US embassy cable - 04THEHAGUE1775

UNCLAS SECTION 01 OF 06 THE HAGUE 001775 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: KCRM, PTER, CVIS, SNAR, SMIG, KFRD, CPAS, PREL, EUN 
SUBJECT: JULY 7 U.S.-EU JHA CONSULTATIONS - CATS & SCIFA 
 
 
1.  SUMMARY: U.S.-EU consultations on a broad range of JHA 
issues were held in The Hague on July 7.  The Article 36 
Committee (CATS for cooperation in police and judicial 
matters) met in the morning and the Strategic Committee on 
Immigration, Frontiers and Asylum (SCIFA) met in the 
afternoon.  State, DoJ and DHS participated. 
 
2.  SUMMARY CONTINUED - CATS (Paras 4-20): Following an 
intervention by EB A/S Wayne on terrorist financing 
priorities, the EU agreed to provide a summary of what is 
being done on terrorist financing under each "pillar."  Both 
sides also agreed to a meeting of experts to lay the 
foundation for cooperation on analyzing frozen accounts and 
to explore opportunities for joint training of police on 
financial investigations.  On the use and sharing of 
sensitive information, the EU agreed to ask Member States 
about their legal and procedural capacities to investigate, 
prosecute and cooperate internationally against anticipatory 
crimes (using a G-8 questionnaire as a basis).  Both sides 
agreed to explore a meeting of experts, perhaps under 
Eurojust, on "lessons learned" in fighting terrorism.  EU is 
pressing Member States to contribute information on their 
lost and stolen passports to Interpol, and the Dutch 
President promised to urge Member States to complete work on 
the bilateral protocols needed to implement the U.S.-EU 
Mutual Legal Assistance and Extradition Agreements.  The EU 
also promised to share with the U.S. an assessment of 
policing in the Balkans before it is final.  The U.S. 
accepted Oct. 25 date for U.S.-EU drugs troika. 
 
3.  SUMMARY CONTINUED - SCIFA (Paras 21-30): In the 
afternoon SCIFA meeting, the EU named priority countries for 
migration and asylum purposes, detailed efforts to achieve 
reciprocity on visa policy with third countries for the 10 
new EU Member States, and described expectations for the EU 
Border Management Agency.  The U.S. explained the legal 
requirements of the Visa Waiver Program (VWP), the new 
Immigration Security Initiative (ISI) and US VISIT.  Both 
sides stressed the technical problems inherent in the prompt 
inclusion of biometrics in travel documents.  They also 
indicated opportunities for cooperation and information 
exchange on immigration and asylum source countries, 
trafficking in persons, developing a mechanism for an 
integrated database for visa lookout systems.  END SUMMARY. 
 
---- 
CATS 
---- 
 
4.  DELEGATION: The U.S. delegation consisted of Bruce 
Swartz, Deputy Assistant Attorney General, DOJ; Mark 
Richard, Senior DOJ Counselor, USEU; Tom Burrows, Senior 
Counsel, Office of International Affairs, DOJ; Scott Boylan, 
Advisor to the Secretary, DHS; Audrey Adams, CBP Attach, 
USEU; Frank Kerber, Narcotics and Legal Affairs Counselor, 
USEU; Maren Brooks, State/INL; Drew Mann, Embassy, The 
Hague; and John Hoover, Embassy EU Presidency Unit (note 
taker).  EB A/S Wayne addressed the group on terrorist 
financing issues.  The EU delegation was chaired by Arie 
IJzerman, Director of International Criminal Affairs and 
Drugs Policy, Dutch Ministry of Justice, and included, inter 
alia, Denise Sorasio and Jean-Louis De Brouwer, both 
Directors in the EC's DG JAI, and Gilles de Kerchove of the 
European Council Secretariat.  Jan Peek of the Netherlands 
Embassy in Washington also attended. 
 
----------------------- 
Fight against terrorism 
----------------------- 
 
 
5.  Most of the CATS meeting was spent discussing ways for 
the U.S. and EU to cooperate in fighting terrorism. 
IJzerman said the recent U.S.-EU summit conclusions were 
"rich" in providing areas for follow-up.  Swartz agreed the 
U.S.-EU Declaration on Combating Terrorism maps out the way 
forward and the two sides should use it as a framework for 
the discussion of concrete proposals. 
 
6.  TERRORIST FINANCING: A/S Wayne said there is a need to 
operationalize the commitments made on terrorism financing 
in the U.S.-EU Summit statement.  There has been a great 
deal of progress, but forward movement on the next 
generation of issues promises to be more difficult.  The 
U.S. hopes to see universal Member State adoption of 
legislation giving them national authority to freeze assets 
"without delay," criminalization of financial support for 
terrorism, aggressive implementation in identifying 
financial sources of terrorism and in taking action against 
them, development of ways to reach alternative financial 
transfer systems, and adoption of "safe harbor" legislation 
- providing that banks are not punished for identifying 
accounts and providing information.  Wayne expressed the 
hope a regular dialogue can be established that includes all 
three pillars of the EU and broad representation of agencies 
in the U.S., including intelligence, financial and law 
enforcement. 
7.  Sorasio replied that freezing of assets following action 
by the UN Counterterrorism Committee is in the hands of 
Member States.  Action to criminalize support of terrorism, 
however, has been taken at the EU level.  The EU is in the 
process of modifying, for the third time, its anti-money 
laundering directive, which also relates to the financing of 
terrorism, to extend its scope.  Member States have been 
encouraged to share all terrorism information with Europol. 
An EU communication has supported discussion of improving 
transparency of legal entities such as charities, which can 
be used as transfer systems.  The Commission is not yet 
ready to propose legislation, however.  There also is a plan 
to improve training for those police officers responsible 
for financial investigations.  Sorasio expressed interest in 
an expert level exchange of information on those last two 
points with the U.S., and Swartz said the U.S. was ready to 
participate. 
 
8.  When asked by Wayne to clarify what measures against 
terrorist financing were the responsibility of Ecofin as 
opposed to JHA, De Kerchove said he would provide further 
information, but also noted some sensitivity of the exchange 
of information through the financial intelligence unit.  The 
EU realizes the need to reform and improve Clearinghouse 
operations.  Before doing so, De Kerchove cautioned that the 
EU might wait until the European Court of Justice renders 
decision on pending cases challenging designations by the 
Clearinghouse. 
 
9.  Regarding 2.10 of the U.S.-EU Declaration (analyzing 
frozen bank accounts), De Kerchove said the only real EU 
authority for such work resided in Europol.  Legally, he did 
not see any obstacles to cooperation, but the question was 
how to proceed - with some Member States expressing concern 
about "joint" analysis of the accounts.  DOJ/USEU Richard 
highlighted several ways the analysis could be conducted - 
for example, jointly by U.S. and EU experts working together 
or by separate analysis of European accounts by European 
experts which would then be shared with the U.S. (and vice 
versa).  The U.S. desired a mechanism that would avoid 
cumbersome treaty requirements for requesting information 
and one that could foster agreement on a target relevant to 
each party.  He noted joint analysis would be more effective 
in this regard than separate analysis.  De Kerchove and 
IJzerman suggested a step-by-step approach with U.S.-EU 
experts meeting soon to define the models with an eye toward 
achieving agreement on the way to proceed at the JHA 
Ministerial meetings in late September. 
 
10.  "BEST PRACTICES" EXCHANGE: IJzerman said the Commission 
had circulated a communication on how to extend the exchange 
of sensitive information to Europol to cover all terrorists 
(not just those identified through the Clearinghouse 
process).  The communication also addressed improving 
information access.  Sorasio said the communication was 
"ambitious" in stimulating exchanges and access, and raised 
matters such as accessing private data bases, i.e., bank 
accounts; being anticipatory rather than merely reactive in 
investigating and prosecuting terrorists; trust-building 
among the competent authorities; and providing EU-wide 
training on top of national training.  Swartz applauded the 
recognition of the need for pro-active investigations based 
on intelligence.  He noted a recent seminar at Eurojust on 
lessons learned from the Madrid bombing and indicated "best 
practices/ lessons learned" seminars and exchanges could be 
most helpful in enhancing everyone's capabilities.  He also 
suggested Eurojust as an existing EU mechanism that was 
suited for such exchanges.  De Kerchove noted the types of 
experts needed for such discussions were broader than those 
currently associated with Eurojust.  Still, Swartz said, 
Eurojust should be able to draw in outside experts as needed 
to inform its members. 
 
11.  LOST & STOLEN PASSPORTS: On sharing data on lost and 
stolen passports, Sorasio acknowledged the U.S. had already 
provided data to Interpol (remarking, though, that the U.S. 
"is in a position to act more quickly") and some EU Member 
States had as well, but others needed to see better 
arrangements at Interpol, including protective measures. 
The Commission has made a proposal to improve sharing and 
the plan is to be considered for adoption before the end of 
the Dutch Presidency.  Richard said EU Member States seemed 
to see Interpol as an appropriate international repository 
for data and wondered if data on other areas such as 
fingerprinting could be included.  IJzerman advised that 
moving too fast on further proposals might make 
implementation of what was already under way more difficult. 
All agreed wide dissemination of the information submitted 
to Interpol was useful. 
 
12.  ANTICIPATORY CRIMES: Richard introduced the topic of 
anticipatory offenses, i.e., actions that terrorists take in 
preparation for committing the actual act of terrorism.  To 
position governments to prevent terrorism, these 
anticipatory offenses have to be criminalized and procedures 
set up for sharing of information on them and providing for 
extradition.  Complicating prosecution of such cases is the 
question of intelligence data sharing and use of 
intelligence in prosecution while protecting sources and 
methods.  IJzerman replied that developing information on 
the status of such laws and pending legislation by the 
Member States was first necessary.  IJzerman said the EU was 
already compiling that information, and, using the G-8 
questionnaire as a foundation, would poll Member States on 
their abilities to investigate, prosecute and cooperate 
internationally against anticipatory crimes. 
 
 
13.  WORKING PARTY ON TERRORISM - 3RD PILLAR GROUP: As 
another area for practical cooperation, the two sides agreed 
to meet and exchange information on how to handle security 
at major events, including but not limited to sporting 
events (e.g., Olympics, European Football Championship, 
political conventions). 
 
--------------------------------------------- ------- 
EU-U.S. agreements on mutual legal assistance and on 
extradition 
--------------------------------------------- ------- 
 
14.  IJzerman said he was aware negotiations continued on 
some of the bilateral protocols needed to implement the U.S.- 
EU MLA and extradition agreements.  The Dutch will encourage 
Member States to be positive, and he urged the U.S. to be 
flexible.  The Presidency will meet with the ten new Member 
States before the end of July or in early September to 
introduce them to what must be done on these agreements. 
Richard said it was still feasible to finish the process 
before the end of the Dutch presidency.  The U.S. wants to 
begin in September with its own meeting with the ten as a 
group, but would like to conclude the 15 before starting 
with the ten.  Richard noted outstanding problems with 
Spain, Austria and Portugal.  There are significant problems 
with Portugal because its Parliament wants to include 
elements that go way beyond the original context of the 
agreement.  Spain and Austria had not even replied to the 
U.S. proposal.  IJzerman said he would report this 
conversation to the July JHA Council and "invite Member 
States to take careful note" of what the U.S. said and, at 
least, to react. 
 
------------------------------ 
Organized crime in the Balkans 
------------------------------ 
 
15.  IJzerman said the Presidency had organized a group 
("Friends of the President") to assess the Balkans and 
evaluate how the EU could more effectively combat organized 
crime there and how Balkan organized crime affected the EU. 
Swartz said Balkan organized crime was also penetrating the 
U.S. and believed it was therefore a common problem to be 
worked on together.  Richard noted a major problem was the 
lack of an effective witness protection program in the 
Balkans.  Witnesses were threatened or "eliminated."  There 
had been a working group of magistrates from the area, but 
the group, having lost strong Serbian leadership, had become 
"moribund and docile."  Richard informed the EU of upcoming 
consultations by U.S. officials (July 16-20) at Europol and 
Eurojust to look at models for a witness protection program 
in the Balkans.  IJzerman said the EU would share its 
"Friends of the President" assessment with U.S. experts for 
input before it became final. 
 
------------------------------------ 
November confidence-building seminar 
------------------------------------ 
 
16.  Richard said the U.S. had the EU proposal for a 
November seminar to familiarize U.S. law enforcement 
officials with European systems and would shortly provide 
comments to finalize the proposal and seminar's structure. 
 
------------------------ 
Cooperation with Europol 
------------------------ 
 
17.  IJzerman complained that problems in the operation of 
Europol liaison officers in Washington as channels for 
communication had not yet been resolved.  Richard said the 
agreement on the liaison officers did not specify how and 
where information exchanges were to take place.  The way 
Europol wanted to operate - transmitting requests through 
its liaison officers as representatives of all 25 Member 
States - did not work for U.S. agencies.  It bypassed 
attaches at U.S. embassies in the Member States, yet U.S. 
agencies handled requests through the attach channel. 
Europol, Richard explained, insisted on using its liaison 
officers in a way unfamiliar to DEA and FBI procedures. 
IJzerman cited the Secret Service as a positive example of 
how a U.S. agency could work with Europol. 
 
18.  Swartz divided the problem into (a) what kind of U.S. 
representative should there be to Europol and (b) what role 
were the attaches to play.  If the Europol function is to be 
the central point of contact for counter-terrorism, which is 
a decision for EU Member States, then the FBI might put 
somebody there.  Richard pressed for flexibility on both 
sides.  Summing up, IJzerman noted it was important the U.S. 
recognized Europol as a lead law enforcement agency and find 
practical solutions for engaging with it. Both sides agreed 
to pursue cooperation and return to the issue at the next 
meeting to review the state of play. 
 
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Narcotics 
--------- 
 
19.  IJzerman briefly described the status of the 
development of the EU drug strategy for the period 2005- 
2012. The Commission will provide an evaluation of the 
existing strategy in October.  The draft strategy outline is 
to include reduction of both supply and demand, and to 
emphasize an "evidence-based policy." i.e., provide for 
research and monitoring.  EU-wide cooperation and 
international cooperation will be important elements.  He 
promised to keep the U.S. informed as work progressed. 
 
20.  The U.S. accepted October 25 as the date for the U.S.- 
EU drugs troika. 
 
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SCIFA 
----- 
 
21.  DELEGATION: Paul Fitzgerald, Coordinator, Border & 
Immigration Programs, CA/VO/BIP, led the U.S. discussions, 
joined by Boylan, Burrows, Brooks, Adams and Jim Gray, 
Acting Consul General, CG Amsterdam.  The EU side was led by 
Reinier ter Kuile, Director, Immigration Policy, Dutch 
Justice Ministry, and included De Brouwer, Jan de Ceuster 
and Diederik Paalman. 
 
------------------------------------- 
Migration & Asylum Priority Countries 
------------------------------------- 
 
22.  Referring to the "JHA External Relations Multi- 
Presidency Programme," ter Kuile stressed the importance of 
external relations in immigration and asylum issues, "more 
so than in any other part of the JHA program."  Besides the 
U.S., Russia and the Balkans are priorities with readmission 
and visa negotiations underway.  Furthermore, the European 
Neighborhood Policy also has immigration and asylum 
elements.  The Commission's De Brouwer added Morocco, 
Pakistan, Ukraine and China to the priority countries on 
migration and asylum for the EU.  By the end of the year the 
Commission plans a report on immigration management from 
certain third countries, including these. 
 
--------------------------------------------- ---- 
Border controls and travel documents - biometrics 
--------------------------------------------- ---- 
 
23.  Both sides noted biometrics were a work in progress and 
felt the experts' seminar held July 1-2 in The Hague (with 
U.S. participation) had been a success.  De Brouwer reported 
the Council had decided in June passports would require 
facial recognition capability with fingerprints optional. 
Several countries already have fingerprint capability in 
their national ID cards, he noted, so they might be expected 
to include this in passports as well.  He said there were, 
however, technical, privacy and interoperability problems, 
so becoming operational was a race against time.  Boylan 
noted DHS Secretary Ridge believed it was vitally important 
the chips in new passports be capable of adding additional 
biometrics in the future.  Should, for example, ICAO modify 
its standard to include fingerprints, the new biometric 
passports would be capable of absorbing that data.  Boylan 
and Fitzgerald reported the Administration had requested a 
two-year extension of the Oct. 26 deadline (for Visa Waiver 
Program countries to have biometrics in their travel 
documents), but it appeared Congress would grant only one 
year.  De Brouwer replied the EU was a strong supporter of a 
two-year extension, noting one year was by no means 
sufficient to solve the time problem. 
 
-------------------------- 
Reciprocity in visa policy 
-------------------------- 
 
24.  De Brouwer said the EU was pursuing reciprocity with 
third countries after its recent enlargement.  Venezuela has 
agreed to grant equal treatment to the ten new Member States 
and Australia will give equal access to electronic visas. 
Canada has agreed to review visa requirements "without 
prejudging the outcome."  The EU will utilize the 
flexibility built into its visa program so it is useful and 
"not a nuclear weapon."  He noted equal treatment of all EU 
travelers was a highly political issue in Europe, but he 
would not prejudge any Council decision on the matter. 
 
25.  Fitzgerald replied the U.S. was operating its Visa 
Waiver Program (VWP) under legislation, not policy. 
Objective legal standards must be met.  The U.S. reviews 
visa policies with regard to individual countries all the 
time.  Some countries lose ground while others gain.  It is 
not, however, an item for multilateral consideration; U.S. 
law requires the standards be met on a bilateral basis.  He 
noted that, with the US-VISIT border entry program in 
operation, data on which nationalities over-stay their visas 
will be much more complete and timely - and will play a role 
in VWP determination.  ter Kuile said any EU-U.S. discussion 
of the question was a bilateral discussion.  He suggested 
the U.S. review the eligibility of new Member States for the 
VWP and indicate what could be done to help them meet the 
criteria.  Then, perhaps, the Commission could help them as 
well.  De Brouwer claimed more and more of what a country 
must do to meet the VWP requirements was done at the EU 
level, so it was more and more an EU concern.  Some of what 
the EU requires of its new members in the way of border 
controls matches U.S. requirements, for example.  He 
suggested, if the U.S. could do what Canada did, it would 
alleviate pressure from the Member States on the EU to act. 
Fitzgerald and Boylan repeated that country eligibility was 
constantly reviewed bilaterally, pointed out important 
Congressional leaders had recommended eliminating the VWP, 
and questioned whether actions taken at the EU level would 
effect whether individuals over-stayed their visas. 
 
---------------- 
US VISIT program 
---------------- 
 
26.  Boylan reviewed the status of further implementation 
for US VISIT, noting its successful introduction in January. 
As previously announced, he said travelers from VWP 
countries would start to be enrolled in US VISIT at the end 
of September.  Although DHS is hoping to avoid start-up 
problems by providing ample equipment at key ports of entry, 
whether things will go smoothly as did its initial 
introduction is unknown until actual implementation.  Ter 
Kuile and De Brouwer warned that any problem could turn into 
a public relations disaster and asked about U.S. plans for a 
campaign to explain the necessity for the program to the 
European traveling public.  They also expressed nervousness 
about the possibility of the new European Parliament 
complaining about this program, including using their 
examination of new Commissioners to comment on it.  Boylan 
promised to provide information on that campaign. 
 
----------------------------------- 
EU Border Management Agency (EUBMA) 
----------------------------------- 
 
27.  De Brouwer said the Commission was preparing a series 
of decisions that would allow creation and operation of the 
EUBMA in early 2005.  It ultimately will control goods as 
well as travelers.  It is seen as a long-term project.  The 
Commission is now completing the tender for the system's 
operator.  Starting in 2006, the EUBMA will have an 
information database, but the Commission is considering 
including biometric data as well.  Fitzgerald and Boylan 
reminded the EU of the U.S. proposal for a visa lookout 
working group that would assist the EU as it builds its 
Schengen Visa Information System over the next few years. 
They recommended face-to-face experts meeting in the fall 
followed by DVC meetings.  De Brouwer said the Commission 
would respond by the end of July, though he expected the EU 
would propose a wider agenda, "maybe much of what is on our 
agenda this afternoon." 
 
---------------------------- 
Immigration Liaison Officers 
---------------------------- 
 
28.  Describing the new Immigration Security Initiative (ISI 
- immigration officers placed at overseas airports to assist 
host countries and airlines evaluate passengers traveling to 
the U.S.), Boylan said the U.S. saw this as a pilot project. 
The issue is whether these officers are cost effective. 
Preliminary indications are they do not pay for themselves 
at every airport.  So the question then becomes where to put 
them and what to do elsewhere.  The Commission said they 
would be developing an ILO system and the U.S. would be free 
to cooperate. 
 
------------------------------- 
Immigration and asylum policies 
------------------------------- 
 
29.  De Brouwer said the EU was now setting a new agenda on 
JHA/immigration and asylum policies with the completion of 
the 1999-2004 Tampere process.  A proposal will be presented 
in November.  Legislation is being drafted on border control 
initiatives; policy papers are being prepared on such 
matters as migration and asylum, the relationship between 
legal and illegal immigration, and readmission.  There was a 
June paper on international protection where it was 
emphasized it was best to provide refugee protection near 
the home country, and protracted disturbances required a 
different response than others.  It also offered suggestions 
for development of an EU-wide resettlement program.  There 
will be an analysis of third countries that are key for 
immigration management.  Often, he noted, the U.S. and EU 
have the same "clients" in this respect, and he would 
welcome exchange and cooperation. 
 
----------------------------------------- 
Trafficking in Human Beings (TIHB/TIP) 
----------------------------------------- 
 
30.  De Brouwer pointed out the significance of the EU 
recently taking over negotiations in the Council of Europe 
on a TIP agreement.  It was the first time the Commission 
had acted on behalf of all 25 Member States there.  Burrows 
replied the U.S. welcomed active EU participation on this 
issue, though he understood the Council of Europe had 
trouble adjusting to the change.  The U.S. had seen 
important improvements in the draft, though it would be 
difficult for the U.S. to become a party as the text stands. 
There are still provisions of concern, such as making every 
victim benefit available to every victim regardless of 
situation or whether a "victim" had been intercepted at the 
border and, therefore, never became exploited the way others 
had.  De Brouwer said the Commission had the same concern 
about that provision. 
 
(This cable was drafted by Embassy The Hague and cleared by 
A/S Wayne and members of the U.S. delegation.) 
 
SOBEL