US-EU INFORMAL JHA HIGH LEVEL MEETING, JANUARY

UNCLAS SECTION 01 OF 05 BERLIN 000251 SIPDIS SENSITIVE SIPDIS STATE FOR INL, S/CT, EUR, CA AND L DOJ FOR OIA E.O. 12958: N/A TAGS: GM KJUS PREL PTER SMIG KHLS CVPR EU SUBJECT: US-EU INFORMAL JHA HIGH LEVEL MEETING, JANUARY 22-23, 2007, BERLIN. ¶1. (SBU) SUMMARY. The U.S. and EU, under the chair of the German Presidency, met in Berlin January 22-23 for the Informal Senior Level Justice and Home Affairs (JHA) Meeting. Led by INL DAS Elizabeth Verville, DOJ Deputy Assistant Attorney General Bruce Swartz, and DHS Acting A/S for International Affairs Paul Rosenzweig, the U.S. continued its ongoing dialogue on issues related to border security and migration, counterterrorism, and law enforcement cooperation. The U.S. welcomed EU news that the last member state (France) had finally ratified the three protocols to the Europol Convention, which, when it enters into force April 19, 2007, will allow for U.S access to Europol analytical work files. In terms of data protection, a sticking point for U.S.-EU JHA relations, the U.S. emphasized the importance of improving coordination in the area, especially in the context of the new U.S.-EU High Level Contact Group (HLCG) on Data Protection; significant differences emerged between U.S. and EU expectations regarding the composition and goals for the HLCG. ¶2. (SBU) The German Presidency expressed its interest in expanding the Pruem Treaty to all EU member states in order to advance intra-EU police cooperation. Both sides welcomed the December 21 entry into force of the U.S.-Eurojust Agreement. The U.S. reported that the Senate will soon schedule hearings on the U.S.-EU Mutual Legal Assistance (MLA) and Extradition Treaties, and encouraged the EU to press member states to complete ratification procedures as quickly as possible. The U.S. explained the President,s proposal to update the Visa Waiver Program (VWP),which would strengthen security measures and provide the opportunity for some countries that are currently not eligible for the VWP to be covered by the program. Lastly, both sides discussed potential dates for the next Policy Dialogue on Border and Transportation Security (PDBTS) (February 27),the first meeting of the HLCG (February 26) and the Passenger Name Records (PNR) negotiations (February 26) in Washington. Following the JHA meeting, the U.S. also held bilateral negotiations with Germany on an agreement on the exchange of fingerprint, DNA and terrorist screening data (septel). END SUMMARY. -------------- EU PRIORITIES -------------- ¶3. (SBU) The German Presidency began with a discussion of the EU,s priorities in the JHA area. Germany, Portugal, and Slovenia (the current and next two presidencies) have formed a joint 18-month presidency plan that focuses on: external relations, including worldwide cooperation in Afghanistan, Balkans, Central Asia, EU neighborhood policy/Ukraine, and Russia; intensifying information exchange; strengthening Europol and Frontex; improving internal EU coordination in the judicial sphere in areas such as rights of the accused, racism and xenophobia, child abuse, and criminal offenses, lists; and better harmonization of application of existing migration and asylum regulations. ¶4. (SBU) With respect to improving information exchanges, the German Presidency plans to promote enhanced use by law enforcement officials of existing systems such as VIS (Visa Information System),SIS (Schengen Information System),and Eurodac (asylum applications). While Ministers have expressed approval, plans to expand use of VIS and Eurodac have raised some controversy; the European Parliament (EP) unanimously rejected a proposal to allow security services to access visa database due to data protection concerns. German reps stated the EP,s concern is misplaced, since visas are not just an administrative function but serve an inherent border protection role. (NOTE: Points like this illustrated a potential trend where the German Presidency and other European bodies are now promoting concepts that the EU has in the past presented as inconsistent with its views on data protection. The German Presidency complained about the EP,s overly strict position on repurposing data, a position very much at odds with the EU,s previously stated positions on PNR. End Note.) The Presidency suggested that a potential compromise may be to allow a central, non-intelligence authority to make queries on a case-by-case basis, but added this structure would likely be unacceptable for the larger EU Member States. ¶5. (SBU) The German Presidency noted development of the Schengen Information System (SIS) II is facing technical difficulties and will not be ready until 2008 at the earliest. Instead, at Portugal's suggestion, the EU is developing an interim system, SIS One4All, that will enable Schengen expansion by the end of 2007 as planned. ¶6. (SBU) On the basis of the EU,s principle of availability, Germany also has proposed extending the Pruem Convention (which currently has seven signatories and several other Member States interested in joining) throughout the EU via a Council Decision. The Pruem Convention creates a mechanism for police in participating countries to access fingerprint and DNA databases of other member states for sharing information to secure public events or to prevent terrorist attacks, to establish rules for cross-border police chases, for cooperation on immigration and to set rules for the operation of federal air marshals cross borders. Germany claimed there was broad consensus at the EU JHA informal ministerial in mid-January to move forward the provisions related to access to fingerprint and DNA databases, and EU ministers will discuss at the JHA Council on February 15. The U.S. welcomed the initiative. The German Presidency noted the proposed Council Decision related to the incorporation of Pruem into EU law would be limited to third-pillar provisions only (see septel). -------------- MIGRATION, BORDERS AND VISA ISSUES -------------- ¶7. (SBU) The U.S. briefed on the President,s proposal to accelerate entry into the VWP of prospective members who meet specific security criteria, on the reorganization of the US-VISIT program, and on DHS plans for implementing biometric exit screening in coming months. On VWP, Acting A/S Rosenzweig emphasized that the proposed reforms will eventually apply to current VWP member states and that the purpose was to transition the program further to one focused on preventing terrorist and criminal travel instead of on economic migration. In that vein, Acting A/S Rosenzweig noted many of the expected changes are policies the current VWP member countries have already implemented, with the possible exceptions of timely reporting of lost and stolen passport, adequate information sharing to support individual admissibility determinations, and the Electronic Travel Authorization. The EU was particularly interested in the expected pace of Congressional action and ensuring current members understand what will be required of them. The EU requested this issue be discussed more thoroughly at the next PDBTS (tentatively scheduled for February 27) and perhaps that an outreach session be held in Western Europe. The EU also noted that it will prepare another report on Visa Reciprocity in late March. ¶8. (SBU) On US-VISIT and exit screening, Acting A/S Rosenzweig briefly discussed the transition of US-VISIT into the National Programs and Protection Directorate and noted that DHS will begin piloting biometric exit in the next few months. The EU noted it is looking at entry-exit issues more closely and will prepare a preparatory study on a European system in the next few months that will eventually be followed by a technical feasibility assessment. ¶9. (SBU) The Frontex rep outlined four priority areas for his agency: the EU,s southern maritime borders, the western Balkans, the eastern border of central Europe, and the EU,s major airports. Frontex also detailed its measured method of engaging with third countries, and expressed interest in opening a further dialogue with the United States. DHS and Frontex are exploring dates for a fact-finding session in the spring. ¶10. (SBU) The EU noted it was preparing a response to DHS A/S Stewart Baker,s December invitation to begin talks on cooperation to combat asylum shopping consistent with G-8 best practices and established efforts among the U.S., Canada and the UK. The EU was cautious in its response, noting cooperation along these lines may be difficult due to outstanding data protection concerns with the U.S. and the political atmosphere surrounding other aspects of the GWOT. This issue will also be included on the PDBTS agenda. -------------- COUNTERTERRORISM -------------- ¶11. (SBU) The EU reps provided a status report on the implementation of the EU Counterterrorism (CT) Strategy. Good progress had been made in combating Terrorist Financing (TF),including passage of the third money laundering directive. Overall, over 5,000 Euros have been seized. The U.S. and EU held a productive fall workshop in Finland on delisting, and another workshop is scheduled for April in Brussels. The EU is looking into how to change listing procedures by notifying organizations and individuals as to why they are being listed, per the order of the European Court of First Instance. The EU hopes to work more closely with the U.S. on financial intelligence, possibly through Europol, to explore links between terrorism and organized crime. ¶12. (SBU) The EU is continuing its efforts to address radicalization and recruitment. German Interior Ministry Director for International Counter-terrorism Cooperation Schumacher described an initiative, &Check the Web,8 which was launched under the Finnish Presidency. The project envisages EU member states, with the participation of Europol, sharing the task of drawing up joint analyses of Internet use by terrorist organizations, to better focus resources and efforts, which are limited in some countries. A similar initiative is also being raised in the G-8. Monitoring the Internet would include reading open source material as well as infiltration of chat rooms. While DOJ Swartz noted the importance of this matter, he pointed to U.S. concern with protecting the first amendment. The EU mentioned three expert groups being set up to look into factors that trigger radicalization, ideologies, and recruitment methods. S/CT Burk said the U.S. has also actively been looking into the issue, such as through cooperation with third countries, academics, and researching best practices. The EU also agreed to share the EU communication strategy being developed in this area. ¶13. (SBU) Regarding U.S. briefings to the EU Counterterrorism Working Group, both sides agreed they should continue. The USEU and German presidency reps will follow up in the coming weeks to discuss scheduling and potential topics of interest. -------------- JUSTICE AND LAW ENFORCEMENT ISSUES -------------- ¶14. (SBU) The U.S. welcomed EU news that the last member state (France) had finally ratified the three protocols to the Europol Convention, which, when it enters into force April 19, 2007, will allow U.S access to Europol analytical work files. Europol noted information exchange with any of the USG liaison officers (including officers from FBI, DEA, Secret Service, and DHS) and Europol will have to be SIPDIS discussed on a case-by-case basis on the expert level. Deputy Assistant AG Swartz emphasized numerous times that Europol conduct joint analytical cases on organized crime, drug trafficking or corruption in either the Balkans or Afghanistan. Both sides welcomed the December 21 entry into force of the U.S.-Eurojust Agreement following a signing at the November 2006 US-EU JHA Ministerial. The Eurojust rep and U.S. side both noted the excellent cooperation already taking place at Eurojust. The U.S. encouraged further cooperation with Eurojust now that the agreement has been signed. In addition, the U.S. reported the Senate will soon schedule hearings on the U.S.-EU Mutual Legal Assistance (MLA) and Extradition Treaties, and encouraged the EU to push for full member state ratification by the end of 2007, as the U.S. was discouraged to learn that 11 member states have yet to ratify the aggreements. ¶15. (SBU) In regard to the UN Convention against Corruption (UNCAC),DAS Verville regretted the lack of coordination between the two sides during the December 2006 Conference of the States Parties (COSP) (septel),noting the U.S. was surprised by an EU proposal to establish a subsidiary body to assist in UNCAC implementation, leaving its mandate to be determined. DAS Verville noted U.S. preference to avoid beginning immediately to gather information from each state party concerning implementation, and welcomed further U.S.-EU discussions well in advance of the second COSP to take place late in 2007 in Indonesia. ¶16. (SBU) The U.S. and EU agreed to continue to work together in Afghanistan, noting there is significant progress yet to be made. DAS Verville thanked the EU for their recent increased efforts in the criminal justice sector, underscored the need for increased efforts, and highlighted changes to USG strategy in the country. Germany expressed its worry about recent media criticisms over the German-led police program as well as its concern about the flow of precursor chemicals into Afghanistan. On the Balkans, DAS Verville expressed USG concern over organized crime and corruption and noted the importance of continued engagement in institutions such as the SECI Center. Europol noted discussions had begun with SECI, in which the U.S. SECI representative is participating, regarding revisions to its charter to give it a legal personality and to consider an enhanced data protection regime. This would be a lengthy process as the charter would have to be ratified by the SECI participants, and then an agreement with Europol would have to be negotiated. In the meantime, Europol cooperation with SECI is likely to flow through its arrangements with SECI member states rather than the center itself. ¶17. (SBU) The U.S. encouraged further cooperation between the United States and the European Police College (CEPOL), and it became apparent that both sides are waiting for the other side to react to a recent proposal that would do just that. The U.S. and EU agreed more EU Member States should ratify the Council of Europe Cybercrime Convention (CoE Convention). The U.S. ratified the Treaty on September 29, ¶2006. Deputy Assistant AG Swartz suggested that both sides develop a target list of non-EU countries that we could jointly lobby to ratify the convention. The EU also briefed on the EU Agency for Fundamental Rights, a successor to the European Monitoring Centre on Racism and Xenophobia, which will be up and running in March 2007. Its responsibility will be to collect and analyze data on fundamental rights, issue reports, provide expertise, and educate the public. It will have the competency to opine on human rights in areas under Community competency, and monitor (without formal power) human rights in areas under the third pillar. -------------- PASSENGER NAME RECORDS (PNR) -------------- ¶18. (SBU) The European Commission has submitted a recommendation to the Council for authorization to open new PNR negotiations with the U.S., which now awaits Council approval. The EU noted it does not have a mandate to begin negotiations on PNR, and hoped they would have one by the following Council meeting. The EU expects to continue to require a detailed agreement with specific ®ulations.8 Acting A/S Rosenzweig noted the U.S. preference for a comprehensive solution, and suggested the EU seek greater flexibility in order to incorporate new ideas in the context of the HLCG. ¶19. (SBU) On a more positive note, the EU noted any remaining difficulties regarding European carriers, migration to a Push system was due to the carriers, not DHS. DHS will work with the Commission to resolve these delays. Acting A/S Rosenzweig also noted that on January 17 the U.S. gave notice of a new traveler redress system for both U.S. and non-U.S. citizens, which should resolve some travelers, concerns over inability to seek redress from government. The first negotiation meeting is tentatively set for February 26. -------------- -------------- HIGH LEVEL CONTACT GROUP ON DATA PROTECTION (HLCG) -------------- -------------- ¶20. (SBU) The U.S. presented the EU an outline for a concept paper on the HLCG,s work and intended end-product. The U.S. hopes the HLCG will produce a single agreement that covers the data protection framework for the exchange of public security and law enforcement data between the U.S. and Europe and therefore eliminates the need for separate agreements for each form of data transfer. The EU does not share this vision, stating a single agreement would not alleviate the need for specialized agreements. Instead, the EU would prefer to use the HLCG as an opportunity for principals to discuss high level concepts and promote understanding over the long term without a concrete product. The EU is working on its own &backbone8 paper for the HLCG, which it will distribute it shortly. The EU also noted that it did not envision a separate track of meetings by a mid-level sherpa working level group. ¶21. (SBU) The U.S. emphasized that one of its fundamental concerns with the EU,s approach to data protection is the application of the concept of adequacy to data collections and exchanges by governments. The EU reminded the U.S. that the European Union is still trying to establish a set of rules for the exchange of law enforcement data inside the EU and that any rules governing transatlantic exchange of data would need to be at least as comprehensive. It noted significant debate continued within the EU whether the Framework Decision on Data Protection should include provisions on the exchange of data with third countries and if so whether it should only cover circumstances when one EU member state wishes to share data with a third country it received from another Member State or whether it should include all exchanges. (Note: Bilateral discussions by a subset of the U.S. later in the week illustrated the depth of this divide (septel). End Note.). ¶22. (U) The U.S. delegation included: Elizabeth Verville, State INL DAS; Paul Rosenzweig, DHS Acting A/S for International Affairs; Bruce Swartz, Deputy Assistant Attorney General; P. Michael McKinley, Deputy Chief of Mission, U.S. Mission to the EU; Susan Burk, State DAS for CT; James Freis, Treasury, Deputy Assistant General Counsel; Jane Horvath, DOJ, Chief Privacy and Civil Liberties; Laura McKechnie, State/INL; Alessandro Nardi, State/EUR; Kenneth Propp, State/L; Michael Scardaville, DHS; John Brennan, State/CA; Paul Fitzgerald, USEU/CA; Jim McAnulty, USEU NAS; Clyde Langley, Embassy Brussels; Mark Koumans, Embassy Berlin; John Kropf, DHS; Tom Burrows, DOJ; and Jacquelyn Bednarz, DHS. ¶23. (U) EU participants included: Germany (from Interior Ministry unless otherwise noted) - Gunter Krause, Police and Counterterrorism; Michael Grotz, Criminal Law, Justice Ministry; Reinhard Peters, Immigration; Dr. Hans-Jurgen Forster, Police Affairs; Michael Niemeier, EU Coordination,; Andrea Schumacher, Counterterrorism; Andreas Shultz, Police Information Technology; Martina Wenske, Permanent Representation of Germany to the EU; Commission - Denise Sorasio, JLS , Director, Internal Security and Criminal Justice; Lotte Knudsen, JLS, Head of Unit, External Relations and Enlargement; Vivian Loonela, JLS, External Relations and Enlargement; Cecilia Verkleij, JLS; Alenka Zajc Freudenstein, RELEX; Council Secretariat - Giles de Kerchove, Director, Justice and Home Affairs; Bent Mejborn, Head of Unit, Visa and Borders; Portugal - Mariana Sotto Maior, European Affairs, Ministry of Interior; Eurojust - Jean Francois Bonert; Europol - Maz-Peter Ratzel, Director; Frontex - Ilkka Laitinen, Director; ¶26. (U) This cable was cleared by the U.S. Delegation subsequent to their departure from Berlin. TIMKEN JR