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WikiLeaks: IRAN/TERRORISM: EU LIKELY TO REMOVE MEK

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Reference IDCreatedClassificationOrigin
08BRUSSELS8702008-06-09 14:43SECRET//NOFORNUSEU Brussels
VZCZCXRO4598
PP RUEHAG RUEHBC RUEHDE RUEHDIR RUEHKUK RUEHROV
DE RUEHBS #0870/01 1611443
ZNY SSSSS ZZH
P 091443Z JUN 08
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC PRIORITY
INFO RUCNIRA/IRAN COLLECTIVE PRIORITY
RUCNMEM/EU MEMBER STATES COLLECTIVE
RUCNDT/USMISSION USUN NEW YORK
RUCPDOC/USDOC WASHDC
RUEHUNV/USMISSION UNVIE VIENNA
RHEHNSC/NSC WASHDC
RHMFISS/FBI WASHINGTON DC
RUEATRS/DEPT OF TREASURY WASHDC
RHMFISS/HOMELAND SECURITY CENTER WASHINGTON DC
RHEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEAWJA/DEPT OF JUSTICE WASHDC
RUEKJCS/DOD WASHDC
S E C R E T SECTION 01 OF 04 BRUSSELS 000870 
 
NOFORN 
SIPDIS 
 
STATE FOR EUR/ERA, EUR/WE, NEA/IR, S/CT, ISN/RA, 
EEB/ESC/TFS, IO, VCI, P AND T 
TREASURY FOR TFFC, TFI 
 
E.O. 12958: DECL: 06/05/2018 
TAGS: PTER PREF PINR ETTC EFIN KTFN IR IZ EUN UK
FR, PARM, KNNP, AORC, TRGY, SNAR, KCRM, UNSC 
SUBJECT: (S//NF) IRAN/TERRORISM: EU LIKELY TO REMOVE MEK 
FROM TERRORIST LIST IN JUNE 
 
REF: A. LONDON 1292 
     B. LONDON 1468 
 
Classified By: USEU EconMinCouns Peter Chase for reasons 1.4 (b), (d), 
(e). 
 
1.  (S//NF) SUMMARY AND ACTION REQUEST:  Triggered by a 
recent UK court decision, the EU is debating whether to 
remove the Mujahedin-e Khalq (MEK, also included on the U.S. 
list of Foreign Terrorist Organizations) from the EU's 
terrorist designation list as early as the end of June. 
Delisting could occur as early as the first EU Ministerial to 
follow SG/HR Solana's return from his trip to Tehran (o/a 
June 13-15).  One Commission source speculated that the funds 
currently frozen in accordance with the EU listing may be 
negligible, thus a delisting might have little immediate 
financial effect.  In any case, the EU is weighing possible 
options to maintain MEK on the list in light potentially 
broader political ramifications, including the P5 1 process, 
EU-Iran relations, the security threat posed by the MEK, and 
current due process challenges at the EU and Member States' 
courts which threaten the EU's counter-terrorist financing 
regime.  Some EU parties lament that the EU's original 
listing had not been made, at least in part, on the basis of 
a request of the United States; certain EU Member States 
(EUMS) may still request USG assistance to strengthen any 
revamped designation case.  ACTION REQUEST:  Influencing EU 
views on the MEK is important, given the organization's 
political and legal sympathy campaign throughout Europe. 
USEU recommends that Washington provide EU posts with updated 
talking points to influence EU views on the MEK as the Member 
States reach their final decision about removing the group 
from the EU list.  Should the USG develop any new information 
about the MEK (as through the course of our 2008 review of 
the U.S designation of the MEK as an FTO), USEU recommends we 
share this information with the EU as well.  In conjunction 
with our 2008 review, the United States may wish to consider 
requesting that the EU continue to list or re-list the MEK -- 
but this could be a difficult sell due to EU concerns over 
due process legal challenges.  Conversely, should the USG 
decide to remove the MEK from the U.S. list, we may wish to 
alert the EU in advance.  END SUMMARY AND ACTION REQUEST. 
 
---------- 
Background 
---------- 
 
2.  (S//NF) In 2002 the EU listed the MEK on the EU list of 
designated terrorists on the sole legal basis of the UK's 
domestic designation.  Now that the UK's high court has 
overturned that domestic designation (REF A), the EU has lost 
the legal basis for its EU-level designation.  This puts the 
EU in a bind, as the designation list is due for renewal and 
no other EU Member State has come forward with a decision by 
a competent authority to replace the UK's designation at EU 
level.  Pending MEK legal challenges at the EU's Court of 
First Instance (CFI) present an additional complication.  The 
MEK has already successfully waged one case at the CFI to 
challenge its EU listing, which resulted in revised EU 
designation procedures, but not an actual delisting.  A 
second MEK case is pending at the CFI, challenging its 
designation under the revised procedures on due process and 
substantive grounds.  A ruling in this case is expected as 
early as this fall. 
 
--------------------------------------------- --- 
Timing:  Review Due, EU Likely to Delist in June 
--------------------------------------------- --- 
 
3.  (S//NF) Last issued in December 2007, the EU list is due 
for its six-monthly comprehensive renewal by consensus of all 
27 EU Member States (EUMS) no later than the end of June. 
According to Council Secretariat and EUMS contacts, the EU 
most likely will delist the MEK this month.  USEU understands 
 
BRUSSELS 00000870  002 OF 004 
 
SUBJECT: (S//NF) IRAN/TERRORISM: EU LIKELY TO REMOVE MEK 
FROM TERRORIST LIST IN JUNE 
 
this could take place at any of the EU Ministerial meetings 
scheduled for the last half of June.  Delisting could occur 
as early as the June 16-17 General Affairs and External 
Relations Council, which falls after SG/HR Solana's return 
from his forthcoming trip to Tehran (o/a June 13-15).  A 
classified meeting of the EU External Relations (RELEX) 
Counselors may address this issue on June 13.  A Commission 
source speculated that a decision will not be final until 
after the UK House of Lords debate (date not specified), in 
order not to appear as though the EU is "preempting" 
discussion at this venue. 
 
4.  (S//NF) In accordance with the 2007 updated EU procedures 
for designating terrorists, revised in part after the MEK's 
December 2006 victory at the EU's Court of First Instance, 
all listed entities related to the EU's Common Position 931 
and Regulation 2580/2001 must receive at least a month's 
notice if the EU intends to maintain them on the list. 
Because the UK's domestic terrorist designation of the MEK 
served as the sole competent authority / legal basis of the 
original EU listing, as explained in the Statement of Reasons 
given to the MEK, the UK court's overturning of the UK 
designation will remove the basis for the EU listing. 
Although the UK delisting is not yet technically in effect, 
some lawyers and policy officials have argued in favor of 
removing the MEK from the list now, rather than awaiting the 
formal UK delisting process expected in July (REF B).  After 
the final decision is reached by the Council's 931 
(designations) committee, an additional "two or three weeks" 
are normally needed to prepare the paperwork for the 
Council's final decision. 
 
----------------------------------- 
Net Impact of Delisting Negligible? 
----------------------------------- 
 
5.  (S//NF) A Commission sanctions officer raised doubts to 
USEU on June 6 whether significant MEK assets are presently 
frozen in the EU in conjunction with the present listing. 
Our source explained that the MEK's NCRI office in France had 
special provisions under the existing rules which left a 
loophole for freezing existing assets.  Our source 
speculated, therefore, that a removal of the MEK from the EU 
list might have little impact in practical financial terms. 
 
--------------------------------------------- ---------- 
Decision Factors:  Iran, P5 1, Pending Court Challenges 
--------------------------------------------- ---------- 
 
6.  (S//NF) A Council Secretariat contact said that the EU 
decision to either list or de-list may await SG/HR Solana's 
return from Iran at the earliest, so as not to jeopardize the 
P5 1 process.  Iran has been directly lobbying the EU to 
maintain the MEK on the list, but contacts did not mention 
whether the EU has received a formal request from Iran to 
this effect.  Contacts report that EU Council Secretariat 
Director General for External and Politico-Military Affairs 
Robert Cooper carefully laid out all the potential 
ramifications for EUMS consideration, including the assessed 
threat of continued MEK terrorism, the political signal that 
continued listing or delisting would send, and the process of 
the EU's pending autonomous designation of Bank Melli. 
Various EU court challenges -- namely MEK's second case 
pending judgment at the EU's Court of First Instance -- are 
at the forefront of EU Council Secretariat and many Member 
State concerns.  (See also paras. 9-10.) 
 
------------------- 
Plan B?  U.S. Role? 
------------------- 
 
7.  (S//NF) EU Member States are weighing possible options to 
maintain MEK on the list using another (non-UK) competent 
authority's designation.  Council Secretariat contacts said 
 
BRUSSELS 00000870  003 OF 004 
 
SUBJECT: (S//NF) IRAN/TERRORISM: EU LIKELY TO REMOVE MEK 
FROM TERRORIST LIST IN JUNE 
 
certain EUMS "who are more concerned than others" with the 
potential ramifications of delisting (USEU reads:  France) 
are now considering whether they can or should put forward 
their own competent authorities' decisions as a new EU basis 
for maintaining MEK on the list.  Decision-makers are unclear 
how such a change of basis could play out with the courts or 
whether all EUMS (namely UK) could join consensus in this 
case.  A French contact told USEU on June 3 that Paris may be 
confronted with a dilemma.  On the one hand, the French share 
British concerns about MEK delisting timing in conjunction 
with the P5 1 package.  On the other hand, the French would 
certainly prefer not to have to deal with a controversial 
delisting during their EU Presidency beginning July 1.  USEU 
understands the matter is being handled at the level of 
Kouchner's cabinet advisors.  COMMENT:  USEU understands that 
France has been requesting from the United States identifying 
information about MEK "repentants" granted refugee status 
with laissez-passer from the Iraqi government in the Fall of 
2007.  It is possible this fact-finding could be related to 
an attempt by the French to build a domestic designation case 
for use at EU level.  In any case, the USG may receive 
similar requests for MEK-related information in the coming 
days as Member States assess their options.  END COMMENT. 
 
8.  (S//NF) Some EU Member States and institutions expressed 
regret internally that the basis for the original Statement 
of Reasons had not included a U.S. proposal to list MEK.  In 
response to USEU hypothetical questioning, a Council 
Secretariat contact speculated that if the EU were to receive 
a U.S. proposal now either requesting that the EU maintain or 
re-list the MEK after any delisting, the road ahead would 
still be challenging.  Even if such a proposal were submitted 
before an EU delisting takes place, this would represent a 
change in circumstances for the EU listing basis, which would 
require first our formal proposal, then a unanimous consent 
by all 27 EUMS, then the minimum of one month's advance 
notification to the MEK that the EU intends to keep them on 
the list, and a final decision by the Council.  This would 
not leave much (if any) time as the EU does not want the list 
to lapse past June. 
 
9.  (S//NF) It is also far from certain that all 27 EUMS 
would agree again to list the MEK in the wake of the UK court 
ruling, contacts said.  The UK must decide whether to join 
consensus now on listing the MEK at EU level, either on the 
tail end of its domestic designation's basis or that of 
another state's competent authority.  A Council Secretariat 
contact noted that the UK court's ruling was limited to the 
UK's domestic designation authority, not the EU's or others; 
EU law takes precedence over UK law.  He conceded it would be 
"quite ridiculous" for the UK to use the excuse of the 
expected July time-frame for the formal parliamentary removal 
of the domestic listing as a basis for voting in favor of 
continued listing at EU level, even if technically still in 
force, given the UK court ruling.  Especially the "smaller" 
EUMS harbor strong sensitivities about due process and 
optics. 
 
10.  (S//NF) It is theoretically possible that, if the MEK 
were delisted, the USG or another state could resubmit a 
listing proposal afterward for future EU consideration and 
restart the whole process.  EUMS would weigh heavily whether 
it seemed most likely this could provoke a seriously 
detrimental ruling on the pending MEK or other court cases 
before EU and Member State courts.  Contacts stress that the 
EU would most likely oppose taking any action deemed likely 
to jeopardize the entire EU designation system through due 
process challenges at the courts.  A move to redesignate the 
MEK on a new basis, including a U.S. proposal, would "test 
the system to the very maximum limit."  For a U.S. proposal, 
courts would likely ask why the EU had never included the 
U.S. as a basis before, considering the U.S. MEK designation 
is several years old.  In the second MEK hearing on March 6, 
2008 for its new trial before the EU's Court of First 
 
BRUSSELS 00000870  004 OF 004 
 
SUBJECT: (S//NF) IRAN/TERRORISM: EU LIKELY TO REMOVE MEK 
FROM TERRORIST LIST IN JUNE 
 
Instance, the presiding judge already asked why the EU's Dec. 
2007 terrorist list had not taken into account the UK's POAC 
review. 
 
11.  (U) MINIMIZE CONSIDERED. 
 
MURRAY 

WikiLeaks: IRAN/TERRORISM: EU LIKELY TO REMOVE MEK

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