Afghan Agreement Likely Despite Last Minute Wrangling

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WASHINGTON — Recent history with status of forces agreements (SOFA) — the deals that provide the legal framework for US troops to be on the ground after the creation of a new government — between the US and “liberated” countries, isn’t so rosy. In 2008, the US abruptly pulled out of Iraq, several weeks before the official end to its existing agreement, because of an inability to come to terms on a new deal.

But current and former administration officials say that’s unlikely to happen again, in this case as the US tries to negotiate a military presence beyond 2014 in Afghanistan. On Oct. 12., Secretary of State John Kerry announced that he and Afghan President Hamid Karzai were closing in on a deal that would allow for continued counterterrorism operations by joint US/Afghan forces into 2015.

Still, many of the details of the deal are being hammered out, and the final deal will have to go before a tribal council known as the Loya Jirga before it can become official.

The primary issues holding up the deal will be familiar to anyone who monitored the Iraq negotiations: jurisdiction for prosecution of US forces by Afghan courts, permission to execute operations against terrorism-related targets, and protection for Afghanistan from its neighbor Pakistan in the event of dispute.

Fundamental to that debate has been a lingering push by Karzai to demonstrate increased national sovereignty for Afghanistan.

Every day Karzai gets up and says, ‘I want Afghanistan to be more sovereign than it was this morning,’ ” a former senior administration official said.

What makes these negotiations different than those with Iraq, the official said, is the realization as to what will happen if the US were to altogether pull out — viewed as an unpalatable result given US expenditures and sacrifices in the country.

“What’s going to happen is that terrorist groups will move in again to use the ungoverned space,” the official said.

Karzai acknowledged the emphasis on sovereignty in his joint press conference with Kerry after 11 hours of negotiation had yielded the framework for an agreement.

“The discussion of the security agreement has been an important issue, and our demand is defending our Afghan sovereignty,” he said.

US officials would prefer to work with Karzai rather than his potential successor, as elections are scheduled for the spring and Karzai is not permitted to run again due to term limits. Election season itself is likely to ramp up in the new year, and so both sides are rushing to complete a deal in 2013.

The major point of contention that killed the Iraq agreement was the issue of US personnel prosecution, as the US didn’t want to see Iraqi courts have complete jurisdiction over all actions of US forces. Kerry, speaking with Karzai, said the issue of jurisdiction is still being finalized, but that the US wasn’t seeking complete immunity for troops, rather control over where prosecution occurs.\

“In our judgment, there is no immunity in this agreement,” he said. “Anybody who were to do anything will be subject to the law. But the question of jurisdiction is an appropriate one for the president to submit to the Loya Jirga, and we have high confidence that the people of Afghanistan will see the benefits that exist in this agreement. But we need to say that if the issue of jurisdiction cannot be resolved, then, unfortunately, there cannot be a bilateral security agreement.”

Karzai has said he doesn’t have the power to settle the issue of jurisdiction, and that the Loya Jirga will have to address the problem. During the negotiations, Kerry called Defense Secretary Chuck Hagel several times to discuss the issue to make sure the two were on the same page.

The issue of counterterrorism operations has also been on the table, as Afghan officials want the US to refrain from operations and to provide intelligence for Afghan forces to act. The agreement strikes a balance, with US and Afghan forces jointly conducting operations.

Karzai was also initially seeking a mutual defense pact with the US to protect the country from Pakistan, a nonstarter for the US. The agreement provides assurances of support but not absolute commitment, administration officials said.

“Kerry had to make Karzai understand that there are red lines,” the former official said.

By giving only a limited overview of the agreement in place, both governments receive some cover as to how far they’ve walked back from previous proclamations, especially important given that many of Karzai’s demands appear to have been curtailed.

And despite the Obama administration’s interest in signing a new deal, there’s also the problem of limited public support in the US for continued involvement in the country.

“People in the US are done with Afghanistan,” the former official said.