Analysis: Legal Safeguards For U.S. Troops Key To An Iraq Deal

  • July 20, 2011
  • In the News

Iraqi Prime Minister Nuri al-Maliki's shaky coalition government has yet to decide whether it will ask the United States to keep some of the 46,000 remaining U.S. troops in the country beyond 2011, despite U.S. and Iraqi military concerns about security gaps once American forces leave.

 U.S. officials are warning Iraq's government that, without a request from Baghdad soon, it will become increasingly difficult and costly to overhaul the U.S. drawdown plan. New Defense Secretary Leon Panetta this month aired his frustration over the delay, saying: "Dammit, make a decision."

But options apparently being weighed by Maliki as a way to sidestep political paralysis raise the risk of resistance from Washington, further complicating the prospects of a deal.

Namely, Maliki may attempt to bypass the Iraqi parliament, where there is resistance to a continued U.S. presence, by having his defense and interior ministries seek agreements with Washington to keep several thousand trainers in the country, political sources in Iraq say.

If those trainers include a meaningful number of U.S. forces, Iraq's parliament would likely have to be involved at some point to approve legal protections.

"It is up to the Iraqis to determine what would make those protections binding under domestic Iraqi law, but our current understanding suggests that it would require parliamentary approval," a senior U.S. defense official told Reuters on condition of anonymity.

Richard Fontaine, an analyst at the Center for a New American Security, a Washington think tank, said he did not expect the United States to back down on the question of legal protection for troops.

"Nobody wants to see the prosecution of an American soldier either on trumped up charges, or politically motivated kinds of charges or simply because of the immaturity of the Iraqi judicial system," Fontaine said.

Some U.S. military personnel will be assigned to the embassy-based U.S. Office of Security Cooperation even after the end-year drawdown. That office reports to the U.S. ambassador in Iraq and troops assigned there enjoy diplomatic protections.

Estimates on the future size of the U.S. Office of Security Cooperation range from several hundred to over 1,000.

"Any additional U.S. troops remaining in Iraq will require legally binding status protections," the official said, adding the guarantees would need to be similar to the ones under the expiring security pact, approved by Iraq's parliament in 2008.

The existing pact ensures U.S. forces can't be tried by Iraqi courts, unless the cases involve prosecution of major, premeditated crimes committed by off-duty U.S. forces who were outside U.S. bases at the time of the alleged incident.

CONTRACTORS VS TROOPS

Any decision to extend U.S. troops is risky in Iraq. The political bloc of anti-U.S. Shi'ite cleric Moqtada al-Sadr openly opposes a U.S. presence and Sadr has threatened to escalate protests and military resistance if troops stay.

One option being floated in Iraq is the possibility of having U.S. contractors train Iraqi forces, instead of active-duty U.S. military personnel.

But the U.S. defense official did not expect any future training mission being relegated solely to contractors, were Iraq to request some kind of residual U.S. military presence.

The official said the trainers would likely be a mix U.S. forces and contractors. The contractors could teach Iraqi forces to use U.S. military hardware sold to Baghdad. U.S. forces would help Iraqis address other gaps in their capabilities.

Violence in Iraq is down considerably since the height of sectarian killings in 2006-2007 but security remains precarious. June was the deadliest month for U.S. forces in Iraq since 2008, with U.S. officials blaming Iran-backed militias for most of the killings.