US embassy cable - 09BRUSSELS101

S E C R E T SECTION 01 OF 03 BRUSSELS 000101 
 
SIPDIS 
NOFORN 
 
STATE FOR P, NEA/IR, EEB/ESC/TFS, S/CT, L, EUR, INL 
TREASURY FOR TFFC, TFI, OIA 
 
E.O. 12958: DECL: 01/25/2019 
TAGS: ETTC, KTFN, PTER, EFIN, KCRM, KJUS, KHLS, EUN, UNSC, 
IR, PREF, PINR, PHUM, FR, UK, ASEC, BE 
SUBJECT: (C) EU LIFTS MEK SANCTIONS; SECRETARIAT REQUESTS 
USG ASSISTANCE 
 
REF: A. BRUSSELS 41 
     B. 2008 BRUSSELS 870 
     C. 2008 PARIS 1188 
     D. 2008 LONDON 2060 
     E. 2008 BRUSSELS 1106 
     F. LONDON 100 
     G. STATE 2046 
 
Classified By: CDA Christopher W. Murray for reasons 1.4 (b), (d), and 
(e). 
 
1.  (U) Action Request:  Please see paragraphs 11-12. 
 
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Summary 
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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. 
 
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Cooper's Suggestion 
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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 
A-E). 
 
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 
 
BRUSSELS 00000101  002 OF 003 
 
 
implication that however it acted, the EU was acting in 
response to the Iranians. 
 
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Additional Nuance from other Contacts 
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-- 
UK 
-- 
 
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 
this); 
-- 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 
requests); 
-- 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 
well. 
 
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Council Staff 
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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 
demand. 
 
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 
 
BRUSSELS 00000101  003 OF 003 
 
 
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. 
 
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Action Request 
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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 
REQUEST. 
 
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Comment 
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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. 
 
MURRAY 
.