European Parliament Pushes for More Details on Possible NSA Access to SWIFT Data, Disagrees Whether TFTP Should Stop

Malmström briefed Parliament on what she has done since newspapers reported on possible NSA access to data exchanged via the TFTP. In a Sept. 12 letter to David Cohen, U.S. Treasury undersecretary for terrorism and financial intelligence (http://bit.ly/1aqzyTE), she said the situation “was an issue of trust and confidence among partners.” The U.S. said there are no indications that NSA programs have affected the TFTP, she wrote, but “I need urgent clarifications from your side in order to measure to which extent the implementation of the TFTP Agreement has been impacted by those alleged spying activities.”

Cohen responded Sept. 18, saying the U.S. remains in full compliance with the TFTP. It’s “well-known that the U.S. government seeks and obtains financial information about the activities of those who engage in proliferating weapons of mass destruction, narcotics trafficking, transnational organized crime and other criminal activities, as well as those threatening the security of the United States, our citizens and our allies and partners around the world,” he wrote. Because the great majority of cross-border messages transmitted by financial institutions are sent using the SWIFT format and system, “it is natural that subpoenas served upon financial institutions and investigations targeting criminals and those threatening our security yield some SWIFT messages along with other financial records,” he said.

The TFTP is the “centerpiece” of the U.S. counterterrorism finance efforts, and the government uses it to get at SWIFT data it doesn’t obtain from other sources, Cohen wrote. The agreement provides distinctive value in detecting and prosecuting terrorism and its financing, he said. The TFTP database has always been a stand-alone system unconnected to any other server, system or database, he said. It can’t be accessed or searched via any means other than “rigorously monitored and audited TFTP searches” pursuant to the treaty, he said.

Cohen’s letter left several key questions unanswered, Malmström told lawmakers Wednesday. She met with him Monday for an “open and very long discussion” that clarified several points, she said. Cohen “explicitly confirmed that, since the entry into force of the TFTP Agreement, the U.S. government has not collected financial messaging data from SWIFT to the EU,” or served any subpoenas on SWIFT in Europe, she said. She asked for the reassurances in writing.

The talks also encompassed the established channels through which the U.S. gathers financial information in SWIFT format used by financial institutions worldwide, Malmström said. She sought further written explanation to be “absolutely sure” those mechanisms don’t conflict with the TFTP, she said. More clarification is necessary “before we can draw full conclusions,” she said. She promised to get all the information needed “in the near future."

While all MEPs who spoke said more evidence of possible illegal access to SWIFT data is needed, they split on mostly party lines over whether to recommend suspension or even termination of the TFTP now or if incriminating evidence comes in. Members of the conservative European People’s Party (EPP) and European Conservatives and Reformists Group (ECR) urged caution. Members from the Socialists and Democrats (S&D), Alliance of Liberals and Democrats for Europe (ALDE) and European United Left/Nordic Green Left (GUE/NGL) were outraged that Malmström was taking the U.S.’s word that the agreement hadn’t been breached and that EU governments had failed to seek an independent Europol probe.

The TFTP has proven helpful in tracing funds used to finance terrorism, and no action should be taken without hard evidence, said Agustin Díaz de Mera García Consuegra, of the EPP and Spain. “We must not act in haste.” It’s “irresponsible from a security point of view” to suspend the TFTP before parliamentary probes are complete, said Axel Voss, of the EPP and Germany. If it turns out the U.S. has violated the agreement, Parliament will require its own TFTP system, he said.

Sophie In ‘T Veld, of the Netherlands and ALDE, said Parliament needs the facts, but said there are strong indications “not to rely on the scouts’ honor of Mr. Cohen.” The EC should insist that the SWIFT server be investigated for possible breaches, she said. “We have no reasons any more to trust the Americans on their blue eyes.” This is a “test case,” she said. If Parliament adopts a statement calling for the suspension or termination of the TFTP and the EC and Council ignore it, lawmakers will refuse to OK any further such agreements, she said. The S&D group takes the TFTP seriously and wants the most detailed probe possible before deciding what to do, said Claude Moraes of the U.K. He warned against canceling the pact “on a whim” but agreed it’s a political decision.

Timothy Kirkhope, of the ECR and U.K., slammed lawmakers’ “incredibly prejudiced and biased approach” to the allegations, and said it’s unacceptable that a country should be convicted before any evidence is in. Cornelia Ernst, of GUE/NGL and Germany, complained that every time SWIFT is on the agenda, Parliament is denied facts and blocked by secrecy. The only proof so far is a letter, she said, pressing Malmström to disclose any real evidence she has.

Juan Fernando López Aguilar, who chairs the Civil Liberties, Justice and Home Affairs (LIBE) Committee investigating NSA mass surveillance, said lawmakers were becoming “truculent.” Everyone talks about facts and evidence, but MEPs can’t verify the facts because the information is being withheld from them, he said. The NSA hasn’t denied that it has used SWIFT data, which would violate the agreement and should be taken seriously, he said.

The U.S. targets national leaders around the world and ordinary citizens in Europe, said another MEP. If this isn’t enough to suspend the TFTP, what does the EC think has to happen? the lawmaker asked Malmström. The commissioner reminded legislators that a majority had voted for the TFTP. The EC has carried out a review that shows that the pact has been respected and is useful to the U.S. and EU, she said. That report is now on hold pending the outcome of the investigation of recent allegations, she said. MEPs should agree that the TFTP can’t be suspended based on media reports, she said.

The next LIBE inquiry on mass spying is scheduled for Oct. 14, the committee said Thursday. It will focus on whether the alleged surveillance activities would, if confirmed, violate international, Council of Europe, EU or national law, it said. Witnesses tentatively include Martin Scheinin, former UN special rapporteur on the promotion and protection of human rights while countering terrorism; and Big Brother Watch Director Nick Pickles, LIBE said.