FRANCE: GOVERNMENT CONCERNED ABOUT LEGAL BASIS FOR

UNCLAS SECTION 01 OF 02 PARIS 008390

SIPDIS

SENSITIVE

FOR EUR/WE--SBALL, EB/TRA--BMATTINGLY, S/CT--SKONTOS
DHS FOR TSA

E.O. 12958: N/A
TAGS: EAIR FR PTER
SUBJECT: FRANCE: GOVERNMENT CONCERNED ABOUT LEGAL BASIS FOR
NO-FLY/SELECTEE SYSTEM

REF: PARIS 08311


1. (SBU) SUMMARY: In a December 7 meeting with a French
official, Emboffs reviewed current arrangements for
implementing the No-Fly system in France, and discussed GOF
concerns about its legal basis in U.S. domestic law and ICAO
conventions. Our contact also raised the potential
applicability of French data privacy law to No-Fly screening,
and downplayed the likelihood of quick implementation of the
Selectee Emergency Amendment (EA). Post requests guidance on
how to respond to legal issues raised by the GOF. END SUMMARY


2. (SBU) Econoff and TSA representative (TSAR) met December
7 with Col. Pierre Edery, who recently replaced Col. Henri
Schlienger as responsible for aviation security at the
Secretariat Generale de la Defense Nationale (SGDN),the

SIPDIS
Prime Minister's coordinating office for anti-terrorism. He
provided a read-out of the report delivered after the recent
visit of a delegation from the Direction Generale de
L'Aviation Civile (DGAC) to Washington, that had been
requested by the GOF to better understand the operation of
the U.S. No Fly and Selectee Emergency Amendments (EA)s and
their implementation. We were able to provide a number of
additions and corrections to information contained in the
report, including the size of the No-Fly list, the different
criteria for inclusion on the No-Fly or Selectee lists, and
the different methods for transmitting APIS data to the USG.



3. (SBU) We also reviewed the specific arrangements the USG
has established with the GOF for compliance with the No-Fly
EA, pointing out that multiple notifications when we detect
NF matches based on APIS data were particularly cumbersome to
manage. Col. Edery appeared open to a greater role for the
DGAC in "crisis management" of time-sensitive issues such as
individual No-Fly cases. Issues involving larger numbers of
flights or broader national interests were clearly in SGDN's
purview (e.g. designation of "flights of interest" or
discussions regarding the basic conditions for applying EA's
or other issues requiring inter-ministerial coordination
within the GOF).


4. (SBU) Edery also provided new insight into the basis for
SGDN's concerns that application of U.S. EA's by French
airlines in France stands on a shaky legal basis, noting that
the GOF wished to make sure this would not be open to
challenge in French courts. The DGAC's report raised a
number of questions about the grounds for applying EA's to
foreign airlines in the U.S., and for airlines to deny
boarding to passengers on the No-Fly list. TSAR provided an
explanation of the security components of U.S. licensing
procedures for foreign carriers, as well as an explanation of
the conditions of carriage which passengers agreed to upon
purchase of a ticket.


5. (SBU) The report also apparently questioned whether
article 13 of the ICAO convention provided adequate legal
justification for the No-Fly system. While disclaiming any
special juridical expertise, we suggested that he consider
both article 13 and annex 17 as grounds supporting the No-Fly
system. It was clear however that questions raised in the
report were of considerable complexity: e.g. "can the
exclusion of a flight because of the presence of a passenger
on a watch-list not based on criteria admissible in normal
jurisprudence be considered a "law" or "regulation" of a
contracting state?" Edery said SGDN was on the verge of
requesting that the MFA study the issue and provide them with
an opinion. We agreed to meet again with Edery and SGDN
legal staff next week to review issues and listen to their
concerns in more detail.


6. (SBU) The DGAC report also raised the question (apparently
shared by the Interior Ministry, the Transportation Ministry
and Air France) as to whether the No-Fly list constituted an
"interconnected database" (a new database constituted by
merging two separate sets of information) that would require
authorization by the National Commission for Data Privacy
(CNIL) under the terms of a French law of January 6, 1978.
If this were the case, it could mean that provisions of the
law such as notification of those included and seeking their
consent before providing data to third parties would be
applicable--not the optimum situation for anti-terrorist
operations, as Col. Edery observed.


7. (SBU) The CNIL has expressed considerable reservations
about the provisions in the anti-terrorism legislation
currently under consideration that would provide the GOF with
authority to collect APIS and PNR data on passengers arriving
from or departing to countries outside of the EU (reftel).
Edery told us SGDN sought to include explicit mandate for
No-Fly and Selectee screening in the draft legislation, but
had removed it due to opposition from the CNIL. They were
now considering three possible means of providing legal
grounding for No-Fly screening: CNIL authorization according
to the 1978 law, specific legislation authorizing No-Fly
screening, or a bi-lateral or multi-lateral agreement with
the U.S. on aviation security. Prodded on the broad latitude
that pending legislation would appear to give to GOF to
screen passengers, he did not seem convinced that it would
provide a sufficiently secure basis to protect No-fly
cooperation with the U.S. from possible legal challenge.


8. (SBU) Finally, Col. Edery frankly admitted that while
continuing French cooperation on No-Fly was not in doubt,
current guidance from the Prime Minister's Office on the
Selectee EA was not to move ahead at this time, while the GOF
is involved in sensitive efforts to secure passage of the new
anti-terrorism law.


9. (SBU) Comment: The pragmatic and frank tone of this
conversation is encouraging, and we will seek to profit from
this new attitude to make operational improvements in our
No-fly arrangements with the French. Though GOF concerns
about the applicability of their data privacy legislation to
the No-Fly system appear to be sincere, they have so far not
impeded its implementation here. After the expected adoption
of the new anti-terrorism law in January, we should be
prepared to renew our push for application of the Selectee
EA. End comment.


10. (SBU) Action Request: Post requests guidance and
additional information on the legal foundation of No-fly
screening in domestic American law and the ICAO conventions
to use in responding to GOF questions and concerns.
Please visit Paris' Classified Website at:
http://www.state.sgov.gov/p/eur/paris/index.c fm

Stapleton