VZCZCXRO4863
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHBS #0447/01 0861047
ZNR UUUUU ZZH
R 261047Z MAR 08
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC
RHMFIUU/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHMFIUU/FBI WASHINGTON DC
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 03 BRUSSELS 000447 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR CA AND EUR 
DHS FOR OIA 
JUSTICE FOR OIA 
 
E.O. 12958: N/A 
TAGS: PREL CA CMGT CVIS EUN
SUBJECT: DHS ASSISTANT SECRETARY MEETS WITH EU COMMISSION 
MARCH 14 ON U.S. VISA WAIVER PROGRAM 
 
REF: A. BRUSSELS 00338 
 
     ¶B. STATE 21769 
     ¶C. BRUSSELS 00319 
     ¶D. BRUSSELS 00309 
     ¶E. BRUSSELS 00287 
     ¶F. BRUSSELS 00268 
     ¶G. STATE 11657 
     ¶H. BRUSSELS 00172 
 
¶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 
competency. 
 
¶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. 
 
MURRAY 
.