How To Stay In Iraq For 1,000 Years

Is There A Way For U.S. Negotiators To Finagle Permanent Bases Without Permission From Congress? Yep. It's Called A SOFA.

By Frida Berrigan
August 22, 2008
Courtesy Of MotherJones

Few Americans had ever heard of a SOFA until earlier this year, when the Internet lit up with a revelation many observers of US foreign policy had long predicted. Despite repeated claims to the contrary, US officials were pressing the Iraqi government to accept an indefinite US military presence, including—and here was the shocker—up to 58 American bases on Iraqi turf.

The term SOFA, shorthand for Status of Forces Agreement, was suddenly all over the news. The countries have been bargaining feverishly over this and a related pact called a Strategic Framework Agreement. The separate pacts have been conflated and confused by foreign policy experts and critics alike. The SOFA provides the legal basis for the presence and operations of US military forces. The framework is a more sweeping—albeit nonbinding—deal that addresses all aspects of the bilateral relationship between Iraq and the United States, including the control of bases, communication between Iraqi and US security forces, and the biggest question: How long? In drafts of the framework, negotiators have referred to "time horizons" for troop withdrawal. Tricky semantics, right? You don't have to be a naturalist to realize that a horizon never gets any closer to the observer.

These agreements are needed to replace the 2003 UN Security Council mandate, set to expire at year's end, that authorized the multinational military presence in Iraq. Enacted without meaningful Iraqi participation, it in essence says that Iraq is sovereign, that the military occupation is a temporary partnership with Iraqi forces, that elections will be held and a democratic transition commence, and that the "multinational" military force will "take all necessary measures to contribute to the maintenance of security and stability in Iraq."

A 2007 extension of this mandate was vigorously opposed by the fledgling Iraqi parliament, which appealed directly (and futilely) to the Security Council after Prime Minister Nouri al-Maliki requested the extension without parliament's approval.

The ongoing negotiations are the Bush administration's last chance to revive its battered Middle East legacy. While the UN mandate could technically be reextended, Iraq indicated previously that the 2007 extension would be the last. To request another would make the Iraqi government appear weak, demonstrate that it isn't in charge, and by extension—literally—concede to the world that the Bush Iraq policy has failed.

But what the administration requested was no ordinary Status of Forces Agreement. It "may be unique from other SOFAs concluded by the United States in that it may contain authorization by the host government…for US forces to engage in military operations," notes the Congressional Research Service.

That's a crucial distinction, according to critics of the US policy in Iraq. In effect, US negotiators were using the SOFA process, which needs no congressional approval, in a quiet attempt to enact a mutual defense treaty without Senate ratification, as the US Constitution requires. As Douglas Macgregor, a retired Army colonel and now military expert, told a congressional subcommittee in February, the administration should not "pretend that a major US defense commitment, internal and external to Iraq, is a matter for resolution inside a SOFA."

The administration's struggle to hammer out the future of the US military in Iraq has proved enlightening, at least. Perhaps for the first time ever, the American public is getting a front-row seat to how its government negotiates empire.

In short, a SOFA sets the ground rules. Everywhere the United States military goes, it negotiates a Status of Forces Agreement and related accords that lay out rights and responsibilities of the US and its host, and specify the criminal and civil jurisdiction to which US personnel are accountable. At the end of the Cold War, the United States had SOFAs with about 40 nations. Today, it has more than 100 such agreements, including at least 10 that are classified, according to the Congressional Research Service.

The pacts range from somewhat vague to highly detailed. Agreements with nations like Bangladesh and Botswana for short-term deployments have run as short as a single page, while the SOFA with Germany is a 200-page supplemental to the NATO SOFA, dwarfing that comparatively slim 13-page document with a dizzying catalogue of detail, down to where the mail will be delivered, and by whom.

Counting the war zones of Iraq and Afghanistan, more than half a million US soldiers, sailors, Marines, national guardsmen, and other uniformed men and women are deployed around the world. What happens when one of them does something illegal is the most commonly addressed issue, and one of the biggest points of contention in the US-host relationship. The Pentagon views SOFAs as essential to protect US troops from being tried and convicted in foreign courts, whose idea of justice can differ substantially from the system Americans are familiar with. In Japan, for instance, after a criminal investigation and arrest, the police often conduct lengthy interrogations that lead to guilty pleas, expressions of remorse, and lighter sentences. There are no jury trials in Japan, and mounting a robust or aggressive defense is viewed as tantamount to admitting guilt.

Even in other Western democracies, standard legal proceedings would seem strange to even the casual Law and Order fan. In France, the judge participates in the criminal investigation (even going to the crime scene with the accused on occasion) and directs the lines of questioning throughout the trial. While the prosecutor and defense attorney are key figures in American courts, they play only a supporting role in the French system.

In any case, these bilateral agreements almost always favor the United States. For example, the SOFA between the United States and Mongolia declares that "criminal offenses against the laws of Mongolia committed by a member of the US armed forces shall be referred to appropriate US authorities for investigation and disposition." Mongolian officials can request a waiver of US jurisdiction, but American officials need not comply: The pact states only that they must give "sympathetic consideration" to such requests.

(What does the United States want with Mongolia, anyway? Location! For the last seven years American troops have conducted the Pentagon's "Khan Quest" exercise alongside Mongolian and other regional forces—and conveniently close to Mongolia's next-door neighbors, Russia to the north and China to the south. This year, the exercises, tentatively scheduled to begin shortly after the close of the Beijing Olympics, will include soldiers from Bangladesh, Tonga, South Korea, Brunei, Sri Lanka, Indonesia, and Cambodia.)

Even if a SOFA isn't explicit, the legal protections are in there, often as a single sentence like "US personnel are to be afforded status equivalent to that accorded to the administrative and technical staff of the US embassy." Translation: diplomatic immunity.

The Pentagon also negotiates immunity for its personnel via the American Service-Members Protection Act. Passed by Congress in 2002, it bans US military assistance for any country that hasn't signed a so-called Article 98 agreement, in which the country promises not to hand over US personnel to the International Criminal Court. The act had an immediate impact: Military aid and training assistance to 35 countries was suspended in 2003, after they failed to comply by the deadline, and the ICC—established the previous year to prosecute crimes against humanity, such as genocide and ethnic cleansing—commenced its work weakened by US meddling.

These protections, while good for the grunts, can lead to tensions with America's closest allies. In Japan—where the US has maintained a huge military presence ever since World War II—the SOFA has allowed soldiers responsible for egregious crimes against civilians to walk free.

Some 20,000 US military personnel—half of all those deployed to Japan—are stationed on Okinawa, an island at Japan's southern tip. In 2003—fed up with years of stonewalling, inaction, and a string of violent crimes against young Okinawan women—the prefecture's governor, Keiichi Inamine, presented visiting Defense Secretary Donald Rumsfeld with a petition demanding a SOFA review that would give Japan a greater say in criminal prosecution.

Bucking diplomatic niceties, Inamine invited the press to the meeting, and included statistics about the crimes carried out against his constituents: 5,157 offenses by US troops, civilian defense personnel, and their dependents over a 30-year period, including 533 murders and rapes. According to Chalmers Johnson, a retired CIA analyst and distinguished expert on Japan and China (see "America's Unwelcome Advances"), the Okinawa governor stressed that the situation was continuing to get worse, with the number of crimes climbing every year.

It's not just individual soldiers who get away with lawbreaking; the Pentagon itself has largely gotten a free pass. Starting in the late 1990s, decades of military pollution led South Korea to renegotiate its SOFA with the United States as the countries were conducting talks to return some US-held bases to the Koreans; the revised version includes procedures for dealing with environmental devastation. But an analysis by the environmental group Green Korea United concluded that the new rules are too weak and muddled to be of much use. For example, it noted, the amended SOFA establishes procedures for Korean access to the US bases. But when a 2002 Korean investigation determined that oil leaking into a subway station was coming from the nearby Yongsan base, US military investigators denied it, and would not let their Korean counterparts on base to verify the claim.

Despite America's periodic disputes with these and other major base-hosting allies—including Italy and Germany—the SOFAs governing the relationships were at least posted online for perusal by the strong-hearted and sharp-eyed. And though weak, unfair, and/or the products of coercion, provisions by which the host nation may seek to prosecute US personnel have at least been tried, tested, and applied.

This isn't the case in many corners of the globe. Consider America's SOFAs with the Middle Eastern nations of Kuwait, Oman, Qatar, and the United Arab Emirates, as well as Malaysia, Somalia, and Kenya. All of these pacts remain classified. And the Congressional Research Service's revelation that at least 10 classified SOFAs exist means there are at least 3 others so secret that we don't even know who the host nations are.

Throughout the Middle East, governments go to great lengths to keep any US military presence under wraps. During the lead-up to the 2003 Iraq invasion, for example, thousands of US special operations forces were stationed in Jordan—whose government publicly opposes the war, enjoyed close diplomatic and economic ties with Saddam Hussein, and is just autocratic enough to imagine it could hide a substantial US presence from its citizens.

Negotiating a SOFA can be tricky for such nations, whose governments walk a fine line. But to the world, the West, and particularly to Washington, they must appear fully on board with the war on terror. And, depending on their strategic importance to the US, they may be rewarded greatly for such cooperation. In 2002, Jordan, which borders Iraq, accepted $100 million in American foreign military financing; the following year, after King Abdullah II opened his realm to US Special Forces, the assistance spiked to $604 million—it has since leveled off at an elevated $200-plus million per year. To deal with subjects or citizens resentful of any US military presence, one solution is to simply deny it—and that's a lot easier in places like Jordan, where the government severely curtails press freedoms and public speech.

Keeping SOFA negotiations quiet has not been an option in Iraq. These maneuverings, as well as the strategic framework talks, have been carefully watched and well publicized. That's how the United States wanted it, at least initially. But US negotiators have tried to cram all sorts of contentious issues into the SOFA—the most noxious to Iraqis being the demand (since withdrawn) that private military contractors, not just US troops, enjoy immunity from prosecution under Iraqi law.

(The memory of Blackwater personnel taking out 17 civilians in a barrage of bullets last fall may well have hardened the resolve of Iraqi negotiators on that point.)

In April, a draft of the security framework, marked "sensitive" and citing the still-incomplete SOFA, unleashed a storm of public criticism, not the least of which came from Iraqi legislators.

America would work with Iraq's political and military forces, the draft stated, "to enable them to protect Iraq and its people and to deter foreign aggression." The highest priority, it noted, is "combating al Qaida" along with other "terrorist groups and outlaw groups." Despite this seemingly endless task, the framework's authors repeatedly restated the administration's claim (see "What Permanent Iraq Presence?") that the US presence is temporary and at the "request and invitation of the sovereign Iraqi government."

The document also proposed that US forces could "conduct military operations" and "detain individuals when necessary for imperative reasons of security." This seemed a problematic allowance, given that the US has preemptively detained and held tens of thousands of Iraqis, some for more than a year, without charges. (More than 19,000 were still in US custody as of May 2007.)

In June, Iraqi politicians told Western journalists that the United States' wish list for long-term occupation was even more ambitious. It included 58 US bases (down from an earlier request for 200), control of Iraqi airspace, and legal immunity for soldiers and civilian contractors. And, despite claims to the contrary by Defense Secretary Robert Gates, the American proposals went far beyond other long-term US security pacts in that they limited neither the size of the US force nor the types of weapons it could deploy.

In response to assertions that its proposals effectively constituted a treaty for the protection of Iraq, the administration merely stressed that the strategic framework is a nonbinding understanding. In Iraq, however, these proposals have unified the fractious Iraqi parliament in a way few other issues have, with a multiethnic, multiparty coalition emerging to block both the SOFA and the strategic framework.

The future options are limited and lousy from the perspective of a Bush administration intent on securing its legacy. Option one: Negotiate a SOFA and strategic framework that is acceptable both to the Iraqis and the US Congress, thus guaranteeing it will fall short of a robust justification for an ongoing US occupation. Option two: Extend the Security Council mandate and risk derision of Iraqi "sovereignty" and an undermining of the notion of US-Iraqi cooperation. Option three: Cobble together a Memorandum of Understanding that will cover everybody's behind until the next president settles into the Oval Office.

In August, the negotiators showed their cards once again. The Bush administration seems to be pursuing the first option, softening its stance somewhat on key Iraqi demands. A final draft includes the creation of a US-Iraqi committee that would vet US security operations (including the detention of Iraqis), and details the circumstances—including suggested dates and numbers—under which American combat forces would begin to leave. However, Iraqi and US negotiators conceded that the agreement is temporary, conditioned on marked improvements in the security situation, and subject to approval from a still-wary Iraqi parliament.

If this round of negotiations fails, option three seems like the White House's path of least resistance. Just give that MOU a grand title and go back to Crawford, leaving the pesky details, and an ongoing war, for the next guy to sort out.

Frida Berrigan is a senior program associate at the New America Foundation's Arms and Security Initiative.