501:: In the Decision, the Council agreed to the conclusion of the agreement between the EU and the US while at the same time inviting the Commission to submit to the European Parliament and to the Council a legal and technical framework for the extraction of data on EU territory. Furthermore, in giving its approval to the conclusion of the agreement on 8 July 2010, the European Parliament explicitly acknowledged the commitment by the Council and the Commission to set up the legal and technical framework allowing for the extraction of data on EU soil. This commitment would in the mid-term ensure the termination of bulk data transfers to the U.S. authorities. The requirement for a prior filtering of data within the EU is supported by the EDPS, as it would prevent the sending of bulk data to a third country. However, the Communication goes beyond the acknowledged purpose of filtering data in the EU, as it clearly indicates that the "system should not be set up just to provide relevant information to US authorities", as the authorities of the Member States "have a real interest in the results of such a system as well". The Communication therefore seems to legitimise the setting up of a whole new TFTS scheme, in an EU specific context, on the basis of the existing TFTP agreement. In other words, the Communication seems to justify the introduction of a new system which invades the privacy of EU citizens for the benefit of the authorities of EU Member States while using as a justification the assessment of utility of a system conceived and implemented to allow the US authorities to pursue their own investigation linked to terrorism. The EDPS has strong doubts about this approach, which does not appear to respect the principles of necessity and proportionality (as developed below).
488:
offences, including terrorism, in the framework of police cooperation and judicial cooperation in criminal matters (hereafter: the EU-US general agreement). The
Article 29 Working Party understands the negotiating mandate has been under discussion in both the Council and the European Parliament in recent months and may be adopted by the Justice and Home Affairs Council in early December. The Working Party regrets that it has not been consulted on the content of the negotiating mandate for this agreement, since these negotiations with the US are bound to be one of the most important steps within the area of data protection the EU is to take in the coming years.
740:"Since being asked to oversee this program by then-Secretary Snow and then-Deputy Secretary Bodman almost two years ago, I have received the written output from this program as part of my daily intelligence briefing. For two years, I have been reviewing that output every morning. I cannot remember a day when that briefing did not include at least one terrorism lead from this program. Despite attempts at secrecy, terrorist facilitators have continued to use the international banking system to send money to one another, even after September 11th. This disclosure compromised one of our most valuable programs and will only make our efforts to track
575:("UST"). SWIFT is a Belgian based cooperative active in the processing of financial messages. It was revealed that personal data, collected and processed via the SWIFT network for international money transfers using the bank identification code ("BIC") or "SWIFT" code, had been provided to the UST since the end of 2001 on the basis of subpoenas under American law for terrorism investigation purposes. -
487:
On 26 May 2010 the
European Commission presented the draft negotiating mandate for an agreement between the European Union and the United States of America on the protection of personal data when transferred and processed for the purpose of preventing, investigating, detecting or prosecuting criminal
317:
Any person has the right to obtain a confirmation through the data protection authority in the EU member state that the person's data protection rights have been respected. Any person has the right to seek the rectification, erasure or blocking of his or her personal data where the data is inaccurate
285:
The United States
Treasury serves production orders to a designated provider of financial data. SWIFT is the only designated provider today. The request shall identify as clearly as possible the data necessary for the purpose of the treaty. The request should clearly substantiate the necessity of the
244:
alleged the NSA was systematically undermining the SWIFT Agreement. No denial was issued by the
American side, and the European Parliament passed a non-binding vote calling for the suspension of the agreement. A suspension would however require the consent of a two-thirds majority of EU governments.
173:
Immediately following the disclosure, SWIFT released a press statement asserting that they gave information to the United States in compliance with
Treasury Department subpoenas, but claimed that "SWIFT received significant protections and assurances as to the purpose, confidentiality, oversight and
759:
in his June 2 column. "I haven't found any evidence in the intervening months that the surveillance program was illegal...The lack of appropriate oversight—to catch any abuses in the absence of media attention—was a key reason I originally supported publication. I think, however, that I gave it too
697:
that it planned to track terrorist-related finances. For example, in a speech shortly after the
September 11th attacks, George W. Bush elaborated on the Administration's intention to track terrorist funding, saying "if fail to help us by sharing information or freezing accounts, the Department of
444:
If the filtering of data is performed within the EU under TFTS, according to criteria which should be particularly strict (in order to comply with the necessity and proportionality tests), the data sent to the United States would be restricted as a result. This is essential in order to meet the EU
432:
main reason for the development of a
European terrorist finance tracking system ('EU TFTS') has its source in the present US TFTP agreement (and in particular its Article 11) and in the Council Decision of 13 July 2010 ("the Decision"). Currently, under TFTP, data are sent in bulk to the US, to be
412:
in its letter of 29 September, based on its specific experience in analysing and monitoring the original agreement between the United States and the EU regarding the
Terrorist Finance Tracking Programme (the "U.S. TFTP agreement"), which is the source of the developments of the Terrorist Finance
302:
is not allowed. The data must be secured and cannot be interconnected with any other database. Access to data shall be limited to investigations of terrorism. All searches must be based upon preexisting information or evidence of connection with terrorism. Information may only be shared with law
276:
The scope of the treaty is to use financial payment messaging data to prevent, investigate, detect, and prosecute conduct pertaining to terrorism or terrorist financing. Terrorism is defined as "acts which involves violence or are otherwise dangerous to human life or create a risk of damage to
771:
responded to Calame's “revisionist epiphany” in a letter published on
November 6, 2006. Keller felt that Calame's premise that “the press should not reveal sensitive secret information unless there is a preponderance of evidence that the information exposes illegal or abusive actions by the
645:
editorial further argued that terrorists would have to be "fairly credulous" to believe their finances were not being tracked and that the reporting bore "no resemblance to security breaches, like disclosure of troop locations, that would clearly compromise the immediate safety of specific
169:
does not prohibit the obtaining of information revealed to a third party and conveyed by him to
Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed".
517:
understands the negotiating mandate has been under discussion in both the Council and the European Parliament in recent months and may be adopted by the Justice and Home Affairs Council in early December. The Working Party regrets that it has not been consulted." -
209:
is said to have delivered information on its European customers to the US government, in contempt of European privacy laws. The Dutch Data Protection Authority claims that Dutch banks could face fines if they hand over data on their customers to the US government.
151:". The administration contends the program allows additional scrutiny that could prove instrumental in tracking transactions between terrorist cells. Some have raised concerns that the program might also be a violation of United States and European financial
428:
offers Comments on the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 13 July 2011: "A European terrorist finance tracking system: Available options":
277:
property or infrastructure with the intent to intimidate a population or government or an international institution to act or abstain from acting or to seriously destabilize or destroy fundamental structures of a country or international organization."
772:
government” set too high a bar. Keller explained, “The banking story landed in the context of a national debate about the concentration of executive power. The Swift program was the latest in a series of programs carried out without the customary
420:, especially in relation to the context in which the TFTS is envisaged, about its necessity and proportionality, the procedural guarantees that should be introduced and finally with regard to its consequences on the existing US TFTP agreement".
364:
reported that U.S. authorities evidently have sufficient control over SWIFT to seize money being transferred between two EU countries (Denmark and Germany), since they have seized around $ 26,000 which were being transferred from a Danish to a
728:'s claim that terrorists are now exclusively using "other means" to transfer funds, by stating that terrorists "have continued to the formal financial system, which has made this program incredibly valuable". Testifying before the
261:
Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking
708:, responded by arguing that there is a vast difference between stating general intentions to track terrorist finances and actually revealing the exact means employed to do so. Some of these critics called attention to the
729:
258:
After European concerns with wholesale SWIFT data export were raised, it became necessary for the United States to negotiate a treaty with the EU in order to be able to continue accessing the SWIFT database. The
776:—in this case, Congressional oversight. Key members of Congress who would normally be apprised of such a program and who would be expected to monitor its safeguards only learned of the program because we did”.
716:
in tracking terrorist finances. Moreover, in an editorial on the press's obligations in wartime, the Wall Street Journal clarified the basic differences between its approach to the story and that of the
541:
Article 29 Working Party emphasizes that even in the fight against terrorism and crime fundamental rights must remain guaranteed. It insists therefore on the respect of global data protection principles.
1495:
878:
1573:
Testimony of Stuart Levey, Under Secretary Terrorism and Financial Intelligence U.S. Department of the Treasury Before the House Financial Services Subcommittee on Oversight and Investigations
1696:
344:, the European Parliament passes a non-binding resolution calling on the EU Commission to suspend all data transfers according to the TFTP with the United States Treasury Department.
975:
763:
In September 2006, however, the Belgian government declared that the SWIFT dealings with U.S. government authorities were, in fact, a breach of Belgian and European privacy laws.
1057:
1535:
194:
party claimed on June 28 that the actions of the CIA with SWIFT were in breach of Belgian privacy laws. The Belgian parliamentary committee that deals with the workings of the
155:, because individual search warrants to access financial data were not obtained in advance. In response to the claim that the program violates US law, some have noted that the
744:—and to prevent terrorist attacks—harder. Tracking terrorist money trails is difficult enough without having our sources and methods reported on the front page of newspapers."
693:"to follow the money through its electronic intercepts of such transactions". Still others have questioned the secrecy of the TFTP because the Bush administration has made
823:
712:
itself making no mention of either SWIFT or the Terrorist Finance Tracking Program in a November 29, 2005 article ironically detailing the Bush administration's apparent
564:
1294:
553:
September 2006: The Belgian government declared that the SWIFT dealings with U.S. government authorities were, in fact, a breach of Belgian and European privacy laws.
1264:
1660:
1279:
1344:
433:
stored and filtered according to requests of the U.S. Treasury Department. This has raised serious criticism, especially by the European Parliament (and the
1686:
1087:
1310:
959:
166:
1691:
638:
264:
was negotiated during 2009. The treaty was first rejected by the European Parliament, however after a few months and a visit by US Vice President
1681:
341:
1468:
1211:
1190:
563:
At the end of June and beginning of July 2006, press coverage in the European and US media questioned the role and responsibilities of the
1164:
61:. After the covert action was disclosed, the so-called SWIFT Agreement was negotiated between the United States and the European Union.
538:
adopts Opinion 10/2006 on the processing of personal data by the Society for Worldwide Interbank Financial Telecommunication (SWIFT).
165:(1976) has ruled that there is not an expected right to privacy for financial transaction records held by third parties and that "the
680:
572:
397:
communication entitled Terrorist Finance Tracking System (TFTS) - European Commission Communication of 13 July 2011 (2011-0699) to
137:
1417:
649:
Some have also questioned whether the information in the original June 23, 2006 newspaper articles was even secret, despite its
1676:
1020:
1555:
785:
664:
1575:
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519:
498:
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425:
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133:
1365:
993:
904:
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and the financial institutions to take measures in order to remedy the currently illegal state of affairs without delay.
650:
378:
268:
to the parliament, the European Commission introduced a proposal with strengthened safeguards, which was then adopted.
1382:
943:
1058:"MEPs call for suspension of EU-US bank data deal in response to NSA snooping | News | European Parliament"
922:
606:
82:
1341:
860:
683:– that record the billions of dollars coursing through the global banking system daily." Also, a September 21, 2001
568:
132:
activities. They also referred to the program as the "Terrorist Finance Tracking Program" ("TFTP"), similar to the
1139:
191:
445:
data protection requirements, even if the data would not totally meet the (broad) requests of U.S. authorities.
195:
1701:
1317:
618:
594:
144:
54:
1041:
1237:
755:
stated that he did not think the article should have been published, reversing his strong support of the
698:
the Treasury now has the authority to freeze their bank's assets and transactions in the United States".
1593:
843:
1647:
1037:
736:, the Department of the Treasury's Under Secretary for Terrorism and Financial Intelligence, stated:
287:
1521:
1472:
690:
576:
535:
514:
473:
455:
438:
417:
409:
237:
218:
187:
28:
641:
and serves a vital role, providing "information the public needs to make things right again". The
702:
161:
43:
671:
moves funds by plugging into the computerized systems of bank transaction monitoring services –
226:
676:
90:
303:
enforcement, public security, or counterterrorism authorities in the United States or the EU.
614:
49:
689:
article mentioned SWIFT "headquartered in Belgium" and conjectured about the ability of the
190:, had known about the US government's access to the SWIFT databases since 2002. The Belgian
1444:
773:
701:
However, critics of the decision to disclose the classified program's existence, including
373:
previously imported to Germany by a German supplier. As justification for the seizure, the
1212:"Procedure File: 2010/0178(NLE) | Legislative Observatory | European Parliament"
1140:"Procedure File: 2009/0190(NLE) | Legislative Observatory | European Parliament"
398:
8:
1422:
1399:
741:
507:
481:
402:
312:
225:
of the EU to the United States in order to monitor the TFTP activities. This magistrate,
222:
1088:"European Parliament: No More Bank Data Transfers To US For Anti-Terror Investigations"
939:
156:
37:
1619:
128:
responded to the leak the day before it was published, claiming that the leak damaged
441:), notably with regard to the necessity and proportionality of the 'bulk' data flows.
109:
202:) reported that SWIFT was indeed in violation of Belgian and European privacy laws.
839:
230:
148:
129:
117:
105:
58:
1191:"EuropeanVoice.com: MEPs vote to suspend SWIFT agreement with US, 23 October 2013"
476:
communication entitled EU-US General Agreement (D(2010) 837566) to Vice-President
1579:
1559:
1552:
1348:
1024:
998:
668:
655:
609:
chairman, called on the Bush administration to seek criminal charges against the
653:, because of previous newspaper articles discussing SWIFT. Specifically, a 1998
298:
The U.S. Treasury shall process the data only for the purpose of the treaty and
1572:
1500:
883:
477:
241:
214:
1670:
1448:
685:
602:
374:
752:
733:
705:
694:
370:
183:
89:, had developed methods to access the SWIFT transaction database after the
949:, Argued January 12, 1976. Decided April 21, 1976. Retrieved July 1, 2006.
804:
Of Privacy and Power: The Transatlantic Struggle over Freedom and Security
768:
725:
326:
EU may request the aid of the United States to build up a European TFTP.
299:
152:
125:
1242:
360:
1553:
Letter to the Editors of The New York Times by Treasury Secretary Snow
1113:
1042:
Press Release - Hearings of SWIFT representatives and Judge Bruguière
730:
House Financial Services Subcommittee on Oversight and Investigations
634:
369:
bank. The money was a payment by a Danish businessman for a batch of
265:
286:
data, and be tailored as narrowly as possible. Payments within the
206:
174:
control of the limited sets of data produced under the subpoenas".
121:
113:
101:
1235:
790:
672:
366:
355:
480:, Commissioner for Justice, Fundamental Rights and Citizenship,
721:. As for Secretary Snow, he disagreed with executive editor of
1611:
31:
program to access financial transactions on the international
1536:
Letter From Bill Keller on The Times's Banking Records Report
1236:
Simon Bendtsen & Peter Suppli Benson (26 February 2012).
545:
182:
On 27 June 2006, it was revealed by the media that Belgium's
81:
revealed that the United States government, specifically the
32:
1165:"Remarks by Vice President Biden to the European Parliament"
567:(SWIFT) in relation to the transfer of personal data to the
1697:
Society for Worldwide Interbank Financial Telecommunication
876:
565:
Society for Worldwide Interbank Financial Telecommunication
629:
divulged information about the TFTP at the same time. The
1052:
1050:
585:
143:
The Terrorist Finance Tracking Program was viewed by the
86:
69:
A series of articles published on June 23, 2006, by the
1648:
Information on Financial Information Sharing Agreements
1594:"Can 'Magazines' of The Times Subsidize News Coverage?"
1496:"U.S. Lacks Strategy to Curb Terror Funds, Agency Says"
879:"Bank Data Is Sifted by U.S. in Secret to Block Terror"
1656:
1047:
637:
that its reporting about the TFTP is protected by the
100:
article, the program helped lead to the capture of an
1445:"Authorities trying to track money back to bin Laden"
903:
Blustein, Paul, Gellman, Barton, and Linzer, Dafna. "
844:
U.S. Treasury Tracks Financial Data In Secret Program
824:
Bank Data Is Sifted by U.S. in Secret to Block Terror
663:, mentioned that the "CIA and agents with Treasury's
416:"We would like to complement the observations of the
1081:
1079:
877:
Lichtblau, Eric & Risen, James (June 23, 2006).
377:
stated that the Danish businessman has violated the
1620:"Bill Keller Responds to Column on Swift Mea Culpa"
217:(EU) obtained an agreement that they could send an
1275:
1273:
1183:
1076:
1021:"Bank wacht boete bij zwijgen over informeren VS"
601:for reporting on the program, and Representative
1668:
1238:"Dansk politimand fanget i amerikansk terrornet"
861:Secret U.S. Program Tracks Global Bank Transfers
667:also will try to lay tripwires to find out when
1585:
1493:
1290:
1288:
1114:"Merkel to seek intelligence rule book with US"
1270:
342:revelations about mass surveillance by the NSA
205:In addition, the New York branch of the Dutch
108:in 2003, believed to be the mastermind of the
1522:"Opinion & Reviews - Wall Street Journal"
1305:
1303:
1442:
1383:Bush's hypocrisy once again comes into focus
1285:
1687:George W. Bush administration controversies
1415:
679:and private organizations called SWIFT and
253:
1300:
318:or the processing contravenes the treaty.
1582:", July 11, 2006. Retrieved July 23, 2006
1562:", June 26, 2006. Retrieved June 26, 2006
1542:, June 25, 2006. Retrieved June 25, 2006.
1389:, June 29, 2006. Retrieved June 29, 2006.
1355:, June 28, 2006. Retrieved June 28, 2006.
982:, June 27, 2006. Retrieved June 27, 2006.
976:NBB 'aware' of Swift's actions since 2002
966:, June 22, 2006. Retrieved June 23, 2006.
911:, June 23, 2006. Retrieved June 23, 2006.
867:. June 22, 2006. Retrieved June 23, 2006.
850:, June 22, 2006. Retrieved June 23, 2006.
830:, June 22, 2006. Retrieved June 23, 2006.
802:Farrell, Henry and Abraham Newman. 2019.
1692:United States Department of the Treasury
1418:"Bin Laden's Finances Are Moving Target"
1406:, June 28, 2006. Retrieved July 3, 2006.
1372:, June 26, 2006. Retrieved July 3, 2006.
1340:O’Connor, Patrick and Allen, Jonathan. "
1038:Article 29 Data Protection Working Party
920:
573:United States Department of the Treasury
544:The Article 29 Working Party calls upon
177:
994:"Belgian PM: Data Transfer Broke Rules"
408:"We support all the points made by the
1669:
1617:
1591:
1469:"President Freezes Terrorists' Assets"
1085:
748:On October 22, 2006, Public Editor of
413:Tracking System ("TFTS") at EU level".
1682:Counterterrorism in the United States
1494:Lichtblau, Eric (November 29, 2005).
991:
786:Financial Crimes Enforcement Network
665:Financial Crimes Enforcement Network
248:
1653:European Data Protection Supervisor
1443:Shane, Scott (September 21, 2001).
822:Lichtblau, Eric and Risen, James. "
426:European Data Protection Supervisor
395:European Data Protection Supervisor
306:
13:
1618:Calame, Byron (November 6, 2006).
1592:Calame, Byron (October 22, 2006).
1086:Ermert, Monika (23 October 2013).
960:Swift Press Release on the Program
796:
379:United States embargo against Cuba
21:Terrorist Finance Tracking Program
14:
1713:
1659:, 5 August 2012. (In particular,
1640:
1471:. 14 October 2004. Archived from
633:itself argued in a June 28, 2006
607:House Homeland Security Committee
401:, Commissioner for Home Affairs,
233:, at the Department of Treasury.
53:in June 2006. It was part of the
569:Office of Foreign Assets Control
321:
192:Christian Democratic and Flemish
1565:
1545:
1528:
1514:
1487:
1461:
1436:
1416:Mintz, John (August 28, 1998).
1409:
1392:
1375:
1366:Lawmaker Wants Times Prosecuted
1358:
1334:
1258:
1229:
1204:
1157:
1132:
1106:
1031:
1013:
985:
921:Bilefsky, Dan (June 28, 2006).
859:Meyer, Josh and Miller, Greg. "
593:A number of Republicans in the
112:, as well as helped identify a
1311:"European Commission document"
1216:oeil.secure.europarl.europa.eu
1144:oeil.secure.europarl.europa.eu
992:Brand, Constant (2005-09-28).
969:
952:
933:
914:
897:
870:
853:
833:
816:
651:U.S. government classification
196:Belgian State Security Service
134:Terrorist Surveillance Program
124:. The Treasury Department and
1:
1677:Counterterrorism intelligence
1094:. Intellectual Property Watch
810:
806:. Princeton University Press.
691:U.S. National Security Agency
595:U.S. House of Representatives
293:
120:for an al-Qaeda operative in
35:network that was revealed by
905:Bank Records Secretly Tapped
659:article, in the wake of the
528:
229:, had a permanent office in
7:
779:
138:NSA wiretapping controversy
96:According to the June 2006
64:
10:
1718:
1661:response dated 27th August
495:July 13: Council Decision
329:
310:
280:
116:man convicted in 2005 for
1342:GOP bill targets NY Times
1280:Consultation and comments
288:Single Euro Payments Area
1400:Patriotism and the Press
923:"Rights group complains"
577:Article 29 Working Party
536:Article 29 Working Party
515:Article 29 Working Party
510:presents draft mandate.
474:Article 29 Working Party
456:Article 29 Working Party
410:Article 29 Working Party
271:
254:Legal treaty development
238:National Security Agency
219:investigating magistrate
188:National Bank of Belgium
147:as another tool in the "
29:United States government
1387:The Albuquerque Tribune
945:United States v. Miller
703:U.S. Treasury Secretary
464:
385:
348:
334:
162:United States v. Miller
149:Global War on Terrorism
44:The Wall Street Journal
1295:Commissioner agreement
1062:www.europarl.europa.eu
746:
589:disclosure controversy
340:October 23: Following
236:Disclosures by former
91:September 11th attacks
947:, 425 U.S. 435 (1976)
738:
661:U.S. embassy bombings
615:Espionage Act of 1917
458:letter regarding TFTP
311:Further information:
178:European privacy laws
50:The Los Angeles Times
1702:Funding of terrorism
695:public announcements
227:Jean-Louis Bruguière
1423:The Washington Post
1370:The Washington Post
848:Wall Street Journal
774:checks and balances
742:terrorist financing
627:Wall Street Journal
534:November 22, 2006:
508:European Commission
482:European Commission
403:European Commission
223:High Representative
145:Bush administration
104:operative known as
75:Wall Street Journal
55:Bush administration
1578:2006-09-23 at the
1558:2006-09-23 at the
1347:2006-10-20 at the
940:U.S. Supreme Court
750:The New York Times
732:on July 11, 2006,
723:The New York Times
617:and other related
213:Consequently, the
157:U.S. Supreme Court
38:The New York Times
1651:, request to the
1364:Devlin Barrett. "
1120:. 25 October 2013
1064:. 23 October 2013
964:Los Angeles Times
865:Los Angeles Times
840:Simpson, Glenn R.
623:Los Angeles Times
399:Cecilia Malmström
249:EU-U.S. relations
110:2002 Bali bombing
79:Los Angeles Times
1709:
1635:
1634:
1632:
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1615:
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1316:. Archived from
1315:
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1262:
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1008:
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989:
983:
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931:
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927:The Boston Globe
918:
912:
901:
895:
894:
892:
891:
874:
868:
857:
851:
837:
831:
820:
714:lack of progress
619:federal statutes
313:Citizen's rights
307:Citizen's rights
231:Washington, D.C.
167:Fourth Amendment
130:counterterrorism
118:laundering money
59:War on Terrorism
16:US state program
1717:
1716:
1712:
1711:
1710:
1708:
1707:
1706:
1667:
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