DHS ASSISTANT SECRETARY MEETS WITH EU COMMISSION

UNCLAS SECTION 01 OF 03 BRUSSELS 000447 SIPDIS SIPDIS STATE FOR CA AND EUR DHS FOR OIA JUSTICE FOR OIA E.O. 12958: N/A TAGS: PREL CA CMGT CVIS EUN SUBJECT: DHS ASSISTANT SECRETARY MEETS WITH EU COMMISSION MARCH 14 ON U.S. VISA WAIVER PROGRAM REF: A. BRUSSELS 00338 ¶B. STATE 21769 ¶C. BRUSSELS 00319 ¶D. BRUSSELS 00309 ¶E. BRUSSELS 00287 ¶F. BRUSSELS 00268 ¶G. STATE 11657 ¶H. BRUSSELS 00172 ¶1. (SBU) Summary. On March 14, 2008, Department of Homeland Security Assistant Secretary for Policy Stewart Baker met in Brussels with European Union Director General for Justice, Freedom and Security (JLS) Jonathan Faull for a detailed discussion of the implementation along twin tracks of the U.S. Visa Waiver Program (VWP) modernization measures enacted in August 2007 that form the basis of Memoranda of Understanding (MOU) and related implementation arrangements that DHS is pursuing with the member states. This discussion came on the heels of the March 13 U.S.-EU JLS Troika ministerial meeting in Slovenia where the VWP was also much discussed and concluded in political level agreement to pursue twin tracks whereby the U.S. will negotiate with individual member states on matters of national authority while consulting with EU institutions on matters of community competence. The Brussels meeting was positive and constructive and addressed all aspects of the VWP Modernization Act. End Summary. ¶2. (SBU) Department of Homeland Security Assistant Secretary for Policy Stewart Baker met in Brussels March 14 with European Union Director General for Justice, Liberty and Security (JLS) Jonathan Faull for a full discussion of the current issues surrounding the MOUs to be agreed between DHS and member states for participation in the VWP. A/S Baker was accompanied to the meeting, which immediately followed a private Baker-Faull lunch, by USEU representatives from Department of Homeland Security, Department of State's Bureau of Consular Affairs, and the Department of Justice, plus visiting DOJ Privacy Officer Ken Mortensen. DG Faull was joined by three JLS staff members (Telmo Baltazar, Luigi Soreca and Jan de Cuester) plus current Slovene EU presidency representative Andrej Grosjean. The almost two-hour meeting was positive and constructive, and any areas of disagreement were openly discussed. ¶3. (SBU) DG Faull opened with an explanation of his view that the VWP issues need to proceed on both a short and long term track. In the short term, the U.S. and EU must focus on what needs to be done to get member states into the VWP, while in the mid-to-long term, the U.S. and EU will need to tackle issues such as interoperability between EU and US Passenger Name Recognition (PNR) systems; how data can be exchanged while observing privacy constraints and sorting out the EU versus member state competencies. DG Faull emphasized the need to implement the twin track approach agreed upon at the Troika in Slovenia - e.g., the U.S. will proceed with member states on issues within national authority while talking with appropriate EU institutions on matters that are community competency. ¶4. (SBU) A/S Baker expressed confidence both sides could quickly move forward on the short term issues. He agreed to the two track policy, noting DHS will let member states raise gray areas resulting from our bilateral talks on VWP implementing arrangements and allow member states and Brussels to work out these issues before moving forward. A/S Baker also clearly expressed interest in medium to long term discussions on information sharing that might involve the Schengen Information System II (SIS),the planned EU Visa Information System (VIS),and the EU Eurodac, which logs asylum seekers, recognizing that all of these would require talks at the EU level. DG Faull agreed that it is "their problem" to work out gray areas of competency within the "EU family" while noting that access to EU systems is clearly a community-level competency. ¶5. (SBU) On information sharing, DG Faull put down a marker that member states do not "own" data in EU systems while noting that neither VIS nor SIS II are implemented. He further asserted that there may be far less national data in the EU systems than DHS thinks. SIS II includes most but not all member states (not Romania, Bulgaria, or Cyprus) plus non-EU Schengen members (Iceland, Norway, Switzerland and soon Liechtenstein). In addition, the UK and Ireland have access to SIS/police and judicial information but not to the BRUSSELS 00000447 002 OF 003 migration/border crossing information because they are not in Schengen. Each Schengen member has its own NSIS (national SIS). This is not evidence that a country owns the data - it is merely a technological device that allows each member state to interface with the overall system. Data collected by member states enters the central SIS almost immediately and, similarly, individual member states' alerts also enter the NSIS database thereby creating a mix of data. DG Faull said that it would be "illegal" for the U.S. to gather border information from all Schengen members in an attempted end-run of the EU competency. Comment: While it is clear that SIS/Migration data is an EU competency, there are questions as to whether SIS/criminal data is at the national or EU level. Under the upcoming Lisbon Treaty it will clearly be an EU competency but there may be currently a window of opportunity to negotiate at the bilateral level. DG Faull did note that intelligence sharing is clearly a member state authority and that reciprocity will be an important issue on all issues. End Comment. ¶6. (SBU) A/S Baker pledged to take DG Faull,s view into account but stated that DHS will do its own research and discuss with member states before conceding or agreeing whether member states "own" data that they collect and contribute to SIS. He further explained DHS interest in getting access to visa, asylum, and border crossing information and in particular referred to a pilot project with the UK on asylum seekers. He asked for definition of intelligence in EU context to which there is no transparent answer; DG Faull responded that it is a question they do not ask. A/S Baker stressed that reciprocity should be looked at in its broadest sense - e.g., if DHS and member state "x" agree to exchange data element "y," then DHS will make it available to be put it in the equivalent of SIS. If membr state "x" puts the data "y" into SIS then i is available to all SIS users. We will needto discuss this. DG Faull agreed this is an important point. ¶7. (SBU) In reference to the important U.S. - EU Passenger Name Record (PNR) Agreement of 2007, governing flights between the United States and the EU, A/S Baker confirmed that DHS seeks no change to the PNR agreement, no additional data, no change in retention periods, or any reopening at all. He did clearly state a U.S. interest in passenger information on flights between Europe to third countries, noting the security vulnerability of having individuals who travel on different passports to conceal their travel routes. These questions will be raised in the bilateral VWP implementing arrangements that DHS will seek with VWP candidate countries. In some instances it will make sense to ask for such information depending on the data available to individual member states. A/S Baker confirmed that this effort contemplates government-to-government sharing of data and not working through private entities, such as airlines. A/S Baker and DG Faull discussed dual nationals and whether we should work together to get changes in passport standards (ICAO or other means) to indicate whether a passport bearer also has another country's passport. ¶8. (SBU) On the repatriation requirement under U.S. VWP law and in the new VWP arrangements, A/S Baker acknowledged the constructive explanation from the EU concerning its member states' obligations under international law to accept returned nationals; the EU has also developed a definition of "former nationals" that may assist DHS and will be shared. He allowed that DHS can probably make such references in any implementing arrangements. A/S Baker further suggested there is scope for the U.S. and EU to work together on the issue of repatriation of nationals from difficult countries. DG Faull noted the EU has similar problems. They agreed it is not a good use of time to negotiate a U.S.- EU repatriation/re-admission agreement because there is no need. ¶9. (SBU) Regarding the lost and stolen passport (LASP) reporting requirement of the new VWP arrangements, A/S Baker stated that Interpol is the preferred mechanism for exchanging this information but it is not working fully and he has some concerns about the reliability of the information. First, not all countries have a 24/7 capacity to respond with timely "hit" resolution information, and, second, not all countries are reporting immediately to Interpol. DG Faull commented that if the U.S. seeks additional data elements, such as resolutions of losses, or biometrics, be reported to Interpol, the Commission would need to agree and undertake relevant changes to EU law. DG BRUSSELS 00000447 003 OF 003 Faull explained that member states are responsible for reporting lost/stolen passports and providing hit resolution, this is not an EU responsibility. DG Faull noted some of the current LASP problems are from the decentralized issuance of passports in certain member states. A/S Baker asked if the EU could validate which member states are efficient in reporting and which are not. DG Faull responded that he believed we will be able to work together on such areas of concern. The U.S. side then proposed scheduling an opportunity for USG experts to meet with the EU's lost/stolen passport working group for an exchange of views and an update since the last successful meeting in 2007. ¶10. (SBU) The two sides also discussed the new U.S. Electronic Travel Authorization (ETA). A/S Baker acknowledged the political sensitivity associated with the term ETA for certain EU member states but reported the preliminary DHS legal view is that the United States cannot simply switch the program name to form alternative acronyms like ESTA or ETAS. On substantive points, DG Faull expressed two major concerns; first, if the ETA is a visa under another name and, second, what data will be collected? In response, A/S Baker went through the U.S. ETA talking points related to fee, validity, and data elements. On data elements and the limits of the information collected, the DHS team produced a copy of the current I-94W and pointed to that as the near entirety of the information that will be sought in an on-line registration, although subsequent updates on specific travel plans will be necessary. DG Faull acknowledged that if the U.S. is already collecting this information, it would be difficult for EU to mount objections. DG Faull also expressed concern over questions regarding HIV and Nazi membership. A/S Baker explained these derive from U.S. immigration law (grounds of inadmissibility) and cannot be removed, but he committed to having DHS attorneys take another look. ¶11. (SBU) There was considerable discussion given to the narrow window of opportunity in which to make progress on EU member states qualifying for and implementing entry into the VWP. A/S Baker explained front end triggers (ETA and 97% biographic data air exit validation) and the June 30, 2009 back end trigger of DHS's deadline of a U.S. biometric exit program. On air exit validation and the ETA, certification must be made to Congress before the first new member country is admitted to VWP. A/S Baker also acknowledged the importance of terminology when referring to full implementation of ETA - this is a term with special legal meaning and consequences under the U.S. legislation. A/S Baker also explained that DHS, with the help of the State Department, will do outreach to both existing and new member countries to explain what will be needed for entry to the U.S. using an ETA. 12, (SBU) Discussing next steps, DG Faull explained that he believed the Commission will present to the Council of Permanent Representatives March 18 a request for a negotiation mandate which would help clarify EU versus member state competencies. He stated that this mandate may be nothing more than an insurance policy. A/S Baker pushed back hard, urging careful consideration and warning that acting too swiftly would just require amendments down the road. DG Faull said they needed to proceed because the agreement is to work on twin tracks and thus the EU needs to be ready to move as the need arises. The Council Presidency noted the keen importance Slovenia attaches to follow-up from the Troika and asked whether ministers could meet (by DVC if necessary) as early as April 9. DHS will provide a letter from Secretary Chertoff to the Slovenian Minister memorializing the progress made at and since the Troika. DG Faull noted the Commission's public line will be twin track and common U.S.- EU overriding goal to get more member states in a modernized, secure Visa Waiver Program. MURRAY .