The Perils Of Actual Negotiation

This is getting kind of ugly. This Administration doesn't really have a model for negotiating with a partner that won't give them everything they want. The Iraqis can't sign this SOFA agreement.

BAGHDAD, Oct. 21 -- The Iraqi cabinet called Tuesday for reopening negotiations over a draft agreement to keep U.S. forces in this country beyond 2008, but U.S. Defense Secretary Robert M. Gates immediately expressed "great reluctance" about more talks.

The apparent stalemate comes just 10 weeks before the expiration of the United Nations mandate that authorizes the presence of the 150,000 U.S. troops in Iraq. Without a new legal agreement, "we basically stop doing anything" in the country, Gates told news service reporters in Washington [...]

U.S. and Iraqi negotiators have labored for seven months on the status-of-forces agreement. It would extend the American troop presence until the end of 2011 and give Iraqis more control over military operations here. But the accord was immediately criticized as an undermining of Iraqi sovereignty in this strongly nationalist country. Prime Minister Nouri al-Maliki has not spoken publicly in support of it and has told colleagues it needs changes, officials say.

The most serious public challenge to the agreement emerged Tuesday in a meeting of the Iraqi cabinet. The ministers "unanimously agreed that there are necessary amendments which need to be made . . . to raise the agreement to a nationally acceptable level," according to a statement by government spokesman Ali al-Dabbagh. The statement did not specify what changes were sought. But one of the participants in the meeting said in an interview that Maliki himself told the cabinet that the accord did not pass muster.

"He made observations on the need for further changes, because he wants to market it" publicly, the participant said. He added that the prime minister said the accord "would be difficult, as it stands, to pass through parliament."

As said above, Gates is shutting the door on further concessions. There's actually a leaked copy of the agreement floating around, and it's a slippery document which contradicts itself in places. There was some question about legal jurisdiction, so I want to reproduce that part of it:

1­ The U.S. has the primary legal jurisdiction over U.S. armed forces members and civilian members concerning issues that occur inside the installations and areas agreed upon, and while they are on duty outside t he installations and areas agreed upon, and in all conditions not mentioned in paragraph 2.

2­ Iraq has the primary legal jurisdict ion over armed forces members and civilian members in cases of major and intent ional crimes ment ioned in paragraph 8 that takes place outside areas and installat ions agreed upon while troops are off duty.

3­ Iraq has the primary legal jurisdiction over contractors with the U.S. and their employees [...]

6­ Both sides have the right to ask the ot her side to waive their primary legal jurisdiction over a specific case. Due to the exceptional importance of exercising such jurisdictions, the Iraqi government agrees to exercise its judicial jurisdict ions in accordance to paragraph 2 only after it informs the U.S. in writ ing within 21 days of the discovery of the alleged crime.

It's seldom that US forces are both away from bases and off-duty, so that's meaningless. However, the contractor jurisdiction is pretty airtight. However however, the jurisdiction can be waived and Iraq has to assert the legal right. The whole document is like this.

As to the withdrawal, it does look like the US has to leave by the end of 2011 at the latest (it can be earlier) unless the Iraqi government asks them to stay, which I can't see them doing because it would be like signing a death warrant, at least at this juncture.

But keep in mind, the Iraqis consider this to be a raw deal. Maliki's coalition partners oppose it. They're asking for more concessions. And the Administration has no experience with anyone saying "No" to them and meaning it, so I think we're at an impasse.

Juan Cole notes that the UN mandate can easily be renewed. That the Administration isn't going that route suggests that the SOFA agreement is a kind of malware, something they can use to keep permanent bases or raid Iraqi oil.

The agreement likely cannot pass parliament. If it does pass, it is unlikely to pass by January 1, when the old UN mandate for the Multi-National Forces in Iraq runs out. Without such a mandate or a bilateral agreement, US troops in Iraq could be tried for war crimes even for ordinary military operations. If Iraq did go back to the UN for an extension of its mandate, it turns out that Russia would support an extension. Some observers, including Prime Minister Nuri al-Maliki, had wondered whether the US reaction to the Georgia police action had so soured Russia on Washington that Moscow would play spoiler on the UNSC with regard to Iraq. Not so, apparently.

Incredible. In this case, Bush going down to the wire looking for an agreement has the potential to get American troops tried for war crimes, when he could have easily extended the mandate and passed this mess on to the next President. As long as there's a fork in the road, this President will take the one with the giant bear in the middle of it.