Lacking an Accord On Troops, U.S. and Iraq Seek a Plan B

The Iraqi prime minister in August twice assured Bush -- once personally via videoconference and again through Secretary of State Condoleezza Rice during a visit to Baghdad -- that the deal was done, Iraqi and U.S. officials said. Since midsummer, Iraqi Foreign Minister Hoshyar Zebari has made repeated public statements confirming agreement on a draft.

The prospect that no deal would be reached, or that negotiations would come so close to the wire, was unthinkable when talks began in March, four months after Bush and Maliki signed a declaration of principles outlining a future U.S. military presence in Iraq. The declaration set a deadline of July 31.

The discussions began badly, with Iraqi negotiators rejecting an initial administration draft. The insistence of the United States on retaining complete command over its military operations and detention of Iraqi citizens, as well as control over borders and airspace, was a "dead end," Maliki said.

When the stalemate continued through May, Bush ordered U.S. negotiators to show more flexibility, and compromises were quickly reached giving Iraqis at least some say in U.S. operations and detentions. Joint control of airspace -- recognizing that Iraq was not yet capable of handling it alone and that U.S. controllers needed to be in charge of U.S. military aircraft -- was also worked out.

Disagreement then centered on a timeline for U.S. withdrawal. Maliki said that the end of 2010 was a reasonable goal, a public statement that appeared more consistent with the position of Democratic Sen. Barack Obama -- who has called for an even earlier withdrawal -- than that of Republican Sen. John McCain, who has opposed a firm timeline.

During Rice's Aug. 21 visit to Baghdad, the two sides agreed on withdrawal of combat forces by the end of 2011. But U.S. officials continue to speak of an "aspirational" date depending on ground conditions, while Maliki said Saturday that the agreement is for "final withdrawal by the end of 2011." Both have said that U.S. combat troops will be drawn back from Iraqi cities by mid-2009.

The two governments put an optimistic public spin on their progress, with Zebari previewing a political discussion among Iraqi parties and factions over an agreed draft, and the Americans congratulating Iraq on the health of its democracy. "There's actually a great debate about this right now," Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, told reporters Sept. 2. Maliki was determined to attain full Iraqi sovereignty and independence, Mullen said, and "that's one of the things that we've encouraged as his burgeoning democracy comes forward."

Behind the scenes, however, the negotiating teams remained deadlocked on a question that had long been set aside as too hard: whether the Iraqi government would have any legal jurisdiction over U.S. troops and civilian Defense Department personnel. U.S. officials have consistently said that it is a redline issue for them, with no compromise possible over total U.S. jurisdiction.

Iraq's position seemed to have hardened by early September: Maliki fired his chief negotiator and "retired" most of the team the Americans had worked with throughout the summer, instead installing two officials seen as political confidants. The two senior U.S. negotiators -- David M. Satterfield of the State Department and Brett McGurk of the National Security Council -- took a break after months in Baghdad to regroup and seek new instructions.

Satterfield and McGurk returned to Baghdad two weeks ago with a new formulation of the U.S. demand that any alleged crime by U.S. defense personnel would be judged by U.S. courts and U.S. law. For major offenses committed off-base and outside U.S. military operations, the Iraqi judiciary would have consultative input.

On Saturday, Maliki outlined a somewhat different position. "If Iraqi and American soldiers move in an operation that is pre-agreed by both sides, then they have immunity unless [an American] commits a deliberate crime during the operation."

"The sticking point," he said, "is about if the American soldier was not on a mission and commits a crime that is accountable to the Iraqi judicial system, whether small or big. The Iraqi judicial system should have jurisdiction over the American soldier. This is the point of difference."