INFORMAL U.S.-EU MEETING ON JUSTICE AND HOME

UNCLAS SECTION 01 OF 05 BRUSSELS 000337

SIPDIS

DEPARTMENT FOR INL/PC, CA/VO/BIP AND EUR/ERA; HOMELAND
SECURITY FOR ELAINE DEZENSKI

E.O. 12958: N/A
TAGS: CPAS CVIS KCRM KJUS PREL SNAR EUN USEU BRUSSELS
SUBJECT: INFORMAL U.S.-EU MEETING ON JUSTICE AND HOME
AFFAIRS WITH LUXEMBOURG PRESIDENCY JANUARY 13-14


1. Summary. At the Informal Meeting on Justice and Home
Affairs (JHA) held February 13-14 in Luxembourg, the U.S. and
EU reviewed outstanding issues and areas for further law
enforcement, border security and counter terrorism
cooperation during the coming six months. The U.S. presented
to Europol a formal proposal for joint analysis of frozen
terrorist bank accounts. Eurojust promised to explore the
issue of the use of classified intelligence in criminal
prosecutions with a view to harmonizing practice among the 25
EU Member States. Eurojust will consider U.S. participation
in a conference on counterfeiting to be held April 6 in The
Hague. The EU requested a second extension of the deadline
for biometrics in travel documents now set for October 26.
The U.S. asked the EU to consider periodic meetings on
emerging crime issues of concern to both sides and possible
solutions. The U.S. said it would like to cooperate more
closely with the EU on operational and technical assistance
to combat organized crime and offered a position to the EU in
DOJ's Organized Crime Unit. Both the Presidency and the
Commission were receptive to enhancing our cooperation in
combating organized crime in the Balkans. We invited the EU
to make a presentation during a JHA training seminar for
resident legal advisors in the Balkans region to be held this
spring in Bucharest. The U.S. noted that intellectual
property theft is increasing and described the STOP
initiative (Strategy Targeting Organized Piracy). The U.S.
proposed a gathering of interested Member States to cooperate
on specific targets, perhaps through Eurojust. The U.S. said
it had serious concerns about the proposed UN Cybercrime
Convention to be discussed at the April Crime Congress in
Bangkok and asked whether the EU was interested in
cooperating on this issue. The EU promised to raise this
issue at the February 7 meeting of the Article 36 Committee.
End summary.


2. Delegations: The U.S. delegation was led by Deputy
Assistant Attorney General Bruce Swartz and included DHS DAS
Elaine Dezenski, CA/VO/BIP Director Paul Fitzgerald, INL/PC
Deputy Director John Bargeron, EUR/ERA Kimber Shearer, USEU
Senior Counsel Mark Richard, USEU/NAS Frank Kerber, USEU/PRM
Marc Meznar, USEU/ECON Jennifer Underwood, Embassy Brussels
Legatt Fred Wong, Embassy London ECON Jean Bonilla, and
Embassy Luxembourg DCM Daniel Piccuta and JHA Officer Jim
Connell. The EU delegation was led by Luxembourg Article 36
Chair Roland Genson and included Council Secretariat JHA
Director Gilles de Kerchove, Luxembourg Chair of the
Strategic Committee on Immigration, Frontiers and Asylum
Sylvain Wagner, UK Home Office Director Peter Storr, DG JHA
Tung-Lai Margue, JHA Counselor at the EU Representation in
Washington Telmo Baltazar, Europol Deputy Director Jens
Hojbjerg, and Eurojust President Michael Kennedy.


3. The EU opened the meeting by noting that the November
2004 European Council adopted the "Hague Program" for Justice
and Home Affairs. (Note that JHA has been renamed JLS for
the French acronym for Justice, Freedom and Security.) The
Hague Program covers the period 2005-2009 and follows on the
Tampere Program. Its overall objective is to reinforce the
JHA capacity of the EU as a whole as well as that of the
individual Member States. The Program emphasizes practical
cooperation among law enforcement agencies throughout the
Union. Counter terrorism is a Program priority. A permanent
committee on security is to be established once the new EU
Constitution is adopted. The Program cites provisions for
data protection and calls for the creation of an index of
convicted persons within the EU. Swartz noted the importance
of information sharing and related issues of data protection.
He suggested that the U.S. might work with Eurojust on the
issue of the use of classified intelligence in criminal
prosecutions. Swartz noted that the U.S. is assigning a
Secret Service agent to Europol to work on counterfeiting as

SIPDIS
well as an Assistant Legal Advisor to work on terrorism.


4. In the area of external relations, Genson said that
cooperative relations with the U.S. are of the highest
priority. He also noted the importance of Russia and
Ukraine, and noted that since the fight against organized
crime in third countries is a priority for both the U.S. and
the EU, we should consider coordinating on joint efforts. He
stressed the importance of working with the U.S. on counter
terrorism. He urged quick agreement on the date for the next
meeting of the Policy Dialogue on Border and Transport
Security to be held in Brussels this spring. Genson noted
the February 1-2 visit to Washington of Luxembourg Justice
Minister Frieden and Commission Vice President Frattini as a
useful opportunity to discuss U.S.-EU cooperation and
welcomed the upcoming visit of President Bush in February.
Swartz responded that the U.S. wished to fully engage with
the EU and considered this its most important relationship in
this area. We would like to discuss further with the EU their
cooperation with Russia and Ukraine to ensure our efforts are
fully integrated, particularly regarding anti-corruption and
strengthening rule of law in those countries. Mark Richard
asked the EU to consider periodic meetings on emerging crime
issues of concern to both sides and possible solutions.
Such an exchange of views would be beneficial when developing
long-term programs and action plans such as the Hague
Program.

Counter terrorism
--------------


5. Genson said the EU's counter terrorism priorities
included implementing the European Mutual Legal Assistance
decision, terrorist finance, and strengthening civilian
protection assistance to respond to terrorist attacks. The
June U.S.-EU Counter terrorism Summit Declaration outlined a
number of areas for joint cooperation. The EU is also
concerned about radicalization and recruitment among the
Muslim populations in Europe. Commission rep Margue said
there is interest in consulting on DNA data sharing,
improving the flow of law enforcement information and
strengthening cooperation between police and security
agencies. The U.S. presented to Europol a formal proposal on
the joint analysis of frozen terrorist accounts. Europol
agreed to respond to the proposal soonest. Both sides agreed
on the value of the terrorist finance practitioners workshop
held in November consisting of criminal investigators and
prosecutors and that this should be the beginning of a series
of such workshops. Carlos Zeyen from the Luxembourg
Prosecutor's Office noted that the Presidency had agreed to
host a two-day workshop on designation procedures. There was
some confusion over the agenda for the next conference of
practitioners, but the U.S. suggested that Luxembourg
consider having designators and practitioners meet separately
on the first day, and together on the second day.


6. On the issue of the use of classified information in
criminal prosecutions, Genson reported that the EU had
distributed the G8 questionnaire on this subject to the
Member States. There had been no formal responses to the
questionnaire to date. This is essentially a national law
issue where the EU has only a small role. The primary
difficulty was not disclosure, but the acceptance of such
data as "evidence" by the court. Swartz responded that this
is a sensitive and important topic The U.S. also is
grappling with it. The principles of the European Court of
Justice also govern the U.S. process. Richard said that if
we do not address this issue, our cooperation in fighting
terrorism will be hindered. If we must deal with this
bilaterally, we will have 25 different systems and urged the
EU as a whole to work on a solution. Genson asked whether
Eurojust might be willing to take this on. Eurojust
President Kennedy reluctantly promised to explore the issue,
citing the agency's already full program. Swartz offered to
provide the U.S. Classified Information Procedures Act to
assist this effort. UK rep Storr noted there is a wide
variety of practice among EU Member States regarding sharing
intelligence and that it is unlikely the EU will be able to
develop a common practice; at a minimum they can identify
barriers and issues among the Member States. DOJ committed
to provide a non-paper on the issues/barriers to using
classified information in criminal proceedings as the basis
for a future dialogue on the issue.


7. On border security, the Commission noted that SIS II
(Schengen Information System) is scheduled to be operational
in 2007 and will be able to exchange data with Interpol's
lookout systems. CA/VO/BIP Office Director Paul Fitzgerald
used this opportunity to press our proposal to share
expertise and experiences as the EU builds their common Visa
Information System such that we have the greatest
interoperability possible on lookout sharing information. He
noted the recent letter from the U.S. to the EU extending the
USG offer to seek an appropriate, single EU point-of-contact
to convene a legal and technical working group, as discussed
at the November PDBTS.


8. On the Lost and Stolen Passports Initiative, Fitzgerald
reported that as of November, the U.S. had entered over
464,000 records into the Interpol database but that there
have been no confirmed hits to date. Richard asked how often
EU Member States queried the database and the EU was unable
to provide or indicate the number of hits; however, the
Commission committed to provide the U.S. with information on
Member State use and sharing of legacy and new Lost and
Stolen Passport data. The Commission said that it will
publish a report by the end of the year detailing Member
State compliance with the new obligation to transfer all
legacy and new data on lost and stolen passports to Interpol.
The report may also examine Member State usage of the
Interpol database in identifying and confirming passport
fraud.


9. On terrorist recruitment, Genson noted there had been a
seminar held in November and the Council had called for a
long-term strategy and action plan by June 2005. The UK rep
stated that the UK would take this work further under its
Presidency. Swartz promised to ask the intelligence
community to produce a paper on the subject to be shared with
the EU. Genson said an internal EU meeting on this will be
held February 7. DHS mentioned that Secretary Ridge earlier
that week announced DHS would provide USD 12 million to fund
an American University study on causes of terrorism.


10. On data retention, Genson said that several members had
submitted proposals to retain data for a longer period of
time. The EU was aiming to adopt some standard by June, but
there were multiple aspects to the problem, including cost
and figuring out exactly what law enforcement needed. The EU
wished to avoid excessive retention periods. Swartz
responded that the U.S. was going in a different direction.
While we did not mandate retention, the law ensured that all
records that did exist were frozen and available to law
enforcement. Richard asked if the Council has recommended
that Member States join the Council of Europe Cybercrime
Convention. Genson replied no. Swartz said that the U.S.
regarded the COE Convention to be excellent but had serious
concerns about the proposed UN Cybercrime Convention to be
discussed at the April Crime Congress in Bangkok. The U.S.
finds the UN proposal to be duplicative. Did the EU wish to
work with us on opposing this effort? Genson said he would
raise this at the February 7 meeting of the Article 36
Committee. Swartz offered to produce a non-paper on this
issue and said the U.S. was willing to meet with the
Committee if that would be helpful.

Law Enforcement Cooperation
--------------


11. On the bilateral protocols to the U.S.-EU Extradition
and Mutual Legal Assistance Agreements, Genson noted that
protocols with 7 of the 15 had been signed, that 4 more were
near completion, and 4 others had outstanding issues
(Austria, Ireland, Germany and Portugal). Luxembourg hoped
to sign its bilateral protocols during Minister Frieden's
upcoming visit to Washington. Richard said the U.S. would
like to conclude negotiations with all 25 members during this
Presidency, if possible. As soon as the 15 have been
completed we will begin negotiations with the ten new
accession states. The EU said they were pressuring and would
continue to urge the four remaining members to complete
negotiations and to facilitate the negotiations with the
accession states. Model texts have been distributed to the
new Member States and we are waiting for their statement of
preferences on the protocol approach before developing
specific draft protocols for each of the ten.


12. Europol Deputy Director Jens Hojbjerg noted that there
is to be a joint evaluation of U.S.-Europol cooperation in
the first quarter of CY 2005. Workload at the Europol
liaison office in Washington tripled last year over 2003.
Cooperation with all U.S. law enforcement agencies have
improved with the exception of DEA. Europol has been
mandated to produce an annual organized crime assessment.
U.S. cooperation could prove important in this effort.
Richard noted that DEA is moving its international program
management overseas and has proposed putting an assistant
regional director in Brussels at the USEU Mission. Embassy
Brussels Legatt Fred Wong reported that the FBI opened a
suboffice in The Hague on December 5 to handle both bilateral
and Europol business with an emphasis on terrorism. He
promised to provide the EU with FBI criminal intelligence
assessments. Richard noted that the assignment of an FBI
agent to Europol was predicated on the revitalization of its
counter terrorism task force. The exact functions of this
agent depend on how this unit develops.


13. Eurojust President Michael Kennedy acknowledged that
cooperation with the U.S. to date had been minimal. A
workshop scheduled for February 7 with U.S. practitioners
will examine a major terrorism case of relevance on both
sides of the Atlantic and discuss lessons learned. Most of
Eurojust's work dealt with counterfeiting and drugs, while
terrorism accounted for only ten percent of its focus.
Terrorism should not be the sole focus of U.S.-Eurojust
cooperation. There will be a meeting on April 6 on
counterfeiting which will include not only counterfeiting of
the Euro but also IP counterfeiting.


14. Kennedy asked the DOJ to appoint a contact person in
Washington with a judicial/prosecutorial background. He said
a formal agreement with the U.S. was desirable. Eurojust
already has such an agreement with Norway. Swartz responded
that since cooperation with Eurojust was in the beginning
stages, we wanted to see the results of this relationship
before devoting resources to negotiating an agreement.
Richard noted there were some basic issues to consider when
negotiating such an agreement such as sharing of information
with Member States through Eurojust which would introduce new
data protection procedures for information already being
shared on a bilateral basis. For another, the U.S. has
always worked with central judicial authorized in capitals.
Will a U.S.-Eurojust agreement bring value added? Genson
suggested examining how the Extradition and MLA Agreements
could influence an agreement with Eurojust.


Travel Document Security
--------------


15. The EU described its efforts to incorporate biometrics
into passports. The Commission rep urged the U.S. to extend
the October 26 Congressional deadline, because although
Member States have been very active in trying to meet the
deadline, they will need more time to implement the new
technology. This was the EU's highest priority request. DHS
DAS Dezenski recalled that the Administration had asked
Congress for a two-year extension of the deadline, but
Congress had opted for one year. On the issue of the VWP
review, she noted that this work continues and that DHS
remains committed to advance notification to the EU, which
will be coordinated with the Department of State when the
report is ready for congressional review. She also noted
that to the extent the EU can demonstrate progress in
implementing both biometrics and machine readable passports,
it will send a positive message to the U.S. Congress that
parties are fully committed to meeting these objectives as
quickly as possible and suggested, along with Swartz, that
this could be raised during Minister Frieden's meetings on
the Hill during his upcoming visit. Fitzgerald said the U.S.
still hoped to have a SCIFA meeting with the EU during the
Luxembourg Presidency to discuss these issues.


16. Fitzgerald briefed on U.S. efforts to include biometrics
in passports, noting that the U.S. expects to begin limited
production of official passports by late Spring 2005, and
begin producing tourist passports with embedded biometrics
this summer. After Fitzgerald noted that fingerscans in
travel documents is the key to border security issues, the EU
urged the U.S. to keep the information on the biometrics
limited in scope.


17. Dezenski noted that the Visa Waiver Program Report was
in its final review stage within DHS before going to Congress
and promised to provide advance notification of its results
to the EU as early as possible.

Practical Cooperation
--------------


18. Genson said the EU had produced several handbooks on
"special events" security management (such as the 2004
Olympics) and offered to share these with the U.S. Richard
suggested we convene a meeting of experts in this area to
discuss upcoming events and to coordinate planning.


19. Genson said the Presidency intended to hold a workshop
on first responders and technological aspects of public
security communications. He asked whether the U.S. would be
interested in participating. Swartz replied that this was a
useful idea and cited U.S. cooperation with Canada on common
radio frequencies. Dezenski said DHS would be supportive.


20. Swartz noted that intellectual property theft is
increasing and described the STOP initiative (Strategy
Targeting Organized Piracy) in connection with the criminal
aspects of IP activities. In response to an inquiry about
what the EU and Member States are doing in this area, the
Commission replied that it is thinking about possible
legislation. Swartz promised to share a paper on U.S. recent
work in this area. Richard proposed a gathering of
interested member states to cooperate on specific targets,
perhaps through Eurojust? Kennedy said the April 6
conference on counterfeiting will also include counterfeit
goods. Genson asked for copies of relevant U.S. legislation
on the issue.


21. Swartz said the U.S. would like to cooperate more
closely with the EU on operational and technical assistance
to combat organized crime, including through the SECI Center
in Bucharest, and offered to receive an EU official in DOJ's
organized crime unit. Genson said the EU would carefully
consider a secondment to DOJ. The Europol deputy director
suggested that the Europol liaison officers in Washington
could add organized crime to their portfolios. Legatt Wong
said the FBI would like to participate in joint investigative
teams with the EU as is done now in Hungary.


22. The EU detailed their Drugs Strategy for 2005-2012 and
noted that they want to focus international cooperation on
the Balkans, Afghanistan and Latin America (Caribbean).
INL/PC's John Bargeron said the U.S. wants to coordinate more
on demand reduction and on the growing threat of synthetic
drugs. The U.S. recommended continuing the pattern of
sharing draft resolutions in advance of the March Commission
on Narcotic Drugs, but noted that presently we have no
specific resolutions. USEU/NAS Kerber mentioned that the
White House Drug Czar will address the European Parliament in
March. Peter Storr noted that Afghanistan is the biggest
source of drug flow to the EU, and gave credit to the U.S.
for trying to solve the problem there.


23. Swartz described the U.S. initiative on "grand
corruption," i.e., how to respond to countries whose corrupt
leaders steal national assets. Richard said there is a need
to provide rapid response teams to assist in gathering facts
and developing MLA requests. Stolen national assets are
frequently secreted in multiple locations abroad. Are EU
Member States interested in participating in this effort?
Genson said he would put the item on the next meeting of the
Article 36 Committee in February.


24. Genson noted that the first of a series of "confidence
building" seminars is now scheduled for April 7-8 to be held
in Brussels and The Hague and asked for the U.S. response to
the draft agenda. Richard agreed to provide a response
soonest. In the context of the confidence building program,
Richard raised the possibility of conducting a series of
"town meetings" throughout the Member States at which EU and
USG officials together would discuss specific JHA issues with
targeted audiences. Swartz noted that DOJ is planning to
hold a training seminar for its regional legal advisors
posted in the Balkans at the SECI Center in April. He
invited the EU to make a presentation on EU action in the
region. Meznar said the department is sponsoring a 10-day
voluntary visitors program in June for ten EU officials on
U.S. programs for the integration of migrants. If
successful, a second program could be held later in the year.
The incoming UK Presidency said it expected this issue to be
one of its highest priorities.

Transatlantic Legislators Dialogue
--------------


25. Both sides agreed to facilitate small focused
meetings/visits between key U.S. congressmen/women and EU
parliamentarians to discuss JHA issues. Ambassador Terpeluk
offered to assist in this effort. It was noted that efforts
are being made by the EU to have Commissioner Frattini and
Minister Frieden meet with Senators Specter and Lugar when
they are in D.C.

SCHNABEL
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