- The Washington Times - Saturday, October 18, 2008

The Bush administration has agreed to allow Iraqi courts to try some U.S. soldiers and civilians accused of serious crimes, require U.S. forces to consult Iraqis before engaging in combat and return control of Iraqi airspace but has built in loopholes to protect U.S. interests, according to drafts of two accords obtained by The Washington Times.

“It’s smoke and mirrors,” said Feisal Istrabadi, a former ambassador to the United Nations for Iraq. “There is no actual substance to Iraqi sovereignty in these agreements.”

A long-awaited and politically contentious status of forces agreement (SOFA) states that both sides will work to protect Iraq from “internal and external threats against the Republic of Iraq and to cement cooperation to defeat al Qaeda in Iraq and other outlawed groups.”

To that end, the Iraqi government requests “the temporary assistance of U.S. forces for the purpose of supporting its effort to safeguard security and stability in Iraq including cooperation in carrying out operations against al Qaeda, other terror groups and outlawed groups.” As reported for several months, the document states that U.S. forces must quit Iraq by Dec. 31, 2011, “at the latest.”

A second, strategic framework agreement — obtained in Arabic by The Times and reviewed by Mr. Istrabadi — is short on strategic goals, dealing broadly with diplomatic, political and cultural cooperation, with a brief section on defense and security cooperation, Mr. Istrabadi said. It also addresses cooperation on energy, technology, information and communications.

Mr. Istrabadi said the draft — which must still be approved by the full Iraqi government and parliament — requires a memorandum between the U.S. president and the Iraqi prime minister that is supposed to take effect on Jan. 1, but can be terminated at will. “The assumption seems to be that there will be further side agreements,” he said.

Administration officials confirmed the draft SOFA’s authenticity but said the language is still undergoing changes. Although they declined to comment substantively on the text, they said safeguards to protect U.S. soldiers are “more stringent” than in similar agreements with longtime U.S. allies such as Japan and Germany.

In case of crimes, a joint U.S.-Iraq commission will make mutual decisions, the officials said.

They added that the Dec. 31, 2011, withdrawal date refers to combat troops and will have “conditionality language” attached. It would give the U.S. president the flexibility to adapt, based on conditions at the time, and the Iraqis the option to invite the Americans to stay longer.

A number of U.S. lawmakers — including Democratic presidential nominee Sen. Barack Obama of Illinois — have asked the administration to review these agreements before they are signed. Secretary of State Condoleezza Rice and Defense Secretary Robert M. Gates briefed key members of Congress on the draft accords Thursday and Friday, while congressional staffers were briefed Friday by the White House National Security Council.

Neither the Obama campaign nor that of Republican presidential nominee Sen. John McCain of Arizona responded to requests for comment.

Rep. Bill Delahunt, Massachusetts Democrat who has sought congressional input on the accords, said, “Everyone seems to be missing a big issue here.” He said the language in the agreement regarding U.S. military obligations makes it clear that this a treaty that must be ratified by the Senate.

“Of course, this is a treaty,” he said. “They can call it what they want, but this section irrefutably implies a treaty.”

Reaction to the documents by Iraq specialists was mixed.

“The Iraqis have gotten a lot in this agreement, including joint supervision of military operations, control over their airspace and the possibility of jurisdiction over premeditated and gross felonies committed off base and off duty by U.S. soldiers,” said Daniel Serwer, vice president of the U.S. Institute of Peace. “They’ve also got several ‘best efforts’ type commitments of U.S. support to Iraqi’s security and security forces.”

Mr. Serwer was commenting on excerpts of the SOFA first disseminated by the Associated Press. However, the full texts of the agreements, obtained by The Times and translated by Mr. Istrabadi, show that U.S. negotiators put in fine print limitations on some of the key provisions.

For example, the SOFA expressly acknowledges the right of self-defense, which each party has, consistent with principles of relevant international law. “That is potentially a huge opening for the U.S. side to ignore a lot of what it has agreed to in this thing,” Mr. Istrabadi said. “There will be lawyer in the Defense Department who will take a broader view of what the right of self-defense is than the Iraqis think they will.”

Among other provisions, the U.S. government promises:

• Not to search homes or other properties or arrest anyone other than U.S. soldiers without Iraqi legal permission.

• To hand control over Iraqi airspace to Iraqi authorities.

• Obtain the prior consent and full coordination of Iraqi authorities before carrying out military operations.

• To retain judicial jurisdiction over U.S. military personnel and civilian contractors for incidents that take place at agreed facilities or during military missions.

• To give Iraq jurisdiction over U.S. civilians and U.S. troops and Defense Department contractors in the case of “premeditated and gross felonies … committed outside the agreed facilities and areas and when not on a mission.”

Mr. Istrabadi said the agreement is in fact “smoke and mirrors,” given the self-defense loophole. In the event U.S. forces were to come under attack, U.S. military leaders could initiate an operation without contacting the Iraqi government, he said.

Another analyst, James S. Robbins of the American Foreign Policy Council and Trinity Washington University, said the provision handing over Iraqi airspace is “a non-issue” because Iraq has no air defense capacity.

Mr. Istrabadi said that the SOFA does state that Iraq will control its airspace. But a following paragraph says that Iraqis may request temporary U.S. support in monitoring and controlling that airspace.

The SOFA, which was intended help Prime Minister Nouri al-Maliki claim victory for Iraqi sovereignty and to replace a United Nations mandate that expires Dec. 31, also exempts U.S. ships, trucks and transport vehicles from inspection and registration requirements and Iraqi taxes.

Mr. Istrabadi, who helped Iraq draft its first post-Saddam Hussein constitution and is now a visiting professor at the Indiana University’s School of Law, made another clarification: The U.S. has primary right to exercise judicial jurisdiction not just over U.S. troops but also over “the civilian cadre,” a term of art meaning civilian employees of the Defense Department not otherwise resident in Iraq.

“In other words, if DOD employs an Iraqi citizen as a translator, it wouldn’t include him,” he said. “But someone coming from the Pentagon and working with the U.S. in Iraq would fall under U.S. jurisdiction.”

Nicholas Kralev contributed to this article.

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