EU recruits French judge to police US use of SWIFT data

Mar 11 2008 Brett Wolf

The European Union has asked France's top counter-terrorism judge to investigate whether the US government has handled and used SWIFT data in accordance with a pact hammered out last year. If Jean-Louis Bruguière accepts the job, he will have broad authority to question US officials, according to Franco Frattini, the European commissioner for justice, freedom and security.

Judge Bruguière will meet with US Treasury Department officials who are responsible for the management and oversight of the so-called Terrorist Finance Tracking Programme, as well as analysts who have access to related SWIFT data, according to a statement issued by Frattini's office.

"In addition and for the purpose of his review, Judge Bruguière may in coordination with the US Treasury Department request access to information relevant to the TFTP, as well as to appropriate personnel from other US agencies and an appropriate executive branch privacy and civil liberties official," the statement notes.

Access granted in response to EU pressure

This extraordinary access to one of America's most secretive anti-terrorist financing programmes was acquired as part of a deal inked in July of last year. The EU reluctantly agreed to allow the US government to continue to use data subpoenaed from SWIFT to pursue terrorists. In turn, America agreed to a series of conditions aimed at ensuring that the privacy of data originating in Europe is not unduly compromised. They are:

  • US Treasury will use any data received from SWIFT exclusively for counter-terrorism purposes (not for anti-money laundering or anti-fraud efforts) — an obligation that applies also where such data is shared with other US agencies and with third countries.
  • US Treasury will analyse data subpoenaed from SWIFT on an ongoing basis to identify and delete any data which is not necessary for counter-terrorism investigation.
  • US Treasury will retain for no more than five years data that is not being used for counter-terrorism purposes.
  • The EC will appoint an "eminent European" to carry out annual oversight of the US Treasury's commitments. This person will report to the commission, which will in turn report to the European Parliament and European Council.

    • The latter provision would make possible Bruguière's probe, assuming that he agrees to take on this task. It is worth noting that it is a mission for which he appears eminently qualified.

    A counter-terrorism expert by any measure

    According to Frattini's office, Bruguière has "more than 25 years' experience in the judicial aspects of counter-terrorism and was until recently first vice-president at the Paris Tribunal de Grande Instance and responsible for coordination of the fight against terrorism at judicial level in France."

    "Bruguière is a prominent and highly regarded figure in counter-terrorism circles both in Europe and the US. I believe Judge Bruguière's knowledge of security matters, his legal training and judicial experience mean that he is extremely well qualified to assess whether the 'Terrorist Finance Tracking Programme' is implemented consistent with the US Treasury Department's prior representations to the European Union," Frattini said.

    Since shortly after the attacks of 9/11, US officials on the trail of terrorists and terrorism financiers have used subpoenas, presented to SWIFT's New York office, to access data held by the Belgium-based consortium. After the US media exposed the programme in June of 2006, EU privacy officials, and those of several of its member states, including the UK, immediately questioned its legality.

    The EU-US pact has to a degree eased these concerns, although a negative report from Bruguière could reignite the smouldering controversy