Doc. 11302 Report 3.2.3. Responsible political authorities and preservation of secrecy in Poland and Romania 136. To reveal the means by which bilateral arrangements were put in place for CIA detentions in Poland and Romania, we must trace a trajectory of deepening co-operation with the United States that spans several years. During the immediate post-11 September 2001 period, when America was identifying its key strategic partnerships for the “war on terror”, both Poland and Romania were in the midst of their own processes of “strategic realignment”, eager to secure their positions as indispensable members of the NATO Alliance and friends of the United States. 137. In the course of a lengthy discussion with us about the CIA’s choice of partner countries in eastern Europe, one high-ranking eastern European politician involved in the programme said to us: “Poland and Romania; you don’t know why? [It is] because we are the only two countries who are truly pro-Occident. But now we are in danger of being seen as an experiment … It is most unfortunate.” 138. When America began developing its strategy for the “war on terror” under the NATO framework, Poland was already a member of the NATO Alliance, while Romania was a NATO “aspirant”, or accession candidate. This difference in status proved to be of little consequence, however, as both countries followed remarkably similar paths in terms of harmonising their laws and structures with the NATO framework. The role of the United States was crucial to the reform processes in both countries, particularly in terms of the intelligence services and oversight structures that monitor them. 3.2.3.1. Application of the NATO framework in Poland 139. Poland became a member of NATO on 12 March 1999 and the multilateral NATO SOFA entered into force in Poland in 2000.94In the five years directly preceding its NATO accession, Poland had signed several noteworthy agreements with the United States95in the realms of defence,96aviation,97extradition98and judicial assistance,99which paved the way for a very close co-operation both within and outside the NATO Alliance. 140. Poland told the Council of Europe that, in addition to its obligations under multilateral treaties, it has concluded an unspecified number of “agreements governing special forms of co-operation”.100Whilst we do not know the precise scope of these agreements, the one example given by the Polish authorities – that of “transfrontier surveillance” – confirms that in at least some of their thematic coverage they pertain directly to the work of the intelligence services. We have been unable to obtain copies of Poland’s “bilaterals” with the United States, which it is safe to assume fall under this bracket, because they are classified. 141. Poland’s Classified Information Act, which entered into force in March 1999,101is part of a fairly typical apparatus among new NATO members102for dealing with sensitive information in accordance with the NATO Security Policy. For example, the Act’s restrictive procedures for granting or denying “security clearance”103to 94. See Stefan Meller, Minister of Foreign Affairs of the Republic of Poland, response of the Republic of Poland to questions addressed by the Secretary General of the Council of Europe with regard to Article 52 ECHR, dated 17 February 2006 (hereinafter “Response of Poland to Council of Europe Secretary General under Article 52 ECHR”), available at http://www.coe.int/ T/E/Com/Files/Events/2006-cia/Poland.pdf, at p. 5. The Polish authorities pointed out that: “The [NATO SOFA] agreement, however, does not confer jurisdictional immunity on members of foreign armed forces, but elaborates the rules of determining jurisdiction with regard to prohibited acts on the territory of the host state. In particular, the agreement grants the sending state the primary right to exercise jurisdiction over a member of its forces or of their civilian component in relation to offences arising out of any act or omission done in the performance of official duty [SOFA, Article 7.2, (II)]. It should also be underlined that in the light of the NATO SOFA, all members of the armed forces of a foreign state staying on the territory of the Republic of Poland are obliged to respect Polish law.” 95. For a full record of (unclassified) bilateral treaties between the United States and Poland, see United States Department of State, Treaties in Force: A list of Treaties and other International Agreements of the United States in Force on January 1, 2006, “Poland”, at pp. 263-266. 96. See, for example, Acquisition and Cross-Servicing Agreement, with annexes, signed at Warsaw, 22 November 1996; entered into force 22 November 1996, TIAS. 97. See, for example, Memorandum of Agreement concerning Assistance in Developing and Modernising Poland’s Civil Aviation Structure, signed at Washington and Warsaw, 5 and 14 January 1998; entered into force 14 January 1998, TIAS. 98. See Extradition Treaty between the United States and the Republic of Poland, signed at Washington, 10 July 1996; entered into force 17 September 1999, TIAS. 99. See Treaty on Judicial Assistance with Criminal Matters, with forms. Done at Washington, 10 July 1996; entered into force 17 September 1999, TIAS. 100. See Response of Poland to Council of Europe Secretary General under Article 52 ECHR, supra note 94, at p. 3. 101. See “Classified Information Act”, Polish Journal of Laws, No. 11, item 95; copy available from the Helsinki Foundation for Human Rights and the Helsinki Committee for Human Rights in Poland. 102. On this point, see Alasdair Roberts, “NATO, Secrecy and the Right to Information”, supra note 56. 28