Cablegate: Dhs Assistant Secretary Meets with Eu Commission

DE RUEHBS #0447/01 0861047
R 261047Z MAR 08





E.O. 12958: N/A


B. STATE 21769
G. STATE 11657

1. (SBU) Summary. On March 14, 2008, Department of Homeland
Security Assistant Secretary for Policy Stewart Baker met in
Brussels with European Union Director General for Justice,
Freedom and Security (JLS) Jonathan Faull for a detailed
discussion of the implementation along twin tracks of the
U.S. Visa Waiver Program (VWP) modernization measures enacted
in August 2007 that form the basis of Memoranda of
Understanding (MOU) and related implementation arrangements
that DHS is pursuing with the member states. This discussion
came on the heels of the March 13 U.S.-EU JLS Troika
ministerial meeting in Slovenia where the VWP was also much
discussed and concluded in political level agreement to
pursue twin tracks whereby the U.S. will negotiate with
individual member states on matters of national authority
while consulting with EU institutions on matters of community
competence. The Brussels meeting was positive and
constructive and addressed all aspects of the VWP
Modernization Act. End Summary.

2. (SBU) Department of Homeland Security Assistant Secretary
for Policy Stewart Baker met in Brussels March 14 with
European Union Director General for Justice, Liberty and
Security (JLS) Jonathan Faull for a full discussion of the
current issues surrounding the MOUs to be agreed between DHS
and member states for participation in the VWP. A/S Baker
was accompanied to the meeting, which immediately followed a
private Baker-Faull lunch, by USEU representatives from
Department of Homeland Security, Department of State's Bureau
of Consular Affairs, and the Department of Justice, plus
visiting DOJ Privacy Officer Ken Mortensen. DG Faull was
joined by three JLS staff members (Telmo Baltazar, Luigi
Soreca and Jan de Cuester) plus current Slovene EU presidency
representative Andrej Grosjean. The almost two-hour meeting
was positive and constructive, and any areas of disagreement
were openly discussed.

3. (SBU) DG Faull opened with an explanation of his view that
the VWP issues need to proceed on both a short and long term
track. In the short term, the U.S. and EU must focus on what
needs to be done to get member states into the VWP, while in
the mid-to-long term, the U.S. and EU will need to tackle
issues such as interoperability between EU and US Passenger
Name Recognition (PNR) systems; how data can be exchanged
while observing privacy constraints and sorting out the EU
versus member state competencies. DG Faull emphasized the
need to implement the twin track approach agreed upon at the
Troika in Slovenia - e.g., the U.S. will proceed with member
states on issues within national authority while talking with
appropriate EU institutions on matters that are community

4. (SBU) A/S Baker expressed confidence both sides could
quickly move forward on the short term issues. He agreed to
the two track policy, noting DHS will let member states raise
gray areas resulting from our bilateral talks on VWP
implementing arrangements and allow member states and
Brussels to work out these issues before moving forward. A/S
Baker also clearly expressed interest in medium to long term
discussions on information sharing that might involve the
Schengen Information System II (SIS), the planned EU Visa
Information System (VIS), and the EU Eurodac, which logs
asylum seekers, recognizing that all of these would require
talks at the EU level. DG Faull agreed that it is "their
problem" to work out gray areas of competency within the "EU
family" while noting that access to EU systems is clearly a
community-level competency.

5. (SBU) On information sharing, DG Faull put down a marker
that member states do not "own" data in EU systems while
noting that neither VIS nor SIS II are implemented. He
further asserted that there may be far less national data in
the EU systems than DHS thinks. SIS II includes most but not
all member states (not Romania, Bulgaria, or Cyprus) plus
non-EU Schengen members (Iceland, Norway, Switzerland and
soon Liechtenstein). In addition, the UK and Ireland have
access to SIS/police and judicial information but not to the

BRUSSELS 00000447 002 OF 003

migration/border crossing information because they are not in
Schengen. Each Schengen member has its own NSIS (national
SIS). This is not evidence that a country owns the data - it
is merely a technological device that allows each member
state to interface with the overall system. Data collected
by member states enters the central SIS almost immediately
and, similarly, individual member states' alerts also enter
the NSIS database thereby creating a mix of data. DG Faull
said that it would be "illegal" for the U.S. to gather border
information from all Schengen members in an attempted end-run
of the EU competency. Comment: While it is clear that
SIS/Migration data is an EU competency, there are questions
as to whether SIS/criminal data is at the national or EU
level. Under the upcoming Lisbon Treaty it will clearly be
an EU competency but there may be currently a window of
opportunity to negotiate at the bilateral level. DG Faull
did note that intelligence sharing is clearly a member state
authority and that reciprocity will be an important issue on
all issues. End Comment.

6. (SBU) A/S Baker pledged to take DG Faull,s view into
account but stated that DHS will do its own research and
discuss with member states before conceding or agreeing
whether member states "own" data that they collect and
contribute to SIS. He further explained DHS interest in
getting access to visa, asylum, and border crossing
information and in particular referred to a pilot project
with the UK on asylum seekers. He asked for definition of
intelligence in EU context to which there is no transparent
answer; DG Faull responded that it is a question they do not
ask. A/S Baker stressed that reciprocity should be looked at
in its broadest sense - e.g., if DHS and member state "x"
agree to exchange data element "y," then DHS will make it
available to be put it in the equivalent of SIS. If membr
state "x" puts the data "y" into SIS then i is available to
all SIS users. We will needto discuss this. DG Faull agreed
this is an important point.

7. (SBU) In reference to the important U.S. - EU Passenger
Name Record (PNR) Agreement of 2007, governing flights
between the United States and the EU, A/S Baker confirmed
that DHS seeks no change to the PNR agreement, no additional
data, no change in retention periods, or any reopening at
all. He did clearly state a U.S. interest in passenger
information on flights between Europe to third countries,
noting the security vulnerability of having individuals who
travel on different passports to conceal their travel routes.
These questions will be raised in the bilateral VWP
implementing arrangements that DHS will seek with VWP
candidate countries. In some instances it will make sense to
ask for such information depending on the data available to
individual member states. A/S Baker confirmed that this
effort contemplates government-to-government sharing of data
and not working through private entities, such as airlines.
A/S Baker and DG Faull discussed dual nationals and whether
we should work together to get changes in passport standards
(ICAO or other means) to indicate whether a passport bearer
also has another country's passport.

8. (SBU) On the repatriation requirement under U.S. VWP law
and in the new VWP arrangements, A/S Baker acknowledged the
constructive explanation from the EU concerning its member
states' obligations under international law to accept
returned nationals; the EU has also developed a definition of
"former nationals" that may assist DHS and will be shared.
He allowed that DHS can probably make such references in any
implementing arrangements. A/S Baker further suggested there
is scope for the U.S. and EU to work together on the issue of
repatriation of nationals from difficult countries. DG Faull
noted the EU has similar problems. They agreed it is not a
good use of time to negotiate a U.S.- EU
repatriation/re-admission agreement because there is no need.

9. (SBU) Regarding the lost and stolen passport (LASP)
reporting requirement of the new VWP arrangements, A/S Baker
stated that Interpol is the preferred mechanism for
exchanging this information but it is not working fully and
he has some concerns about the reliability of the
information. First, not all countries have a 24/7 capacity
to respond with timely "hit" resolution information, and,
second, not all countries are reporting immediately to
Interpol. DG Faull commented that if the U.S. seeks
additional data elements, such as resolutions of losses, or
biometrics, be reported to Interpol, the Commission would
need to agree and undertake relevant changes to EU law. DG

BRUSSELS 00000447 003 OF 003

Faull explained that member states are responsible for
reporting lost/stolen passports and providing hit resolution,
this is not an EU responsibility. DG Faull noted some of the
current LASP problems are from the decentralized issuance of
passports in certain member states. A/S Baker asked if the
EU could validate which member states are efficient in
reporting and which are not. DG Faull responded that he
believed we will be able to work together on such areas of
concern. The U.S. side then proposed scheduling an
opportunity for USG experts to meet with the EU's lost/stolen
passport working group for an exchange of views and an update
since the last successful meeting in 2007.

10. (SBU) The two sides also discussed the new U.S.
Electronic Travel Authorization (ETA). A/S Baker
acknowledged the political sensitivity associated with the
term ETA for certain EU member states but reported the
preliminary DHS legal view is that the United States cannot
simply switch the program name to form alternative acronyms
like ESTA or ETAS. On substantive points, DG Faull expressed
two major concerns; first, if the ETA is a visa under another
name and, second, what data will be collected? In response,
A/S Baker went through the U.S. ETA talking points related to
fee, validity, and data elements. On data elements and the
limits of the information collected, the DHS team produced a
copy of the current I-94W and pointed to that as the near
entirety of the information that will be sought in an on-line
registration, although subsequent updates on specific travel
plans will be necessary. DG Faull acknowledged that if the
U.S. is already collecting this information, it would be
difficult for EU to mount objections. DG Faull also
expressed concern over questions regarding HIV and Nazi
membership. A/S Baker explained these derive from U.S.
immigration law (grounds of inadmissibility) and cannot be
removed, but he committed to having DHS attorneys take
another look.

11. (SBU) There was considerable discussion given to the
narrow window of opportunity in which to make progress on EU
member states qualifying for and implementing entry into the
VWP. A/S Baker explained front end triggers (ETA and 97%
biographic data air exit validation) and the June 30, 2009
back end trigger of DHS's deadline of a U.S. biometric exit
program. On air exit validation and the ETA, certification
must be made to Congress before the first new member country
is admitted to VWP. A/S Baker also acknowledged the
importance of terminology when referring to full
implementation of ETA - this is a term with special legal
meaning and consequences under the U.S. legislation. A/S
Baker also explained that DHS, with the help of the State
Department, will do outreach to both existing and new member
countries to explain what will be needed for entry to the
U.S. using an ETA.

12, (SBU) Discussing next steps, DG Faull explained that he
believed the Commission will present to the Council of
Permanent Representatives March 18 a request for a
negotiation mandate which would help clarify EU versus member
state competencies. He stated that this mandate may be
nothing more than an insurance policy. A/S Baker pushed back
hard, urging careful consideration and warning that acting
too swiftly would just require amendments down the road. DG
Faull said they needed to proceed because the agreement is to
work on twin tracks and thus the EU needs to be ready to move
as the need arises. The Council Presidency noted the keen
importance Slovenia attaches to follow-up from the Troika and
asked whether ministers could meet (by DVC if necessary) as
early as April 9. DHS will provide a letter from Secretary
Chertoff to the Slovenian Minister memorializing the progress
made at and since the Troika. DG Faull noted the
Commission's public line will be twin track and common U.S.-
EU overriding goal to get more member states in a modernized,
secure Visa Waiver Program.


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