Uncomfortable S.O.F.A.

The US and Iraq have reached an agreement that could govern American military activities until our troops leave. But the pact, which allows the Bush administration to put the seal on the Iraq war, is opposed by Tehran and influential Iraqis, potentially weakens American combat operations and removes some protections for Americans. In spite of these challenges, it is still perhaps the best deal available.

In October 2003 the United Nations Security Council adopted a resolution authorizing the American-led mission in Iraq. That resolution which expires this December 31 was intended to last only until Iraq regained a measure of stability and the Baghdad government gained a firmer grasp on the levers of power. Now that those aims are in sight, the negotiated pact, a Status of Forces Agreement (SOFA), is suppose to provide the basis for a long-term, stable relationship with Baghdad.

In theory, the proposed SOFA will govern the conduct of American forces in Iraq for the remainder of their time there. It is suppose to primarily deal with legal issues associated with American military personnel and property but the draft agreement also sets timelines for America’s withdraw, restricts combat operations and establishes new jurisdictions.

The Bush administration has always said that we would leave if and when the Iraqis said it was time to go. Apparently, that time has come and the draft agreement specifies that US troops must leave Iraqi cities by the end of June 2009 and be out of the country by 2012. Administration officials argue that the agreement includes sufficient caveats to address any future downturn in the security situation to allow Iraq to extend America’s presence for “training purposes” or to “support Iraqi security forces.”

The most controversial aspects of the pact for the US but not necessarily unusual for a SOFA are restrictions on combat operations. It creates a bureaucratic joint US-Iraqi committee to coordinate American military operations which could potentially cripple operations tied to time-sensitive intelligence. It also turns our combatants into law enforcement agents by prohibiting them from detaining Iraqi citizens without an Iraqi-issued warrant, searching property without judicial warrant (except in active combat in coordination with Iraqi authorities), and requires US forces to surrender detainees within 24 hours perhaps before valuable intelligence can be gathered.

Personnel jurisdiction is a hot button issue as well. In a significant concession, the agreement makes private American security companies like Blackwater Worldwide and other contractors subject to Iraqi justice in criminal cases.

Last year, Blackwater employees in Baghdad shot and killed Iraqis allegedly “without cause” according to the Federal Bureau of Investigation. That incident created significant anger among Iraqi officials prompting them to insist on “the primary right to exercise jurisdiction” over American contractors.

By contrast, the US retains “primary” jurisdiction over soldiers and Pentagon employees for alleged offenses committed on American facilities or during military operations. This language is expected to shield troops from prosecution for accidentally killing civilians caught in the crossfire.

But Iraq would have the “primary right to exercise judicial jurisdiction” over “premeditated and gross felonies … committed outside the agreed facilities and areas and when not on a mission.” Iraqi foreign minister Hoshyar Zebari said that a joint committee would resolve jurisdiction disagreements.

On paper, the Iraqi judicial system guarantees the rights of the accused and is independent of outside interference. But instead of a jury, three Iraqi judges decide whether the accused committed the crime and imposes the sentence. Typically, the sentence is imposed immediately after the judges announce the verdict.

Defense Secretary Robert Gates indicates that "There is not a reason to be concerned" and promises that top US military officials "…are all satisfied that our men and women in uniform serving in Iraq are well protected." But Senator Carl Levin, Democrat of Michigan, Chairman of the Senate Armed Services Committee, said “I intend to reserve judgment as to whether the proposed agreement includes safeguards adequate to meet this standard until I have an opportunity for a more complete review.”

The SOFA, which is still subject to further review by both governments, must be approved by the majority of Iraq’s Council of Representatives — parliament — where there is plenty of opposition. Some of that opposition comes from its influencial neighbor Iran.

Tehran has made no secret about its opposition to the US-Iraqi security pact. Officials like Iranian General Masoud Jazayeri have termed the agreement “a disgrace” and Iranian parliamentary speaker Ali Larijani warned the pact would have “unpleasant impacts” on Iraq-Iran relations.

Not surprisingly, Tehran has called for its rejection and accused Washington of pressuring the Iraqis to embrace the agreement. But Tehran appears to have gone beyond just verbal opposition to the pact.

US commander in Iraq General Ray Odierno accused Iran of “… coming in to pay off people to vote against” the SOFA and has used its Saddam-era contacts “… to attempt to influence the outcome of the potential vote.”

Odierno admits that there is no definitive proof of the bribes but adds “There are many intelligence reports” that suggest Iranians are “… coming in to pay off people to vote against it.”

Iraqi Prime Minister Nouri al-Maliki slammed Odierno for the Iranian allegation. “The American commander has risked his position when he spoke in this tone and has regrettably complicated relations,” al-Maliki said. The prime minister’s remark underlines the delicacy of the issue of relations between Baghdad and Tehran.

But Odierno’s accusation was echoed by Kurdish Member of Parliament Mahmoud Othman, who claimed “Iran has been doing this for the last six months.” Othman, a vocal backer of the bilateral agreement, said the Iranians “… will try their best to influence anyone they can. They will tell people that it is dangerous, that this is not good for Iraq.”

The pact faces an uphill approval battle even without Iran’s interference. The Iraqi leadership has been torn between US demands as the price of continued operations, and resentment felt across Iraq about the continued American presence.

One of the opposition leaders is Shiite cleric Moqtada al-Sadr. On October 18, Sadr’s representative read a message from the cleric to a mass rally in Sadr City. Sadr, who is living in Iran, said through his spokesman that Iraq’s parliament must reject the pact because the SOFA will not end t he US’ presence in Iraq and he contends it robs Iraq of its sovereignty. Sadr called on the Iraqi parliament to “… champion the will of the people over that of the occupier … Do not betray the people.”

Even mainline clerics have expressed concern about the pact. Grand Ayatollah Ali al-Sistani, Iraq’s pre-eminent Shiite cleric, has said any accord must have national consensus and must not violate Iraqi sovereignty. Other Shia and Sunni clerics have expressed concern that the Iraqi people know too little about the agreement.

After the announcement that an agreement had been reached, “Most of the political leaders asked for time to review the draft and then present their suggestions,” said Haider al-Abbadi, a senior member of DAWA, the party of Prime Minister al-Maliki. Abbadi thought it would take several more days before there was a clear sense of whether the pact could win approval. But Kurdish lawmaker Othman is skeptical. He warns that the backing for the SOFA is not solid.

Bush administration officials cautioned that while negotiators had finished their work, the draft accord still might be subject to changes as it moves through the ponderous Iraqi approval process.

The draft SOFA may well be the best the Bush administration can get. Like any compromise it provides less than either party wants but provides a framework for charting a future relationship that will hopefully lead to America’s withdraw leaving behind a democratic and stable Mideast partner.