Acute flaw in Iraq deal over forces

Joe Sestak

is a Democratic congressman from

Delaware County and former Navy admiral

On Nov. 16, the Iraqi cabinet approved a U.S.-Iraqi status-of-forces agreement. This week, as the Iraqi parliament considers it for final approval, I am once again voicing my grave concerns about the agreement.

This is probably the last chance I and other lawmakers will get to voice our objections. President Bush has chosen to craft the document as an executive agreement instead of a treaty, which means it will not require congressional ratification.

I have always believed that the war in Iraq is a tragic misadventure that has siphoned off vital military capability from Afghanistan - especially our ability to patrol the border with Pakistan, where al-Qaeda's leadership has found a long-standing haven. That said, from my 31-year military background, I also understand the need for a deliberate withdrawal from Iraq that does not put our troops in unnecessary danger.

Our continued presence in the region will therefore be necessary for a limited period of time. And due to the imminent expiration of the U.N. mandate that permits U.S. troops to remain in Iraq legally, we must have a new legal agreement to remain after Dec. 31.

However, this status-of-forces agreement is simply not the best means of achieving that.

Americans should be very concerned that, in an attempt to highlight Iraqi autonomy and the increasing bilateral ties between our countries, President Bush has put our uniformed men and women in legal peril.

The final version of the agreement will permit the Iraqi courts to exercise jurisdiction over American soldiers under limited circumstances. What those circumstances are remains unclear, as do the crimes for which they may be prosecuted.

That is one of many considerations not explicitly laid out in the text of the agreement, and it's likely there will be future conflicts between the two governments over matters of interpretation.

Procedural standards, such as rules of evidence to be used in trials of American soldiers, are also notably lacking. The agreement merely stipulates that a committee "shall establish procedures and mechanisms" at a future date. The agreement can hardly be described as comprehensive.

While we should respect the fact that Iraq is a developing democracy, we should not give Iraqi courts any jurisdiction over our soldiers at this point. It's a frightening idea: American mothers and fathers would have to sit by as their children are prosecuted by a judiciary that has seen at least 37 of its judges murdered in broad daylight.

The same goes for the possibility that American service members could be arrested by Iraq's national police force. A commission led by retired Gen. James L. Jones Jr. found the force to be so corrupt as to warrant disbanding.

If we do not allow other Middle Eastern allies, such as Kuwait, to exercise jurisdiction over the men and women of our armed forces, then there's no reason to cede such powers to the Iraqis.

At a bare minimum, the status-of-forces agreement should have been clear about when precisely the Iraqis would be vested with this authority over our troops. Defense Secretary Robert Gates said it would occur only after Iraq established "due-process standards and protections consistent with those available under United States and Iraqi law." He went on to say he never expected that to happen during the life of the agreement, so the United States can be expected to retain jurisdiction over its own soldiers.

In other words, Iraq can publicly claim jurisdiction over U.S. service members for certain unspecified crimes, but we never intend to see it happen.

This seemingly pragmatic but disingenuous ambiguity fails to achieve the clarity that should be required when it comes to protecting men and women in uniform. Once again, the Bush administration is telling America, "Trust us." Given its track record, we should not give the administration the benefit of the doubt on such an important issue.

The bottom line is that the diplomatic process was flawed, and the agreement is flawed, because its terms are potentially harmful to our service members.

We should have taken the common-sense approach of returning to the United Nations for a renewed mandate for our presence in Iraq, as we did last December. Or we could have reached an interim bilateral agreement with Iraq while working to achieve a more responsible status-of-forces agreement - one that protects our soldiers.