The Iraq SOFA: Not So Comfortable

When President Bush and Nouri al Maliki released the joint "Declaration of Principles" late last year, it foreshadowed a contentious battle over the July 31 deadline for a status of forces agreement (SOFA) between the two countries. In order to avoid seeking Congressional approval, Bush and Maliki are negotiating the SOFA as an 'executive agreement' rather than a formal treaty, despite the long-standing precedent of Presidents submitting such agreements to the Senate for ratification.

President Bush's plan to forge a long-term agreement with the Iraqi government that could commit the US military to defending Iraq's security would be the first time such a sweeping mutual defense compact has been enacted without congressional approval, according to legal specialists.

After World War II, for example - when the United States gave security commitments to Japan, South Korea, the Philippines, Australia, New Zealand, and NATO members - Presidents Truman and Eisenhower designated the agreements as treaties requiring Senate ratification. In 1985, when President Ronald Reagan guaranteed that the US military would defend the Marshall Islands and Micronesia if they were attacked, the compacts were put to a vote by both chambers of Congress.

In general SOFAs don't include a mutual-defense agreement, but rather concern legal aspects of hosting US forces and jurisdictional issues. While Bush is not legally bound to submit such an agreement for ratification, more than a half century of presidents have done so, especially when a mutual-defense contract is included. Considering the political implications of the Iraq conflict--surely more prescient than the Marshall Islands--his refusal to do so promises conflict in Washington this summer, especially considering the lengths by which this particular SOFA exceeds those before it. Also, previous SOFAs not submitted to Congress dealt only with leasing agreements, not a promise of defense and active military operations by US forces including arrests and detentions of Iraqis.

But the "long-term relationship of cooperation and friendship" outlined in November goes far beyond an ordinary status-of-forces agreement. It would include promises of debt forgiveness, economic and technical aid, facilitating "especially American investments" in Iraq - and the security commitments, according to Bush and Maliki's joint declaration last November.

Today, the Independent's [UK] Patrick Cockburn is reporting that the coming agreement includes US use of 50 bases, control of Iraqi airspace, and legal immunity to American military personnel and contractors. The deal, if adopted, could tie the next president's hands on any proposed withdrawal.

A secret deal being negotiated in Baghdad would perpetuate the American military occupation of Iraq indefinitely, regardless of the outcome of the US presidential election in November.

The terms of the impending deal, details of which have been leaked to The Independent, are likely to have an explosive political effect in Iraq. Iraqi officials fear that the accord, under which US troops would occupy permanent bases, conduct military operations, arrest Iraqis and enjoy immunity from Iraqi law, will destabilize Iraq's position in the Middle East and lay the basis for unending conflict in their country.

As with Bush's wariness of the US Senate, "the US is adamantly against the new security agreement being put to a referendum in Iraq, suspecting that it would be voted down." Article 58, Section 4 of the Iraqi Constitution, however, clearly dictates that the Iraqi Parliament must ratify such an agreement.

A law shall regulate the ratification of international treaties and agreements by a two-thirds majority of the members of the Council of Representatives.

But Bush knows any agreement which prolongs the American presence in Iraq will be extremely unpopular, as 70 percent of Iraqis oppose the US occupation, and thus will fight strongly to bypass the democracy he touts at every opportunity. For all its pomp, the administration is clearly opposed to democracy whenever it should interfere with its unfettered operation, be it at home or abroad.

There are several things contained in the proposed agreement which promise conflict, and they are worth considering on an individual basis.

First, there is the issue of jurisdiction over American personnel and civilian contractors. Most SOFAs, such as the one with Japan, impose stipulations on when the host country can prosecute Americans and when that right falls into the hands of the US.

Most SOFAs recognize the right of the host government to "primary jurisdiction," which is to say the host country exercises jurisdiction for all cases in which U.S. military personnel violate the host country's laws. There are two exceptions, however, which generally apply only in criminal cases involving U.S. forces personnel: When the offense is committed by Americans against Americans ("inter se" cases), and when the offense is committed by Americans in carrying out official duty. In these situations, the United States has primary jurisdiction over the accused American. [globalsecurity.org]

The proposal, however, eliminates entirely the right of the Iraqis to prosecute Americans for any crime, whether it is concomitant with official duty or not. If Japan and East Timor are any indication, US soldiers are not necessarily on their best behavior while off duty, as incidences of rape have been numerous in the former country. While any suggestion that all US soldiers are inclined to sexual battery is fallacious, to suggest that every US soldier is inherently incapable of committing crimes against the citizens of the host country is equally so.

Chalmers Johnson devotes an entire chapter in his book, Nemesis, to the US SOFA with Japan:

What SOFAs do, however, is give American soldiers, contractors, Department of Defense civilians, and their dependents a whole range of special privileges that are not available to ordinary citizens of the country or to non-American visitors. In the great tradition of 'extraterritoriality' that began in the world of nineteenth-century Western colonialism, they are almost never reciprocal [NATO excepted]--that is, the SOFAs bestow on Americans privileges that are not available to citizens of the host nation if they should visit or be assigned to the United States. [pp 171-172, paperback]

Strikingly, the US also demands certain guarantees it has been loathe to grant to its own detainees.

U.S. military commanders are responsible for seeing that individuals under their authority who run afoul with host-county laws receive fair trials from the host country under all circumstances. DoD directives list 14 "fair trial" safeguards or guarantees that are considered applicable to U.S. state court criminal proceedings by virtue of the 14th Amendment of the Constitution of the United States. These safeguards include the right of the accused person to be tried without unreasonable delay, to be tried by an impartial court, and to be protected from the use of a confession obtained by torture, threats, or violence. [GlobalSecurity]

But even when the accused are not turned over to host authorities, US soldiers are subject to court martial. In Iraq, however, American civilian contractors would be subject to no one, as they are not under military jurisdiction. If put into effect as is, the SOFA would essentially create an army of extrajudicial contractors immune from any and all consequences for their actions regardless of severity or import, and would severely call into question the true extent of Iraqi sovereignty.

Apart from the proposed extrajudicial nature of the American occupation, the SOFA virtually guarantees a long-term US presence, most likely immune to the effect of the November election. By guaranteeing protection, the SOFA would force a hypothetical President Obama's hand by putting him in a position of either leaving American forces in Iraq or dissolving the SOFA and presenting a United States that does not follow through on its signed commitments, a terrible PR move for a green leader.

The unfettered use of bases and air space is clearly also aimed at positioning the US for future conflict in Iran, something that may begin before year's end, again holding the next president hostage. Strangely enough, such an occurrence was addressed in the Declaration of Principles agreed to by Bush:

Cooperating jointly with the states of the region on the basis of mutual respect, non-intervention in internal affairs, rejection of the use of violence in resolving disputes, and adoption of constructive dialogue in resolving outstanding problems among the various states of the region.

No more than flattering rhetoric, surely, but such is the status quo.

Either way, "Mr Bush is determined to force the Iraqi government to sign the so-called 'strategic alliance' without modifications, by the end of next month." [Cockburn] This sense of urgency requires the bypassing of both countries' legislatures--despite overwhelming precedent and written law--and is based on a desire to ensure there will be no precipitous withdrawal of American forces in January.

While the rest of us are relieved the Democratic nominating process is nearing an end, President Bush certainly wishes the distraction would continue. Expect the proposed SOFA to be a firestorm in Washington for the next couple of months.

President Bush swaddles himself in the rhetorical love of democracy, but when presented with two nations where three-fourths of the population strongly opposes a proposal, he has absolutely no qualms about subverting both.

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