December 2, 2011

Our guest author is John Paul Schnapper-Casteras an attorney in Washington, D.C. and fellow at the Truman National Security Project. Schnapper-Casteras conducted research in Iraq as part of a fellowship with Stanford’s Center for International Security and Cooperation.

President Obama’s recent announcement that he would withdraw all U.S. troops from Iraq has been met with fierce criticism from some Republican Presidential candidates. Former Governor Mitt Romney, for one, called the move an “astonishing failure” rooted in political calculation or inept negotiation. But cavalierly insisting that the President could have kept troops in Iraq if only he had wanted to ignores almost a century of history, the intensity of Iraqi concerns, and the instability that the presence of foreign troops has repeatedly caused in that country. In reality, Iraqi leaders offered terms that would have been unacceptable to any U.S. President, and the Obama administration was right to turn them down.

The legal status of foreign troops in Iraq has a long, if underappreciated, history of causing major turmoil and ousting several regimes. In the 1920s, Great Britain tried to formalize its military presence in Iraq through a treaty. But that was so divisive that it contributed to the resignation of five Iraqi prime ministers in eight years and had to be ratified three separate times. In 1948, Iraq’s first Shiite prime minister tried to curry domestic favor by forcing Britain to withdraw. But he secretly reached a new agreement under which, although British troops would largely depart, they could access airbases in times of war and would continue to train, equip, and plan Iraq’s military for another 25 years. When this loophole came to light, it caused massive protests, forced the prime minister from power, and accelerated the fall of the constitutional monarchy and the eventual rise of the Ba’ath party.

In 1964, the Shah of Iran signed a similar security agreement granting U.S. military advisors full legal immunity. A then lesser-known cleric, Ayatollah Khomeini, publicly condemned the agreement as “capitulation” that “sold” Iran’s independence and reduced Iranians “to a level lower than an American dog.” Khomeini’s tirade sparked enormous protests that foreshadowed the 1979 revolution, launched him into prominence, and contributed to his arrest, exile, and subsequent ascendance.

Since 2003, clarifying the legal status of U.S. forces in Iraq has likewise been problematic. Initially, coalition officials planned to sign with Iraqi leaders a Status of Forces Agreement (SOFA), which traditionally specifies rights and rules for U.S. servicemembers stationed abroad. But Iraqi officials balked, fearing they lacked legitimacy to ratify such a sensitive accord. As a result, the day before officially handing over power to Iraq in 2004, the coalition itself was forced to summarily issue an order granting broad legal immunity to contractors as well as troops. By 2007, those coalition-imposed immunity provisions generated a national backlash when Blackwater contractors killed fourteen civilians and were shielded from prosecution by the coalition order.

In 2008, when the U.S. renewed SOFA talks, they were so controversial, precipitous, and destabilizing that some policymakers even whispered about replacing Iraq’s Prime Minister Maliki. The Bush administration ultimately brokered a deal after substantial wrangling, compromise, and luck. To obtain a SOFA, President Bush had to agree to a withdrawal timetable that required that U.S. troops to withdraw from Iraqi cities by June 2009 and from the country entirely by December 2011. And unlike the previous coalition order, the SOFA let Iraq prosecute contractors and certain troops who committed grave premeditated felonies outside their bases and duties.

This year, as the 2011 deadline approached, the Obama administration reopened the possibility to keeping a residual military presence in Iraq after 2012. The talks were again deeply divisive within Iraq. Spoilers took harder positions than in 2008, with the radical cleric Muqtada al-Sadr threatening to remobilize his militias to fight any continued U.S. presence. Prime Minister Maliki did not muster a majority to authorize negotiations until August (more rushed than the 2008 SOFA) and then limited discussions to trainers, as opposed to active combat troops. By this fall, the prospective terms had been further whittled down to 3,000 to 4,000 soldiers, with Iraqi leaders insisting those soldiers be given no legal immunity.

Many of the President’s detractors overlook or underestimate Iraq’s worrisome record of political instability when Iraqi officials decide about the presence of foreign troops. As history demonstrates with excruciating repetition, Iraqi citizens are acutely sensitive to the perception that their leaders have given away too much of their country’s power and dignity to foreign militaries. Maliki’s latest demands, however disagreeable from a U.S. perspective, were the genuine manifestation of longstanding Iraqi concerns.

To suggest that Obama could have gotten his way if he had simply pushed harder is unrealistic and unwise. President Bush originally wanted a SOFA without a fixed timetable, but he could not get one because of Iraqi politics, not because of a lack of American desire and effort. Iraq is, after all, a sovereign country that must consent to any SOFA. For all the talk about the importance of democracy in Iraq, some candidates and commentators should remember that keeping troops there is no longer Washington’s decision alone. If Obama had forced the issue past the breaking point, he could well have inadvertently destabilized Iraqi politics once more. The last thing we needed, on the eve of a widely anticipated withdrawal, was to risk a reprise of misperceptions from 2008 — that America was trying to elbow its way back into Iraq indefinitely, or that Maliki was incapable of leading.

Moreover, Iraq’s terms for accepting a SOFA were simply unacceptable. Maliki announced that it was “impossible to grant immunity to a single American soldier.” No U.S. President would have agreed to that condition. Senior defense officials have consistently treated troop immunity as a redline issue. And among the dozens of U.S. SOFAs worldwide, none appear to strip soldiers of all legal protections, and only a handful even countenance shared jurisdiction. Indeed, at the 3,000 troop level, the security benefits were marginal and uncertain. While those troops would surely have served and sacrificed mightily, it is unclear if that size force would have materially changed sectarian violence or Iranian influence beyond what 50,000 troops have been able to accomplish this year.

Some of the President’s critics have speculated about what they could have done with more troops, time, and treasure. But the serious policy question now is how to bolster Iraqi stability and counter Iranian influence without U.S. troops. For example, the U.S. could expand collaboration on intelligence activities, send security training delegations to our Baghdad embassy, bring Iraqi soldiers to America or one of the Gulf states for training, or establish exchange programs between Special Forces units. Diplomatically, Washington could increase reconciliation efforts along the Kurdish-Arab fault line or form concrete economic and educational partnerships. Regionally, the U.S. could further solidify military cooperation with nearby Gulf nations, as it has begun to do.

Ultimately, negotiating a SOFA with Iraq is not like negotiating one with Canada. When it comes to foreign policy, Presidential candidates need to appreciate the importance of history and local conditions, especially in the Mideast. Given Iraq’s volatile legacy unacceptable negotiating terms, President Obama made the right decision to fully withdraw.

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