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09BRUSSELS101 2009-01-27 06:26:00 SECRET//NOFORN USEU Brussels
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1. (U) Action Request: Please see paragraphs 11-12.




2. (S//NF) At the January 26 EU General Affairs and External
Relations Committee (GAERC), EU-27 Foreign Ministers approved
as an "A-point" (no discussion) the de-listing of the
Mujahideen-e Khalq (MEK) as a terrorist organization from the
EU's autonomous terrorist designation list (REF A). FMs
subsequently discussed the morning's decision, however, over
a closed lunch session at the request of one Member State
(read: France). EU Council Secretariat Director General
Robert Cooper telephoned USEU Charge immediately after the
GAERC's decision and solicited USG assistance to enable
re-listing of the MEK at EU level. USEU conversations with
other key EU Member State contacts suggest that Cooper may
have glossed over political divisions that remain over the EU
designation of MEK. Separate contacts hint that there may be
no immediate financial impact on the MEK as a result of the
EU de-listing because apparently no MEK assets were frozen at
the EU-level, but the group could re-start fundraising
efforts. France has appealed the court annulment of the
previous EU designation and will continue to push for EU
re-listing, preferably with clear USG support. A meeting of
the EU expert-level designation committee could occur as
early as February 26 (please protect), and any USG
information lending weight to that decision-making process
should be received 15 days in advance for bureaucratic
reasons. END SUMMARY.


Cooper's Suggestion


3. (C) According to EU law, the EU cannot designate an
individual or entity as a terrorist without its prior
designation by a "competent authority" as the underlying
legal basis. EU Council Secretariat Director General Robert
Cooper telephoned USEU Charge immediately after the GAERC's
de-listing decision to suggest that the U.S. ask the EU to
re-list the MEK on the basis of the renewed U.S. designation.
He explained that the UK government had been the initial
competent authority which enabled the EU to designate the
MEK. When the UK court struck down the validity of the UK
government's MEK listing, the EU in turn lost its legal basis
to continue the designation at EU level. The subsequent
French effort to sustain the EU listing was in turn deemed
insufficient by the EU's Court of First Instance, as
described in the Court's decision of December 4, 2008 (REFS

4. (C) Cooper then asserted that EU Member States actually
do consider the MEK a terrorist group, but the EU still must
refer to a decision by a "competent authority" to ground an
EU designation of the MEK. Cooper proposed to USEU Charge
that the USG request the EU to designate the MEK and relist
it as a terrorist organization. Cooper noted, in the
meantime, that the Iranian Government has sent a letter to
the EU requesting that the MEK be listed as a terrorist
group. Cooper commented that a U.S. request to the EU would
take possible political pressure off the EU, deflecting the

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implication that however it acted, the EU was acting in
response to the Iranians.


Additional Nuance from other Contacts



5. (C//NF) USEU conversations with other key EU Member State
contacts suggest that Cooper may have glossed over political
divisions that remain over the EU designation of MEK. A UK
legal contact recommended outright against the USG's
providing a formal request for the EU to relist the MEK for
several reasons:

-- the EU is currently "having issues" with acting to
designate terrorists on the basis of third country proposals
(certain Member States are increasingly uncomfortable with
-- the MEK case has many down-sides and risks, given the
group's unique context and history (making it a bad case to
test the EU Court's willingness to continue allowing EU
terrorist designations on the basis of third country
-- several EU Member States are unhappy about the idea of
re-designating the MEK;
-- a "strategic view" is needed, and the specific MEK case is
"extremely sensitive right now" for EU governments and
publics. This contact echoed REF F in describing that in the
UK's case, "Ministers are being grilled by the Parliament and
are sick of it," noting it has become a resource issue as


Council Staff


6. (C//NF) Another Council Secretariat contact acknowledged
that the EU de-listing of MEK would have little operational
effect, as no MEK funds have been identified to date as being
frozen under the EU authority. This Council contact said the
French may have funds frozen under separate domestic
authorities, however. He explained that the GAERC decision
was subsequently discussed at the group's lunch, per one
Member State's request. France has an active request for the
EU to re-list on a strengthened domestic investigation basis
and is appealing the December 4 EU court ruling. Belgium,
normally an outspoken human rights advocate in these
decision-making circles, has raised security concerns in
support of re-listing; thus France will not stand alone
despite misgivings of UK or other countries. The Council
contact stressed that a USG request to the EU for designation
would be to complement the French initiative; using multiple
decisions by competent authorities as an underlying legal
basis for future decisions to list the MEK would be preferred
to hedge against a replay of the annulment of the UK basis.
Our contact suggested that the EU and U.S. could adopt common
talking points in the event of a subsequent EU decision to
show unity of approach and preempt any MEK or supporter
claims that the EU was acting solely in response to a USG

7. (S//NF) The Council contact said a meeting of the EU's
designation committee (Common Position 931 Working Party)
could occur as early as February 26 (please protect; EU
meeting date is classified Secret under EU procedures) to
consider a new MEK designation. Any USG information lending
weight to that decision-making process should be received 15
days in advance, as the Council Secretariat must circulate
such information to EU capitals for timely consideration.
The contact acknowledged that some Member States stress the

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need for "new" evidence of MEK terrorist activity, but argues
that the fact of the U.S. decision to re-list the MEK is in
itself "new" information which could serve as evidence in any
future EU designation needed for the Statement of Reasons.
EU Permanent Representatives (COREPER II) agreed last week
that France should draft a new and better constructed
proposed Statement of Reasons on the MEK which could be
considered as a "new" listing (allowing for the element of
surprise). Our Council contact asserts that the EU would
need the following elements from the USG to contribute to
this exercise:

-- a request that the EU consider designating the MEK,
-- reference to the proper competent authority upon which the
USG decision was made (referring to the U.S. executive order),
-- language normally contained in U.S. nonpapers to the EU
requesting consideration for terrorist designations, e.g. a
brief statement explaining why the USG has made its decision
and encouraging others to follow suit. Our contact thinks it
would not/not be necessary to share classified U.S.
information with the EU beyond our normal demarche statements
for terrorism designations.

8. (C//NF) The Council contact suggested the credibility of
other USG requests for EU designation of terrorist groups
depends on our making an explicit request for the MEK as
well. It would seem odd and perhaps deliberate to leave this
group out of the series of formal U.S. requests for EU
terrorist listings.

9. (C//NF) The Council contact explained that Iran has sent
multiple letters requesting the EU not to de-list the MEK.
However, the EU has not yet received a letter from Iran
requesting the EU to re-list the MEK. Council hopes to avoid
a scenario whereby the EU is acting on behalf of a request of
the Iranian regime. The preferred requestors would be
France, the United States, and perhaps Canada.

10. (SBU) Our contact noted that 3,000 MEK supporters are
expected to celebrate today's GAERC decision on January 27 in
front of the EU Council building in Brussels.


Action Request


11. (C) USEU requests Washington guidance in response to
Cooper's suggestion for a formal U.S. request to the EU to
designate the MEK as a terrorist organization. END ACTION




12. (C) USEU had already alerted key interlocutors to select
points from REF G, which generated the above discussions. In
order for the EU to autonomously designate a terrorist
individual or entity upon request by a third country's
competent authority, a formal and explicit request must be
made. Any future MEK designation will certainly be
challenged for a fourth time at the EU courts, even as the
French appeal the third court annulment of the EU's MEK
listing. (To date the EU has failed, at least as of today's
GAERC lunch, to obtain the necessary majority in favor of a
Council appeal to the ruling.) Assuming the December 4 Court
of First Instance decision reasoning stands, the EU court
will demand to see all unclassified and classified
information relevant to the EU's decision to designate a
challenging individual or entity, including any USG-provided
information (REF A). End Comment.