To: Interested Parties

From: The National Security Network

Re: The Iraq Security Agreement

After months of negotiation, speculation, and leaks, the Bush and Maliki Administrations last week presented a draft security pact – and it was promptly attacked by both Sunni and Shiite politicians, including Maliki’s allies.  Iraqis are demanding a faster timetable for the withdrawal of American combat forces, but the Bush Administration has balked – although it says it does not want to keep troops in Iraq if they are no longer welcome.

Ironically, the Administration’s insistence on keeping troops in Iraq beyond 2010 may be undercutting the immediate security of forces in Iraq right now.  The legal authority for the US military presence in Iraq is a UN Security Council resolution which expires December 31, 2008.  There is now a real possibility that no security agreement will make it through the Iraqi parliament before that date, potentially leaving 140,000 Americans in legal limbo.  The pact also affects the personal security of every American soldier.  Its core element is an agreement on the legal status of American forces that governs jurisdiction over U.S. forces and would guarantee – as in every other country where the US stations troops – that members of our military cannot be tried by the Iraqi legal system for conduct governed by our own military law.

This situation is unacceptable for the men and women of our armed forces, and highly unwelcome for the next President, who is likely to face unpalatable choices when – or even before – he takes office.  The options are poor, but not yet nonexistent.  As the negotiations and posturing continue, in public and private, here are some basic principles that should underlie the U.S. approach:

1. American troops must be legally protected.  That is the core issue in these negotiations.  The Administration wasted considerable time trying to develop security guarantees and other provisions which the Iraqis also rejected.  Protecting American troops and ensuring they have the conditions to do their job is a President’s first priority – and it is where the focus must fall now.
2. We must get over the assumption that Maliki and the Iraqis will blink.  The Bush administration has assumed throughout that the Iraqi Government believes it needs the U.S. military presence and would ultimately blink.  This assumption may be correct, but it may not be.  Considering the fact that we cannot afford to be wrong, this assumption must not continue to underlie our negotiating behavior.  
3. Legal protection for our troops cannot be sacrificed in exchange for a longer or more flexible timeline.  One of the main sticking points is the Bush administration’s insistence on maintaining flexibility in the timeline for the redeployment of American forces and insisting that the timeline stretch to the end of 2011.  The Iraqis are broadly opposed to this and would prefer a harder and shorter deadline.  It makes little sense to give away any points on troop immunity in exchange for lengthening a presence that the Iraqis themselves oppose.   
4. The United States must begin aggressively working on a UN Security Council Resolution as a backup.  The Bush administration has for too long neglected this option or assumed that it could easily renew a UN Security Council Resolution that would maintain the status quo.  Rather than continuing to make this assumption, the administration should begin actively planning for this possibility.  It's no longer clear that Russia in particular will allow a resolution through without a quid pro quo. Even more problematic is the fact that the same substantive issues that have slowed the agreement would apply to the UNSCR.  The Iraqi Government would have to request the resolution, and the immunities that the Bush administration seeks would come at a high domestic political cost.  So it is just as likely that whatever would come out of the Security Council would still leave American troops legally exposed. 
5. A “handshake agreement” is a last resort and could only work if the informal agreement is based on an agreed piece of paper and broad buy-in both in Iraq and the United States.  The idea of a “handshake agreement” with nothing officially on paper has been floated, but is unacceptable.  We can’t have the legal status of 140,000 U.S. troops subject to such uncertainty.  However, if there is broad buy-in on both the Iraqi and American sides for an agreement in principle that is written on paper – it might be a necessary stopgap measure.  Such an agreement would require the explicit support of President Bush as well as the next President of the United States and Congressional leaders.  Moreover, it would have to include support in Iraq that went beyond Maliki, including the Iraqi Presidency Council.