You asked for it
The legal basis for the presence of US troops in Iraq in 2011 was the status of forces agreement (SOFA) signed by President Bush and Prime Minister Maliki in December 2008. Although the SOFA included an aspirational timeline for the complete withdrawal of American troops by the end of 2011, both US and Iraqi officials agreed that the timeline could be extended by a simple exchange of diplomatic notes.
[xxii] However, US policy changed substantially at President Obama’s direction in 2011, as the administration reluctantly considered whether to keep a residual force in Iraq after the end of the year.
President Obama entered office in January 2009 determined to fulfill his campaign promise of ending the Iraq War and withdrawing all US forces from Iraq. He accomplished this by employing ambiguity throughout the 2011 negotiations and setting an unachievably high bar for an agreement authorizing a residual force, which allowed him to deflect political blame when negotiations failed. He used three methods to ensure a new SOFA was unachievable. First, he refused to authorize US negotiators to make an explicit offer to the Iraqi government to leave US troops in the country. Second, he insisted that a residual force could only remain under a new SOFA, ratified by the Iraqi parliament. Third, he demanded immunity for US troops from prosecution in Iraqi courts. By establishing ostensibly reasonable terms that he knew were unlikely to gain support in Iraq, President Obama avoided much of the political backlash that would have been associated with a unilateral withdrawal.
Throughout the negotiations, Obama kept his intentions ambiguous. He repeatedly trumpeted his plan to withdraw all remaining US troops from Iraq by the end of 2011, even as his military advisors almost unanimously supported a continued presence of 10,000 to 20,000 troops.
[xxiii]Iraqi officials also understood that they needed American troops to continue training and advising the Iraqi security forces, and to help protect Iraq’s borders.
[xxiv] In May 2011, Prime Minister Maliki indicated that he too would support a continued American military presence.
[xxv] Under pressure from his commanders and some of his cabinet officials, Obama indicated in May that he was prepared to keep up to 10,000 troops in Iraq, which he revised to about 5,000 troops by August. However, that number was a closely guarded secret, and he never authorized his negotiators to convey to the Iraqi government how many troops he was willing to keep in Iraq.
[xxvi] This ambiguity led to uncertainty on the Iraqi side—without an offer from the United States, there was nothing for Iraq’s leaders to debate or negotiate.
Obama’s insistence that US troops could only remain in Iraq under new SOFA came as a surprise to both US negotiators and to Prime Minister Maliki, who had been working off the understanding that the US presence could be extended through an exchange of diplomatic notes. The Bush administration had spent nearly a year negotiating the 2008 SOFA, but the Obama administration did not begin negotiations until June 2011, less than six months prior to the planned completion of the US troop withdrawal.
[xxvii] The condensed negotiation timeline added to the confusion and ambiguity, complicating the new agreement’s chances of success.
Obama’s insistence on legal immunity for US troops, while ostensibly reasonable, was an artificial barrier designed to kill the deal. When the same issue had arisen in 2008, Bush’s lead negotiator, Brett McGurk, had devised a creative solution. He asserted that it was possible to “offer the Iraqis in principle what they say they need… while retaining in practice essential protections for all US military personnel in Iraq [original emphasis in bold].”
[xxviii] The 2008 SOFA granted Iraq the “primary right to exercise jurisdiction” over US troops in cases of “grave premeditated felonies… when such crimes are committed outside agreed facilities and areas and outside duty status.”
[xxix] However, accused persons would remain in US custody, and it was understood that, in practice, no US servicemember would be tried before the Iraqi judicial system.
[xxx] Obama refused to accept this solution, which had already been passed in Iraq’s parliament and had been implemented without incident in the intervening period.
Obama’s negotiators knew that his demand for legal immunities would never make it through the Iraqi parliament.
[xxxi] Knowing that parliamentary ratification was unlikely, Obama was negotiating in bad faith. The Bush administration had determined in 2008 that ratification was unnecessary.
[xxxii] The Obama administration’s position was that approval in parliament was necessary for the agreement to be binding under international law.
[xxxiii] However, as lawmakers in the United States pointed out, US personnel operate in many countries under executive agreements or exchanges of diplomatic notes, neither of which require parliamentary ratification.
[xxxiv] Furthermore, the phrase “binding under international law” is, in practice, essentially meaningless. By its own definition, the U.S. State Department considers any international agreement “to be legally binding in the absence of an express provision indicating its nonlegal nature.”
[xxxv]
In October 2011, Iraqi leaders approved the continued presence of US military trainers but refused to grant them immunity. This ended the SOFA negotiations, and the 45,000 remaining US troops withdrew from Iraq by the end of the year.
[xxxvi] The withdrawal of US troops led to the deterioration of the Iraqi security forces, the reemergence of a security vacuum in parts of the country, and the oppression of the Sunnis, laying the groundwork for the return of AQI.
President Obama’s support for Maliki and withdrawal of US troops from Iraq reversed the tenuous progress made since the Sunni Awakening and the US strategy shift in 2007. The decision to back Maliki for a second term as prime minister profoundly undermined the development of a legitimate Iraqi government, the primary objective of counterinsurgency.
[xxxvii] Passive US support for Maliki’s reinterpretation of the Iraqi constitution to serve his own purposes signaled to Iraqis that the US did not believe they deserved to choose their own leaders. The second and third order effects were disastrous.
