By Karen DeYoung
Washington Post Staff Writer
Tuesday, October 14, 2008
With time running out for the conclusion of an agreement governing American forces in Iraq, nervous negotiators have begun examining alternatives that would allow U.S. troops to stay beyond the Dec. 31 deadline, according to U.S. and Iraqi officials.
Neither side finds the options attractive. One possibility is an extension of the United Nations mandate that expires at the end of the year. That would require a Security Council vote that both governments believe could be complicated by Russia or others opposed to the U.S.-led war. Another alternative would amount to a simple handshake agreement between Iraqi Prime Minister Nouri al-Maliki and President Bush to leave things as they are until a new deal, under a new U.S. administration, can be negotiated.
Negotiators have been stuck for months on the question of legal jurisdiction over U.S. troops and immunity for possible crimes. But even if the sides reach a deal in the next few days or weeks, it is not clear that a formal status-of-forces agreement could be approved by the end of the year. Maliki has pledged to submit an accord to Iraq's divided parliament before he signs it -- a promise he reaffirmed last week during a visit to Grand Ayatollah Ali Sistani, Iraq's most influential Shiite cleric. Sistani has said he will not endorse any document without the support of Iraq's population and political factions.
If the parliament refuses, Maliki would have "no choice" but to request a U.N. extension "because the American forces will lose their legal cover on Dec. 31," he told the Times of London in a weekend interview. "If that happens, according to international law, Iraqi law and American law, the U.S. forces will be confined to their bases and have to withdraw from Iraq," Maliki said.
U.S. officials do not dispute that the absence of an agreement would probably require an immediate end to combat operations and, at a minimum, confinement to bases on Jan. 1. Officials refused to discuss the sensitive issue on the record while negotiations are ongoing.
"I am actually reasonably optimistic we will come to closure on this in a very near future," Defense Secretary Robert M. Gates told reporters Friday as he returned from a five-day trip to Europe. A month earlier, on Sept. 8, Gates told Congress that he expected an agreement "within the next few weeks."
"But I had hoped that some weeks ago," Gates added.
Iraqi Vice President Tariq al-Hashimi said yesterday that an accord is unlikely before the end of the year, citing the number of parties that must sign off on the deal. "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," Hashimi told McClatchy Newspapers.
Frustrated over what they consider Iraqi intransigence, administration officials have said Iranian meddling is keeping Shiite leaders from accommodating U.S. bottom lines. The government-sanctioned Iranian media have charged repeatedly that Washington is trying to force Maliki to sell out Iraqi sovereignty. Radical Shiite cleric Moqtada al-Sadr, with a bloc of supporters in Iraq's parliament and a powerful militia currently under a cease-fire, has called for an immediate U.S. withdrawal.
Other Shiite political groups are divided over the deal, and some, including Maliki's Dawa party, disagree internally. But U.S. officials, uncertain of where Maliki really stands, tell themselves that ultimately he cannot afford for U.S. operations to shut down.
The U.S. military has repeatedly described security gains over the past year as "fragile" and "reversible." The main concerns, a senior officer said, are that the Sons of Iraq security forces -- largely Sunni groups now being paid by and under the control of the Maliki government -- will revert to insurgency and that "special groups" of Shiite militia members, tied to Iran, will relaunch an offensive in Baghdad and other population centers.
Maliki himself said Saturday that "a sudden withdrawal may harm security." But the game of chicken his government appears to be playing has continued as the U.S. election approaches. Any new administration, whether Republican or Democratic, would need to start negotiations from scratch, with different priorities on a possible withdrawal timeline and the ongoing mission for U.S. troops.
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."