary crimes, and fail to respond to LIBE Committee Vice-Chair Stavros Lambrinidis point that “Thievery is not terrorism, illegal immigration is not terrorism,” and fundamental rights should not be sacrificed for less-than-fundamental ends.

In addition, several of Chertoff’s examples relate to use of PNR data related to people who had already been arrested. Chertoff failed to exaplain why, in these cases, the DHS or other agencies couldn’t have obtained subpoenas or warrants for the PNR data.

Chertoff claimed that “PNR data is protected under the U.S. Privacy Act and the Freedom of Information Act, among other laws, as well as the robust oversight provided through … American courts.” But the Privacy Act applies only to U.S. persons, not EU citizens and residents. The DHS has exempted the Automated Targeting System (ATS), the database in which it stores PNRs, from most requirements of both FOIA and the Privacy Act. EU or other non-USA citizens and residents have no standing under these laws in any American courts. And since the PNR “agreement” has not (and apparently isn’t intended to be) ratified as a treaty by the U.S. Senate, it can’t be enforced in U.S. Courts or provide a cause of action even for U.S. citizens. Chertoff’s testimony on all of this is disingenous at best, if not mendacious.

The most disturbing of the statements attributed to Chertoff came in his responses to questions from MEP Sophie in’t Veld, not his prepared written statement.

According to the official news release on the hearing:

Sophia in’t Veld (ALDE, NL), wondered if PNR were being used for purposes other than counter-terrorism, such as to control infectious diseases, or for private purposes by employers and insurance companies….

Mr Chertoff replied that it is illegal for any private company to use data from PNR, and all those whose [sic] transgressed this law would be brought to justice.

I wasn’t able to watch the Webcast of the hearing, and the Europarl and LIBE Committee press officers haven’t yet had an opportunity (given the time different between San Francisco and Brussels) to respond to my request for the relevant portion of the transcript.

But if the official report of Secretary Chertoff’s dialogue with MEP in’t Veld is accurate, his statement is an outrageous and eliberate lie, utterly unsupportable by any possible interpretation of the facts or the law, and which he must have known full well to be false.

On its face, Chertoff’s claim is absurd.

PNRs are primarily commercial records, which were created, maintained, and used for commercial purposes by travel companies, long before governments took any interest in them. It’s hard to imagine how airlines and other private travel companies could operate if they were actually prohibited — as Chertoff claimed — from using PNR data. And nothing in U.S. law restricts them from passing on any or all of that data to other private third (or fourth, or fifth) parties, or using it for undisclosed, nonconsensual purposes entirely unrelated to those for which it was originally collected.

Advanced Passenger Information (API) data is identifying data required by governments in addition to the information already collected and maintained by travel companies for their commercial purposes. But even when API data is required by governments, and provided and obtained involuntarily by travel companies solely because of that government mandate, no law in the USA restricts the ability of those travel companies to retain, use, and/or sell this data, for commerical or other purposes, before or after passing it on to the government.

If the official report is correct, the blatancy of Chertoff’s lies about this nonexistent U.S. law restricting commercial use of PNRs by travel companies betrays complete contempt for the truth, for the European Parliament and its committees and members, for European public opnion, and perhaps most importantly for justice and human rights. If Chertoff’s boss, President Bush, or the U.S. Congress care about any of these things, they should demand that he apologize, retract his false statements, and return to Brussels with a full and accurate accounting of the real legal and factual situation — or resign or be fired.

If Chertoff had told such a lie under oath before a Congressional committee, it would have constituted perjury. Unfortunately, no U.S. law restricts the ability of U.S. government officials to lie before foreign government bodies. MEP’s, and the European public, will have to rely on their their own judgement of Chertoff’s credibility. They should give Chertoff’s unverifiable claims about the “effectiveness” of universal PNR surveillance exactly the credence his lies about verifiable questions of law deserve: None.

[Follow-up: Chertoff’s testimony was different from what was reported. It was misleading and irrelevant, but it remains to be seen whether it will prove to be true or false. See: Chertoff pledges to prosecute crimes against the Privacy Act and Does the Chicago Convention authorize government demands for PNRs? No. . Video of the hearing and press conference is now available online, thanks to Erik Josefsson of EFF.]

Link | Posted by Edward on Tuesday, 15 May 2007, 08:00 ( 8:00 AM)
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