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UNCLAS SECTION 01 OF 03 BERLIN 002957 
 
SIPDIS 
 
SIPDIS 
SENSITIVE 
 
STATE FOR L - LEGAL ADVISER BELLINGER 
 
E.O. 12958: N/A 
TAGS: KJUS PTER PGOV PREL GM
SUBJECT: SCENESETTER: LEGAL ADVISER BELLINGER'S VISIT TO 
GERMANY TO DISCUSS LEGAL ASPECTS OF THE WAR ON TERROR 
 
REF: A. HAMBURG 63 
     ¶B. BERLIN 1995 
     ¶C. BERLIN 2785 
     ¶D. BERLIN 2654 
     ¶E. BERLIN 2577 
     ¶F. BERLIN 2303 
     ¶G. BERLIN 2058 
 
¶1. (SBU) Summary.  Mission Germany warmly welcomes you and 
your delegation for talks which will deepen our cooperation 
with Germany in the Global War on Terror.  The German 
Government is serious about combating terrorism and, 
especially in the wake of the failed train bombing attampts 
in July, is looking to beef up counterterrorism measures 
internally, in concert with us, and among EU members.  German 
cooperation has been good, including in law enforcement and 
other channels.  Interior Minister Schaeuble emphasized 
Germany's desire to do more -- including with respect to 
terrorist lookout data-sharing -- during his recent visit to 
Washington.  That said, many in the German public believe 
that the USG has to a certain extent lost its moral bearings. 
 The list of issues Germans around the country cite: 
Guantanamo/military commissions; Abu Ghraib; allegations of 
renditions, secret detention centers, and domestic 
eavesdropping; and SWIFT.  Factors unique to Germany 
sometimes further complicate issues here -- the use of U.S. 
air bases in Germany and Germany's own twentieth century 
history, for example.  Despite these challenges, the current 
and the previous German government have been strong partners 
in counterterrorism and each side is exploring ways to expand 
our cooperation.  Above all, German officials will appreciate 
our willingness to engage in a meaningful dialogue with them 
on international law aspects of the War on Terror.  The MFA 
organized the "Legal Issues in the Fight Against Terrorism" 
Conference to discuss our governments' interpretations of our 
legal obligations and what more we can do to reach common 
ground.  Your participation and that of your delegation will 
go a long way to reassure the Germans that, while firm in our 
resolve to fight terrorism worldwide, we do not intend to do 
so at the expense of abandoning the fundamental legal tenets 
and values that have guided us and our allies.  End Summary. 
 
--------------------------------------- 
German Legal Changes to Fight Terrorism 
--------------------------------------- 
 
¶2. (SBU) In the immediate aftermath of 9/11 and the 
realization that planning took place in Hamburg, the German 
government enacted a series of legal changes.  These new laws 
banned membership in foreign terrorist organizations, 
strengthened the federal Interior Ministry's ability to ban 
extremist associations, and simplified security service 
access to financial and travel records.  With the threat of 
terrorism made even clearer by, for example, the 2004 Madrid 
train bombings, Germany under the previous Chancellor, 
Gerhard Schroeder, and then-Minister of the Interior Schily 
continued to pursue improvements in Germany's 
counterterrorism legal regime to address perceived 
shortcomings.  Schily created the German version of NCTC -- 
the Joint Counterterrorism Analysis Center ("GTAZ") in 
December 2004.  In 2005 a new immigration law accelerated 
deportations of those posing a security risk and also enabled 
deportations of "hate preachers." 
 
¶3. (SBU) Chancellor Merkel came into office in November 2005, 
intent on expanding still further the legal tools for 
fighting terrorism.  Interior Minister Wolfgang Schaeuble 
subsequently pushed ilegislation to strengthen the 
counterterrorism capabilities of the Federal Office of 
Criminal Investigation (BKA); simplifying and broadening 
security service access to financial, phone, auto 
registration and travel data; and extending provisions in 
previous law that were subject to January 2007 sunset clauses 
(ref B).  In recent weeks and in the aftermath of the failed 
plot to bomb two German regional trains, Minister Schaeuble 
and the interior ministers of Germany's 16 federal states 
finally overcame political and legal obstacles and agreed to 
a draft law to create a combined counterterrorism database 
that incorporates data from Germany's dozens of federal and 
state law enforcement and intelligence/security agencies. 
The states also have various governing political coalitions, 
adding to the complexity of reaching agreement.  Each state 
has separate police and security agencies and the 
 
BERLIN 00002957  002 OF 003 
 
 
constitution grants states primacy in law enforcement.  Until 
now, these agencies, all of which are represented at GTAZ, 
shared their data in several interagency GTAZ working groups. 
 
--------------------------------------------- ---- 
Bilateral Cooperation Strong, Getting Stronger... 
--------------------------------------------- ---- 
 
¶4. (SBU) Bilateral counterterrorism cooperation with Germany 
has been strong despite unhelpful media attention -- and the 
chill cast by the work that many contacts face in researching 
their files to provide relevant data to the Bundestag 
investigative committee (see para 6).  The Embassy has been 
engaged in an effort to broaden information sharing (ref C-G) 
to prevent terrorism -- building on an unprecedented level of 
information sharing during the summer 2006 Soccer World Cup. 
We continue to use every opportunity to point out that only 
by connecting the dots among our own agencies and also among 
other countries will we continue to be able to stop 
terrorism.  Senior German officials, including Interior 
Minister Schaeuble, share our desire to build up our existing 
cooperation. 
 
--------------------------------------------- 
...But Public and Media Opinion Still Wary of 
 U.S. motives and Methods 
--------------------------------------------- 
 
¶5. (SBU) While the German Government and, to a lesser extent, 
the German pubblic are cognizant of the threat posed by 
international terrorism and the need for an effective 
response, many Germans argue that the United States has to a 
certian degree lost its moral bearings.  This view spans the 
political spectrum to include many who are otherwise 
well-disposed to the U.S.  Many Germans believe the USG acts 
in ways Germany and the EU cannot and will not for reasons of 
due process, civil liberty protection, and data privacy 
rules.  Opinion surveys, media reports, and individual 
conversations/meetings Mission officers have had around the 
country contribute to this picture.  A recent in-house speech 
by a senior German government attorney categorized the U.S., 
along with Russia and China, as one of the main violators of 
international law. 
 
¶6. (SBU) A Bundestag special investigative committee is 
currently considering a number of allegations, including 
German knowledge of and complicity in alleged renditions and 
bomb targeting in the Iraq war.  The committee may continue 
to meet throughout the entire term of the current government 
(i.e., three more years).  While senior German Justice and 
Interior officials call the committee a political tool of the 
opposition Greens, Free Democrats, and the Left Party, the 
committee's work has a resonance with the German public. 
 
¶7. (SBU) Moreover, a number of U.S. actions in the war on 
terror have a German connection.  The recent release of Murat 
Kurnaz from detention in Guantanamo resulted in press 
coverage of his allegations of mistreatment by U.S. and 
German interrogators (ref A) and the allegation that the 
previous German government failed to follow up on an alleged 
U.S. offer to release him years ago.  Members of the 
Bundestag investigative committee say they will look into the 
matter.  The German government's position is that the 
Guantanamo facility should be closed and the individuals 
interned there tried, although German officials will concede 
the difficulties the U.S. faces in handling those interned 
there who had been seized, for example, in Afghanistan. 
 
¶8. (SBU) The alleged rendition of Khaled Al Masri is another 
case in the media spotlight and of interest to the Bundestag 
investigative committee.  Working level Justice Ministry 
officials state that Spanish authorities gave Germany the 
names of U.S. officials allegedly involved and they claim 
German prosecutors may have no choice but to seek 
international arrest warrants because the case involves the 
alleged kidnapping of a German citizen.  The German press has 
quoted German officials from the opposition saying that the 
German prosecutor's investigation would have proceeded faster 
if it did not involve the U.S., which they say should "come 
clean" on Al Masri.  The Al Masri case has been the most 
prominent alleged rendition in German media, but the alleged 
rendition of Abu Omar also gets press play.  Regarding Abu 
Omar, German media and politicians have focused on the 
 
BERLIN 00002957  003 OF 003 
 
 
alleged transit of an aircraft in Germany en route between 
Italy and Egypt.  Politicians cite this case as justification 
for seeking more information concerning passengers and cargo 
of U.S. aircraft transiting U.S. military airfields in 
Germany. 
 
¶9. (SBU) While the German and U.S. governments have put aside 
their differences over the 2003 decision to use military 
force in Iraq, the perception lingers in Germany that the war 
was "illegal."  Many U.S. troops left for Iraq from their 
bases in Germany.  Later, German coverage of the Abu Ghraib 
scandal highlighted those U.S. military personnel said to 
have been based in Germany and prompted petitions to the 
German Federal Prosecutor to seek indictments of U.S. 
military personnel and other officials under Germany's 
domestic law implementing the Rome Convention on the 
International Criminal Court.  The prosecutor ultimately used 
his discretion not to pursue charges. 
 
¶10. (SBU) Germany's press has often exacerbated negative 
public opinions.  Recent examples: 
 
-- Center-left Stern on Oct. 5:  "The 'terror camp' of 
Guantanamo has seriously damaged the noble U.S export (of 
democracy) because if you repeatedly act like your enemies, 
if you mistreat people, kidnap them, violate basic human 
rights, you obliterate the differences of which the U.S. is 
proud.  Many U.S. detention camps in Afghanistan, Iraq and 
Guantanamo are legal no man's lands." 
 
-- Center-left Sueddeutsche Zeitung on September 30:  "The 
new terror billl in the U.S. ridicules the democratic 
achievements of the country...At the beginning of the 21st 
century, the grinning face of the Middle Ages is peering 
through the door, above all in America.  Torture, or at least 
'torture lite,' has become a legitimate method in the war on 
terror." 
 
-- Business daily Financial Times Deutschland on October 2: 
"This week, an act will probably be implemented that marks a 
change in American history.  Congress will now allow the 
President to kidnap any foreigner who is suspected of 
participating in anti-American terrorism." 
 
------------------------------------ 
Enhanced Dialogue Will Pay Dividends 
------------------------------------ 
 
¶11. (SBU) As noted above, the German Government remains ready 
to continue and expand counterterrorism cooperation with us, 
notwithstanding the concerns among many in the German public 
about U.S. policies and practices.  An essential component of 
our efforts to reassure our German friends is our willingness 
to engage in dialogue at all levels and on all aspects of our 
counterterrism policies and efforts.  Your participation in 
the conference will help further clarify misconceptions about 
our intentions and remind our German interlocutors that we 
continue to be guided by the rule of law.  It will augment 
USG efforts to push back vocally and robustly to counter the 
negative perceptions of our German and other European critics 
and at the same time reinforce the support of our friends in 
the German Government and in the German body politic. 
TIMKEN JR