SCENESETTER: LEGAL ADVISER BELLINGER'S VISIT TO

UNCLAS SECTION 01 OF 03 BERLIN 002957

SIPDIS

SIPDIS
SENSITIVE

STATE FOR L - LEGAL ADVISER BELLINGER

E.O. 12958: N/A
TAGS: KJUS PTER PGOV PREL GM
SUBJECT: SCENESETTER: LEGAL ADVISER BELLINGER'S VISIT TO
GERMANY TO DISCUSS LEGAL ASPECTS OF THE WAR ON TERROR

REF: A. HAMBURG 63

B. BERLIN 1995

C. BERLIN 2785

D. BERLIN 2654

E. BERLIN 2577

F. BERLIN 2303

G. BERLIN 2058


1. (SBU) Summary. Mission Germany warmly welcomes you and
your delegation for talks which will deepen our cooperation
with Germany in the Global War on Terror. The German
Government is serious about combating terrorism and,
especially in the wake of the failed train bombing attampts
in July, is looking to beef up counterterrorism measures
internally, in concert with us, and among EU members. German
cooperation has been good, including in law enforcement and
other channels. Interior Minister Schaeuble emphasized
Germany's desire to do more -- including with respect to
terrorist lookout data-sharing -- during his recent visit to
Washington. That said, many in the German public believe
that the USG has to a certain extent lost its moral bearings.
The list of issues Germans around the country cite:
Guantanamo/military commissions; Abu Ghraib; allegations of
renditions, secret detention centers, and domestic
eavesdropping; and SWIFT. Factors unique to Germany
sometimes further complicate issues here -- the use of U.S.
air bases in Germany and Germany's own twentieth century
history, for example. Despite these challenges, the current
and the previous German government have been strong partners
in counterterrorism and each side is exploring ways to expand
our cooperation. Above all, German officials will appreciate
our willingness to engage in a meaningful dialogue with them
on international law aspects of the War on Terror. The MFA
organized the "Legal Issues in the Fight Against Terrorism"
Conference to discuss our governments' interpretations of our
legal obligations and what more we can do to reach common
ground. Your participation and that of your delegation will
go a long way to reassure the Germans that, while firm in our
resolve to fight terrorism worldwide, we do not intend to do
so at the expense of abandoning the fundamental legal tenets
and values that have guided us and our allies. End Summary.

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German Legal Changes to Fight Terrorism
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2. (SBU) In the immediate aftermath of 9/11 and the
realization that planning took place in Hamburg, the German
government enacted a series of legal changes. These new laws
banned membership in foreign terrorist organizations,
strengthened the federal Interior Ministry's ability to ban
extremist associations, and simplified security service
access to financial and travel records. With the threat of
terrorism made even clearer by, for example, the 2004 Madrid
train bombings, Germany under the previous Chancellor,
Gerhard Schroeder, and then-Minister of the Interior Schily
continued to pursue improvements in Germany's
counterterrorism legal regime to address perceived
shortcomings. Schily created the German version of NCTC --
the Joint Counterterrorism Analysis Center ("GTAZ") in
December 2004. In 2005 a new immigration law accelerated
deportations of those posing a security risk and also enabled
deportations of "hate preachers."


3. (SBU) Chancellor Merkel came into office in November 2005,
intent on expanding still further the legal tools for
fighting terrorism. Interior Minister Wolfgang Schaeuble
subsequently pushed ilegislation to strengthen the
counterterrorism capabilities of the Federal Office of
Criminal Investigation (BKA); simplifying and broadening
security service access to financial, phone, auto
registration and travel data; and extending provisions in
previous law that were subject to January 2007 sunset clauses
(ref B). In recent weeks and in the aftermath of the failed
plot to bomb two German regional trains, Minister Schaeuble
and the interior ministers of Germany's 16 federal states
finally overcame political and legal obstacles and agreed to
a draft law to create a combined counterterrorism database
that incorporates data from Germany's dozens of federal and
state law enforcement and intelligence/security agencies.
The states also have various governing political coalitions,
adding to the complexity of reaching agreement. Each state
has separate police and security agencies and the

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constitution grants states primacy in law enforcement. Until
now, these agencies, all of which are represented at GTAZ,
shared their data in several interagency GTAZ working groups.

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Bilateral Cooperation Strong, Getting Stronger...
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4. (SBU) Bilateral counterterrorism cooperation with Germany
has been strong despite unhelpful media attention -- and the
chill cast by the work that many contacts face in researching
their files to provide relevant data to the Bundestag
investigative committee (see para 6). The Embassy has been
engaged in an effort to broaden information sharing (ref C-G)
to prevent terrorism -- building on an unprecedented level of
information sharing during the summer 2006 Soccer World Cup.
We continue to use every opportunity to point out that only
by connecting the dots among our own agencies and also among
other countries will we continue to be able to stop
terrorism. Senior German officials, including Interior
Minister Schaeuble, share our desire to build up our existing
cooperation.

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...But Public and Media Opinion Still Wary of
U.S. motives and Methods
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5. (SBU) While the German Government and, to a lesser extent,
the German pubblic are cognizant of the threat posed by
international terrorism and the need for an effective
response, many Germans argue that the United States has to a
certian degree lost its moral bearings. This view spans the
political spectrum to include many who are otherwise
well-disposed to the U.S. Many Germans believe the USG acts
in ways Germany and the EU cannot and will not for reasons of
due process, civil liberty protection, and data privacy
rules. Opinion surveys, media reports, and individual
conversations/meetings Mission officers have had around the
country contribute to this picture. A recent in-house speech
by a senior German government attorney categorized the U.S.,
along with Russia and China, as one of the main violators of
international law.


6. (SBU) A Bundestag special investigative committee is
currently considering a number of allegations, including
German knowledge of and complicity in alleged renditions and
bomb targeting in the Iraq war. The committee may continue
to meet throughout the entire term of the current government
(i.e., three more years). While senior German Justice and
Interior officials call the committee a political tool of the
opposition Greens, Free Democrats, and the Left Party, the
committee's work has a resonance with the German public.


7. (SBU) Moreover, a number of U.S. actions in the war on
terror have a German connection. The recent release of Murat
Kurnaz from detention in Guantanamo resulted in press
coverage of his allegations of mistreatment by U.S. and
German interrogators (ref A) and the allegation that the
previous German government failed to follow up on an alleged
U.S. offer to release him years ago. Members of the
Bundestag investigative committee say they will look into the
matter. The German government's position is that the
Guantanamo facility should be closed and the individuals
interned there tried, although German officials will concede
the difficulties the U.S. faces in handling those interned
there who had been seized, for example, in Afghanistan.


8. (SBU) The alleged rendition of Khaled Al Masri is another
case in the media spotlight and of interest to the Bundestag
investigative committee. Working level Justice Ministry
officials state that Spanish authorities gave Germany the
names of U.S. officials allegedly involved and they claim
German prosecutors may have no choice but to seek
international arrest warrants because the case involves the
alleged kidnapping of a German citizen. The German press has
quoted German officials from the opposition saying that the
German prosecutor's investigation would have proceeded faster
if it did not involve the U.S., which they say should "come
clean" on Al Masri. The Al Masri case has been the most
prominent alleged rendition in German media, but the alleged
rendition of Abu Omar also gets press play. Regarding Abu
Omar, German media and politicians have focused on the

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alleged transit of an aircraft in Germany en route between
Italy and Egypt. Politicians cite this case as justification
for seeking more information concerning passengers and cargo
of U.S. aircraft transiting U.S. military airfields in
Germany.


9. (SBU) While the German and U.S. governments have put aside
their differences over the 2003 decision to use military
force in Iraq, the perception lingers in Germany that the war
was "illegal." Many U.S. troops left for Iraq from their
bases in Germany. Later, German coverage of the Abu Ghraib
scandal highlighted those U.S. military personnel said to
have been based in Germany and prompted petitions to the
German Federal Prosecutor to seek indictments of U.S.
military personnel and other officials under Germany's
domestic law implementing the Rome Convention on the
International Criminal Court. The prosecutor ultimately used
his discretion not to pursue charges.


10. (SBU) Germany's press has often exacerbated negative
public opinions. Recent examples:

-- Center-left Stern on Oct. 5: "The 'terror camp' of
Guantanamo has seriously damaged the noble U.S export (of
democracy) because if you repeatedly act like your enemies,
if you mistreat people, kidnap them, violate basic human
rights, you obliterate the differences of which the U.S. is
proud. Many U.S. detention camps in Afghanistan, Iraq and
Guantanamo are legal no man's lands."

-- Center-left Sueddeutsche Zeitung on September 30: "The
new terror billl in the U.S. ridicules the democratic
achievements of the country...At the beginning of the 21st
century, the grinning face of the Middle Ages is peering
through the door, above all in America. Torture, or at least
'torture lite,' has become a legitimate method in the war on
terror."

-- Business daily Financial Times Deutschland on October 2:
"This week, an act will probably be implemented that marks a
change in American history. Congress will now allow the
President to kidnap any foreigner who is suspected of
participating in anti-American terrorism."

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Enhanced Dialogue Will Pay Dividends
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11. (SBU) As noted above, the German Government remains ready
to continue and expand counterterrorism cooperation with us,
notwithstanding the concerns among many in the German public
about U.S. policies and practices. An essential component of
our efforts to reassure our German friends is our willingness
to engage in dialogue at all levels and on all aspects of our
counterterrism policies and efforts. Your participation in
the conference will help further clarify misconceptions about
our intentions and remind our German interlocutors that we
continue to be guided by the rule of law. It will augment
USG efforts to push back vocally and robustly to counter the
negative perceptions of our German and other European critics
and at the same time reinforce the support of our friends in
the German Government and in the German body politic.
TIMKEN JR