(S) GERMAN-ORIGIN HELICOPTERS EXPORTED TO AFGHANISTAN: PREPARING FOR INQUIRIES

S E C R E T BERLIN 001705



SIPDIS

EUR FOR EUR/CE AND EUR/RPM

T/PM/DDTC FOR MALONEY

DOD FOR DEFENSE SECURITY COOPERATION AGENCY

DSCA FOR MAJ. ORENCHICK

CENTCOM FOR COL. KULVAS

EUCOM / TRANSCOM FOR LNO SIERS AND K. JOHNSON CASARES



E.O. 12958: DECL: 12/24/2033

TAGS: KOMC, PGOV, PREL, ECCT, AF, GM

SUBJECT: (S) GERMAN-ORIGIN HELICOPTERS EXPORTED TO

AFGHANISTAN: PREPARING FOR INQUIRIES



REF: A. BERLIN 1482

B. BERLIN 1467



Classified By: CDA John Koenig for Reasons 1.4 (b) and (d)



1. (S) This is an action request. Please see paragraph

14.



2. (S) Summary: The German Federal Security Council's (BSR)

anticipated November 5 decision to allow the export

of Puma helicopters to Afghanistan (Ref A) did not take

place. Since then, Presidential Airways has moved the

helicopters to Afghanistan without the required GOG

permission. The GOG has again deferred action on this case

and will not act before late January 2009. The situation now

likely constitutes a violation of Germany's export

laws. To date, CDA and EMIN have engaged with senior MFA

officials and, while this matter has not yet become public,

we expect that it could soon and request Department

assistance in developing a coordinated interagency response.

End Summary.



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BACKGROUND

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3. (S) As detailed in Refs A and B, Presidential Airways

(PA) purchased three Puma helicopters in Germany from

Eurocopter Deutschland (ED). PA anticipated using these in

support of a contract to provide logistics and transport

services in Afghanistan and sought an export license from the

German export control authorities. This export case

attracted attention at the highest levels of the German

Government, reportedly including Chancellor Merkel. PA moved

the

helicopters from Germany, initially to Turkey, then Georgia,

then Azerbaijan, without securing an export license.

PA and the GOG had agreed informally in November to have the

helicopters remain in Baku, Azerbaijan pending

a GOG decision on the export permit application. Presidential

Airways is owned by the Prince Group, Inc.,

which also owns the Blackwater security company.





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Chronology of Recent Developments

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4. (C) On November 4, ODC Germany forwarded a letter from PA

to the German Chancellor's office stating PA would hold

the Pumas in Baku until after the November 5 BSR meeting. The

BSR failed to render a decision at its November 5

meeting.



5. (C) On November 11, PA sent a letter to Eurocopter

Deutschland (ED) management outlining their position. PA

had retained German legal counsel to represent them and

contended that they violated no U.S. law by moving the

Pumas. PA also asserted that, as the BSR failed to render a

decision, the case was no longer before the German

authorities and PA saw no reason to wait for a German export

license.



6. (C) On November 26, ODC Germany sent an update to CENTCOM,

TRANSCOM, and CJTF-101. ODC Germany believed the

GOG required more detailed information on the helicopters

before issuing a decision. ODC once again stressed to PA

the need to hold the helicopters outside of Afghanistan

pending a GOG decision.



7. (S) On December 1, a representative of the German

Chancellor's office told PA's German counsel that a

particular ministry (ODC Germany believes this to be the MFA)

was pushing this issue to the full German cabinet for

a decision and was not satisfied with having it decided by

the BSR. The concerned ministry wanted to confirm some key





facts from its own sources rather then rely solely on PA's

assurances.



8. (C) PA's attorney in the US subsequently advised ODC

Germany that PA had grown tired of waiting for GOG action

and believed that PA had no obligations or responsibilities

to the GOG. Further, it saw no legal reason not to deploy the

Pumas to Afghanistan. The PA attorney expressed his desire

for the USG to "stand up" to the GOG and stated that the

GOG was holding PA "hostage".



9. (S) On December 3, CDA spoke with MFA State Secretary

Silberberg to request his assistance in securing

BSR agreement for PA's export license given US operational

needs in Afghanistan. Silberberg undertook to

look into the matter. On December 5, the Chancellor's office

notified ODC Germany that the concerned

ministry had received satisfactory answers to their inquiries

and that they would "reluctantly" agree

with the other ministries and release the export license and

the helicopters during a vote

December 10.



10. (S) On December 5, ODC Germany received an e-mail from

TRANSCOM stating that the 3 Pumas had "self-deployed" to

Afghanistan. ODC passed this information to EUCOM and senior

Embassy Berlin officials.



11. (S) On December 11, the Chancellor's office notified ODC

Germany that the head of the concerned ministry had

changed his mind and would not release his block on the

export license. Further, he stated that he did not want

the issue taken up again until the end of January.



12. (S) Throughout this case, CDA and EMIN have engaged

proactively with their State Secretary and Director General

counterparts at the MFA. However, Embassy Berlin is

concerned that PA's analysis and recent actions violate

German law and undermine US export control efforts.



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Balancing US Interests

--------------



13. (S) Post understands and appreciates the operational

requirement in Afghanistan for the three Pumas. However,

export of German defense articles to a conflict zone is

ordinarily prohibited; exceptions must pass through a

special review and coordination process, culminating in the

BSR, whose deliberations are generally regarded

as highly sensitive and secret. If the facts were reversed,

we imagine that the USG would find

the present situation untenable and seek legal recourse. To

illustrate the point, please

consider the USG reaction to the following hypothetical, but

analogous, series of events:



--A company from Germany purchases an export-controlled item

in the US and receives an export license from the USG

subject to the conditions that the items will NOT be

re-exported without permission to a prohibited country such

as Iran.



--Next, consider either of the following two scenarios:



A) The German company decides it wants to export the item to

Iran after all. Without applying to BAFA (the German

export controls agency) for German permission or to the USG

under the terms of the export license, the German company

"self-deploys" the items to Iran.



--OR



B) The German company DOES go to BAFA for an export license.

BAFA, despite its understanding that the items are

sensitive and restricted, nonetheless permits the re-export





to Iran to go forward, using the dubious

argument that "the items aren't really German," so there is

nothing they can do about it.



--In either case, we expect that US authorities would react

strongly.



14. (S) Comment: PA's decision to move the helicopters,

regardless of legality, undermines Mission Germany's

efforts to cooperate on priority export control matters. The

US is more often the exporter than the

importer of sensitive defense articles; we have a broad

interest in upholding the integrity of licensing systems. T

he German authorities have been clear regarding the need for

PA to obtain a license prior to transferring

the Pumas to Afghanistan. We expect negative reactions from

both senior German interlocutors and

(if this case becomes public),German media. Post believes

that a coordinated, consistent, inter-agency

approach and response is urgently needed and request

Department's assistance to develop such a position

with DOD and relevant Commands. End Comment.

Koenig