President Obama pulled U.S. forces out of Iraq in 2011 because he couldn’t get Iraq’s parliament to offer U.S. soldiers immunity from Iraqi prosecution. But now Obama has promised to send in hundreds of special operations forces before securing even a simple promise that these soldiers will not be tried in Iraq’s famously compromised courts for actions they are taking in defense of Baghdad.  

The U.S. military and Secretary of Defense Chuck Hagel have opposed sending any special operations teams to Iraq until there is a written agreement from Iraq’s government that they will not be prosecuted under Iraqi law. Baghdad’s inability to provide that promise yet is one of many reasons why the Pentagon and the White House have been reluctant to support air strikes inside Iraq—despite lobbying from Secretary of State John Kerry and his aides for more action and efforts to persuade Iraq’s government to promise such legal protections.

“We remain confident that the military advisers will have the protections they need,” said Bernadette Meehan, a spokesperson for the National Security Council. “They are going to Iraq with the full support of the Iraqi government. We are working through the mechanism for assurances and we hope to [have it] resolved soon.”

The debate has echoes of 2011, when then-Secretary of State Hillary Clinton favored keeping more troops in Iraq past 2011 than President Obama. 

According to multiple administration officials involved in the process, senior members of the State Department have argued internally that limited U.S. air strikes against the Islamic State of Iraq and al-Sham (ISIS) are needed—along with more direct assistance to the Baghdad government—to push back the terrorist group.

If air strikes are going to be effective, however, they would require at least some U.S. forces to provide the intelligence on what individuals, equipment, and buildings should be targeted. At least some of the 300 special operators Obama is sending to Iraq are supposed to prepare those assessments of ISIS—as well as evaluate the Iraqi military and what kind of gaps in it U.S. assistance may address.

But for now, those units will be vulnerable to potential prosecution in an Iraqi justice system not exactly known for its evenhandedness. It’s happened before. In January 2011, Pakistani authorities jailed Raymond Davis, a CIA contractor and former U.S. soldier, after he killed two individuals in Lahore. Davis ultimately escaped Pakistani justice. At the time, the Obama administration argued that Davis was covered under the same legal protections as U.S. diplomats.

In Iraq, no such diplomatic immunity is on offer for the special operations teams, according to U.S. officials briefed on the negotiations. These sources say the special operations forces being sent to Iraq would not be covered under the diplomatic immunity provided to U.S. military personnel still attached to the U.S. embassy in Baghdad.

Back in 2011, when the United States tried to negotiate for several thousand U.S. military personnel to stay in Iraq past the end of that year, the White House demanded Iraq’s parliament approve modifications to what is known as a status of forces agreement (SOFA) that included these kinds of legal protections. This month, Colin Kahl, the senior Pentagon official in charge of Iraq policy at the time, explained why the White House insisted on Iraq’s parliament approving the changes to the SOFA.

He wrote in Politico Magazine that in 2011 Iraq’s prime minister, Nouri al-Maliki, “told U.S. negotiators that he was willing to sign an executive memorandum of understanding that included these legal protections.”

But Kahl added, “For any agreement to be binding under the Iraqi constitution, it had to be approved by the Iraqi parliament. This was the judgment of every senior administration lawyer and Maliki’s own legal adviser, and no senior U.S. military commander made the case that we should leave forces behind without these protections.”

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