After months of negotiation, the Bush administration may be nearing an agreement with the Iraqis that would cover the status of U.S. forces in the country after the UN mandate for the occupation expires at the end of the year. Defense Secretary Gates and Secretary of State Rice began briefing lawmakers yesterday.
The news of an impending deal comes as a surprise only because the negotiations have dragged on for so long, and because the most contentious issues seemed so intractable. The key breakthrough appears to be an artful compromise on the question of extraterritoriality. (If you think that is hard to read, try saying it three times.) The Iraqis were demanding that U.S. personnel suspected of crimes be subject to Iraqi justice; American negotiators insisted that they be covered by U.S. laws. The draft agreement, reported the New York Times, "would give Americans immunity from Iraqi law when they were on military operations but would not apply if they were off duty."
Although Sen. Carl Levin (D-MI) complained that this might give away too much, and therefore expose U.S. personnel to unnecessary risks, the dual-track approach seems to me to represent a more significant concession on the part of the Iraqis. The compromise is generally consistent, meanwhile, with other SOFA agreements, such as those in South Korea and Japan, where U.S. personnel can be, and are, tried by South Korean or Japanese courts when offenses clearly occur while they are off duty, or when the crimes are perpetrated against local citizens, as opposed to other Americans. In terms of the legal protections, "on duty" vs. "off duty" disputes are usually sorted out easily between officials on both sides, but there have been some tough cases along the way. There is also the contentious question of pretrial detention, and where the person, if convicted, serves his or her sentence, or while the case is under appeal.
But, of course, the more serious risks to U.S. personnel, including members of the military, but also private contractors and diplomats working in Iraq, don't have to do with who gets tried in what courts. For starters, political reconciliation, and the risk of civil war has not abated. If one erupts, say following a particularly horrible terrorist attack that prompts Shia reprisals against the minority Sunnis, then once again our troops would be caught in the middle, as they were in the spring and summer of 2006 following the attack on the Askariya shrine in Samarra in February of that year.
Then there is the ongoing risk that our very presence in Iraq is stirring up hatred and resentment that might ultimately spill over in the form of violence against all Americans, not simply those stationed in Iraq. This violence may not manifest itself for years, but the risks are real. On that question, I always go back to Paul Wolfowitz's candid testimony in the weeks before the invasion of Iraq.
Anger at American pressure on Iraq, and resentment over the stationing of U.S. forces in Saudi Arabia, Wolfowitz conceded, had "been Osama bin Laden's principal recruiting device." Looking ahead to the post-Hussein period, Wolfowitz implied that the removal of Hussein would enable the United States to withdraw troops from the region. "I can't imagine anyone here wanting to . . . be there for another 12 years to continue helping recruit terrorists."
There are other sticking points contained within the draft agreement. The document reportedly calls for the removal of all U.S. forces by the end of 2011, and Iraqi Prime Minister Nouri al-Maliki has previously insisted that such a timeline would be binding. The Bush White House still hasn't taken the hint; the president continues to refer to troop withdrawals as "aspirational" goals. Nonetheless, Bush might be willing to seize upon the new SOFA as a signal that progress is being made. The legend of the surge, which President Bush sold as a vehicle for eventually reducing the U.S. presence, will grow still larger if it actually does what it intended. On the other hand, the defenders of the surge -- chief among them Sen. McCain -- seem never to have bought this argument in the first place.
Will the draft agreement be ratified? The early signs are mixed, at best.The Iraqi parliament has had difficulty passing far less-contentious legislation. And there are ample grounds for one or more groups to claim that Malikihas conceded too much to the Americans, and block the deal. Moqtada al-Sadr's supporters have consistently demanded an immediate withdrawal, and the concessions with respect to jurisdiction might strike some Iraqis as a bridge to far. But while Iraqi politicians will debate the merits of the proposed agreement, the parliamentarians in a considerably more mature democracy will not: the Bush administration maintains that the U.S. Congress has no authority on this matter; Gates and Rice's consultations with congressional leaders, we are told, are largely a courtesy.