The Mistakes We Have Made in SOFA Negotiations Posted by Ilan Goldenberg

Karen DeYoung has a great article in the Washington Post about the  never ending security agreement negotiations.  This particular assessment sets off all kinds of alarm bells. 

U.S. officials, uncertain of where Maliki really stands, tell themselves that ultimately he cannot afford for U.S. operations to shut down.

Basic rule about Iraq.  Whenever American officials start "telling themselves" things, instead of simply looking at the situation as it actually is, you know they're in trouble.  Officials in the Bush administration told themselves we'd be greeted as liberators.  Told themselves there was a direct connection between Al Qaeda and Iraq and that there were WMDs.  Told themselves that there was no insurgency and it was just some dead-enders.  Told themselves all kinds of things that were not confirmed by intelligence or realities on the ground.

In the last year and half things have changed with a less ideological more pragmatic crew running the show.  Both the Awakenings movement / Sons of Iraq and the Sadr ceasefire were the result of a willingness to pragmatically agreeing to work with, or at the very least tolerate, former enemies.

But from the start, the negotiations over a security arrangement have been based on assumptions that may or may not be true.  If they turn out to be wrong then the U.S. may find itself on January 1, 2009 with approximately 130,000-140,000 troops sitting in Iraq without legal protections - a potentially disastrous and untenable situation. 

Here are some things that the Bush administration and American officials kept "telling themselves" throughout the negotiating process.

 

1. The Iraqi Government wants American forces stay.  This is not at all clear.  The Bush administration keeps saying that the timeline agreement is flexible and only acts as a "time goal." Moreover, they claim that the 2011 deadline is just for the removal of American combat forces.  But at least in public Maliki has maintained the position that he wants all American forces out by the end of 2011 telling the London Times over the weekend:

We reached agreements, that are considered important and crucial in Iraq, for the final withdrawal (of all US forces) by the end of 2011, and the withdrawal from (Iraqi) cities by June 30, 2009.

Why do we continue to insist that Maliki really wants us to stay? Maybe he does.  Maybe he doesn't.  But surely we can't have a realistic plan for Iraq as long as it is based on this highly questionable assumption.

2.  A security deal must get done.  If we had to, we could just force it down the Iraqis throats. There seems to have been an assumption that a deal was going to get done because it had to get done.  U.S. forces couldn't stay in Iraq without legal protections and so the issue is so important we'd find a way to work it out and eventually the Iraqis would bend.  That was clearly the assumption when a first draft of the agreement included all kinds of immunities that caused a massive backlash in Iraq and inspired Sadr to organize protests against the agreement.  It has continued to be the working assumption as Rice and Gates asserted in August and September that a deal was basically done.  But now that assumption is very much in flux.  Especially since any deal would have to approved by a fractious Iraqi Parliament.  (If you thought getting the bailout through Congress was tough it's going to be nothing compared to this). As Iraq's Sunni Vice President Tariq Al-Hashimi explained "I'm not sure that the time we have left is enough for all of these organizations to study it, revise it and agree on the text."

3.  There is always a UN Security Council Resolution fall back option.  There was always an assumption that if push really came to shove we could get a resolution through the Security Council.  But with our recent tensions with Russia, it's no longer clear that they wouldn't veto such a resolution or at least ask get their pound of flesh in return. Moreover, the same problems that have slowed the agreement would apply to the UNSCR.  The Iraqi Government would have to ask for the resolution and asking for a resolution that included imunities that the Bush administration is asking for would come at a high domestic political cost.  So it's just as likely that whatever came out of the Security Council would still leave American troops legally exposed.

4.  Other countries won't get involved and won't slow down the agreement.  Bush administration officials continue to express anger and shock over Iranian meddling in the Security Agreement negotiations.  But I don't know what else they would expect.  As Maliki explained in his interview:

The Iranians have their own interests. They think that the agreement is a danger to their national security. So when they make a statement they do it to defend their interests and their policies. Also Syria, Saudi Arabia and other countries

In the end, all of these things may be true.  We may come to some kind of accommodation that works for the Iraqis and keeps American troops legally protected.  I hope we do.  But the fact that 130-140K American troops may find themselves in legal limbo is a very bad thing. 

Comments

[Don Bacon]

Apparently it's not a SOFA any longer, it's a "security agreement" principally determining the duration of the US military occupation of Iraq. That makes it a treaty, which under the Constitution requires the advice and consent of the Senate. Is the stalwart Senator Obama, the friend of the people, making this point? Why should the agreement be considered by the Iraqi parliament and not by the US Senate? Did we export all of our democracy, leaving none for us?

Some of the negotiations are dealing with the legal status of US troops. That's what a SOFA is supposed to do, and SOFAs (unlike treaties) have normally been an executive function.

In other words there are at least two separate issues here, a security agreement (treaty) and a SOFA (executive agreement). But with the unitary executive who needs laws? Why don't we just dissolve the Congress, as Ukraine has recently done?

Finally, Iran's interests should not be underestimated. Iran is a big part of any decisions that Maliki makes, particularly after Iran's help against Sadr. Maliki's Badr brigades were trained in Iran, and Maliki lived in Iran for eight years during his exile. The two countries share trade and religious centers, and a stable Iraq free of US occupation is in Iran's interest.

[marc]

During Congressional hearings prior to the start of negotiations I found the State Department's chief negotiator, David Satterfield, to be so arrogant and dismissive of congressional concerns that I shuddered to think how he would appear to the Iraqis. It didn't take long for him to confirm his utter incompetence. The draft proposal provided to the Iraqis in March was basically an insulting attempt to cement the currant U.S. colonial status quo in Iraq forever. Amazingly the State Department also chose that delicate moment to display it's diplomatic "tin ear" and renew Blackwater's contract basically telling the the Iraqis to eat shit and like it! Unfortunately it's been all down hill since then.

[Dan Kervick]

Well, what is your own suggestion, Ilan? I gather from your tone that you want some sort of SOFA or security agreement between the US and Iraq, and are therefore irked that the Bush administration has bungled the negotiations. Is that correct? Why do you want such an agreement? For what purpose?

While we probably can't get a resolution from the UN that is simply a renewal of the occupation for another extended period, I suspect we can get a resolution that calls on the Iraqis to provide reasonable protections for US forces as they proceed with an orderly disengagement and withdrawal over six months or a year. Perhaps we should began preparing for such a resolution.

[marc]

Ah, that is the rub Dan, a resolution from the UN that is simply a renewal of the occupation for another extended period, a resolution that calls on the Iraqis to provide reasonable protections for US forces as they proceed with an orderly disengagement and withdrawal depends solely om the Russians. They may not be in the mood.

[Peace]

The main problem with the recent administration's approach is that they assume to have won the war when it really it is a truce between Iraqi factions and also they want an SOFA before a political agreement amongst the Sunnis,Shiites, and Kurds about the formation of a united Iraqi government. This makes all three sides suspicious about who is going to use American troops against them and thereby has strengthened opposition to any kind of SOFA. Moreover the Iraqi government could be waiting for who is going to be president in 2009. If Obama gets elected there will be an SOFA that the Iraqi government could agree upon which will probably have US forces leave in a matter of sixteen months. But in the unlikely event that McCain gets elected, the Iraqis will junk any future SOFA and demand that the Americans leave right away.

[Ilan Goldenberg]

Dan,

I'm going to have a piece up later this week explaining what I think we should do at this point. Generally, I think we need some kind of legal protection for American forces. If we can't get it, they have to withdraw. But I'd rather have a clean and orderly pullback with U.S. forces still legally protected, as opposed to the mess we may get on January 1, 2009 if we have no legal protection whatsoever.

And yes. It's not a SOFA it's a "security agreement." SOFA is just the shorthand.

[Dan Kervick]

I think the US government position has been further undermined by Shahrastani's successful sale of oilfield development rights this week. The US keeps signaling through its diplomatic position and strategic choices that the Iraqi government, as presently constituted, is too weak to take care of business in Iraq without some further political settlement that caters to the demands of the Sunni Awakenings or Sons of Iraq, or whatever they are called.

But a whole bunch of wealthy and politically sophisticated global oil companies seem to be quite willing to place large financial bets on the existing government, and seem confident enough that the current government will survive and thrive well enough to live up to its contracts, and to maintain the minimum amount of security necessary to keep the ports open, and for participating companies to develop the fields, pump the oil and pipe it to shipping points. The government now has some very big stakeholders.

And the government is presumably betting that with the oil revenue flowing in already, and with a much greater yield yet to come, Baghdad will soon be rolling in all the cash it needs to purchase overwhelming domestic support and plenty of foreign friends, including friends who will sell them all the military hardware they need to provide for their own nation's security, and without having to hand any significant role in that security over to a bunch of nasty Sunni rebels who, just a few months ago, were an insurgency bent on toppling the democratically elected government.

The US has seemingly been acting on behalf of Sunni powers in the region to keep the Baghdad government weak, and dependent on US security, and to work on behalf of all those monarchical Sunni oil bosses to get Iraqi Sunnis a greater stake in the government, and to fend off the potential of a rising Iraq-Iran petroleum bloc that would threaten their interests and control of the Persian Gulf oil business. But it looks like we have lost that game. So it seems to me that we should put more of our eggs in the Iraqi government basket, get most of our troops out of the country, and sell them the weapons they need to take care of themselves before they turn to Russians or the Chinese for assistance.

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