EU COUNTER-TERRORISM COORDINATOR ON GAERC INFORMAL

C O N F I D E N T I A L SECTION 01 OF 03 BRUSSELS 000120

SIPDIS

STATE FOR S/WGI, EUR< INL, INL/PC, INL/AAE, EUR/ERA, L/LEI;
JUSTICE FOR CRIMINAL DIVISION, OFFICE OF INTERNATIONAL
AFFAIRS

E.O. 12958: DECL: 01/27/2019
TAGS: PREL PTER KAWK KISL EUN
SUBJECT: EU COUNTER-TERRORISM COORDINATOR ON GAERC INFORMAL
DISCUSSION OF GUANTANAMO

REF: A. USEU-TODAY JAN 27 (NOTAL)

B. BRUSSELS 79 (NOTAL)

C. PRAGUE 0027 (NOTAL)

D. 08 LISBON 2769 (NOTAL)

E. 07 BRUSSELS 3543 (NOTAL)

F. 07 BRUSSELS 3532 (NOTAL)

Classified By: MINISTER COUNSELOR FOR POLITICAL AFFAIRS
CHRIS DAVIS FOR REASONS IN SECTIONS 1.4 (B) AND (D)

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SUMMARY
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1. (C) According to European Union (EU) Counter-Terrorism
Coordinator Gilles de Kerchove, with whom Mission officers
met January 27, the previous day's informal discussion on
Guantanamo at the General Affairs and External Relations
Council (GAERC) remained as yet inconclusive. De Kerchove
said he will act on an "implicit" tasking from the GAERC to
provide answers concerning the legal and financial
implications of a potential EU position on accepting
detainees. He planned to consult with European Commissioner
for External Relations and Neighborhood Policy Benita
Ferrero-Waldner, particularly with respect to Commission
resources to help Member States and third countries (he
mentioned Yemen, for example) accept released detainees. He
opined that it would be helpful if the U.S. contributed
financially to such efforts and accepted some of the
detainees. De Kerchove personally thinks an EU position is
possible, citing the precedent of Palestinians accepted by
six Member States in 2002 from the church of the Nativity in
Bethlehem. However, obstacles exist, such as the Schengen
zone of free movement among most Member States, as well as
potential liability questions. He noted that the Czech
Presidency wants to proceed very cautiously. Overall, de
Kerchove suggested that an EU-wide consensus would make it
easier for individual Member States to act. END SUMMARY.

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"READ OUT" ON MINISTERS' INFORMAL DISCUSSION
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2. (C) Mission Political and International Narcotics and Law
Enforcement Affairs (INL) Counselors met with EU
Counter-Terrorism Coordinator de Kerchove and Council
Secretariat Transatlantic Relations Officer Dr. Christiane
Hoehn on January 27 regarding the previous day's discussions
on Guantanamo by the Foreign Ministers at their GAERC
meeting. De Kerchove cautioned that he had only received a
very preliminary read-out and was working to obtain more
details. He understood that many Foreign Ministers had
expressed support for developing an EU consensus on accepting
detainees from Guantanamo, citing France, United Kingdom,
Spain, Portugal, and Belgium particularly. The Ministers
recognized that any decision to accept detainees, however,
would have legal, financial, and security implications. The
current Czech Presidency of the Council would like to proceed
very cautiously, while facilitating the discussion. De
Kerchove is taking on an "implicit" tasking from the GAERC to
produce options for future discussions by Ministers. He said
he would consult further with European Commissioner for
External Relations and Neighborhood Policy Ferrero-Waldner,
given that the Commission would be the likely source for any
funding that might be made available to assist Member States
or third countries that decide to accept detainees.

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VARIOUS FACTORS UNDER CONSIDERATION
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3. (C) De Kerchove noted that Ministers had to consider the
Schengen dimension, namely that the Schengen Convention
permits free travel among most Member States. While some
individual Member States might decide to accept detainees,
broader implications were at play. De Kerchove added that
Member States need also to consider the possibility of
liability, i.e., detainees suing over their imprisonment at
Guantanamo. Finance costs would also always be a
consideration, including for the Baltic States and non-EU
countries that might decide to accept detainees. De Kerchove
said Member States would watch whether the United States
accepted any of the detainees into its territory. Since the
beginning of discussions of this issue, lack of stated U.S.
willingness to accept one or more detainees has prompted a

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"classical objection" within the EU. He ventured that U.S.
financial assistance might sway the Baltic States to sign up
for accepting detainees. Regarding the 50 or so detainees
who were cleared for release to other countries, further
details of their background would influence decisions. "What
does 'not dangerous' mean?," he asked. De Kerchove
acknowledged that President Obama's January 22 Executive
Order would entail a review of each detainee. Nonetheless,
he noted that France, for example, may be more willing to
accept Tunisians, given their greater chance of ultimate
integration into French society.


4. (U) Another consideration would be the legal status of
detainees, including whether they would be considered
refugees or have "temporary protected" status. Legal status
would also influence which source of funds may be available
to Member States, whether from a Justice and Home Affairs
(JHA) resettlement fund or from a refugee fund. Additionally,
some detainees may be considered "dangerous" and, therefore,
require continual surveillance. He understood this to be the
case with at least one detainee accepted already by the
United Kingdom. In any case the Commission would need to be
involved, as the Commission held the possible funding. De
Kerchove said he has also contacted officials from the
International Organization for Migration (IOM) and United
Nations High Commissioner for Refugees (UNHCR) officials for
guidance.

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POSSIBLE PRECEDENT FOR EU-WIDE DECISION
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5, (C) De Kerchove emphasized that the EU remained at the
early stages of reaching a consensus. In his view, the GAERC
discussion on January 26 was premature, but had proceeded at
the insistence of the Portuguese Foreign Minister, someone
who had revealed earlier internal EU discussions, when he
came out publicly last November in favor of accepting
detainees. De Kerchove reiterated his observation that the
Czech Presidency had "cold feet," perhaps because Czech
officials did not yet know much about this portfolio or
because of their own domestic political and legal
considerations. Nonetheless, if a consensus were to emerge
within the EU, then Member States would find it more
palatable individually to accept detainees. De Kerchove
found support for this line of thinking from the former
occasion when the EU had developed a common response to
accepting resettlement of 13 Palestinians from the Church of
the Nativity in Bethlehem in 2002. Ultimately, six Member
States stepped forward to accept these Palestinians. He
noted as an aside, however, that a Palestinian accepted by
Belgium was allegedly involved in criminal activities,
according to Belgian officials. De Kerchove said, as for his
part, he would proceed cautiously on this Guantanamo matter.

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NEXT STEPS
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6. (C) De Kerchove said he would need to prepare Ministers to
discuss the issue in a positive way and mobilize support from
the Commission. He said he sensed that the idea of accepting
detainees had sufficient support at this stage among various
Member States, but he advised that he needed a better "read
out" of the previous day's discussion before reaching a firm
conclusion. He said he believed that a "new approach"
involving an EU-wide consensus would be more fruitful than
bilateral approaches to individual Member States. Although
EU decision-making remained slow and difficult, his "guess"
was that many Member States would be willing to help if such
decisions occurred under an "EU umbrella." He added that
Foreign Ministers seemed intent on promoting a positive
achievement in transatlantic relations; however, Interior and
Justice Ministers could certainly add complications. Asked
whether EU Vice-President and Commissioner for Justice,
Freedom and Security (JLS) Jacques Barrot planned a trip to
Washington soon to discuss Guantanamo, De Kerchove quipped
that he had seen press reports that he himself would
accompany Barrot on such a visit. That said, De Kerchove
indicated that he did not have any firm dates on when such a
trip may occur. In any case, he suggested that Mission
officers meet with him again in two weeks for another update.

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COMMENT

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7. (C) Although De Kerchove said he did not know when the
Czech Presidency would return to the Guantanamo detainee
question, the Czech Permanent Representative subsequently
informed us that the Political and Security Committee (PSC)
would do so on January 30. END COMMENT.

MURRAY
.