US embassy cable - 05WARSAW3545

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. 
 
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Small, Scattered Deployments Make Support Critical 
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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. 
 
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Bydgoszcz: MOA Bogged Down in Swamp of Approvals 
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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. 
 
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Szczecin: Tax Relief Requires 3 European Parliaments 
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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. 
 
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F-16s: US Personnel Support Needed 
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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. 
 
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Across Poland, Registration and Legal Status Questions 
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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. 
 
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A Bilateral SOFA Would Address These Problems 
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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