“George W. Bush made the agreement about when American troops would leave Iraq, not Barack Obama. And the only way that American troops could have stayed in Iraq is to get an agreement from the then-Iraqi government that would have protected our troops, and the Iraqi government would not give that.”
— Hillary Clinton, remarks in the first presidential debate, Sept. 26, 2016
Two debates in a row, participants have argued over an obscure document known as the status of forces agreement (SOFA), which addresses whether a country has criminal jurisdiction over U.S. personnel. The United States has signed more than 100 such agreements, but a lapsed one in Iraq has loomed in importance.
Republicans charge that the Obama administration’s failure to obtain one after 2011 led to the departure of U.S. troops. Democrats assert the timetable was set by George W. Bush, and so, in effect, the administration’s hands were tied.
Let’s sort out what really happened.
In 2008, Bush did sign an agreement with Iraq that called for the departure of U.S. troops at the end of 2011. But this is one of those technically true facts that obscures more than it illuminates.
First of all, Bush wasn’t very happy with setting a fixed date. As former secretary of state Condoleezza Rice wrote in her 2011 memoir, “No Higher Honor,” the administration “hoped to avoid setting a firm date for departure in order to allow the conditions on the ground dictate our decisions.” The plan was to remove combat troops by 2011 but leave in place 40,000 soldiers for training and logistics. But then Iraqi Prime Minister Nouri al-Maliki reneged on the deal and asked for language that said all forces would leave by then. Bush “swallowed hard” but accepted the arrangement on the assumption it would leave a “firm foundation” for the next president, Rice wrote.
In fact, both sides assumed that before the SOFA expired, the two countries would negotiate an extension. “There was an expectation that we would negotiate something that looked like a residual force for our training with the Iraqis,” Rice told a reporter in 2011. “Everybody believed it would be better if there was some kind of residual force.”
The Obama administration also anticipated there would be an extension, and officials began negotiations for a new one as the deadline approached. Vice President Biden, who oversaw Iraq policy, was so convinced a deal could be struck that he was quoted as saying: “Maliki wants us to stick around because he does not see a future in Iraq otherwise. I’ll bet you my vice presidency Maliki will extend the SOFA.”
For complicated reasons, a deal was not reached. A key sticking point was whether the SOFA could exist as simply a memorandum of understanding (MOU) or needed formal approval by the Iraqi parliament. Maliki was willing to sign an MOU, but administration lawyers concluded that parliamentary approval was needed, in part because parliament had approved the 2008 version. Moreover, there were serious questions about whether an MOU signed by the prime minister would really be binding, especially given Iraq’s independent judiciary.
But politically it was much more difficult to win parliamentary approval of a SOFA that would have allowed U.S. troops to be prosecuted outside Iraq, under U.S. jurisdiction, for crimes committed in Iraq — especially because of fierce opposition from a key Shiite parliamentary bloc that backed Maliki. Indeed, his political survival depended on the support of the Sadrist bloc that was dead-set against any presence of U.S. troops. (All other parties in parliament wanted U.S. troops to remain.)
“There was a lot of effort to work through with the Maliki government what such a status-of-forces agreement would look like,” Clinton said in 2014. “At the end of the day, the Maliki government would not agree.”
Separately, it’s debatable whether the number of troops Obama offered to remain in Iraq was enough to make worthwhile such a politically difficult choice for Iraqi leaders. U.S. military commanders wanted to leave at least 16,000 troops in Iraq, but Obama’s final number ended up being much lower: 3,500 trainers and advisers.
Then-Defense Secretary Leon Panetta, in his 2014 memoir “Worthy Fights,” said that he warned Obama that without U.S. troops in place, Iraq “could become a new haven for terrorists.” But he said that White House was “so eager to rid itself of Iraq that it was willing to withdraw rather than lock in arrangements that would preserve our influence and interests.” Panetta added: “To my frustration, the White House coordinated the negotiations but never really led them. Officials there seemed content to endorse an agreement if State and Defense could reach one, but without the President’s active advocacy, Maliki was allowed to slip away.”
During the third presidential debate, Obama even jabbed at his rival, Mitt Romney, “You said that we should still have troops in Iraq to this day.” This remark flummoxed Romney: “You and I agreed, I believe, that there should be a status of forces agreement.” Obama replied: “What I would not have had done was left 10,000 troops in Iraq that would tie us down.”
When the growing power of the Islamic State forced Obama to send troops back to Iraq, the spin changed. The president in 2014 acknowledged that “we had offered to leave additional troops” but said the blame for the United States leaving Iraq rested on the Iraqi government.
“We needed the invitation of the Iraqi government, and we needed assurances that our personnel would be immune from prosecution if, for example, they were protecting themselves and ended up getting in a firefight with Iraqis, that they wouldn’t be hauled before an Iraqi judicial system,” Obama told reporters. “And the Iraqi government, based on its political considerations, in part because Iraqis were tired of a U.S. occupation, declined to provide us those assurances. And on that basis, we left.”
But here’s the rub: When Obama agreed to send 300 troops back to Iraq, officials announced they had exchanged diplomatic notes with Iraq that would give the troops the equivalent of diplomatic immunity. At the time, officials said this would be adequate, given the limited and “temporary” mission. The agreement has not been updated, even though U.S. troop levels have now climbed to nearly 5,000. But this is essentially the same MOU that U.S. officials had deemed inadequate for 3,500 troops in 2011.
An administration official said that the diplomatic exchange of notes remains the operative document and that “U.S. forces have the protections they need to perform their mission in Iraq.”
Andrew Kim, at the time director for Iraq on the White House National Security Council, said that there was a “very different atmosphere in Iraq in 2014, with a very strong interest in the United States to come back.” He said that made it more acceptable for both sides to rely on the exchange of diplomatic notes.
James F. Jeffrey, who was U.S. ambassador to Iraq in 2011, said the circumstances had changed. In 2011, U.S. officials thought an executive agreement would have no legal validity. But they opted for one in 2014 because the risk-benefit analysis was different, given that one-third of the country had been lost to the Islamic State, also known as ISIS.
“In 2011, benefit to Iraq’s security of keeping troops on, while not insignificant, was not dramatic, and risks were considerable,” Jeffrey said. “In 2014, risks of people targeting legally our troops in country were pretty minimal, and the security benefit of having them there to arrest ISIS’s seemingly inexorable march very significant.”
The Pinocchio Test
Clinton and Kaine are doing some fancy tap-dancing here. They emphasize the role of Bush and the Iraqi government in determining the pace of the troop departure, without mentioning the Obama administration had tried to reach an agreement for keeping additional troops in Iraq, with many top officials (including Clinton) believing a troop extension was essential.
When that deal fell through, in part because the White House did not press hard enough, Obama eagerly touted it as campaign promise that was kept — until the rise of the Islamic State forced the administration to send troops back to Iraq. Then suddenly it was the Iraqi government’s fault that the troops were no longer in Iraq. Moreover, the reason for rejecting a deal with Iraq in 2011 — the lack of an immunity agreement endorsed by parliament — was quietly forgotten.
We realize that an exhaustive history is difficult in a debate setting. But Clinton and Kaine earn Two Pinocchios for airbrushing out too many inconvenient details.
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