ATTORNEY GENERAL GONZALES DISCUSSES TERRORISM AND

C O N F I D E N T I A L SECTION 01 OF 03 BERLIN 003504

SIPDIS

SIPDIS

E.O. 12958: DECL: 10/30/2016
TAGS: KJUS PREL PTER GM
SUBJECT: ATTORNEY GENERAL GONZALES DISCUSSES TERRORISM AND
DATA-SHARING WITH GERMAN INTERIOR AND JUSTICE MINISTERS


Classified By: DEPUTY CHIEF OF MISSION JOHN M. KOENIG FOR REASONS 1.4
(b) AND (d)

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Summary
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1. (C) The Attorney General, in meetings with German
Interior Minister Wolfgang Schaeuble and Justice Minister
Brigitte Zypries, reviewed the legal basis on which the USG
is engaged in the global fight against terror and discussed
in particular the Military Commissions Act recently signed by
President Bush. The Attorney General also examined areas
where the U.S. and Germany might be able to cooperate more
closely, in particular in further exchanging essential
information. Schaeuble underscored Germany's desire to
continue discussions with the U.S. on the legal basis for
fighting international terrorism and on more access to
terrorism-related data. Zypries expressed reservations about
the provisions of the Military Commissions Act, arguing that
it is inappropriate for military tribunals to try civilians,
even those who have engaged in hostile acts. The AG
explained the legal background of the term "unlawful enemy
combatant" and noted that it is both lawful and appropriate
to resort to military tribunals in cases involving armed
conflict, even with non-state actors. Discussion also
focused on intellectual property rights, in particular
Germany's work with China. Zypries requested U.S.
intervention to block a lawsuit filed against the German
foundation that is responsible for compensation to Holocaust
victims. While in Berlin, AG Gonzales also gave a speech and
held a round table discussion with senior media editors. End
Summary.

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Counterterrorism policies -- image and reality
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2. (C) The Attorney General began the discussion with
Interior Minister Wolfgang Schaeuble by noting that the image
of the United States has suffered in the eyes of many
Europeans, in large part due to misconceptions about U.S.
counterterrorism policies. He also said that we have at
times not articulated our policies as clearly or effectively
as we would have liked. This visit and the public/media
events are part of our efforts to address this. The AG also
noted that the Military Commissions Act of 2006 (MCA) will
better regulate how we deal with detainees and thus serve to
clear up misunderstandings.


3. (C) Schaeuble agreed that there are problems with the
U.S. image, and expressed appreciation for the AG's readiness
to engage in a dialogue on counterterrorism issues.
Schaeuble said countries' constitutional law along with
international law are key factors in how the world deals with
terrorists; he noted that he had supported (unsuccessfully) a
constitutional amendment that would have given the German
government the authority to utilize the military to act if
Germany faced a 9/11 type terrorist attack. In Schaeuble's
view, we need to discuss new approaches to international
legal principles to deal with today's realities -- many
provisions of the Geneva Conventions, for example, do not fit
with the nature of today's terrorism threats.


4. (C) The AG agreed, observing that we share the same
overarching goals, but at times differ in our approaches and
tactics. He stressed that the U.S. is not/not walking back
from the Geneva Conventions, but agreed with Schaeuble that
some aspects of the conventions are not appropriate to deal
with the phenomenon of non-state actors such as Al Qaida. AG
Gonzales stated U.S. counterterrorism programs and policies
are in full compliance with U.S. laws and with our
international treaty obligations.

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Legal basis for counterterrorism cooperation and
enhanced exchange of data
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5. (C) Schaeuble underscored the German desire to continue
discussions with the U.S. on the legal basis for fighting
international terrorism and asked if the AG thought it would
be better to hold such talks in the EU context or with
specific EU members. Schaeuble expressed a preference for
the latter option, with initial talks to include Germany,
France, "and perhaps the UK." Schaeuble indicated Germany is
ready to begin such consultations and asked the AG let
Germany know when we would be ready.


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6. (C) Schaeuble also raised the issue of granting greater
reciprocal access to terrorism-related data, along the lines
of the provisions of the so-called Pruem Agreement among
several EU Member States. Having looked further at the
agreement after meetings with Secretary Chertoff and others
in Washington, Schaeuble said, while it is only applicable to
EU members, Pruem can serve as a practical model for a
bilateral agreement with the U.S. for increased access to
information. He noted the German constitutional issues
affecting data sharing, explaining that data-protection is a
fundamental constitutional right per Germans and other
Europeans and that certain U.S. laws and practices -- such as
keeping data for 99 years -- were problematic in the EU.
(Note: The Pruem Agreement does not provide for blanket
sharing of terrorism-related biographic/biometric data, but
rather creates a "hit no-hit," query-based system with
mechanisms to permit follow-up data to be shared on a
case-by-case basis. End Note.)


7. (C) The AG said it is important to find a mechanism for
sharing information, and highlighted biographic and biometric
(fingerprints and DNA) information as priorities. He said we
are willing to sit down with the Germans and look into how we
can expand exchanges of information while respecting
data-privacy and other rights.

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Divergent views on military tribunals
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8. (C) AG Gonzales continued the discussion of the legal
underpinnings of the Global War on Terror in a subsequent
meeting with Justice Minister Brigitte Zypries. Zypries
expressed reservations about the provisions of the MCA,
arguing that it is inappropriate for military tribunals to
try civilians, even those who had engaged in hostile acts.
The AG explained the justification for the category of
"unlawful enemy combatant" and maintained that it is both
lawful and appropriate to resort to military tribunals in
cases involving armed conflict, even with non-state actors.
The Attorney General asked Zypries what Germany would do with
individuals captured firing on German troops in Afghanistan
-- would they bring them back to Germany or pursue action
through the German legal system? Zypries reiterated
Germany's preference for handling such cases via traditional
criminal law procedures. She noted Germany has in fact faced
this situation, that civilian criminal legal proceedings in
Germany would have been possible, but the Germans had turned
those captured attacking German soldiers over to the Afghan
authorities instead.

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Data-sharing
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9. (C) Attorney General Gonzales also raised improving
data-sharing to fight international terrorism in the meeting
with Zypries, with the Justice Minister signaling willingness
to explore possibilities for increased cooperation while
maintaining reservations about the amounts and types of
information to be shared. The AG emphasized that we are not
seeking broad-based access to sensitive personal data, but
rather hope to expand possibilities for a targeted exchange
of data based on a "Pruem-like" query system. He said the
U.S. would give a presentation on what we are doing with data
protection during the U.S.-EU Troika meetings in November.

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Intellectual Property Rights
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10. (C) Zypries raised the issue of intellectual property
rights (IPR),noting that, while German laws on trademark
infringement were working well, the fact that information is
increasingly being digitized creates new challenges with
respect to copyright protection. In response to the Attorney
General's question, Zypries outlined Germany's work on IPR
protection with China, characterizing German-Chinese
cooperation as good and noting that a broad-based, structured
bilateral dialogue is underway.

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Holocaust Foundation lawsuit
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11. (C) Zypries also raised the pending litigation relating
to the German Holocaust Compensation
Foundation, "Remembrance, Responsibility and the Future."
She recalled that a fundamental goal of the Foundation had

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been to preclude the need for future legal actions relating
to the compensation of Holocaust-era slave and forced
laborers, and noted that the U.S. -- as one of the foremost
supporters of the Foundation -- had "routinely" intervened in
the past to help get lawsuits dismissed. Zypries said the
German Government's fear is that failure to get this case
dismissed could open the door for much more litigation, and
urged the Attoreny General to seek U.S. intervention in this
case as well. The AG undertook to consult with Secretary
Rice regarding the case.

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PUBLIC OUTREACH
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12. (SBU) In addition to his meetings with his counterparts,
in Berlin the Attorney General gave a speech ("The Rule of
Law in the War on Terror") to a group of more than 150
invited guests from government, academia, and the NGO
community. As in his official meetings, the Attorney General
focused on dispelling misconceptions, especially regarding
the Military Commissions Act. The event, co-hosted by the
Embassy and the German Marshal Fund, enabled the AG to reach
a wider audience and engage in give-and-take discussion with
members of the audience. The Attorney General also held a
round table discussion with senior editors and reporters of
all prominent German media.


13. (U) This message was cleared by the Attorney General's
staff subsequent to his departure.
TIMKEN JR