Only a Two-Page 'Note' Governs U.S. Military in Afghanistan

By Karen DeYoung
Washington Post Staff Writer
Thursday, August 28, 2008; A07

http://www.washingtonpost.com/wp-dyn/content/article/2008/08/27/AR2008082703628.html
http://tinyurl.com/5edsqo

For the past six years, military relations between the United States and
Afghanistan have been governed by a two-page "diplomatic note" giving U.S.
forces virtual carte blanche to conduct operations as they see fit.

Although President Bush pledged in a 2005 declaration signed with Afghan
President Hamid Karzai to "develop appropriate arrangements and agreements"
formally spelling out the terms of the U.S. troop presence and other
bilateral ties, no such agreements were drawn up.

But after a U.S.-led airstrike last week that United Nations and Afghan
officials have said killed up to 90 civilians -- most of them children --
Karzai has publicly called for a review of all foreign forces in
Afghanistan and a formal "status of forces agreement," along the lines of
an accord being negotiated between the United States and Iraq.

The prospect of codifying the ad hoc rules under which U.S. forces have
operated in Afghanistan since late 2001 sends shudders through the Bush
administration, which has struggled to finalize its agreement with
Baghdad. "It's never been done because the issues have been too big to
surmount," said one U.S. official who was not authorized to discuss the
subject on the record. "The most diplomatic way of saying it is that there
are just a lot of moving parts," the official said.

The Afghan government "is not the most streamlined and efficient system," he
said. "So you'd have a multiplicity of players on that side." Less
diplomatic U.S. officials frequently describe elements of Karzai's
government as deeply corrupt and incompetent. Although most civilian war
deaths in Afghanistan are caused by Taliban forces, those resulting from
the highly visible airstrikes are a particular cause of public outrage that
neither Karzai nor the administration can afford to ignore.

The other side of the equation is even more complicated. Of the 33,000 U.S.
troops in Afghanistan, 19,000 operate under U.S. Central Command, while
14,000 form the largest single component of a 40-nation force led by NATO
under a U.N. resolution.

The disparate command structures have frustrated every government involved
in the effort, but according to Afghan officials, they have also allowed
diffused responsibility for civilian casualties, such as those of last week
in the western part of the country. U.S. forces operate up to 90 percent of
all strike aircraft in the country, and it is rarely clear whether an
individual strike has been conducted as part of a NATO or U.S. operation.

The U.N. mandate for NATO serves as a de facto status-of-forces agreement.
The protection and authority it gives, however, do not apply to the
separate U.S. force, which is covered under the diplomatic note exchanged
between the United States and a non-elected, interim Afghan government in
the months after the Sept. 11, 2001, al-Qaeda attacks and the launch of
U.S. counterterrorism operations in Afghanistan.

The note delves into arcane issues such as customs duties and driver's
licenses. It devotes only a few sentences to "the conduct of ongoing
military operations," giving U.S. troops "a status equivalent" to
diplomatic immunity and exempting them from any Afghan "disciplinary
authority" or legal jurisdiction.

Similar legal immunity is included in U.S. status-of-forces agreements with
more than 80 countries. But it has become the biggest roadblock to the
conclusion of an accord with Baghdad, and U.S. officials say Karzai has
taken his cues from the Iraqi government of Prime Minister Nouri al-Maliki.

Civilian casualties, long a recurring problem in Afghanistan, tripled last
year as thinly spread U.S. and NATO forces grew more dependent on air power
against a resurgent Taliban. Although the number of civilian deaths
attributed to international forces during combat on the ground has remained
relatively static at fewer than 100 each year, casualties due to airstrikes
have reached more than 200 through the first eight months of this year,
compared with 321 in 2007 and 116 in 2006.

According to the U.S. Air Forces Central Combined Air and Space Operations
Center, the number of strikes this year in which munitions were dropped
totaled 2,368 as of Aug. 4. The equivalent number for the same period in
Iraq was 783. The statistics for Afghanistan do not distinguish between
strikes on behalf of NATO and those part of separate U.S. operations,
usually air support called in by Special Operations teams during
engagements with Taliban forces.

U.S. military and intelligence officials have said that the Taliban has
become adept at drawing U.S. fire to civilian areas as an increasingly
effective propaganda move.

Although U.S. command headquarters on the ground and the Tampa-based Central
Command normally respond to Afghan charges of civilian casualties by
announcing an investigation, the results of their probes are rarely made
public.

Last week's bombing, however, was the largest single incident of reported
non-combatant casualties. An investigation by a U.N. human rights team
found "convincing evidence" that 90 civilians, including 60 children, were
killed in the Aug. 21 military operation led by U.S. Special Operations
forces and the Afghan army in Herat province.

An initial U.S. military release acknowledged that five civilians and 25
militants had been killed in an operation the Pentagon later described
as "a legitimate strike on a Taliban target."

The U.N. report, released Tuesday, added pressure for a U.S. investigation,
which is underway. In a media briefing at the Pentagon yesterday, Marine
Corps Commandant Gen. James Conway said that, if the U.N. report is
accurate, it would be a "truly unfortunate incident."

"We need to avoid that, certainly, at every cost," Conway said. Still, he
said, air power remains a critical military tool, offering the ability to
strike insurgents in hardened compounds and reducing the risk for U.S.
troops. Still, he acknowledged, "you don't always know what's in the
compound."
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