How to Stay in Iraq for 1,000 Years

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The administration's struggle to hammer out the future of the US military in Iraq has proved enlightening, at least. Perhaps for the first time ever, the American public is getting a front-row seat to how its government negotiates empire.

In short, a SOFA sets the ground rules. Everywhere the United States military goes, it negotiates a Status of Forces Agreement and related accords that lay out rights and responsibilities of the US and its host, and specify the criminal and civil jurisdiction to which US personnel are accountable. At the end of the Cold War, the United States had SOFAs with about 40 nations. Today, it has more than 100 such agreements, including at least 10 that are classified, according to the Congressional Research Service.

The pacts range from somewhat vague to highly detailed. Agreements with nations like Bangladesh and Botswana for short-term deployments have run as short as a single page, while the SOFA with Germany is a 200-page supplemental to the NATO SOFA, dwarfing that comparatively slim 13-page document with a dizzying catalogue of detail, down to where the mail will be delivered, and by whom.

Counting the war zones of Iraq and Afghanistan, more than half a million US soldiers, sailors, Marines, national guardsmen, and other uniformed men and women are deployed around the world. What happens when one of them does something illegal is the most commonly addressed issue, and one of the biggest points of contention in the US-host relationship. The Pentagon views SOFAs as essential to protect US troops from being tried and convicted in foreign courts, whose idea of justice can differ substantially from the system Americans are familiar with. In Japan, for instance, after a criminal investigation and arrest, the police often conduct lengthy interrogations that lead to guilty pleas, expressions of remorse, and lighter sentences. There are no jury trials in Japan, and mounting a robust or aggressive defense is viewed as tantamount to admitting guilt.

Even in other Western democracies, standard legal proceedings would seem strange to even the casual Law and Order fan. In France, the judge participates in the criminal investigation (even going to the crime scene with the accused on occasion) and directs the lines of questioning throughout the trial. While the prosecutor and defense attorney are key figures in American courts, they play only a supporting role in the French system.

In any case, these bilateral agreements almost always favor the United States. For example, the SOFA between the United States and Mongolia declares that "criminal offenses against the laws of Mongolia committed by a member of the US armed forces shall be referred to appropriate US authorities for investigation and disposition." Mongolian officials can request a waiver of US jurisdiction, but American officials need not comply: The pact states only that they must give "sympathetic consideration" to such requests.

(What does the United States want with Mongolia, anyway? Location! For the last seven years American troops have conducted the Pentagon's "Khan Quest" exercise alongside Mongolian and other regional forces—and conveniently close to Mongolia's next-door neighbors, Russia to the north and China to the south. This year, the exercises, tentatively scheduled to begin shortly after the close of the Beijing Olympics, will include soldiers from Bangladesh, Tonga, South Korea, Brunei, Sri Lanka, Indonesia, and Cambodia.)

Even if a SOFA isn't explicit, the legal protections are in there, often as a single sentence like "US personnel are to be afforded status equivalent to that accorded to the administrative and technical staff of the US embassy." Translation: diplomatic immunity.

The Pentagon also negotiates immunity for its personnel via the American Service-Members Protection Act. Passed by Congress in 2002, it bans US military assistance for any country that hasn't signed a so-called Article 98 agreement, in which the country promises not to hand over US personnel to the International Criminal Court. The act had an immediate impact: Military aid and training assistance to 35 countries was suspended in 2003, after they failed to comply by the deadline, and the ICC—established the previous year to prosecute crimes against humanity, such as genocide and ethnic cleansing—commenced its work weakened by US meddling.

These protections, while good for the grunts, can lead to tensions with America's closest allies. In Japan—where the US has maintained a huge military presence ever since World War II—the SOFA has allowed soldiers responsible for egregious crimes against civilians to walk free.

Some 20,000 US military personnel—half of all those deployed to Japan—are stationed on Okinawa, an island at Japan's southern tip. In 2003—fed up with years of stonewalling, inaction, and a string of violent crimes against young Okinawan women—the prefecture's governor, Keiichi Inamine, presented visiting Defense Secretary Donald Rumsfeld with a petition demanding a SOFA review that would give Japan a greater say in criminal prosecution.

Bucking diplomatic niceties, Inamine invited the press to the meeting, and included statistics about the crimes carried out against his constituents: 5,157 offenses by US troops, civilian defense personnel, and their dependents over a 30-year period, including 533 murders and rapes. According to Chalmers Johnson, a retired CIA analyst and distinguished expert on Japan and China (see "America's Unwelcome Advances"), the Okinawa governor stressed that the situation was continuing to get worse, with the number of crimes climbing every year.

It's not just individual soldiers who get away with lawbreaking; the Pentagon itself has largely gotten a free pass. Starting in the late 1990s, decades of military pollution led South Korea to renegotiate its SOFA with the United States as the countries were conducting talks to return some US-held bases to the Koreans; the revised version includes procedures for dealing with environmental devastation. But an analysis by the environmental group Green Korea United concluded that the new rules are too weak and muddled to be of much use. For example, it noted, the amended SOFA establishes procedures for Korean access to the US bases. But when a 2002 Korean investigation determined that oil leaking into a subway station was coming from the nearby Yongsan base, US military investigators denied it, and would not let their Korean counterparts on base to verify the claim.

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