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P 281515Z JAN 09
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C O N F I D E N T I A L SECTION 01 OF 03 BRUSSELS 000120 
 
SIPDIS 
 
STATE FOR S/WGI, EUR< INL, INL/PC, INL/AAE, EUR/ERA, L/LEI; 
JUSTICE FOR CRIMINAL DIVISION, OFFICE OF INTERNATIONAL 
AFFAIRS 
 
E.O. 12958: DECL: 01/27/2019 
TAGS: PREL PTER KAWK KISL EUN
SUBJECT: EU COUNTER-TERRORISM COORDINATOR ON GAERC INFORMAL 
DISCUSSION OF GUANTANAMO 
 
REF: A. USEU-TODAY JAN 27 (NOTAL) 
     ¶B. BRUSSELS 79 (NOTAL) 
     ¶C. PRAGUE 0027 (NOTAL) 
     ¶D. 08 LISBON 2769 (NOTAL) 
     ¶E. 07 BRUSSELS 3543 (NOTAL) 
     ¶F. 07 BRUSSELS 3532 (NOTAL) 
 
Classified By: MINISTER COUNSELOR FOR POLITICAL AFFAIRS 
CHRIS DAVIS FOR REASONS IN SECTIONS 1.4 (B) AND (D) 
 
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SUMMARY 
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¶1. (C) According to European Union (EU) Counter-Terrorism 
Coordinator Gilles de Kerchove, with whom Mission officers 
met January 27, the previous day's informal discussion on 
Guantanamo at the General Affairs and External Relations 
Council (GAERC) remained as yet inconclusive.  De Kerchove 
said he will act on an "implicit" tasking from the GAERC to 
provide answers concerning the legal and financial 
implications of a potential EU position on accepting 
detainees.  He planned to consult with European Commissioner 
for External Relations and Neighborhood Policy Benita 
Ferrero-Waldner, particularly with respect to Commission 
resources to help Member States and third countries (he 
mentioned Yemen, for example) accept released detainees.  He 
opined that it would be helpful if the U.S. contributed 
financially to such efforts and accepted some of the 
detainees.  De Kerchove personally thinks an EU position is 
possible, citing the precedent of Palestinians accepted by 
six Member States in 2002 from the church of the Nativity in 
Bethlehem.  However, obstacles exist, such as the Schengen 
zone of free movement among most Member States, as well as 
potential liability questions.  He noted that the Czech 
Presidency wants to proceed very cautiously.  Overall, de 
Kerchove suggested that an EU-wide consensus would make it 
easier for individual Member States to act.  END SUMMARY. 
 
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"READ OUT" ON MINISTERS' INFORMAL DISCUSSION 
-------------------------------------------- 
 
¶2. (C) Mission Political and International Narcotics and Law 
Enforcement Affairs (INL) Counselors met with EU 
Counter-Terrorism Coordinator de Kerchove and Council 
Secretariat Transatlantic Relations Officer Dr. Christiane 
Hoehn on January 27 regarding the previous day's discussions 
on Guantanamo by the Foreign Ministers at their GAERC 
meeting.  De Kerchove cautioned that he had only received a 
very preliminary read-out and was working to obtain more 
details.  He understood that many Foreign Ministers had 
expressed support for developing an EU consensus on accepting 
detainees from Guantanamo, citing France, United Kingdom, 
Spain, Portugal, and Belgium particularly.  The Ministers 
recognized that any decision to accept detainees, however, 
would have legal, financial, and security implications.  The 
current Czech Presidency of the Council would like to proceed 
very cautiously, while facilitating the discussion.  De 
Kerchove is taking on an "implicit" tasking from the GAERC to 
produce options for future discussions by Ministers.  He said 
he would consult further with European Commissioner for 
External Relations and Neighborhood Policy Ferrero-Waldner, 
given that the Commission would be the likely source for any 
funding that might be made available to assist Member States 
or third countries that decide to accept detainees. 
 
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VARIOUS FACTORS UNDER CONSIDERATION 
----------------------------------- 
 
¶3. (C) De Kerchove noted that Ministers had to consider the 
Schengen dimension, namely that the Schengen Convention 
permits free travel among most Member States.  While some 
individual Member States might decide to accept detainees, 
broader implications were at play.  De Kerchove added that 
Member States need also to consider the possibility of 
liability, i.e., detainees suing over their imprisonment at 
Guantanamo.  Finance costs would also always be a 
consideration, including for the Baltic States and non-EU 
countries that might decide to accept detainees.  De Kerchove 
said  Member States would watch whether the United States 
accepted any of the detainees into its territory.  Since the 
beginning of discussions of this issue, lack of stated U.S. 
willingness to accept one or more detainees has prompted a 
 
BRUSSELS 00000120  002 OF 003 
 
 
"classical objection" within the EU.  He ventured that U.S. 
financial assistance might sway the Baltic States to sign up 
for accepting detainees.  Regarding the 50 or so detainees 
who were cleared for release to other countries, further 
details of their background would influence decisions.  "What 
does 'not dangerous' mean?," he asked.  De Kerchove 
acknowledged that President Obama's January 22 Executive 
Order would entail a review of each detainee.  Nonetheless, 
he noted that France, for example, may be more willing to 
accept Tunisians, given their greater chance of ultimate 
integration into French society. 
 
¶4. (U) Another consideration would be the legal status of 
detainees, including whether they would be considered 
refugees or have "temporary protected" status.  Legal status 
would also influence which source of funds may be available 
to Member States, whether from a Justice and Home Affairs 
(JHA) resettlement fund or from a refugee fund. Additionally, 
some detainees may be considered "dangerous" and, therefore, 
require continual surveillance.  He understood this to be the 
case with at least one detainee accepted already by the 
United Kingdom.  In any case the Commission would need to be 
involved, as the Commission held the possible funding.  De 
Kerchove said he has also contacted officials from the 
International Organization for Migration (IOM) and United 
Nations High Commissioner for Refugees (UNHCR) officials for 
guidance. 
 
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POSSIBLE PRECEDENT FOR EU-WIDE DECISION 
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5, (C) De Kerchove emphasized that the EU remained at the 
early stages of reaching a consensus.  In his view, the GAERC 
discussion on January 26 was premature, but had proceeded at 
the insistence of the Portuguese Foreign Minister, someone 
who had revealed earlier internal EU discussions, when he 
came out publicly last November in favor of accepting 
detainees.  De Kerchove reiterated his observation that the 
Czech Presidency had "cold feet," perhaps because Czech 
officials did not yet know much about this portfolio or 
because of their own domestic political and legal 
considerations.  Nonetheless, if a consensus were to emerge 
within the EU, then Member States would find it more 
palatable individually to accept detainees.  De Kerchove 
found support for this line of thinking from the former 
occasion when the EU had developed a common response to 
accepting resettlement of 13 Palestinians from the Church of 
the Nativity in Bethlehem in 2002.  Ultimately, six Member 
States stepped forward to accept these Palestinians.  He 
noted as an aside, however, that a Palestinian accepted by 
Belgium was allegedly involved in criminal activities, 
according to Belgian officials.  De Kerchove said, as for his 
part, he would proceed cautiously on this Guantanamo matter. 
 
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NEXT STEPS 
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¶6. (C) De Kerchove said he would need to prepare Ministers to 
discuss the issue in a positive way and mobilize support from 
the Commission.  He said he sensed that the idea of accepting 
detainees had sufficient support at this stage among various 
Member States, but he advised that he needed a better "read 
out" of the previous day's discussion before reaching a firm 
conclusion.  He said he believed that a "new approach" 
involving an EU-wide consensus would be more fruitful than 
bilateral approaches to individual Member States.  Although 
EU decision-making remained slow and difficult, his "guess" 
was that many Member States would be willing to help if such 
decisions occurred under an "EU umbrella."  He added that 
Foreign Ministers seemed intent on promoting a positive 
achievement in transatlantic relations; however, Interior and 
Justice Ministers could certainly add complications.  Asked 
whether EU Vice-President and Commissioner for Justice, 
Freedom and Security (JLS) Jacques Barrot planned a trip to 
Washington soon to discuss Guantanamo, De Kerchove quipped 
that he had seen press reports that he himself would 
accompany Barrot on such a visit.  That said, De Kerchove 
indicated that he did not have any firm dates on when such a 
trip may occur.  In any case, he suggested that Mission 
officers meet with him again in two weeks for another update. 
 
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COMMENT 
 
BRUSSELS 00000120  003 OF 003 
 
 
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¶7. (C) Although De Kerchove said he did not know when the 
Czech Presidency would return to the Guantanamo detainee 
question, the Czech Permanent Representative subsequently 
informed us that the Political and Security Committee (PSC) 
would do so on January 30.  END COMMENT. 
 
MURRAY 
.