Debate on Irish-US agreement is welcome
It has been the only substantial discussion about the treaty, and what it might mean and that includes discussion within the Oireachtas, where one might expect debate on a treaty of such scope.
Indeed, it seems to have prompted the publication of the Criminal Justice (International Cooperation) Bill on Monday on the Justice Minister, Mr McDowell's, website. Readers can read the treaty and the legislation at www.justice.ie
No one, not least the Irish Council for Civil Liberties (ICCL), doubts the necessity of international legal cooperation to ensure there is no impunity from crimes, that victims can expect justice and that people are protected from crime.
The ICCL, however, believes that clarity and transparency about this cooperation is essential and this is not delivered when agreements are negotiated without debate, when there is no proper scrutiny of the provisions in the agreement, and where there are no safeguards provided for in the agreement.
We can achieve both effective cooperation and protection of human rights, but we should not rush into international agreements, when there remain questions about what rights are at risk.
Ivana Bacik (Irish Examiner, July 26) is right to say there is still much to be clarified about the treaty. The ICCL remains concerned about the scope of the powers which can be used against Irish citizens and residents and the lack of clarity about those powers.
For example, which crimes can be investigated? When can a crime under US law, but not under Irish law, be subject to investigation?
What level of evidence will the US authorities have to adduce to establish that someone is considered a suspect and is subject to investigation or arrest? Is it the level of evidence that allows people to be detained without charge for years, as in Guantanamo?
What rights will be given to US law enforcement agents to operate in Ireland, either by way of joint investigation teams or under Article 8 of the treaty?
There is a Criminal Justice (Joint Investigations Team) Act 2004, which opaquely makes reference to the right of the Justice Minister to agree with other EU states to allow officers designated by US authorities to participate in a joint EU investigation team. However, no other reference to Irish-US joint teams is provided.
Also, in his article (Irish Examiner, July 25) the minister says "Article 8 makes it clear that it applies to the questioning of a person 'whose testimony is being taken'" and that "testimony" refers to testimony in the District Court.
The treaty the minister signed also applies to situations when "evidence is being taken" (see Article 8). Can "evidence" not be taken in a garda station?
These are only some of the issues there are others regarding transfer of persons in custody and data protection.
The point is that none of these questions need have arisen if this treaty had been the subject of appropriate scrutiny and debate. This should have been done before the Irish Government gave legal undertakings to the US government.
The minister draws attention to the fact that the Constitution requires domestic legislation to allow international treaties to operate in Ireland.
This was never in question, and as the ICCL acknowledged in its initial response, the powers exercised will need to be subject to the Constitution and the European Convention on Human Rights.
So why were our elected representatives not given the opportunity to debate the powers before the minister entered the agreement?
As Ms Bacik pointed out, the Human Rights Commission only reported its concerns in May, and it is not clear that these concerns informed the minister's decision to sign the treaty. There was, quite simply, no proper scrutiny of what the minister signed up to with the US.
Mr McDowell cannot have it both ways either this is a substantial agreement enhancing cooperation, or it has insignificant impact on existing law and so why enter into the agreement?
The background to the controversial treaty is also telling for its secrecy. The EU-US agreements from 2003, which preceded this treaty, were first negotiated in secret and all documents were "confidential".
It was not until the British Select Committee on the European Union took the unprecedented step in April 2003 to write to the president of the EU (then held by Greece) and ask that the documents be declassified.
The British committee requested the documents be made public, as despite "the potential significance of the proposed agreements the practical problem is that the documents in question are at present classified confidential. This inhibits the parliamentary scrutiny process".
They invited the presidency "to supply to this parliament and to all the parliaments in the Union copies of the draft agreements" so that they could undertake scrutiny of them "in an appropriate manner", namely publicly and meaningfully and with sufficient time to consider the constitutional, legal and political issues raised by the agreements.
On May 2, 2003, these agreements were finally declassified from "confidential" status. On June 3, the European Parliament (EP) adopted a critical report by a large majority.
The report recommended the Justice and Home Affairs Council "take into account its concerns as to the lack of safeguards in the US penal law and penal procedure with respect to European norms as well as the lack of a data protection legislation in the US" and "make sure that such an agreement contains provisions insuring that European citizens have the guarantee of a fair trial and that they are given legal aid (interpretation, assistance, etc)".
A minority of the EP sought for the agreements to be rejected in total due to the failure to protect basic rights.
Three days later, on June 6, 2003, without apparent regard to the EP recommendation, the Justice and Home Affairs Council (of which Mr McDowell is a member) took the decision authorising their signature of the agreements.
Nowhere in the bilateral instrument signed by the minister, or in the EU-US agreements, is reference made to observance of human rights obligations. There is no commitment, as recommended by the European Parliament, as to fair trial standards.
At EU level, legal cooperation between EU States is also high on the agenda. However, instruments on cooperation have and are being debated (eg, European arrest warrant, European evidence warrant, joint investigation teams, and minimum safeguards on criminal procedure).
EU states are also all party to the European Convention on Human Rights and the EU Charter on Fundamental Freedoms.
How can it be that when negotiating with the US, where there is acknowledged widespread concern over standards being applied in investigations, we do so without real debate?
The ICCL hopes that when the Oireachtas resumes in autumn that this treaty and the implications for Irish law and residents will finally be debated.
In the meantime, however hotly disputed it might be, the examination of the fact we have entered into this legal commitment with the US is positive, as is the raising of questions about the scope and how the rights of individuals will be protected.
Aisling Reidy
Director
Irish Council for Civil Liberties
Dominick Court
40-41 Lower Dominick St
Dublin 1.
