NETHERLANDS: URGENT REQUEST FOR SUPPORT IN EU'S

S E C R E T SECTION 01 OF 02 THE HAGUE 000636

NOFORN
SIPDIS

STATE FOR S/CT, EEB/TFS, EUR/ERA, EAP/RSP
TREASURY FOR TFFC, OFAC, OIA
NSC FOR KKVIEN

E.O. 12958: DECL: 10/22/2019
TAGS: ETTC KTFN PTER EFIN KCRM KJUS KHLS EUN NL
SUBJECT: NETHERLANDS: URGENT REQUEST FOR SUPPORT IN EU'S
SISON CASE

REF: A. THE HAGUE 0309

B. USEU TODAY 10/09/09

C. EMAIL CANAVAN-FLORIO 10/22/09

Classified By: DCM Michael Gallagher for reasons 1.4 (b),(d)


1. (U) URGENT ACTION REQUEST: This is a joint message from
AmEmbassy The Hague and USEU. The Dutch are approaching an
October 27 deadline and request USG assistance if possible.
Please see paragraphs 7-9. END ACTION REQUEST.


2. (S//NF) SUMMARY: On the margins of the October 15-16
Belgium-sponsored seminar on targeted sanctions (SEPTEL),a
U.S. delegation met with Dutch MFA counterterrorism officials
to discuss next steps in the case of Jose Maria Sison. The
Netherlands intends to push the EU Council to appeal a
September 30 EU Court of First Instance (CFI) judgment that
struck down the EU's autonomous sanctions against Sison (REF
B, background para 10). Dutch authorities object to the
court's finding that immigration officials are not a
competent counterterrorism authority. They would
provisionally argue that "more services need to be involved
in the fight against terrorism." Interlocutors pressed for
continued USG support to construct legal arguments for the
high court. The deadline for a Council decision to appeal,
and thus for U.S. input, is October 27. With respect to the
Sison judgment's broader implications for preventive
sanctions measures, Member States have decided to await
judgments in the Al-Aqsa and MEK cases before amending EU
counterterrorism regulations. END SUMMARY.

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Dutch Concerns
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3. (C) Upon conclusion of the October 15-16
Belgium-sponsored "Seminar on Strengthening the UN Targeted
Sanctions through Fair and Clear Procedures" (SEPTEL),an
interagency U.S. delegation held a bilateral meeting with
Head of Counterterrorism Division Frank Van Beuningen and
Senior Policy Advisor for Counterterrorism Wendela
Haringhuizen, both from the Netherlands Ministry of Foreign
Affairs. The Dutch had requested the meeting to seek
feedback on the sanctions seminar and to discuss next steps
in the case of Netherlands-based Philippine national Jose
Maria Sison.


4. (S//NF) Haringhuizen noted several developments,
mentioning the September 30 CFI judgment, Dutch efforts to
maintain Sison's EU terrorism sanctions listing, and a
laissez-passer that Sison has requested to leave the
Netherlands for the UK. Haringhuizen reminded the delegation
that the Netherlands had initially pursued Sison's
designation upon request from the USG. Local immigration
officials initiated counterterrorism proceedings against
Sison based upon information provided by the Dutch secret
service in the mid-1990s.


5. (C//NF) According to Haringhuizen, the Netherlands will
continue to push the EU Council to appeal the CFI's "very
restricted interpretation." Particularly troubling for the
Netherlands was the judgment's failure to describe what
constitutes a competent authority to undertake
counterterrorism sanctions designations. They are concerned
that the judgment sets a precedent, narrowing the scope of
who can serve as the basis for EU terrorism sanctions
Qwho can serve as the basis for EU terrorism sanctions
decisions. Dutch authorities, who are less concerned with
maintaining Sison's listing within the EU, seek clarification
on this point of law and would provisionally argue that "more
services need to be involved in the fight against terrorism."
They have not yet decided whether to raise the issue of
administrative decisions not linked to criminal
investigations or prosecutions, thereby exposing the EU to a
ruling on the viability of targeted sanctions as a preventive
measure.


6. (S//NF) EU Member States met on October 14 to discuss
implications of the Sison case. Haringhuizen explained that

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"Member States have sympathy but are not supporting" an
appeal and that large Member States (e.g. UK and Germany,
please protect) have explicitly opposed the Dutch position.
The Council Legal Service has advised Member States against
an appeal, arguing that it is losing too many terrorism
finance-related cases and should not risk losing more. This
defeatist logic dismays the Dutch, in light of recent
positive outcomes in the Bank Melli and El Morabit cases. On
the larger question of preventive sanctions, Member States
have decided to await judgments in the Al-Aqsa and Mujahedin
e-Khalq (MEK) cases before amending EU counterterrorism
regulations.

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Dutch Request to USG
--------------


7. (S//NF) The GONL has not/not asked for explicit U.S. help
in convincing EU capitals to support the appeal. However,
Haringhuizen requested USG advice to strengthen the GONL's
legal argument in favor of an appeal, stating that EU courts
would consider the experiences and conclusions of external
jurisdictions. Specifically, the Dutch need examples of U.S.
courts upholding domestic terror finance listings without a
court conviction on terrorism charges and/or based on the
finding of a government authority other than the Departments
of Justice or Treasury.


8. (S//NF) The additional CP 931 Working Group (EU terrorism
sanctions designation body) meeting scheduled for October 27
will be the last opportunity for the Council to commit to an
appeal and is therefore a firm deadline for any U.S. help.
Absent the support of a simple majority of Member States, the
GONL could in theory appeal independently on a national
basis. The GONL has discussed this internally but sees no
upside to fighting for a principle on its own. In addition,
Philippines-provided information tying Sison to money
laundering activities is insufficient to support prosecution
in the Netherlands. Sison's asset freeze and travel ban in
the Netherlands will thus likely disappear by early 2010
absent an appeal by the Council.


9. (S//NF) Van Beuningen concluded the meeting by requesting
additional information of "any type or classification"
related to Sison. He thanked the delegation for previous
U.S. support, claiming that USG-provided intelligence had
been essential to maintaining Sison's listing within the EU.

-------------- --
Background on Latest Sison Case at the EU Court
-------------- --


10. (C) Sison is believed to head the New People's Army
(military wing of the Philippines Communist Party),which
seeks to overthrow the national government and was blamed for
94 assassinations in 2008. He has resided in the Netherlands
since 1987, when the Philippines revoked his passport. In a
September 30 ruling, the EU Court of First Instance ("CFI")
condemned the fact that the Dutch courts' review of Sison's
ties to terrorism was incidental to an asylum application,
yet served as the basis for EU sanctions designation. The
CFI struck down the EU's autonomous listing of Sison, finding
QCFI struck down the EU's autonomous listing of Sison, finding
that a decision to "instigate investigations or prosecute"
must "form part of national proceedings seeking, directly and
chiefly, the imposition of measures of preventive or punitive
nature, in connection with the combating of terrorism and by
reason of that person's involvement in terrorism." Council
Legal Service contacts fear the decision may have
far-reaching implications, including the potential
prohibition of preventive measures based on administrative
decisions not linked to criminal investigations or
prosecutions. Lawyers continue to study the ruling in
capitals. END BACKGROUND.

LEVIN