The Associated Press has obtained what it claims are excerpts from the draft of the U.S.-Iraqi security accord, a draft which must still go to the Iraqi cabinet and parliament for approval.
Much of the hullabaloo in Iraq has been about the issue of legal immunity for U.S. forces. On this point, the treaty strikes a fair balance between Iraqi demands for "no immunity" and American demands that service members only be prosecuted by an American court-martial.According to the draft:
The United States has the primary right to exercise judicial jurisdiction over (U.S.) military personnel and civilians (contracted by the U.S. Defense Department) as far as incidents that take place inside the agreed facilities and areas and in the case of missions outside the agreed facilities and areas and under conditions not covered by the text of the second clause of this article.
Since U.S. forces pretty much never leave their bases except on missions (R&R is taken in Kuwait or Qatar or back home-not in Iraq), this effectively ratifies the status quo. That is why some hard-line nationalists in Iraq claim that this provision is inadequate. But it is hard to see how U.S. troops could operate anywhere in the world if they face arrest on possibly trumped-up charges. The Iraqi legal system is still experiencing growing pains, and no responsible American commander could possibly turn over his troops to its tender mercies.
More troubling, from the standpoint of U.S. interests (and Iraq’s long term interests, properly understood), are provisions that limit the ability of U.S. forces to conduct raids and to detain suspects. According to the excerpts:
U.S. forces are not authorized to arrest or detain anyone (except when that person is a U.S. service member or from the civilian component) except with an Iraqi order issued under Iraqi law….U.S. forces are not authorized to search homes or other properties without a judicial order issued for this purpose except in cases when actual fighting is taking place under article 4 and in coordination with relevant Iraqi authorities.
Depending on how those provisions are interpreted and carried out, they could effectively neuter some of the most effective anti-terrorist strikes carried out by coalition special forces and other top-notch units. Or they may have little practical effect, if the Iraqis can come up with a mechanism to providequickly the authorization needed to enter houses and detain suspects. All depends on the mood of the Iraqi government: How cooperative do they want to be?
The same might be said of the provisions regarding the withdrawal of American forces. The treaty demands that "U.S. forces withdraw from Iraqi territory by Dec. 31, 2011, at the latest,’ and that they "withdraw from Iraqi cities, villages, areas" by June 30, 2009, "at the latest." It is far from certain, however, that Iraqi security forces will be able to police their own cities on their own by June 30. The likelihood is that they won’t have the capacity required. Thus the treaty raises the possibility of extending "the timeframe . . . subject to the approval of both parties."
The treaty also raises the prospect of U.S. troops remaining beyond 2011 "for the purposes of training and supporting Iraqi security forces." That would require a "special agreement … negotiated and signed by both parties under laws and constitutional procedures applicable in both countries"–meaning, presumably, that the Iraqi parliament would have to give its approval. No such parliamentary sign-off is demanded, however, for a possible decision to keep U.S. troops stationed in Iraqi cities past next June; that could be done by an agreement between the Iraqi prime minister and the U.S. president.
Even that amount of leeway is raising hackles from some in Iraq. Many Iraqis have vivid memories of the treaties they signed with Britain in 1922, 1926, 1927, 1930, and 1948, all of which purported to recognize Iraqi sovereignty but kept Iraqi foreign policy oriented in a firmly pro-British direction and which gave Britain the right to use air bases in Iraq. The decision to sign the 1948 treaty is particularly traumatic for the Shiites now in charge in Baghdad: the nationalist backlash against that accord led to the downfall of Salih Jabr, Iraq’s first Shiite prime minister.
There are also caution flags going up in some quarters in Washington. Some senators, such as Carl Levin, have expressed concern that the new treaty might not provide adequate legal safeguards for U.S. service members. As suggested above, that’s not really the case, although it could become more of a worry if the Iraqis insist on changing the terms once again.
The attention to the minutiae of the treaty is to be expected but it can also be misleading. The overarching political reality is that no piece of paper signed today can effectively bind future governments in either Washington or Baghdad. Should nationalist hard-liners come to power in Baghdad, they could effectively demand the immediate withdrawal of U.S. forces, even though such a decision would risk handing control of a substantial portion of their country to Iran and its proxies. And should Barack Obama win the presidency, he could pull U.S. forces out before 2011, as he has promised during his campaign. But such a unilateral move would be extremely unwise, because it could risk undoing the gains of the surge.
Both Washington and Baghdad have an interest in cultivating a long-term relationship of equals in which both countries would work together against their mutual enemies in the terrorist organizations, both Sunni and Shiite, which have killed so many Iraqis in recent years. For all its possible faults, the draft U.S.-Iraq accord could make possible such cooperation–assuming that leaders of both countries are interested. I believe that Nouri al Maliki and George W. Bush are indeed interested in such an arrangement. The real question mark concerns their successors. It is their policies that will determine whether this accord–assuming it’s ratified and implemented–will be judged a success or failure.