U.S. Troops in Iraq Will Be in a Legal Danger Zone

July 30, 2008

It seems that the Iraqi prime minister Maliki and Bush are about ready to sign a memorandum of understanding (MOU) on further U.S. troop stationing in Iraq. The MOU, as Badger reports it, says that half the U.S. troops will be gone by the end of 2009 and it includes a timetable for talks about a timetable for further troop reductions.

Some legal minds point out that without parliamentary backing such a MOU will have no legal power and might well be challenged in civil courts.

Without a sound legal framework, U.S. soldiers in Iraq might be personally liable, even in a U.S. court, for damage they create in Iraq. An officer ordering a raid could find himself getting sued for millions of dollars.

Under a new president the justice department is unlikely to cover up the issue with dubious legal opinions. One wonders how Sec. Def. Gates, the Pentagon lawyers and the U.S. troops in Iraq think about this.

Posted by b on July 30, 2008 at 15:16 UTC | Permalink

Comments

Transitions are difficult, that is they may be painful or worrysome. For a hegemon to switch from a given position to another requires a well choregraphed motion. The head of state passes from being an actual ruler to the status of honorary monarch, or grants independence to the subordinates but keeps troops that may be a show of power or merely a device to disguise a defeat. All kinds of arrangements are possible, from Honorius telling the Britanni to fend for themselves to the Queen of England becoming queen of this place or the other. Maliki and Bush are in that transition mode, proprieties have to be observed. Hegemony is a mighty expensive condition, it has ruined all the empires that have existed until now. The trappings of self importance have to be preserved e.g. the Eastern Roman emperors granting the title of consul to the Frankish kinglets. It is a matter of time, the process is on.

Posted by: jlcg | Jul 30 2008 16:49 utc | 1

Meanwhile the Iraqi ppl have been in a danger zone from before 2003.
They are not at war; in a war zone; in a civil war; refugees; tortured or imprisoned illegitimately; have no international agreements about visas and so on; don’t even actually have a nationality on the books (look it up, Iraq is most often missing or left blank), have no rights, Iraq today is not a country with country status; in ‘their country’ (another stumbling block, nobody can figure out what Iraq guarantees to Iraqis…) nor outside of it..
All the charitable moves, good or bad, lovely and meaningful, or misguided junk, in any case minuscule in financial terms, and mostly gifts, such as the traditional soup kitchen, complete fake stuff for the press, don’t make up for the lack of any kind of international status, no matter how demeaned, spat on, lowly.
They have no representation, no rights, no status, no recognition. The Americans forbid it. They do. Make no mistake about that. Even the US doesn’t accept ‘collaborators’ into the country. I’d even hazard that the Palestinians are better off, marginally, and that is saying something.
Finally, the US victory is probably just this:
Knocking a whole country of some 20 million people off the international map. Creating a lawless badlands, which nobody dares touch, intervene in. So US soldiers having an ambiguous status is part of the package – all good! Of course under Bremer, and the law(s) dates mostly from that time, both the US – anybody from there – or under contract with a US co. was immune from prosecution for anything – I am not up on the recent hoopla with this legislation, there has been some, not that it matters, no real change will take place.
The US troops have been in an international ‘danger zone’ from the start.

Posted by: Tangerine | Jul 30 2008 18:39 utc | 2

“Under a new president the justice department is unlikely to cover up the issue with dubious legal opinions.”
… Doesn’t seem unlikely to me …

Posted by: Cloud | Jul 30 2008 21:15 utc | 3

I read Badger too, and I was looking for the sources which would confirm the story that a memorandum of understanding is about to be signed. You see, I am somewhat suspicious, as the White House has been saying for weeks, that Maliki just wanted a few face-saving concessions, and that he was on the point of signing. Always only from American sources.
Here we see the same story again, but in al-Hayat, attributed to unnamed Iraqis, this time. I remain suspicious; it was looking kind of obvious the last times – the disparity between the White House’s version of Maliki’s thinking, and what the Iraqis themselves were saying.
And this story has the stink of an American version.
But we will see. It is not much in Maliki’s interest to sign now.

Posted by: alex | Jul 30 2008 23:44 utc | 4

Every talking head whore got paid to appear then disappear here.
Who paid them to appear then disappear?
Who pushed the pussy-money button?

Posted by: Mike Lowe | Jul 31 2008 5:07 utc | 5

NYT Deal on a Security Agreement Is Close, Iraqis Say

The agreement is divided into three parts, said Fouad Massoun, a Kurdish member of Parliament close to the negotiations, as well as several other Iraqis. The first section is an uncontroversial “strategic framework agreement,” which generally lays out the future relationship between the United States and Iraq.
The second section is a “protocol” that includes the rules governing American troops. It would authorize the continued presence of American troops in Iraq and give them authority to conduct operations, but only with the permission of the Iraqis. This section would deal with immunity for American forces, long a central demand for American negotiators. Soldiers would continue to have immunity during authorized military operations as well as on the bases, said Ali al-Adeeb, a member of Parliament from Mr. Maliki’s Dawa party and a close adviser of Mr. Maliki.
The agreement does not make it clear how contractors would be dealt with.
…
The third section would be an appendix that would describe the administrative mechanism for authorizing American operations. There would be a joint Iraqi and American committee in each province that would authorize operations and a joint committee at the national level to resolve disputes.
The resolution of the rules governing detainees still appeared to be unresolved, …
American forces now hold about 22,000 Iraqi detainees at Camp Cropper in Baghdad and Camp Bucca, near the Kuwait-Iraq border. While the vast majority will never be charged under Iraqi law because there is not enough evidence to bring them to trial, the American military says that about a third remain security risks. …

If “a third remain security risks”, why are the other two-thirds held at all???

Posted by: b | Jul 31 2008 5:37 utc | 6

Like I said in #4, b, in that NYT article, the reader needs to check the sources. Who is saying what. The only Iraqi who is cited as being close to Maliki said that the agreement is not yet ready to be signed. That is the opposite of the line of the article, which is to suggest that everything is hunky-dory, the US has had to give concessions, but Maliki is ready to sign. Again a White House version.
The other Iraqis cited are 1) a kurd (necessarily in favour of the SOFA), 2) a member of ISIC (ditto), 3) a Da’wa member on a technical aspect.
Iraqi politics has consolidated recently from a wild free for all, into two main camps. Those who want the US to stay, and for Iraq to be “federalised”, a euphemism for effective break-up; and those who want the US to leave in relatively short order, and for Iraq to remain a centralised united state. In the first camp, you find the Kurds, and the leadership of ISIC. In the other, pretty much everybody else, including Maliki, Sistani, and all the nationalists (Sadr, Sunnis, etc). Badger noted a split between the Badr organisation and the leadership of ISIC a couple of days ago – which means that the breakup policy favoured by Hakim is not actually all that popular in his own party.
So the NYT cited enormous numbers of unnamed US officials, who gave a gungho interpretation, two Iraqis pro-SOFA, and only one representing the views of Maliki.
I could be wrong, the memorandum of understanding may be signed tomorrow. But I have doubts.

Posted by: alex | Jul 31 2008 8:36 utc | 7

@alex – I agree that the NYT piece is propaganda – but I also believe that Maliki wants to sign something, if he can …
Sadr

Declaring that resistance to an occupier “is a legitimate right by human reason and in Islamic and human law,” he called on Shiite clerics to “issue their fatwas against signing any agreement between the government and the occupier, even if it is for friendship or any other purpose.”
But on the issue of the status of forces agreement, he offered Maliki a deal: “I call upon the Iraqi government again not to sign this agreement and I inform them I am ready to support it popularly and politically if they do not sign it,” he said.
…
The statement seemed designed to push Maliki’s government into a politically awkward position, Cordesman added. Public sentiment is strongly against any status of forces agreement that would permit U.S. troops to remain on Iraqi soil, but it seems likely the Iraqi military will have to rely on U.S. airpower and military advisers for years to come. is
And as long as the occupation continues, Sadr implied, he opposes not just a security pact but the trade and diplomatic ties that would come with it.

and the killing continues …

Also on Wednesday, an early morning raid by U.S. troops monitoring suspected associates of an al Qaida in Iraq leader killed a woman and two men near Samarra, a military spokesman said. The head of the local town council said they were a mother and her two grown sons, which the military could not confirm.
Another woman, who was in the house but not a target of the raid, was injured. She is not believed to have any connection with al Qaida in Iraq, said the spokesman, Navy Lt. Patrick Evans.
The spokesman said troops received fire as they approached the house, but were not able to determine where the shots were coming from. They fired into the house after perceiving “hostile intent” from those inside, but later found no weapons.

Posted by: b | Jul 31 2008 8:50 utc | 8

but I also believe that Maliki wants to sign something, if he can
No, no, no, he does not. You’ve just noted Sadr’s view. Exactly what I thought. The best position for Maliki to take is not to sign, but to prevaricate. If he signs anything, he has made commitments which will come back against him in Iraq, perhaps as far as assassination. More importantly, he has played one of his two ace cards, which give him leverage against the USA. Play the card, and it’s played, no longer in the hand.

but it seems likely the Iraqi military will have to rely on U.S. airpower and military advisers for years to come.

This is why you say he wants to sign, I think. But, again, it is an American point of view: Maliki needs us. Typically egotistical on the US side. Actually, no. Don’t forget that Maliki has no desire to stay in power; he is doing the job because he feels it needs to be done. He has said so more than once in interviews.

Posted by: Alex | Jul 31 2008 13:25 utc | 9

This is why you say he wants to sign, I think.
Yes, but in a different way – I think Maliki needs some U.S. troops to keep his own army running.
Airpower is irrelevant for him though. It’s a U.S. fetish and aimed at Iran.
Maliki needs maneuverable feet on the ground. The Iraqi army has the feet, but is limited in maneuverability (logistics).
Without his army Maliki’s government would have little chance to survive for long. A functioning army isn’t something one can build in three years. Iraqs army has not yet the (logistic) backbone to keep standing when the U.S. would leave completely. Of course he could ask Iran for help if the U.S. would leave, but I doubt that the Kurds and Sunnis would like that.
So for now Maliki has to make some agreement with the U.S. but in a way that is temporary and can be marketed as a non-agreement. Quite difficult.
For the U.S. the problem is bigger. The missing legality of a MoU will come back to bite.

Posted by: b | Jul 31 2008 14:04 utc | 10

@adding to my @10 –
of course I am guessing – Maliki may want something very different than what I imply.

Posted by: b | Jul 31 2008 14:16 utc | 11

Don’t forget that Maliki has no desire to stay in power
Have pigs flown? A politician with no desire to be in power!

Posted by: vimothy | Jul 31 2008 16:04 utc | 12

Have pigs flown? A politician with no desire to be in power!
Yeah, Yeah. You have to know his history. He’s a politico, certainly, but I doubt that he wanted to be in the top spot. To deduce from what he said. Probably would have preferred a comfortable life as an MP, living in London, and drawing his salary. However he was the only one the US and the UIA could agree on.

Posted by: alex | Jul 31 2008 16:53 utc | 13

I’m expecting the SOFA/MoU to follow a similar logic as the oil law negotiations – always close, but sorry, no cigar. Maliki, better than anybody else in Iraq knows the real score between his needs and those of the alien players and apparently has no desire to become the Sha of Iraq. But will continue (to be able) to string the hapless U.S. military along for the ride, especially since they’re so top heavily invested in the illusion that “we’re winning in Iraq”. So, he’ll probably do just enough to maintain the illusion, that “we’re winning in Iraq”, but never enough to make it come true.

Posted by: anna missed | Jul 31 2008 18:06 utc | 14

b@10. You’re right of course, rationally.
What is certain is that this is a crucial turning point in the occupation of Iraq, the point where Iraq can “push back”, to use current terminology, against the United States. Naturally the White House is concealing its importance.
I have thought for about a month now that Maliki&co would prevaricate to the degree that the US would be forced to go back to the UN, and ask for an extension of the mandate, no doubt for a year. In the Security Council, Iraq has no voice. In that way, the occupation would be delegitimised within Iraq, and in the wider world there would be a temporary legitimacy, gravely weakened. That would suit Maliki&Co very well.
The last time, Iraq wrote a letter to the UNSC, asking for an extension of the mandate. No doubt obligatory. I don’t know how M. would handle this point.
I don’t know how things will go. Baghdad is certainly aware of the cruciality of the present negotiations for the future of Iraq. Whether the White House is… sometimes I think they are, and they are just hiding it; and sometimes I think they are blinded by the fact that they have 150,000 troops in Iraq, and think they are in control of the situation.
Make no mistake – Maliki is not doing this of his own free will. I am sure he would prefer a quiet life, and sign. I would think Maliki would agree to whatever Sistani and the Hawza are ready to accept. That’s the basic criterion; without their approval, public acceptance would be lost – even a bodyguard might assassinate him. Of course what S. really thinks is obscure.
Behind all this is the brutal, and foolish, way that the US presented the SOFA and the proposed oil law. No Iraqi could accept the theft of Iraqi sovereignty and oil; they have understood, and reacted badly – it is evident, though I agree that it is not obvious even in the Arabic media. A hostile reaction, once provoked, may go beyond rationality, and will be certainly difficult to calm down.
That is the situation Maliki is faced with. Easier to duck and not sign, push the responsibility back on the United Nations.
The other basic factor to remember is that Iraqis, apart from the Kurds, have an ideal of unity, even in the face of sectarian conflict. There is much evidence, I can pull it out if you wish. It was this basic point which was attacked by the SOFA proposals. Foolish to provoke a nationalist reaction, as I said, but it is what has happened.

Posted by: alex | Jul 31 2008 19:19 utc | 15

TEHRAN, July 31 (UPI)

— Anti-American Shiite cleric Moqtada Sadr said Thursday he would back the Iraqi government if it did not sign a security deal with the United States.
Sadr, who is believed to be in Iran furthering his clerical studies, said he would support the government of Prime Minister Nouri al-Maliki if it did not sign onto an agreement set to replace the expiring U.N. mandate for Iraq, Press TV reported.
“I call on Iraq’s government not to sign this agreement. I inform the government I am ready to support it via the people as well as politically if it does not sign it,” the cleric said.
Sadr’s political party, the Sadrist Movement, holds 10 seats in the Iraqi Parliament.
Meanwhile, Deputy Chairman of the Supreme Islamic Iraq Council Abdul Aziz al-Hakim said, following a meeting with Syrian President Bashar Assad, that the overwhelming majority of the Iraqi people are opposed to a continued U.S. presence.
“Iraqis made a decision to reject the possible deal that violates Iraq’s national sovereignty,” he said.
The Maliki government suggested a timetable for U.S. troop withdrawal as Iraqi military forces continue to show progress in dealing with militants. Hakim noted several Iraqi politicians are seeking to remove Iraq from the current U.N. Chapter VII mandate.
Former Iraqi Prime Minister Iyad Allawi testified on Capitol Hill last week that Iraq may seek a temporary U.N. Chapter VI mandate that calls for a peaceful settlement of disputes.

Says a lot about the current political dynamic in Iraq. Just when everybody thought Maliki had Sadr on the ropes on behalf of the U.S. this report would indicate that Sadr has Maliki and the U.S. on the ropes – dispelling the myth that Sadr was after exclusive power at the expense of the Iraqi government. A big part of Maliki’s new found disposition towards occupation can now be seen as a capitulation to Sadr’s long standing disagreement over occupation. Because as it would seem Maliki could not hope to hold his current disposition without Sadr’s endorsement and approval. Ha Ha!

Posted by: anna missed | Aug 1 2008 7:42 utc | 16

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