SCENESETTER FOR THE U.S.-GERMAN WORKING GROUP ON

C O N F I D E N T I A L SECTION 01 OF 04 BERLIN 003456

SIPDIS

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DOJ FOR OIA
ALSO FOR NCTC/TSC

E.O. 12958: DECL: 12/08/2016
TAGS: PTER PREL KJUS KHLS GM
SUBJECT: SCENESETTER FOR THE U.S.-GERMAN WORKING GROUP ON
CT INFO SHARING

REF: A. BERLIN 1995

B. BERLIN 2795

C. BERLIN 2577

D. BERLIN 2303

E. BERLIN 3075

F. BERLIN 3173

G. BERLIN 3435

Classified By: DCM John M. Koenig for Reasons 1.4 (b) and (d)


1. (C) Summary. The December 12 inaugural meeting of the
U.S.-German Working Group to share counterterrorism
information is an opportunity to achieve significant
progress. German officials have indicated they would be
prepared to share their "Gefaerderliste" (list of those who
pose a threat) and fingerprint data -- information which
agencies here have tried to obtain until now without success.
Germany may also be prepared to engage in HSPD-6 style
terrorist watch list information exchange, on a hit/no hit
basis. Germany envisions sharing with the U.S. along the
lines of its Pruem treaties with its EU neighbors. Vital fr
the U.S. delegation to bear in mind are the ful breadth of
U.S. wishes, priorities among them,and creative ways to
implement them, including va different German agencies. We
also need to gage / bear in mind German priorities and their
legl restraints on data-sharing. End Summary.

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BACKGROUND
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2. (C) German indsets moved our way in part because of the
Novmber 2005 transition to the Merkel-led Grand Coaliion
government, the summer 2006 foiled German train bombings, and
the British airplane plot. Our understanding is that the UK
plot had a deep effect on German leaders when they learned
that international data sharing -- specifically with the U.S.
-- had contributed materially to preventing a catastrophe.
The Merkel government, and Interior Minister Wolfgang
Schaeuble in particular, have moved to enhance German
counterterrorism capabilities through a number of domestic
initiatives, such as the creation of a database combining
terrorist data from federal and state as well as law
enforcement and security agencies (the latter point
particularly delicate in light of Germany's history). The
2006 Additional Counterterrorism Measures Law (ref A),which
streamlines German agencies access to telephone, travel, and
financial data, is another landmark. Germany is deepening
counterterrorism cooperation via the Pruem Agreement with its
closest international partners -- its fellow EU member
states. Finland announced in early December that it may be
the ninth EU country to sign on to this convention that,
among other things, enables instantaneous access to DNA and
fingerprint data in other participating states. As Germany
tightened its cooperation with its neighbors, USG officials
began pointing out that the globalization of the terrorist
threat and the volume of transatlantic travel and trade
argued for closer U.S.-German counterterrorism and
counter-crime cooperation along the lines that Germany
established under Pruem.


3. (C) Interior Minister Schaeuble took up the U.S. proposal
in his meetings with Attorney General Gonzales and DHS
Secretary Chertoff in Washington in September (ref B).

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Specifically, he proposed establishing a bilateral Working
Group to review the full range of options and priorities in
view of the fact that the United States, as a non-EU member
state, would not be able to adhere to some of the EU-specific
provisions of Pruem. The minister's visit came after other
senior level engagement, including the September visits to
Berlin of State Counterterrorism Coordinator Crumpton (ref C)
and FBI Director Mueller (ref D). Subsequent senior level
visits also underscored the USG interest in this project,
including that of Attorney General Gonzales (ref E) and DHS
Assistant Secretary Baker (ref F).

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WHY PRUEM?
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4. (C) Former German Interior Minister Otto Schily conceived
the Pruem Agreement when unspecified EU member states stymied
his efforts to boost EU-wide law enforcement cooperation.
Undaunted, Schily signed the agreement with his willing
neighbors -- the Benelux countries and Austria. His goal was

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to establish a de facto high standard which other EU member
states would eventually feel compelled to join. France,
Spain, and Italy are now on board as well. During its 2007
EU Presidency, Germany intends to seek inclusion of all EU
member states. The draft German/Portuguese/Slovenian
18-month EU
Presidency program also mentions this goal -- a sign of
German determination and will to persevere.

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WHAT IS PRUEM?
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5. (C) Pruem provides a framework for much of the cooperation
that USG agencies have sought to establish with Germany.
Articles two through seven discuss the opening of national
DNA databases to automated queries from other countries via a
national contact point. Articles eight through eleven
discuss similar procedures for national fingerprint
databases, a priority for USG agencies. Article 12 enables
automated access to other countries' vehicle registration
databases. Article 16 is the provision we believe addresses
most closely the biographic data sharing the U.S. seeks under
HSPD-6, although admittedly not in great detail. Articles 17
through 19 address Air Marshals and would naturally need to
be seen in view of existing U.S.-German arrangements.
Articles 20 through 22 concern documentation advisers to
combat illegal migration. We note that DHS already has
arrangements to share expertise on travel documents with
German officials, and is considering more. Article 23
addresses repatriation. Articles 24 through 27 mainly
discuss cross border law enforcement assistance which seems
more relevant to the countries with which Germany shares
borders, although we note that Article 27 (2) discusses a
wide range of possible information that might be shared,
including notably "the identity of telephone subscribers" and
"data from police databases" in Article 27 (2) paras (5) and
(8). Pruem contains many other provisions, among them data
protection (see below). While not a simple blueprint for
U.S.-German cooperation, Pruem shows how far Germany has gone
with its neighbors.

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STRATEGY
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6. (C) The letter from DHS A/S Baker to MOI DG Krause
outlines key U.S. priorities. We would like to add some
specificity. During the November visit of the HSPD-6
delegation (ref G) Interior Ministry Office Director for
Police Information Systems, the BKA Law, and Data Privacy in
Security Affairs Andreas Schultz said Germany would be
prepared to share its "Gefaerderliste" or "List of People
Posing a Threat." (Note: the BKA is the Federal Office of
Criminal Investigation. End Note.) U.S. agencies have sought
access to this list for years. Schultz also mentioned the
existence of the "Einreiseverbotliste" or "List of People
Forbidden from Entry." He said it contained not only
terrorists but also those who Germany will not admit for
reasons such as visa fraud. Germany might be prepared to
share the terrorist / criminal portion of this list. The
Federal Police maintains this list; we have asked that a
representative from the Federal Police take part in the
meetings December 12.


7. (C) The U.S. delegation should assess which among these
U.S. priorities Germany is prepared to implement and how
simple the implementation can be. It may be that for the
sake of progress, we should pursue an agreement on less
contentious issues and leave those issues that present
Germany with the most difficulty for a subsequent round of
negotiations. Schultz and others have said that any
agreement will require amending German legislation and
therefore the consent of the Bundestag; the U.S. delegation
should explore whether there are indeed ways to enable the
start of information exchange without unnecessary delay. As
the Terrorist Screening Center (TSC) is aware, we initiated
information sharing during the 2006 Soccer World Cup by
signing an agency-level, as opposed to Ministerial-level,
agreement without additional legal formalities. This is one
option. That said, it may be that whatever we seek from
Germany requires Bundestag consent. We should then bear in
mind all the more the future precedent a U.S.-German
bilateral agreement would set for the other members of Pruem
and consider the text's possible future application to other

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EU member states. This scenario might argue for a more
complete agreement instead of focusing solely on less
contentious issues.


8. (C) Also important will be a consideration of German
priorities. The U.S. delegation should be ready not only to
discuss how U.S. initiatives would benefit Germany, but to
hear and consider German suggestions. The Minister has
tasked Schultz with establishing the Working Group and
delivering a result -- presumably the initiative has to
contain benefits to both sides. Schultz has not divulged
specific German priorities, but we know that their guideline
will be to seek from us the access to the kinds of
information they receive under Pruem.

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DATA PROTECTION
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9. (SBU) The U.S. delegation should understand German data
protection laws in order to understand better the limits to
German flexibility. The Federal Data Protection Act,
state-level data protection acts, various court precedents,
and numerous sector-specific data protection regulations
govern data protection in Germany. Some German data
protection provisions predate EU data protection directives
and helped shape EU policy; conversely, more recent EU
decision have affected German rules. German data protection
law generally protects the individual from unjustified
collection, storage, and transfer of his/her personal data.
In the area of law enforcement, specific laws -- such as the
BKA law for which Schultz is responsible -- form the legal
basis for collecting and processing personal data. There are
also the Federal Criminal Procedure Code, laws governing the
state police agencies, and laws governing the security
agencies. The German Federal Constitutional Court has
determined there is a fundamental right to "informational
self-determination," but there is not complete clarity on the
limits of this right because the courts have also weighed
this right against the rights of the government to carry out
its responsibilities.


10. (SBU) A key principle is that personal data may only be
processed for the purpose for which it was collected.
Government agencies may only collect data if it is necessary
to fulfilling their responsibilities. Moreover, data
collection has to be transparent. The individual has certain
rights, e.g., to agree that the data be collected. In the
area of law enforcement, the individual has the right to
request information from the collecting agency and to request
deletion of their data. As in other EU member states the
independent Federal Data Protection Commissioner supervises
compliance of federal agencies with data protection rules.

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DATA PROTECTION AND PRUEM
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11. (C) German data protection rules may limit both the data
Germany can receive (they may have no legal grounds to
receive or store it) and the data they can give (they may
have no legal grounds to provide it). The greater the
specificity to the data inquiry, the easier it may be to
exchange data. This is the principle behind the Pruem hit /
not hit system. Germany and (e.g.) Belgium do not simply
swap lists of terrorists and data bases of fingerprints --
German officials tell us data protection laws in both
countries would ban it. Instead Pruem lets them query each
other's records. If there is a hit, it indicates information
or investigations on both sides of the border. So the hit
also immediately produces the grounds for the subsequent
sharing of specific information: furtherance of law
enforcement obligations to carry out ongoing investigations
on both sides of the border.


12. (C) The possible obstacle of German data protection rules
can be overcome in other ways. Again, as the TSC can attest,
during the 2006 World Cup information sharing, the BKA was
concerned that German courts might force them to reveal the
source of possible U.S. tearline background information
provided subsequent to a hit. German courts, however, do not
have the same jurisdiction over German security services such
as the Office for the Protection of the Constitution or BfV
-- the domestic security service. Therefore, during the
World Cup, the two sides decided to share any tearline

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background information via the BfV. Using the BfV may again
be a creative way to overcome obstacles to reaching a
U.S.-German Pruem style agreement.

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PUBLIC CLIMATE
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13. (SBU) The U.S. delegation is aware of the level of
skepticism in many parts of Europe toward certain U.S.
counterterrorism policies. As to Germany specifically, we
note that the new EU Parliament report on alleged renditions
states that more flights went to and from Germany than any
other EU country. A Bundestag Investigation Committee,
established at the urging of the opposition, is looking into
allegations of German "collusion" in the Iraq war, despite
its public stance against it. They have also agreed to look
into allegations that Murat Kurnaz, a Turkish national -- but
longtime German resident -- recently released from
Guantanamo, may have been questioned by German officials
while in detention. The Committee took recent testimony from
senior MOI and other officials about what they knew and when
concerning the alleged rendition of Lebanese/German
dual-national Khaled al Masri. The German media gives
considerable coverage to these allegations. In recent days
the German press alleged that EUCOM in Stuttgart was the site
from which the U.S. "organized renditions."


14. (C) As we describe above, senior German leaders are
committed to pursue a Pruem-style agreement with us, but some
of their staff, who will negotiate with us, are more
circumspect. They know that the Investigation Committee has
demanded documents and that officials have had to testify to
describe their possibly controversial actions, some of which
touch on the U.S. The U.S. delegation should therefore
stress its desire to be transparent and fair in the
negotiations, the goal of which is to share specific
information when warranted to protect our citizens from harm.
TIMKEN JR