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.

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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).

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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.

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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.

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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.

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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.

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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