Archive for the 'Iraq SOFA' Category

Villagers in Syria gathered Monday near the coffins of people who died during an American Special Operations raid aimed at Iraqi militants on Sunday (Hussein Malla/Associated Press).

In U.S. Combat Action Across the Syrian Border we puzzled over why the attack on the suicide bomber network at the Syrian border had come now and not later (or not at all). The Captain’s Journal had recommended more than one year ago that these actions be taken. In a recent report it has been claimed that Syrian intelligence knew and approved of the raid.

Publicly America is still saying nothing but US officials are making intriguing claims off the record.

Now, a respected Israeli intelligence expert says he has been told the operation was carried out with the knowledge and co-operation of Syrian intelligence.

Ronen Bergman, author of The Secret War with Iran, makes the claim in the Yediot Ahronoth newspaper, based on briefings with two senior American officials, one of whom he says until recently “held a very high ranking in the Pentagon”.

Mr Bergman told Sky News the raid happened after America had lobbied Syria intensely to deal with an al Qaeda group conducting activity on the border.

The Syrians were unwilling to be seen publicly bowing to US pressure to tackle the group, he says, but in the end gave the Americans the green light to do so themselves.

He claims the Syrian government told the Americans: “If you want to do this, do it. We are going to give you a corridor and carte blanche. We will not harm your troops.”

Syria is still an apparatchik of the radical Iranian Mullahs, and we doubt this report (it sounds like something that DEBKAfile would publish, along with seeing pigs fly and green Martians landing). Damascus gets its orders from Tehran. It’s more likely that Syrian complaints before the U.N. are representative of its government’s position (and certainly of the Iranian position).

DAMASCUS (AFP) — Syria on Tuesday protested to the UN Security Council over what it branded a barbarous US helicopter raid on a village near the Iraqi border and decided to close two American institutions in Damascus.

The government also indicated Sunday’s deadly raid, launched from Iraq, could have repercussions on ties with Baghdad by postponing a November 12-13 meeting of the Syrian-Iraqi high commission.

Baghdad initially appeared to condone the raid by US troops as aimed against insurgents who infiltrate Iraq, before joining in condemnation of the assault on Tuesday.

In a letter to UN chief Ban Ki-moon, Syria protested “this aggressive act and expects the UN Security Council and member countries to assume their responsibility by preventing a repetition of this dangerous violation.”

It called for the Security Council “to hold the aggressor responsible for the deaths of the innocent Syrian nationals,” state news agency SANA reported, quoting the letter.

In New York, Syria’s ambassador to the United Nations, Bashar Jaafari, said the letters asked Ban and the Security Council “to assume their responsibility” to prevent any repeat of “such aggressive and terrorist acts against a sovereign member of the United Nations.”

The next few paragraphs of this report are not only interesting, but very important moving forward with U.S. force presence in Iraq.

In Baghdad, the government slammed the assault, which an unnamed official in Washington said was believed to have killed Abu Ghadiya, “one of the most prominent foreign fighter facilitators in the region.”

“The Iraqi government rejects the US helicopter strike on Syrian territory, considering that Iraq’s constitution does not allow its land to be a base for launching attacks on neighbouring countries,” spokesman Ali al-Dabbagh said.

“We call upon American forces not to repeat such activities and Baghdad has launched an investigation into the strike.”

On Monday, Dabbagh said the raid targeted a border area used by insurgents to launch attacks on Iraq.

Iraq’s parliament said it regretted that “the operation took place at a time when relations between Iraq and its neighbours are progressing.”

According to the draft Status of Forces Agreement for U.S. forces in Iraq, Article 4 [3], this strike would not be allowed or legal. This hasn’t stopped U.S. officials from anonymously claiming that they may happen again.

There has been continued official silence from the Pentagon and the State Department regarding the raid on Sunday … Despite Syrian outrage and the threat of retaliation by Syrian troops, officials did not rule out mounting such a raid again.

The official silence of DoD and the State Department precisely comports with counsel given here at The Captain’s Journal. As for the “anonymous officials” who go on record with the main stream media, they are cowards for not giving their names and should be fired for divulging any information at all. They are undermining the war effort. But that’s a different problem, one the DoD should be working to solve.

We don’t wish for a cease and desist order on U.S. operations across the Syrian border. In fact, this analysis calls into question the viability of the Iraq SOFA if it doesn’t allow raids such as this one (we have recommended seeing the long war as one without territorial borders). But the administration may have waited about four years too late to conduct cross border raids against Syria (for Sunni insurgents and terrorists) and Iran (for IRG, Quds and “special groups”). While a hard fought and bloody victory in Iraq has been essentially won by U.S. forces, our hands are tied under the new SOFA. Unfortunately, it’s a lame duck administration that is ordering the raids, and General Odierno, for all of the admiration that The Captain’s Journal has for him, might have been dealt a bad hand in the SOFA.

In Prosecution of U.S. Troops Under Iraq SOFA we broadly outlined some problems we have with the draft Status of Forces Agreement awaiting Iraqi parliament approval.  Review of the draft SOFA raises even more questions and forces the conclusion that things could very well be worse than first suspected.  A few examples are in order, followed by a review of international lawyer hand-wringing over Somalian pirates.

Article 3 [1] sets the context for review of the agreement: “All members of the U.S. armed forces and civilian members must follow Iraqi laws, customs, traditions, and agreements while conducting military operations in accordance to this agreement. They must also avoid any activities that do not agree with the text and spirit of this agreement. It is the responsibility of the U.S. to take all necessary measures to ensure this.”

Moving ahead in the document, Article 12 [9] says “The U.S. authorities submit, in accordance to paragraphs 1 and 2 of this article, a declaration explaining whether the alleged crime occurred while suspects where off duty or on duty. In case the Iraqi authorities think the conditions require such a decision to be reviewed or changed, the two sides discuss that through the joint committee, and the U.S. authorities takes into consideration all the conditions, events and any (sic) other information
submitted by the Iraqi authorities that might have an effect on changing the U.S. authorities (sic) decision.”

It should be fairly straight forward, shouldn’t it, to ascertain whether a Soldier or Marine is actively performing approved operations?  But the Kabuki dance is being done for the reason that by intent it isn’t really that simple.  There are the standing rules of engagement, theater-specific rules of engagement, and then unit-specific rules laid out by unit lawyers.  It’s this last category where the rubber meets the road, so to speak.

The Mental Health Advisory Team (MHAT) IV, Operation Iraqi Freedom 05-07, Final Report, 17 November 2006, Office of the Surgeon, Multi-National Force Iraq, and Office of the Surgeon General, United States Army Medical Command, outlines examples of problems that have come up on the level of application of the ROE:

More than one third of all Soldiers and Marines continue to report being in threatening situations where they were unable to respond due to Rules of Engagement (ROE).  In interviews, Soldiers reported that Iraqis would throw gasoline-filled bottles (i.e., Molotov Cocktails) at their vehicles, yet they were prohibited from responding with force for nearly a month until the ROE were changed.  Soldiers also reported they are still not allowed to respond with force when Iraqis drop large chunks of concrete blocks from second story buildings or overpasses on them when they drive by.  Every groups of Soldiers and Marines interviewed reported that they felt the existing ROE tied their hands, preventing them from doing what needed to be done to win the war (pages 13 – 14).

The lawyers know that the real power of the ROE lies in how they are applied.  If, for example, a unit has completed operations and is headed back to the FOB, and a vehicle takes chunks of concrete through the windshield killing the driver, when the son of a high profile Parliamentarian dies in the subsequent small arms fire because the unit feels under threat, the time will have come to invoke the clause where Iraqi authorities attempt to change the U.S. decision on who has authority over the actions of that unit.  Soldiers and Marines have seen stranger things, and that, at the hands of their own lawyers.  In fact, one of the most poweful and effective tactics that has been used by U.S. forces – patrols, entering houses, the “knock and talk” – is patently prohibited in Article 22 [5], and agreed to by U.S. lawyers.

U.S. forces are not permitted to search houses and other properties without a court
warrant, unless there was an active combat operation in accordance to article four, and in
coordinating with the specialized Iraqi authorities.

Turning to the Gulf of Aden, the U.S. Navy is absolutely hand-tied and impotent because lawyers across the globe can’t agree to how to treat pirates (h/t War News Updates).

The commander of a NATO task force on its way to tackle piracy off the coast of Somalia has said he still does not know what the rules are for taking on the high-seas bandits.

U.S. Admiral Mark Fitzgerald said while he was aware of where the pirates were operating, there was little he could do militarily to stop them and that guidelines on how to take them on — including whether to shoot — were still in the works.

“You know, I don’t think we’ve gotten the rules of engagement yet from NATO,” Fitzgerald told reporters on Monday during a briefing on U.S. naval operations in Europe and Africa.

“That’s all still being debated in the North Atlantic Council. All we’ve been told is to prepare a plan to go down there. So (the rules) are going to have to be debated.”

Six NATO members have contributed ships, including destroyers and frigates, to a special anti-piracy task force following a request from the United Nations.

The NATO group passed through the Suez Canal last week on its way to the Horn of Africa, where piracy has surged this year, with more than 30 ships seized and ransoms estimated at $18-$30 million have been paid to free hostages.

There are already naval assets from Britain, the United States and Russia in the region, but the area is so vast — more than 2.5 million square miles — that it is almost impossible for the pirates to be stopped unless they are caught red-handed.

“From a military standpoint, we certainly are limited by what we can do,” said Fitzgerald. “How do you prove a guy’s a pirate before he actually attacks a ship?

“We have a problem from the military side at sea because we can’t be omnipresent in the space, and the pirates operate at an advantage because … they don’t announce they’re a pirate until they attack a ship.”

Security specialists say there is a window of only about 15 minutes for a navy ship to respond to a distress call and get to another ship that’s being hijacked. Once pirates are on board, there’s little, legally, that can be done.

“You’ve got a very short window, a short time span, from the point where they decide to board a ship and (actually) board it. If you’re not right there, there’s not much you can do, and once the ship is taken hostage, then….”

The Danish navy learnt to its cost last month what can happen if you do seize suspected pirates.

They captured 10 people, but after holding them for six days aboard a Danish ship, the suspects were set free and put ashore in Somalia because the legal conditions surrounding their detention were unclear.

Denmark’s Defence Ministry said Danish law did not allow for prosecution of the men before a Danish court. The ministry said it had explored the possibility of handing them over to other countries but that was also not feasible.

A senior British naval commander admitted last week that it was essentially a legal minefield trying to take on the pirates, and urged commercial ships operating in the region to hire their own private security companies to deal with the threat.

Admiral Fitzgerald said the Danish experience showed how weak the impetus was going to be to capture pirates. Instead he said his task force would focus on escorting World Food Programme ships trying to deliver aid to Somalia.

The Captain’s Journal has weighed in saying:

This is easy. We tell the LOAC and ROE lawyers that they’re special and that they should go to their rooms and write high-sounding platitudes about compassion in war so that they’re out of the way, we land the Marines on the ship, and we kill every last pirate. Then we hunt down his domiciles in Somali and destroy them, and then we find his financiers and buyers and kill them. Regardless of the unfortunate potential loss of Ukrainian or Russian civilian life upon assaulting the ship, this weaponry and ordnance should never have been shipped in this part of the world without escort (and perhaps it shouldn’t have been shipped even with escort).  Negotiations will only serve to confirm the pirates in their methods. It’s killing time. It’s time to turn the United States Marines loose.

Ralph Peters has weighed in saying:

Piracy must be exterminated. Pirates aren’t folk heroes or champions of the oppressed. They’re terrorists and violent criminals whose ransom demands start at a million bucks. And they’re not impressed by the prospect of trials in a velvet-gloved Western court.  The response to piracy must be the same as it was when the British brought an end to the profession’s “golden age:” Sink them or board them, kill them or hang them.

Lt. Col. P at OpFor has weighed in saying:

Kill all of the pirates.

Seriously. Why do we allow a handful of khat-addled assholes to dominate one of the world’s most important sea lanes? We, the western powers, have sufficient naval units in the area to take care of the problem in very quick order. What we lack is the will. We apply an idiotically high standard of judicial due process to a situation that doesn’t lend itself well to a judicial solution. Anyone who has dealt with Somalis can tell you that they laugh at western legalisms, and what they perceive as western weaknesses. And then they redouble their violent efforts to take what they want from you. They do react very well to a boot on their necks, and a gun to their heads. Then they tend to wise up quickly.

Here’s how it needs to be done. Oil tanker sends distress call, takes evasive actions insofar as it is capable. (Or better yet, armed men aboard oil tanker defend by fire.) Coalition forces despatch (sic) vessels and boarding parties. Pirates who survive ensuing gun battle are lined up by the rail and shot in the head, then dumped overboard. Pirate boats are burned. If their bases or villages on the coast can be identified, said bases are raided and destroyed. No fuss no muss, no ransom, no hostages, no skyrocketing costs.

Apparently, the lawyers don’t think like we do.  But for the time being, the lawyers are setting the agenda.

In U.S. Troop Immunity Barrier to SOFA (Status of Forces Agreement) one month ago, The Captain’s Journal fired a warning shot on the issue of Iraqi right to prosecute U.S. troops regardless of the sovereignty of U.S. laws and rules of engagement. As it turns out, our warning was prescient and this is indeed a problem.

American troops could face trial before Iraqi courts for major crimes committed off base and when not on missions, under a draft security pact hammered out in months of tortuous negotiations, Iraqi officials familiar with the accord said Wednesday.

The draft also calls for U.S. troops to leave Iraqi cities by the end of June and withdraw from the country entirely by Dec. 31, 2011, unless the Baghdad government asks some of them to stay for training or security support, the officials said.

It would also give the Iraqis a greater role in U.S. military operations and full control of the Green Zone, the 3½-square mile area of central Baghdad that includes the U.S. Embassy and major Iraqi government offices.

One senior Iraqi official said Baghdad may demand even more concessions before the draft is submitted to parliament for a final decision. The two sides are working against a deadline of year’s end when the U.N. mandate authorizing the U.S.-led mission expires.

The Iraqi officials, familiar with details of the draft, spoke on condition of anonymity because they were not supposed to release the information.

In Washington, the State Department confirmed a draft had been finalized but refused to discuss any details.

“There is a text that people are looking at,” spokesman Sean McCormack told reporters. “Nothing is done until everything is done. Everything isn’t done. The Iraqis are still talking among themselves. We are still talking to the Iraqis.”

U.S. officials declined to discuss details of the draft but characterized it as the administration’s final offer, saying no more concessions would be considered.

With Iraqi approval far from certain and the Pentagon already nervous about the immunity compromise, the officials said the administration was bracing for opposition from U.S. lawmakers, some of whom have already expressed concern about giving Iraq’s fledgling and untested courts any jurisdiction over American troops.

“Major crimes committed off base,” and “when not on missions.” So why should anyone oppose this? Keep reading.

Under the compromise, the U.S. would have the primary right to try troops and Pentagon contractors for alleged offenses committed on American bases or during military operations, the officials said.

Such language would presumably shield troops from prosecution for accidentally killing civilians caught in the crossfire during authorized combat operations.

But Iraq would have first crack at trying U.S. military personnel and contractors for major, premeditated crimes allegedly committed outside American bases and when they are not on an authorized mission, the officials said.

So what does all of this mean? It seems to presuppose that U.S. troops garrison at FOBs and never leave except for “authorized missions” (whatever that means, kinetic operations, patrols, public relations visits, building projects, refueling an empty gasoline tank on an Iraqi Police truck, or whatever – really, whatever). And what might these missions look like?

A joint U.S.-Iraqi committee will be established to coordinate American military operations, which must be carried out in accordance with Iraqi law and customs, the officials said.

They would look like whatever the Iraqis wanted them to look like. So here are some obvious questions. If U.S. troops are going to be garrisoned at FOBs and not contacting the population, what’s the purpose of their presence and why can’t they simply come home? What happens when a Marine is simply at an Iraqi Police Precinct because that is his “mission” for the seven months he is deployed, and he walks outside to take a piss in the latrine, and fires in self defense when he feels threatened because a rifle is pointed his direction? Who has jurisdiction? What laws govern his behavior? What happens when a fire team carries fuel to a Police truck and along the way a family wanting to punish them for perceived historical injustices manages to find a half-dozen “witnesses” to atrocities by this fire team?

Remember that the context of our objections is in part this:

Are lies being told to obtain blood money payments? Some insight comes in this response to the collapse of the British trial by Stephan Holland, a Baghdad-based US contractor.

I’ve been in Iraq for about 18 months now performing construction management. It is simply not possible for me to exaggerate the massive amounts of lies we wade through every single day. There is no way – absolutely none – to determine facts from bulls*** ….

It is not even considered lying to them; it is more akin to being clever – like keeping your cards close to your chest. And they don’t just lie to westerners. They believe that appearances–saving face–are of paramount importance. They lie to each other all the time about anything in order to leverage others on a deal or manipulate an outcome of some sort or cover up some major or minor embarrassment. It’s just how they do things, period.

I’m not trying to disparage them here. I get along great with a lot of them. But even among those that I like, if something happens (on the job) I’ll get 50 wildly different stories, every time. There’s no comparison to it in any other part of the world where I’ve worked. The lying is ubiquitous and constant.

Too much has been given away in our lust to seal a SOFA, and it isn’t worth it. Most sensible people would now oppose their sons being deployed to Iraq under these rules. Even people who support the campaign must now object to further deployment of troops under these circumstances. The Captain’s Journal supports the troops before we support Operation Iraqi Freedom.

A joint U.S.-Iraqi committee. Remember these words. How many people alive today have ever worked in an efficient and effective committee?

Update: Welcome to Instapundit readers, and thanks to Glenn for the link. In further reading on the SOFA, General Odierno pointed out that Iran was attempting to buy off Iraqi parliament votes to reject the agreement (this pitiful agreement that places U.S. troops under the authority of a joint committee). In response, Maliki became enraged and said that Odierno was “risking his position.”