from hierarchy to networks: transatlantic governance of ... file2 transatlantic governance of...

Journal of Global Change and Governance ● www.JGCG.org Volume 1, Number 1 ● Winter 2007

© JOURNAL OF GLOBAL CHANGE AND GOVERNANCE ● DIVISION OF GLOBAL AFFAIRS ● RUTGERS UNIVERSITY

From Hierarchy to Networks:

Transatlantic Governance of Homeland Security*

Patryk Pawlak European University Institute, Florence

In the aftermath of the September 11 terrorist attacks the protection of borders and the revision of entrance

policies became the primary focus of the American government. The objectives of the newly developed

approach, termed as “smart borders of the future,” were clear: to prevent the entry of terrorists and the

instruments of terror without harnessing the legal flow of people, goods and services. The institutional and

policy changes that followed carried with them important implications for the relations between the US and

its global partners. This paper investigates how the emergence of homeland security issues on the

international policy agenda has challenged the bilateral EU-US relationship. The paper argues that

challenges in governance of transatlantic homeland security were overcome due to the shift from

hierarchical to networked forms of governance. The creation of such transgovernmental networks

stipulates several structural and cultural shifts that in effect led to more in-depth changes and redefined the

rules of the relationship. At the empirical level, the paper focuses on creation and development of the

Political Dialogue on Border and Transportation Security established between high-level officials in 2004.

The paper ends with presentation of possible future scenarios and a set of recommendations that might

contribute to more effective governance in transatlantic homeland security.

KEYWORDS Global Governance, Homeland Security, U.S.-E.U. Security Cooperation, Transnational Governance Networks

BIOGRAPHICAL STATEMENT Patryk Pawlak is a Ph.D. candidate in the Department of Social and Political Science at the European University Institute in Florence where he researches on Transatlantic homeland security as a challenge to traditional forms of governance in the EU-US relations. He is also a participant to the European Foreign Policy Studies Programme fouded jointly by Compagnia di San Paolo (Italy), Volkswagen Stiftung (Germany) and Riksbank Jubileumsfond (Sweden). From January to July 2007 he was a visiting researcher at the Georgetown University, Center for Peace and Security Studies.

* A version of this paper was first presented at the European Consortium for Political Research, General Conference in Pisa, September 6-8, 2007. Parts of this research project have been possible thanks to the generous support of the Compagnia di San Paolo (Turin, Italy), the Riksbankens Jubileumsfond (Stockholm, Sweden) and the VolkswagenStiftung (Hanover, Germany) provided in the framework of the European Foreign and Security Studies Programme.

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Introduction The September 11th attacks helped identify the weakest links in the American

internal security system: porous borders and generous entry policies.1 In the aftermath of these events, US President George W. Bush issued several directives, one of which provided means for multiple agencies to work together and to “deny entry into the United States of aliens associated with, suspected of being engaged in, or supporting terrorist activity…and to locate, detain, prosecute, or deport any such aliens present in the United States.”2 The ‘National Vision’ of the Bush Administration with regard to homeland security aimed to “prevent the entry of terrorists and the instruments of terror while facilitating the legal flow of people, goods, and services.”3 In May 2006, the US National Counterterrorism Center proposed the National Strategy to Combat Terrorism Travel (NSCTT), which clearly states that in addressing the challenges posed by terrorism,

The NSCTT proposes specific actions aimed at strengthening our [US] efforts at home and abroad to constrain terrorist mobility. These actions include preventing terrorists from crossing US and international borders, building the capacity of partner nations, limiting terrorists’ access to the resources necessary to travel, and promoting increased information sharing on terrorist travel across the Federal government and with state, local, and tribal law enforcement agencies.4

Although mentioned as a part of the general strategy for borders protection, securing the support of the international community has been largely neglected by US policymakers. The extraterritorial nature of these measures (i.e. the Container Security Initiative, the transfer of Passenger Name Record data, the requirement for biometric identifiers in travel documents, etc.) and their implications for third countries have led to increasing opposition in the European Union (EU) and suggested that a stalemate in cooperation was very possible. However, despite key disputes over politics and legal interpretation, cooperation between the EU and the US continues and has progressed dynamically since 2001. This article argues that this cooperation can be explained through a shift in modes of governance upon which the EU-US relationship has been built. Furthermore, it suggests that the structure of the policy-making process determines the level of the transatlantic homeland security cooperation. The article demonstrates that the hierarchical structures that have defined the transatlantic relationship since early 1990s have proven to be unsuitable to deal with current challenges that this partnership is facing. It is also argued that the recent shift towards ‘governance by networks’ is a more promising solution. Transgovernmental networks developed in the field of homeland security demonstrated the capacity to stipulate structural and cultural shifts that, in effect, led to more in-depth changes in the EU-US relationship as such.

In order to support this argument, the article is structured in the following way. First, it introduces the analytical framework used to investigate the shift in transatlantic governance. Second, the article demonstrates how transgovernmental networks can

1 Tirman, 2004 2 The White House, 2001. 3 The White House, 2002. 4 National Counterterrorism Center, 2006.

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contribute to enhanced cooperation and improved governance at the international level. The findings are based on the analysis of the EU-US Political Dialogue on Border and Transportation Security (PDBTS) established in 2004. Finally, the article presents some future scenarios that might contribute to more effective governance in transatlantic homeland security.

The Analytical framework

The analysis presented in this article combines public policy and international relations literature addressing the concepts of governance and networks. It is demonstrated that the development of transnational networks in the area of homeland security are an important factor in avoiding a deadlock in the EU-US relations. At the same time, the emergence of transatlantic networks of homeland security specialists is conceptualized here as the creation of new modes of governance in transatlantic relations.

The scholarship on modes of governance applied in this work has been developed mainly within the context of European integration studies. The limited decision-making capacity of the EU is seen as one of the major governance problems, either due to veto powers of Member States,5 regulatory competition in the single market6 or the collective action problems for private interest groups.7 However, the EU managed to overcome the different interests of its Member States, moved into new policy fields, and deepened cooperation in existing ones.8 As recent research has demonstrated, one explanation of such developments is the emergence of new modes of governance. In order to make the distinction between ‘old’ and ‘new’ clear, this article builds on the framework proposed by Treib, Bähr and Falkner who suggest that the analysis of the governance mechanisms may be conducted from three perspectives: policy, politics and polity.9 The main focus here is on the polity dimension which conceives governance as a system of rules shaping the actions of social actors.10 In this dimension, modes of governance are analyzed according to the institutional structure of their interactions (market versus hierarchy), locus of authority (central versus dispersed), and the degree of the formal institutionalization of decision-making and implementation processes (institutionalized versus non-institutionalized). This approach is further completed by Diedrich’s suggestion that an analysis of the decision-making process should stress ways in which the interaction between actors is shaped and translated into actions, formal and informal rules and practices (including inter-institutional arrangements), and coordination reflexes and multi-level contacts.11

In order to demonstrate the strength of transgovernmental networks in enhancing cooperation and influencing policy outcomes, this article builds on transgovernmental networks theories developed in the public policy and IR literature.12 Keohane and Nye focus on “transgovernmental relations,” which they define as “sets of direct interactions

5 Scharpf, 1988, 6 Woolcock, 1996. 7 Streeck and Schmitter, 1991. 8 Héritier et al., 1996; Eichener, 1997; Héritier, 1999. 9 Treib et al., 2005. 10 Rosenau and Czempiel, 1992; Mayntz, 2004; Treib et al., 2005:5. 11 Diedrichs, 2005. 12 Keohane and Nye, 1974a; Rhodes, 1997; Slaughter, 2004.


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among sub-units of different governments that are not controlled by the cabinets or chief executives of those governments.”13 They argue that development of relations between bureaucracies is required in order to respond to the challenges of growing economic interdependence: “Bureaucracies find that to cope effectively at acceptable cost with many of the problems that arise, they must deal with each other directly rather than indirectly through foreign offices.”14 Keohane and Nye have also identified two conditions under which the emergence of a transnational network is possible: the policy-makers need to be convinced about their growing interdependence; and they need to realize the unsuitability of traditional diplomatic relations to deal with issues at hand. The discussion about networked governance also exists in public policy literature. Rhodes, among others, has defined governance as “self-organizing, interorganisational networks” characterized by interdependence between organizations, continuing interaction between network members, game-like interactions rooted in trust between members of a network, and a significant degree of autonomy from the state.15 Most recently, Slaughter has presented her vision of the world being increasingly governed by transgovernmental networks of politicians, judges, or regulators.16 According to Slaughter, viewing world governance, as a system of networks requires a deeper conceptual shift. That is, one from states as black boxes or billiard balls to states that are disaggregated at regulatory, judicial, and legislative levels.17

Transatlantic Relations Under Pressure

Howse and Nicolaidis suggest that “there is little doubt that this new century will witness quite dramatic changes in modes of governance, in and among liberal democratic societies.”18 Other authors argue that modes of governance are a potentially important explanatory variable of the EU-US output.19 Together, these assertions suggest that a change in the modes of transatlantic governance will have an impact on the output of the relationship. Therefore, the subject merits in-depth investigation.

Already in 1990s there was a widespread believe that better mechanisms of cooperation were needed in order to manage the complex interdependence which already then characterized EU-US relations.”20 The Transatlantic Declaration of 1990 was the first attempt to codify and formalize existing mechanisms for regular consultation.21 Even though some progress has been made in the level of regulatory convergence, information exchange, and cooperative dialogue in general, the structure as such was rather disappointing. It became clear that further efforts were necessary in order to tie various levels of government and possibly include lower-level staff in the whole framework.22 This objective was partially achieved by the New Transatlantic

13 Keohane and Nye, 1974b:43. 14 Keohane and Nye, 1974b:43. 15 Rhodes, 1997:53. 16 Slaughter, 2004. 17 Ibid, 5. 18 Howse and Nicolaidis, 2001:1. 19 Philippart, 2002. 20 Featherstone and Ginsberg, 1996; Daalder and Burwell, 1999. 21 Winand and Philippart, 2002. 22 Calingaert, 1996.

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Agenda (NTA) of 1995, which represented an unusual attempt to link EU-US cooperation at three different levels: intergovernmental, transgovernmental and transnational.23 The benefits of the NTA and Joint Action Plan (JAP) were clear: it not only upgraded the level of mutual commitments and widened the scope of the relationship, but also multiplied structured dialogues intended to mobilize or shape public, business and political support.24

A major blow to the effectiveness and utility of the NTA occurred in the aftermath of the terrorist attacks on September 11, 2001. Although terrorist networks like IRA or ETA conducted transatlantic activities before, the US homeland constituted a base rather than a target for their activities.25 The September 11 attacks put the transatlantic relationship on a completely different track. The policy decisions made under the pressure of global terrorist networks have shaken the structures of transatlantic partnership. The previously unknown image of international terrorism26 required the problem to be approached with a new set of imaginative tools.27

The institutional framework established in the 1990s had been built to equip the transatlantic partnership with tools suitable for dealing with challenges of economic, political and security character. Bilateral trade and regulatory relations, non-proliferation of weapons of mass destruction and other aspects of foreign policy have usually dominated the agendas of the NTA meetings.28 Thus, until quite recently, this relationship focused principally on trade and to a lesser degree on foreign policy, while the internal security dimension has been largely neglected.29 In 2003, when the United States has started to implement its strategy of fight against terrorism and protection of the homeland, the nature of transatlantic relationship started shifting away from the traditional agenda towards those areas. The composition of NTA meetings, (i.e. diplomats, trade specialists) became a clear weakness of the framework which enhanced the feeling of frustration on both sides. Thus, the changes that followed were not surprising.

23 Pollack and Shaffer, 2001a; Pollack and Shaffer, 2001b. The NTA framework encompasses meetings of officials at several levels: Task Forces (with participation of desk officers and Heads of Units), Senior Level Groups (with participation of Heads of Units and Directors), and Summits (with participation of Commissioners, Secretaries, and Heads of States). 24 Monar, 1998; Winand and Philippart, 2002. 25 I am grateful for this comment to Robert A. Saunders. 26 (See: Tucker, 2001; Kegley, 2003; Pape, 2003; Combs, 2005; Nacos, 2006) 27 Pawlak, 2007. 28 This does not mean, however, that no cooperation on those issues has been taking place. The EU and the US have engaged in several initiatives aimed to fight drug smuggling, human trafficking and children pornography. Still, a lot of areas that nowadays would qualify under ‘homeland security’ have not been developed in that period, or at least not at the bilateral EU-US level. 29 This conclusion can be reached after the analysis of NTA agenda. In the period between 16 February 2000 and 14 July 2004, the NTA meetings have dealt with 102 issues in 8 policy areas (percentage of time devoted to discussions on particular policy field in brackets): trade and economic relations (31%), foreign policy (21%), sustainable development (13.5%), transport and border security/justice and home affairs (13%), non-proliferation of WMD (10%), counterterrorism (6.5%), human rights (4%) and other issues (mostly institutional aspects) (1%).


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Transatlantic Homeland Security Networks: The beginning

As Keohane and Nye have argued, in order for transgovernmental relations to develop, there needs to be both the feeling of interdependence and the belief that existing structures of cooperation are not sufficient.30 It was under these circumstances that transatlantic networks of homeland security officials started to emerge. This development is surprising, given that national security is traditionally considered best-guarded area of national sovereignty.

The first to assume a new role in the transatlantic architecture was the EU-US High-level Political Dialogue on Border and Transportation Security31 (PDBTS). The inaugural meeting of the Dialogue took place in April 2004. It was attended by high-level officials with responsibility for homeland security issues32 and took place in a very friendly and informal atmosphere.33 During the press conference after the meeting, then US Undersecretary of the Department of Homeland Security Asa Hutchinson, stated that: ‘”we have a common threat. And of course, that threat is terrorism. There is a common goal that we share and that is the security of our citizens consistent with privacy and civil liberty protections.”34 This presentation was seconded by Gijs de Vries, the EU Coordinator for Antiterrorism, who stated that:

The transatlantic relationship is one of the most important relationships in the world for (…) Europeans. Our economies, our prosperity, our well-being, our safety and security are absolutely linked. The level of exchanges, both in economic terms and in terms of people crossing the Atlantic is such, that is absolutely fundamental to the security of European citizens to have a strong, concrete relationship with the United States. Today's meeting is one step in the further building of such mutually supportive relations addressing some of major security issues of our time. We have, and that has already been said, clear interest in common. We have clear objectives in common and we are focusing increasingly on joint initiatives in the areas that have just been outlined.”

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With such comments in mind, there is no doubt that both sides were aware of their mutual interdependence in the area of security.36 There was also a clear determination to act together in order to advance the security of citizens both in Europe and in the United

30 Keohane and Nye, 1974. 31 Hereinafter referred to as ‘the Dialogue’. 32 The US side was represented by senior officials from Departments of Homeland Security (Customs and Border Protection, US-VISIT Programme), Department of State and Department of Justice. The EU delegation comprised senior officials from Commission services (Justice and Home Affairs, External Relations, Transport and Energy and Customs Union. There were also representatives of the EU Presidency and the EU Counter-terrorism coordinator in the Council. 33 Interview with a EU Council Secretariat official, Brussels, March 2007. 34 The United States Mission to the European Union, 2004. 35 The United States Mission to the European Union, 2004. 36 Mutual interdependence between the EU and the US has been reconfirmed in ‘a declaration of interdependence’ presented by the President Barroso in his speech at the Johns Hopkins University in Washington. See: http://ec.europa.eu/external_relations/news/barroso/sp05_622.htm

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States. The new dialogue was meant to give more strategic dimension to the EU-US cooperation in the field of homeland security.37

The composition of first dialogue seems to suggest that the existing NTA framework did not provide the appropriate tools to deal with homeland security challenges.38 Traditionally, the NTA meetings were attended by diplomats and trade specialists, but as one of the European Commission officials asked: ‘Do diplomats understand anything about borders and containers?’39 Indeed, the agenda of the first PDBTS meeting focused on the introduction of biometrics into passports and visas, the creation of an international database for lost and stolen passports, issues associated with potential terrorist threats to aviation, the use of sky marshals, and rail security.40 Previously, these issues were not discussed bilaterally between the EU and the US, meaning that participants in the NTA meetings did not have the necessary expertise. At that point, neither of the sides were prepared to work internationally on a broad array of issues that needed to be dealt with in response to global terrorism.41

While the United States has responded to the September 11 terrorist attacks rapidly and decisively, the reaction of the European Union indicated that it was unprepared to cooperate internationally on homeland security issues, and therefore it responded much slower for a variety of reasons. First, the Europeans were unable to developed “the security consciousness” as quickly as their American counterparts. Secondly, the EU’s protracted reaction stemmed from its internal structures. While for the US most of the large majority of adopted measures was under the responsibility of a newly established Department of Homeland Security, there was a unified homeland security agency for the European Union. Since the debate about internal security in Europe was been limited to rather traditional areas of police cooperation, immigration and border control, the emergence of security dimension in areas such as data protection or air transport posed several institutional and legal problems for the EU and its member states. Confronted with this complex situation, the European Commission created an internal “PDBTS team” which brought together officials from several Directorates General. The primary task of this group was “damage limitation.” That is, to make unilaterally introduced American policies as harmless as it was only possible.42 In time, the increasing significance of those issues and the growing competence of the European Community in the field of homeland security lead to internal competition between agencies. In the European Commission, for instance, the discussion on transatlantic homeland security

37 Interview with a European Commission official, Washington, February 2007. 38 A different opinion has been voiced by a group of experts who have been charged by the European Commission with a task of evaluating the NTA framework. One of their conclusions is that ‘the NTA has proven flexible enough to incorporate new issues, particularly ones subject to expanded EU competences, even if the NTA often seems overloaded with too many issues’. See: PETERSON, J., WALLACE, H., POLLACK, M. A., DOHERTY, R., BURWELL, F., QUINLAN, J. P. & YOUNG, A. (2005) Review of the framework for relations between the European Union and the United States. An independent study, Final report, Brussels, European Commission. 39 Interview with a European Commission official, Washington, February 2007. 40 The United States Mission to the European Union, 2004. 41 Interview with a European Commission official, Brussels, March 2007. 42 Interview with the European Commission official, Brussels, March 2007.


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covered competencies of several different DGs.43 Each of which wanted to either protect their areas of activity or assert a new international dimension. Some started to develop their own dialogues and mechanisms with the US, which in consequence downplayed the role of the NTA framework.44

Transgovernmental Networks: Enhancing Cooperation Through

Innovation

The drive for innovation is a crucial element in cases when actors have to deal with

intertwined policy problems that exhibit new characteristics and have not been addressed in the past. The approach to be taken in such circumstances requires from policy-makers a great deal of flexibility and innovation. As argued by O’Toole, “innovations are often priorities in sectors or niches where the accretion of structural complexity threatens to overwhelm public performance, so some networked pattern is a common starting place for innovation.”45 In O’Toole’s opinion, innovation does not refer to design of policy, but the process of policy formation and implementation. It means that innovation in networks will be a goal and a tool at the same time. Innovation will also serve as a gateway from limitations posed by existing hierarchical structures and formality. Flexibility, on the other hand, is understood as escaping the formal, hierarchical structures that are usually associated with highly time-consuming decision-making processes.

Recent development of new modes of governance in the European Union illustrates how the process of innovation works in practice. EU policy-making is dominated by formal processes of bargaining, which have often created problems with performance and did not allow for meaningful bargaining to take place. As a result, in order to create an environment for easier policy-making, a vast network of informal and unstructured channels between EU actors has been developed.46 The limitations posed to policy-making by hierarchical structures have stimulated the development of new legal and institutional modes of governance.47

Similar challenges were presented at the emergence of homeland security on the transatlantic agenda. One of the most important elements of designing a new institutional framework for the governance of homeland security has been formality and inflexibility of meetings. Formality of the transatlantic relationship entangled into the NTA framework was one of the problems for the “hard core” homeland security specialists. There was a broad conviction that diplomatic foras, because of their loose nature and use of “diplomatic speak,” were not suitable for discussion of internal security issues that required frank and targeted debate.48 Furthermore, confronted with unprecedented challenges, both sides were aware that new approach to “doing business” would be

43 The EU-US homeland security agenda covered the competences or areas of activity of DG Internal Market, DG Transport and Energy, DG Customs Union, DG Justice and Home Affairs, DG External Relations. 44 Interview with the European Commission official, Washington, February 2007. 45 O'Toole, 1997:117. 46 Nugent, 1999:298; Christiansen and Piattoni, 2003. 47 Marks et al., 1996:359. 48 Interview with a EU Council Secretariat official, Brussels, March 2007; Interview with a former US official, Department of Homeland Security, Washington, April 2007.

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necessary and that it will require a great deal of imagination. There was also a common consensus between participants that the aim of the dialogue should be “to create the best policy environment so that action could be taken as efficiently as possible.”49

The basic principle for the operation of a new dialogue was to “keep it flexible [and] result-oriented.”50 The intention was not to duplicate existing NTA structures but rather to be well coordinated within the NTA. As Jonathan Faull stated during the press conference after the first meeting,

We deliberately decided to avoid the usual pleasantries and long speeches and reading of documents which everybody should have read, no doubt, has read anyway. But we got down to brass tacks very quickly. These are issues of the greatest importance for the security of citizens of the European Union and of the United States.51

This more pragmatic approach seems to be quite understandable. The New Transatlantic Agenda has proven to be quite ineffective in dealing with the homeland security issues, not only because of participants but also formats of meetings.

As many participants in the PDBTS has underlined, one of the reasons for which the NTA framework created problems was its lack of focus. Coping with security issues required very concrete discussions about details of policy implementation. This objective seems to have been incorporated into the PDBTS format. As Faull reported after the first meeting, “[w]e [the EU and the US] talked about serious, specific, concrete measures being implemented, or being contemplated in Washington or in Brussels.”52

Transgovernmental Networks in Action

The first PDBTS meeting was convened when the transatlantic partnership was facing a number of challenges, the most difficult of which was the discussion about transfer of personal data for security purposes. The European Union was unprepared to deal with those issues and the United States adopted more and more legislative acts with broad international implications. This has raised real concerns on the European side since the EU was not able to accommodate the US’s ‘unilaterally imposed’ measures.53 At the same time discussions in the framework of the NTA brought limited results and created frustration among policy-makers on both sides of the Atlantic.

Early Warning

Given the limitations of the NTA framework, there was a common understanding among homeland security officials that a new mechanism was needed. It was not only envisaged as a tool for direct communication between specialists in the field, but also as a means to ensure that information about planned initiatives is exchanged well in advance 49 Council of the European Union, 2004. 50 Council of the European Union, 2004. 51 The United States Mission to the European Union, 2004. 52 The United States Mission to the European Union, 2004. 53 As a matter of fact, the US government was adopting measures aiming at provision of security to its citizens. However, since most of those measures had international implications the EU felt that it should be at least informed well in advance about intentions of the US and implications of measures adopted.


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(so-called ‘early warning’). During the press conference after the meeting Director General Faull said that:

One of the purposes of this dialogue being that we shouldn't surprise each other, that we should be frank with each other about ideas in the early phases of their gestation so that we have time to consider the implications for all of us on what is being planned.54

The early warning mechanism was an important innovation in the transatlantic institutional framework as it enabled EU and US actors to participate in each other’s policies from early stages of the policy-making process.55 Soon after its creation, the early warning function evolved into a facilitation of collective decision-making process. The PDBTS became a forum that forged open discussions and helped participants to better understand each other’s preferences. The increased dialogue and exchange of arguments (deliberative supranationalism) contributed to preference transformation and allowed for reconciliation of initially divergent positions.56 Still, it does not mean that the objectives of Americans and Europeans were different. Quite on the contrary, the real challenge was not in compromising objectives but rather to come to terms with different domestic structures or legislative positions. Jonathan Faull, Director in the DG for Justice, Liberty and Security, commenting on the EU-US Dialogue observed:

There is no doubt that we share one hundred percent the same objectives in making our borders secure, making our transport systems secure and in striking the right balance between the security measures and the rights of the individual and the protection of data. Those are our objectives. I think they are absolutely common. We have different legal systems, different political structures, so the way we get there are not always the same. But the more we talk to each other, the more likely it is that we will find common paths to that common destination.57

Furthermore, the PDBTS allowed for the direct access to information and in consequence enhanced the credibility of each side. According to one of former high US officials in the Department of Homeland Security, ’if you have differences but at least the same facts, then it is more fair intellectually.’58 It is because credible information is believed to have an impact on calculations and choices that different actors make.59 The provision of

54 The United States Mission to the European Union, 2004. 55 Similar Early Warning System has been developed in the framework of the Transatlantic Economic Partnership in order to cope with regulatory differences. Its main task was to identify draft regulations or legislation on either side which might impede trade and investment. In addition to this system several dialogues on financial services and trade and border security were designed in order to minimize the negative trade and investment consequences of unilateral decisions on accounting standards, container security, and passenger name records. See: Peterson (2005). 56 Joerges and Neyer, 1997; Joerges, 1999; Joerges et al., 1999; Eriksen and Fossum, 2000; Joerges and Everson, 2000. 57 The United States Mission to the European Union, 2004. 58 Interview with a former official in the Department of Homeland Security, Washington, April 2007. 59 Majone, 1996; Majone, 1997.

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suitable information inside the network has made it possible for actors involved to exercise some influence on policy decisions, if not at the level of policy making then at least at the level of policy implementation.

From Policy Coordination to Policy Implementation

While the PDBTS continued its activity, the nature of issues on the agendas has evolved as well. Gradually, issues like data protection moved from ‘early warning phase’ to ‘agreement phase’, and further to ‘implementation phase’. This changing role of networks has been already identified by early authors like Keohane and Nye who have pointed to the role of networks in transgovernmental policy coordination and coalition building.60 Policy coordination “refers to activity designed to facilitate smooth implementation or adjustment of policy, in the absence of higher policy directives.”61 This function is of particular importance for the effectiveness of day-to-day cooperation in areas like fight against terrorism, where decisions have to be taken quickly.

Although policy coordination could not be ensured through PDBTS on a daily basis, it has been achieved in two other ways. First of all, PDBTS allowed for strategic coordination between high-level officials from both sides of the Atlantic. Once the agreement has been reached at the highest political level, the lower levels of the network (i.e. desk officers) were given more freedom in governing the relationship. Furthermore, PDBTS created opportunities for development of other, more focused groups dealing with issues of data protection or transportation security. Some of its responsibilities have been also delegated to other existing bodies like Joint Customs Cooperation Council in case of container security issues. According to one European Commission official,

What we need are rather small groups, more informality. With big teams you do not achieve change of culture that you want and cannot build the trust. Also, it is important to provide each other some feedback and big groups make it really difficult. Big meetings are rather organized to confirm what has been already achieved. Setting up small groups seems therefore to be a way forward.62

While PDBTS was designed to allow for exchange of information and provide early warning for its participants, it has ultimately achieved something more important in international politics: it has created trust and built relationships between participants.63 One of unintended consequences of the PDBTS has been creation of relationships and enhancing culture of cooperation between the EU and the US officials. As one of the officials noted:

60 Keohane and Nye, 1974b. 61 Ibid, 44. 62 Interview with a European Commission official, Brussels, March 2007. 63 This confirms Slaughter’s argument that transgovernmental networks ‘build trust and establish relationships among their participants (…) These are the conditions essential for long-term cooperation’ Slaughter, 2004.


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Equally important, of course, is that relationships are created by this sort of dialogue, so that people on both sides of the Atlantic know each other better and that leads to a much more widespread culture of cooperation and contacts using all the wonders of modern technology between those working on these difficult issues in Washington, in Brussels and, of course, in the Member States.64

The relationships built between members of a network are of particular importance when changes inside the network or in its environment occur. Confronted with external challenges or new phenomena, a network will be more effective if the relationships between its members are well-established. In such situations, solutions will be most often found through informal communication and will be based on mutual trust.

The PDBTS – Has Anything Gone Wrong?

Recall that certain measures introduced by the US in the aftermath of the September 11th attacks were especially problematic for the EU. In the light of potential conflicts, there was a clear need for more proactive cooperation and establishment of a dialogue dedicated only to issues of border and transport security. After one year from its establishment, the PDBTS has dissipated the fear that these issues would become a minefield for US-EU relations. The contribution that PDBTS made has found appreciation at highest political levels. Secretary of Homeland Security Tom Ridge said:

What I have discovered is that we sit down, make our case, discuss, negotiate finding a common solution of mutual benefit, we’ve made a lot of progress. Part of me wishes we’d started that a little bit earlier, but there were other things that it seemed at the time were higher priorities.65

A number of features decided about the PDBTS success: “right people in the

room,” ongoing consultation, more regular and credible interaction, advance warning of delicate matters and “much less formal.”66 The participants themselves suggested that success of the PDBTS was possible because it brought together experts in more informal setting and forced both sides to get their respective “houses in order” by developing a unified joint intra-agency position. Discussions in PDBTS were also used to reinforce position of participants within their respective bureaucracies.67 However, the officials’ assessment of the role that modes of governance play in the field of homeland security remains ambivalent. While some of them do not see much added value of such meetings in day-to-day policy-making, others have praised their role in enhancing cooperation and mutual trust. Objectively speaking, one cannot judge bodies like PDBTS for what they were not supposed to be. At its creation, the PDBTS had a clear objective to play: provide a forum for exchange of information and if necessary diminish chances for possible conflicts. It has

64 Interview with a European Commission official, Brussels, March 2007. 65 Department of Homeland Security, 2004. 66 Peterson et al., 2005:49-50. 67 Ibid.


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achieved far more than that. Dialogues like PDBTS play increasing role in international policy-making in many areas.68 They bring together high-level officials who have a chance to meet face-to-face and resolve important policy questions. They also provide some coordination to the overall cooperation and induce some hierarchical elements into networked structure of governance. They also provide impetus for policy coordination through creation of other more focused groups of experts. Still, there are some difficulties in establishing whether the emergence of these new modes of governance in field of security has a direct impact on particular policy outcomes or a broader shape of the relationship. A counterfactual question could be asked: What would happen if the PDBTS was not created or if it was not used as a mode of governance in transatlantic relations?

Some insight to this question may come from the analysis of the transatlantic cooperation in 2006. According to the EU Council Secretariat registry, no PDBTS meetings took place in 2006.69 Still, cooperation between EU and US on homeland security issues was not paralyzed and no serious conflicts between EU and US were reported. Quite on the contrary, several issues have been solved or continued to be discussed. This clearly could be an argument in support of the thesis that foras like the PDBTS have no or rather marginal value for the overall cooperation. However, in order to confirm this assumption, the question should be asked about why no PDBTS has taken place in 2006 – was it because no added value was seen in those meetings or rather because other factors came into play?

Ideologies Within Networks

One possible explanation could be changes in the US Administration resulting from President’s Bush re-election. Several members of staff in the Department of Homeland Security have changed, including the appointment of new Secretary for Homeland Security, Michael Chertoff, in February 2005. Consequently, several high-level US officials who have been engaged in the transatlantic homeland security cooperation since the very beginning have been exchanged for a completely new set of people. This had several implications. First of all, the relationships that have been created between high-level officials from EU and the US needed to be rebuilt. While the EU team remained mostly unchanged under the leadership of Jonathan Faull, several changes have taken place on the US side, including the appointment of Stewart C. Baker as the Assistant Secretary for Policy and Planning in the Department of Homeland Security. This also meant that the trust capital accumulated for several years has diminished. Under these circumstances and given previously identified benefits of PDBTS, it would be rational to continue using it as a platform for learning and exchange of opinions. Surprisingly, no PDBTS meeting was convened in 2006. Although there could have been some serious reasons for it, results of interviews with the US officials suggest that rather ideological elements played a role.

One of the US high-level officials from the Department of Homeland Security suggested that changes in DHS after Bush’s re-election have lead to ‘ascendancy of 68 Transatlantic cooperation is based on almost 49 such dialogues in areas like customs cooperation, transport security, regulatory cooperation, etc. 69 This information has also been confirmed during several interviews in Brussels and in Washington.


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ideology over pragmatism’.70 The ‘pragmatists camp’ in the DHS put the primary focus on ‘getting things done’ while at the same time trying not to harness mutual relationships. Ideologists, on the other hand, were people devoted to war on terror by all means without attaching much attention to what European counterparts may think. Therefore, this ideological shift in DHS could be seen as a reason for why PDBTS dialogue has lost its importance. This change of approach has also had a direct impact on concrete policy measures. The new ‘ideologist camp’ in DHS have considered the moves of their processors to be far too soft, which can be perfectly illustrated with their approach to negotiations of the interim agreement on transfer of PNR data. It needs to be noted, however, that while ‘new ideology’ seems to have dominated high-level officials, as a matter of fact nothing has changes at lower levels of the partnership. A day-to-day transatlantic relationship is not maintained by directors and undersecretaries but by desk and country officers on each side of the Atlantic. Therefore, even though the transgovernmental network of high-level officials may face some problems of political nature, transgovernmental networks are still doing fine, exchanging emails and phone calls on daily basis. Therefore, while politicization of homeland security cooperation may slow down the process, it cannot stop it completely.

The Changing Role of Networks

Another set of explanations for why PDBTS seems to have lost on importance is associated with the time factor and the role that this Dialogue was supposed to play. When the first meeting of the Dialogue took place in April 2004 the agenda was full with potentially explosive issues: data protection, container security, US-VISIT program and others. The US legislation in the fight against terrorism undoubtedly posed challenges for Europeans. Is it possible that only two years later all problems have been solved and no PDBTS was needed? This is indeed what one of the Council officials suggested:

Its [PDBTS] role has been taken over to some extent by informal ministerial and SLG meetings. In 2004 the PDBTS was a very useful tool for early warning in order to exchange information about new measures. Back then organizing those meeting made sense. Now situation is different and we return to using old settings at our disposal.71

This comment does not suggest however that the PDBTS as such was a useless mechanism. It rather suggests that it was an important learning tool and early warning mechanism. Other than return to traditional mechanisms of governance, the transatlantic partnership has seen development of new and broadening of old forums. This was because with time some issues moved from policy formation and consultation to the phase of policy implementation. As a result meetings became more focused and required

70 The same interviewee suggested that the ‘pragmatist camp’ was composed of Secretary Tom Ridge himself, Undersecretary Asa Hutchinson, Assistant Secretary Stewart C. Verdery, and later Randy Beardworth. Interview with former US official in the Department of Homeland Security. Washington, DC, April 2007. 71 Interview with a EU Council Secretariat official, Brussels, October 2006.


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expertise in particular fields.72 Consequently, issues started traveling from one agenda to another and this resulted in strengthening of previously existing groups and creation of new ones. Currently, the landscape of modes of governance devoted to issues of homeland security includes PDBTS, Justice and Home Affairs High-Level meetings, Transportation Security Cooperation Group and Joint Customs Cooperation Council, and High-Level Working Group on data protection.73 In the opinion of some officials, those more focused groups tend to bring more results. This is because they are more operational and are beyond the scope of political discussions, which means that their participants do not waste time on useless debates but instead produce more results.74 For instance, in the framework of the TSCG, European and American officials inspect each other’s airports and try to gain mutual understanding of their positions, learn how other side interprets the rules and eventually build mutual trust.75

Integration Through Networks

There is no evidence that would suggest that networks like PDBTS are used less because of being unimportant. Quite on the contrary, they suggest that transgovernmental networks play an increasing role in world politics as mechanisms for exchange of information, mutual learning and building of trust. Even when the PDBTS is not visible directly (as occurring in 2006) its effects and accomplishments are visible in other developments: creation of new dialogues, communication between actors, and enhanced trust. Even situations where some ideological elements may have a negative impact on perception of modes of governance, the mechanisms elaborated before (learning, trust, and communication) are still present and keep the relationship alive. There is a general agreement between EU and US officials that PDBTS managed to achieve more convergence and understanding between both sides.76 The benefits of PDBTS should be seen in the process rather than in a forum itself. Creation of PDBTS has launched the machinery of mutual learning and trust building that worked not only during the PDBTS official meetings but foremost in-between those meetings. The early warning character of

72 Interview with a US official, Department of State, Washington, May 2007. 73 The newest is the High-Level Working Group on Data Protection devoted in particular to issues of data sharing and data protection for law enforcement purposes. The task of this informal group is to elaborate a set of principles common in the EU and in the US that at some point in the future could be used as a basis for a comprehensive EU-US agreement on data protection. The JHA High-Level meetings (JHA HL) are attended by representatives from Department of Justice, Department of Homeland Security and Department of State. European delegation is headed by Presidency and Commission Directorate for Justice, Liberty and Security. Transportation Security Cooperation Group (TSCG) was created as a reply to constant changes introduced by Transportation Security Administration. It is meant to be a kind of early warning mechanism similar to PDBTS but at the same time is more action oriented. TSCG is attended brings together representatives of DG for Transportation and Energy, DG Customs Union (on European side), and Transportation Security Administration (on the American side). The oldest in the family is Joint Customs Cooperation Council (JCCC) which was created already in the end of 1990s but its competencies has been extended after the signature of Container Security Initiative. JCCC gathers officials from DG TAXUD and US Customs and Border Protection of the DHS. 74 Interview with a US official, Department of Homeland Security, Washington, April 2007. 75 Interview with a Commission official, Brussels, March 2007. 76 This conclusion has been made after numerous interviews conducted in Brussels and Washington in the period between October 2006 and July 2007.


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PDBTS with time has been internalized and moved from high-level officials towards a lower level of desk officers who communicate mostly by phone or via email. As some officials noted ‘the primary objective of these dialogues is to put people in contact’77 and ‘once you identify the right people then you work with them on day to day basis and you do not need any other early warning.’78 The biggest contribution that PDBTS made was ‘to help everybody realize that we are going against the wall if we do not consult in advance.’79

Scenarios of What Might Still Go Wrong

A couple of questions emerge from this analysis: Would the transatlantic homeland security cooperation be as dynamic as it is without creation of early warning mechanism like PDBTS? Why was it necessary to establish new mechanism rather than expand the scope of the existing NTA framework? And further, how to eventually introduce some rationalization in the transatlantic architecture?

As it has been already said, for over a decade the transatlantic relations were ‘done’ by diplomats and trade people. Their work was limited to organizing meetings and working towards common positions in order to produce deliverables for biannual summits. While for European officials dealing with transatlantic issues is seen as an important step in career,80 the approach of their American colleagues is completely different – dealing with EU will not guarantee them promotion, nor will it offer an opportunity for a free trip to Europe.81 Therefore, US diplomats would have little incentives to engage into another difficult area of cooperation exceeding their competencies. Furthermore, adding homeland security issues to NTA framework would require constant coordination either with Department of State or Department of Justice which Department of Homeland Security wanted to avoid for several reasons: firstly, because such solution would jeopardize the idea of flexibility and early warning, and secondly because DHS as a new agency wanted to gain more domestic and international recognition.

The expansion of NTA agendas to homeland security issues would probably result in making them indigestible and lead to frustration of those preparing and participating in such meetings. Furthermore, since only a few homeland security issues belong to State Department competencies, it would be the Department of Homeland Security who would insist on those issues on the agenda. This would most probably result in interagency frictions and harness rather than build trust between participants. Furthermore, US diplomats were not very keen on constantly providing rest of the world with justification for DHS actions and initiatives. This is one of the reasons why most of the components of the DHS have their own international relations units with two-fold responsibilities: to explain US positions to other countries, and to present views of other countries to their colleagues from DHS and other services.82 Given the above, it seems plausible to

77 Interview with a Commission official, Washington, May 2007. 78 Interview with a EU Council Secretariat official, Brussels, March 2007. 79 Interview with a EU Council Secretariat official, Brussels, March 2007. 80 Interview with a Commission official, Washington, May 2007. 81 Interview with a former US official, Department of State, Washington, May 2007. 82 Interview with a US Department of Homeland Security official, Washington, April 2007.


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maintain that the creation of PDBTS has played a crucial role in developing the EU-US cooperation in the area of homeland security.

The comparison of old and new modes of governance in transatlantic relations allows for identification of differences in four basic areas: issues on the agenda, process, composition and objectives. The complicated architecture of transatlantic modes of governance is a challenge in itself and requires some rationalization. At this stage, two scenarios are possible.

Merger of NTA and PDBTS

One of the possibilities is the creation of a superstructure merging the PDBTS agenda with the NTA. This, however, would lead to even bigger groups of participants and make such a structure too big and ineffective. Consequently, the meetings would become either too technical or too loose. In any case, things instead of being solved at specialists’ level are brought at political one on both sides and transform NTA into ‘talk shops’. With time, high-level officials with already busy agendas would loose the interest in participation in such foras, which consequently would lead to situation where no binding political decisions would be taken. The whole machinery would slow down, leading to ignorance of bilateral transatlantic cooperation. Additionally, domestic pressure for effective homeland security would result in more unilateral initiatives. In such environment conflicts are most probable to emerge. This is more less the situation we have had right after September 11, which means that scenario one would mean coming back to the point of departure.

More Specialization and Streamlining Dialogues

Streamlining would mean that the each of the dialogues comes back to its initial objectives: the NTA focuses on foreign policy, the Transatlantic Economic Partnership deals with economy and a new Homeland Security Dialogue is established. In this way separate organizational cultures are not being mixed and could be more efficient. This would undoubtedly make each of the dialogues more focused. However, for the second scenario to be effective, some additional changes in the transatlantic architecture would have to be made. Faced with proliferation of dialogues, task forces and other foras a great deal of coordination would be necessary. Besides, both EU and US officials are afraid of any form of institutionalization. Therefore a way needs to be found to make them believe again that certain form of institutions can be beneficial.

Several solutions also exist which could be introduced quite easily in order to improve the quality of the transatlantic partnership.

Division of Labor

Transgovernmental networks are reality but it should not mean that everybody does

everything and therefore some ‘division of labor’ could be envisaged. High-level executives should deal with problems that cannot be solved by lower level networks. This would depoliticize homeland security cooperation and would give more freedom to their subordinates. This means that those lower level networks would create a certain forms of


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unofficial Task Forces expected to deal with particular problems. Executives on the other hand should be charged with more strategic tasks. At the moment, agendas of meetings focus on issues of the day instead of looking for new areas where the EU and the US could act together. Several officials in EU and in US have complaint about lack of vision in transatlantic partnership and this is where the high-level officials could definitely deliver, assuming that the political will is there. Furthermore, the benefits of learning processes should not be exploited only in times of conflict but should rather become a constant commitment. Instead of ‘learning for conflict management’ the transatlantic partnership should move towards ‘learning for conflict avoidance’. Some gradual moves in this direction have been made on issues such as terrorism radicalization and recruitment or lost and stolen passports but possibilities are unlimited.

Transatlantic Homeland Security Agency

The role of scholars and private sector should not be neglected and underestimated. They should be charged with the analysis of potential areas of EU and US cooperation. This would largely diminish the work that officials on both sides of the Atlantic have to do. One of the appropriate formats could be a Transatlantic Homeland Security Agency created in a similar way to several other agencies in the European Union. Given the sensitivity of issues in question, it would not have any regulatory power but rather contribute to policymaking by providing information and studies. Another solution could be the establishment of a joint EU-US Homeland Security Institute that would bring together scholars and practitioners in the field of law, security and trade from United States and from the European Union. The analysis created by particular teams inside the Agency or the Institute would provide a background and feed discussions between the American and European politicians based on facts and objective analysis rather than political assessment only.

Change in Mentality

More difficult to achieve might be the change in mentality of officials on both sides. It sometimes seems that the EU and the US officials forget who their real enemy is and where their battlefields are. Homeland security should be a common concern of both European and American leaders because without each other they are unable to protect effectively their citizens. The EU and the US should not forget that their enemy is global terrorist network and not their respective legislations. Very often it seems that a bigger picture becomes blurred and the focus shift towards less important issues. The differences in systems should be seen as opportunity for more effective solution rather than source of conflict only. Furthermore, any discussion should be free from ideology and prejudice. Americans need to keep in mind that not everything ‘made in USA’ is good, while Europeans need to remember that not everything coming from Europe stands for quality. Furthermore, EU and US officials should not forget where their real battles lie – in their domestic constituencies. Often times, the EU and US experts on homeland security have more in common with each other than they have with their legislators or executives. Therefore for better policy-making they should further explore possibilities for coalition building.


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Conclusions

The shift towards homeland security issues as a major aspect of the transatlantic partnership would probably be smoother if not the archaic structure of the New Transatlantic Agenda that has governed this relationship since 1990s. Initially focusing on trade and international security issues, the NTA agenda has gradually shifted towards broader issues of border security, transportation, and the fight against terrorism in general. Since discussions on those issues often required specialist knowledge, the NTA meetings had increasing difficulties in delivering. It was simply because diplomats and trade specialists present in a meeting room or participating in a videoconference had little knowledge about how to approach issues of law enforcement or judicial cooperation. In addition, there seemed to be some clear political and legal obstacles to the EU-US cooperation on homeland security. Eventually, all this resulted in what was commonly understood as new transatlantic conflict. To remedy the situation, several new transgovernmental networks have developed.

This article has argued that the extent to which the transatlantic homeland security cooperation has developed was possible mostly thanks to the shift in a structure of the relationship: from hierarchically managed and overloaded NTA framework to more focused and more efficient governance by networks. The creation of networks in the field of homeland security has stipulated several structural and cultural shifts that consequently led to more in-depth changes and redefinition of the transatlantic partnership. It does not mean, however, that any network would guarantee a ‘better’ transatlantic relationship. The aim of this article was to uncover some of the issues underlying impact of networks on the overall shape of the EU-US relationship. The article has investigated the emergence of networks and their operability, the challenges they pose, the opportunities that they create for the decision-making, and mechanisms through which they enhance cooperation. As it has been shown, the operability of networks depends on such factors as ideology of their members or the dynamism of a network. This article argues that the added value of networked governance lies mainly in the capacity of networks to stimulate changes in environment and culture of their participants, to build relationships, and eventually to enhance international cooperation. However, how to ‘govern by networks’ so that they lead to a desired outcome remains a crucial question for further research.


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