TIME TO THINK SOFA FOR POLAND

C O N F I D E N T I A L SECTION 01 OF 02 WARSAW 003545

SIPDIS

STATE FOR PM/RSAT, L/PM AND L/T
STATE ALSO FOR EUR/NCE AND EUR DAS PEKALA

E.O. 12958: DECL: 10/05/2015
TAGS: KTIA MARR PREL MASS PL NATO
SUBJECT: TIME TO THINK SOFA FOR POLAND

REF: A. WARSAW 708

B. STATE 21653

Classified By: Ambassador Victor Ashe for reasons 1.4 (b) and (d).


1. (U) This is an action message. Please see para 10.


2. (C) SUMMARY: Embassy Warsaw recommends that the USG begin
negotiations for a bilateral Status of Forces Agreement
(SOFA) with Poland as soon as possible. In the context of
both NATO obligations and bilateral programs, U.S. military
personnel are for the first time being assigned to billets in
Poland under U.S. combatant command and/or NATO command
authority, outside of COM authority. However, we do not have
in place a bilateral SOFA with Poland or equivalent legal
instrument to provide privileges and immunities for these
personnel and their dependents. With 16 NATO billets, 18
F-16 program related billets and various co-production and
bilateral military cooperation positions in the offing,
spread across a half dozen disparate bases and facilities,
the current approach of ad hoc MOAs and MOUs backed by the
NATO SOFA is not sufficient. The situation would become even
more urgent should there be a decision to establish a "Third
Site" for Missile Defense and should Poland be chosen as the
host nation. END SUMMARY.

-------------- --------------
Small, Scattered Deployments Make Support Critical
-------------- --------------

3. (C) The lack of a SOFA already impacts U.S. programs.
Bydgoszcz, Szczecin, Krzesiny, Poznan, Powidz and Gdynia will
all host U.S. troops or DOD civilians in the near future.
While EU member state military personnel assigned to the NATO
Joint Forces Training Center (JFTC) in Bydgoszcz enjoy full
privileges under EU regulations, U.S. TDY personnel currently
posted there must live on the economy as "temporary visitors"
with no residency rights and required to leave the country
every 90 days. At the same time, 2 key U.S.-designated staff
positions at the NATO Multi-National Corps Northeast (MNC-NE)
in Szczecin remain vacant, because U.S. commanders will not
risk assigning personnel to a permanent change of station
(PCS) without the proper legal protections in place.


4. (C) Other programs scheduled to come on-line soon would
be similarly affected. The delivery to Poland of 48 F-16
fighter aircraft beginning in November 2006 will require the
long-term posting of 18 USG personnel and contractors to
Poznan to support Polish air bases in Krzesiny and Lask
(pronounced "wask"). The C-130s Poland purchased from the
U.S. will require an instructor pilot and 1-3 contractors to
be stationed in Powidz as early as 2008. There are also
other individual cases of USG personnel being posted to
Poland in connection with bilateral programs. Finally,
should there be a decision to proceed with a "Third Site" for
Missile Defense, and should Poland be chosen as the basing
nation, we would absolutely require a SOFA to cover the USG
personnel required to build, equip and man the Third Site.
The current approach, negotiating site-specific Memoranda of
Agreement (MOAs) or Understanding (MOUs) for each individual
base or facility has revealed that taxes, vehicle and
residence registration and liability under local criminal law
all can pose significant challenges for U.S. military
personnel and contractors and their families who do not have
diplomatic status.

-------------- ---
Bydgoszcz: MOA Bogged Down in Swamp of Approvals
-------------- ---

5. (C) The situation in Bydgoszcz illustrates the problem of
handling this issue on a case-by-case basis. The NATO Joint
Forces Training Center (JFTC) in Bydgoszcz (reftels) plans to
add 12 U.S. military members and their families as soon as
possible. However, the Memorandum of Agreement (MOA) between
NATO and Poland that will govern the status of U.S. forces
there is in limbo until Poland receives an "implementation
agreement" indicating that the USG consents to the
NATO-Poland MOA. If there were a SOFA, troops might already
be in place. In fact, the NATO-Poland MOA for Bydgoszcz, and
its attendant "technical arrangements agreement" could serve
as a rough draft from which to begin crafting a comprehensive
bilateral SOFA between the U.S. and Poland.

-------------- --------------
Szczecin: Tax Relief Requires 3 European Parliaments
-------------- --------------

6. (C) The situation in Szczecin is even more complicated.
Under the existing Memorandum of Understanding (MOU),US
troops to be stationed at the Headquarters MNC-NE in
Szczecin, Poland would not enjoy exemption from the Value
Added Tax (VAT). An agreement between Poland's Ministry of
Finance (MOF) and MNC-NE provides VAT exemption to personnel
covered under paragraph 2B of the MNC-NE Corps Convention -
the document that defines roles and responsibilities in the
MNC-NE. Unfortunately, paragraph 2B of the Corps Convention
states that such benefits accrue only to the framework
nations of MNC-NE, Denmark,Germany and Poland. Hence, any
"participating nations" which join MNC-NE later, such as the
U.S., would not enjoy these benefits, including VAT
exemption. An amendment to the MOU granting participating
nations the same benefits as framework nations is now pending
but will require ratification by the three framework
framework nation parliaments, according to Thomas Schneevoigt
the legal advisor to MNC-NE. In Schneevoigt's view fears
that timely action by all three bodies is unlikely.

--------------
F-16s: US Personnel Support Needed
--------------


7. (C) Deployment of U.S. troops will be critical to the
success of our most significant bilateral security program,
Poland's purchase of 48 F-16s from the U.S. Four of these
will arrive in Krzesiny in November 2006. Before that, U.S.
plans call for the PCS deployment of 2 military, 1 DOD
civilian and 15 American contractors to Poznan, near
Krzesiny, to support the aircraft. Eventually, Krzesiny
should host 32 F-16s, while another 16 will be deployed in
Lask. Without a SOFA, these deployments, and the entire
program, would be jeopardized.

-------------- --------------
Across Poland, Registration and Legal Status Questions
-------------- --------------


8. (C) The existing NATO SOFA exempts "forces" (uniformed
troops) stationed in Poland from having to complete local
registration requirements. Likewise, EU citizenship might
afford similar relief to dependents of EU troops. Because
they are neither "forces" nor EU citizens, AmCit dependents
of US troops and DOD civilians would probably have to
complete local registration requirements for their vehicles
and residences. A bilateral SOFA would cover DOD civilians
and dependents.


9. (C) Article 7 of the NATO SOFA gives the sending nation
legal jurisdiction over troops that commit crimes in the line
of duty. This privilege does not extend to civilian
employees of foreign militaries. Hence, DOD civilians
accused of crimes in Poland would be subject to local legal
jurisdiction regardless of their duty status at the time of
the incident. A bilateral SOFA would provide the needed
protection.

--------------
A Bilateral SOFA Would Address These Problems
--------------


10. (C) To unify and streamline the process of positioning
U.S. military personnel in country, Post recommends
Department begin negotiations immediately for a bilateral
SOFA with Poland. Given the imminent arrival of 34 USG
personnel and their families in 6 separate locations to
support, among other things, the 3.8 billion dollar purchase
of F-16 fighters, there is a pressing need to address issues
of tax relief, civilian registrations and legal status. The
incoming Polish government will be at least as pro-American
as its predecessor and would likely readily accept a U.S.
military footprint in Poland, which suggests the GOP would
actively cooperate in negotiating a SOFA.
Ashe