U.S. Military Hoped for Virtually Unlimited Freedom of Action in Iraq

Drafting of U.S.-Iraq Security Agreement Began Nearly Five Years Ago

National Security Archive Electronic Briefing Book No. 252

Posted - June 13, 2008
For more information contact:
Joyce Battle - (202) 994-7145

20/06/08 "ICH " -- - Washington D.C., June 13, 2008 - Recently declassified documents show that the U.S. military has long sought an agreement with Baghdad that gives American forces virtually unfettered freedom of action, casting into doubt the Bush administration's current claims that their demands are more limited in scope.  News reports have indicated that the Bush administration is exerting pressure on the government of Prime Minister Nuri al-Maliki to accept a U.S.-Iraq security plan by the end of July 2008.  According to these accounts, the plan would give the U.S. more than 50 military bases in Iraq, provide complete freedom of action to conduct military operations, allow complete freedom to arrest and detain Iraqis, and grant U.S. forces and contractors total immunity from Iraqi law.  Growing awareness of the implications of the pact have fueled opposition by the Iraqi public – to the extent that Prime Minister al-Maliki announced today that discussions had deadlocked.

Documents obtained by the National Security Archive under the Freedom of Information Act indicate that the U.S. started drafting the agreement in November 2003.  While information available in the heavily redacted copies that were provided does not specifically address such hot-button, present-day issues as the number and location of bases, or control of airspace, these preliminary planning documents show that from the outset U.S. aspirations for conducting military operations based in Iraq were essentially without limit.

The Bush administration had initially hoped to see the security pact accepted by an interim Iraqi Governing Council that it itself had appointed.  The documents outline a number of "red lines" that the Defense Department and the Central Command considered crucial during the early planning, including unlimited authority to conduct military operations; the "absolute" prerogative to detain, interrogate and intern Iraqis; the right to establish its own rules of engagement; complete freedom of movement entering, departing, and within Iraq; full immunity for U.S. forces and contractors; immunity from international tribunals; and exemption from inspections, taxes, and duties.

"When it developed its initial plans for a security pact, the U.S. wanted virtually unlimited freedom of action for its forces – including private contractors," said Archive analyst Joyce Battle.  "In addition to freedom to wage military operations as it saw fit – and to arrest, detain, and interrogate Iraqis at will – U.S. demands even extended to priority use of public utilities.  This was after the invasion had led to the collapse of Iraq's already fragile infrastructure and Iraqi civilians – old and young, healthy, sick, and disabled – were getting by with a few hours of electricity a day – if they were lucky."

 Looks Like San Remo All Over Again - The U.S. Status of Force Agreement for Iraq, 2008

Recently declassified documents show that the U.S. military has long sought an agreement with Baghdad that gives American forces virtually unfettered freedom of action in – and possibly around – Iraq. This new information appears to run counter to Bush administration claims that U.S. intentions have been more limited in scope.

According to recent news accounts, the Bush administration is exerting pressure on Iraq to accede to a military agreement – before a U.N. resolution authorizing the U.S. occupation lapses, and before the end of President Bush's tenure – on terms highly favorable to the United States.  Information reported by Patrick Cockburn of the Independent indicates that the deal under discussion calls for:

• Indefinite perpetuation of the U.S. military occupation of Iraq, whether a Republican or a Democrat is in the White House
• More than 50 permanent U.S. bases in Iraq
• U.S. carte blanche to conduct military operations and to arrest Iraqis and anyone else in Iraq without consulting the Iraqi government
• Immunity from Iraqi law for U.S. forces and private contractors
• Control of Iraq's airspace below 29,000 feet
• Unlimited freedom to pursue the "war on terror" through operations in Iraq. (Note 1)

Drafting a Status-of-Forces Agreement, 2003

Documents recently obtained by the National Security Archive through the Freedom of Information Act indicate that the Bush administration began codifying its demands for a long-term U.S.-Iraq Security Agreement in late 2003. Popular protest at the time and an increasingly violent armed resistance had forced the administration to seek both an "Iraqi face" for the occupation, and a mechanism intended to legitimate a long-term military presence.  Perhaps reflecting sensitivity to Iraqi and U.S. public opposition, the heavily redacted documents do not reveal much of the detail of what U.S. military and government entities hoped to obtain in terms of Iraqi acquiescence.  At the same time, there is little in the available text to indicate U.S. forces were initially willing to grant any significant limits to their ability to conduct operations in and around Iraq.

It is unlikely, of course, that all details of the 2003 planning have carried over to the 2008 discussions, and news accounts indicate that the U.S. continues to revise its demands in response to exploding Iraqi opposition as knowledge of the plan grows.  However, the available evidence indicates that U.S. expectations then and now are similar in intent and ambition.  The U.S. sought in 2003 and seeks in 2008 the prerogative to use Iraqi land and facilities, unconditional immunity for Coalition military forces and contractors, and virtually unlimited freedom of action.  The administration wanted the Security Agreement to be approved by the U.S.-appointed Iraqi Governing Council by March 31, 2004, before establishment of an interim Iraqi government in late June 2004 and the election of a Transitional National Assembly in January 2005.

The 2003 Documents

The Pentagon

PowerPoint briefing slides (heavily redacted), dated November 27, 2003, probably created by the Office of the Under Secretary of Defense for Policy, introduce the discussion.  The purpose of a Security Agreement, from the Pentagon's perspective, was to establish a legal framework for U.S. military operations, allow a role for Iraq's transitional administration, and "maintain coalition operational flexibility and ability to pursue GWOT [U.S. "Global War on Terrorism"] objectives.  (The Office of the Under Secretary of Defense for Policy (OUSDP) was headed by Douglas Feith, one of the principal instigators of the U.S. invasion of Iraq.)

According to the slides, U.S. requirements for Iraq included:

• Use of Iraqi facilities
• Pre-positioning of supplies
• Contracting
• Respect for Law
• Entry and Exit of forces
• Vehicle licensing and registration
• Bearing of Arms
• Taxation
• Import and Export
• Claims
• Movement of Aircraft and Vehicles
• Use of land and facilities
• Security requirements and support

Internal discussions over the next month expanded on these points.

The CPA, the State Department, and the NSC

According to a November 28, 2003 email from U.S. Central Command-Iraq headquarters (in Qatar), the CentCom commander, General John Abizaid, wanted further clarification of plans for "CENTCOM equities."  What was being contemplated, the email's writer asked: a U.S.-Iraq Status of Forces Agreement, a Military Technical Agreement as part of a Security Framework, or "All of the above and more"?

The general counsel for the Coalition Provisional Authority (CPA), Edwin S. ("Scott") Castle, replied that he had prepared a draft agreement, under the direction of the OUSDP.  With further guidance from the office of Defense Secretary Donald Rumsfeld, the CPA would set up a working group to develop the plans.  Members of the group would include CentCom and Coalition Joint Task Force Seven (CJTF-7), the unit of CentCom in control of Coalition forces in Iraq.

Emails dated November 30 from Frederick Smith, a CPA senior security advisor, and Castle confirm that the CPA, CentCom, and CJTF-7 were to work on the agreement, with guidance from Washington.  Smith advised keeping other Coalition members involved.  The emails indicate that Paul Bremer, proconsul of Iraq at the time as head of the CPA, expected a briefing from staff on the matter on December 4. In early December Rumsfeld's office, the Joint Staff, and CentCom were to send a team from the U.S. to join the discussions.  Castle was to travel to Washington for additional consultations on December 15.

A note of caution was raised in the correspondence: the U.S. did not know "how much we should expect from the Iraqi side.  The GC members will be running for elections and will not want to appear to be appeasing the Coalition on tough issues such as jurisdiction."  (The U.S.-appointed Governing Council (GC) had been set up in July 2003 to create the impression that sovereignty would soon be restored to Iraq.)

On December 3 State Department lawyers disseminated an information memo on the agreement, to be used the next day for Bremer's briefing.  It outlined "CPA's own current strategic vision for Iraq's transition to full sovereignty," utilizing three "basic documents": the "Fundamental Law," "Treaty Restoring Sovereignty", and "Security Agreement", the last comprising a military technical assistance agreement, an acquisition and cross-servicing agreement, and a status of forces agreement (SOFA).

Bremer, on December 5, wrote in a cable to the State Department and the National Security Council (NSC) that since "Coalition forces will need to remain in Iraq after the CPA dissolves, the Coalition must negotiate international agreements to provide for its role in the security of Iraq after the transitional Iraqi administration assumes full sovereignty, as planned for June 30, 2004."  He wrote that the agreement of November 15, 2003, a timeline supposedly leading to restoration of Iraq's sovereignty, called for arrangements concerning the status of coalition forces "giving wide latitude to provide for the safety and security of the Iraqi people."  The cable then outlines points requiring additional attention.  Text concerning one issue, "use of facilities" is redacted in its entirety.  A section on "military/security operations," though partially redacted, includes several points, e.g.:

• "U.S. must be authorized to detain, intern, and interrogate anti-coalition and security risk personnel"
• "U.S. must be authorized to retain custody of current POWs/detainees/internees…"
• "U.S. must be authorized to seize and retain intelligence-related documents"
• "Coalition forces must have unlimited authority to conduct military operations they deem necessary and proper under the circumstances."

On the "bearing of arms, uniforms, flags & markings," the cable says:

• "U.S. forces must be authorized to bear arms and wear uniforms"
• "Designated U.S. contractor personnel must be authorized to bear arms."

On "utilities and communications":

• "U.S. forces must have access to utilities and enjoy priority in use" (Note 2)
• "U.S. forces must be authorized to use all necessary radio spectrums without charge."

Information in the cable on "postal and recreational facilities" was redacted in its entirety.

As to "privileges and immunities," according to Bremer's cable,

• "U.S. personnel must be accorded status equivalent to that accorded to administrative and technical (A&T) personnel (full criminal immunity and immunity from civil process for official acts)"
• "Contractors and Iraqis employed by the coalition must be immune from legal process for acts performed in official capacity"
• "U.S. personnel and contractor employees must not be surrendered to international tribunals or any other states or entities without approval of U.S. government."

On "entry and exit" into and from Iraq:

• "U.S. personnel must be allowed to enter Iraq with ID cards and orders"
• "Iraq must not use visa issuance as a way of imposing limits on contractor personnel."

Regarding "movement of vehicles, vessels, and aircraft":

• "U.S. vehicles, vessels, and aircraft must be able to freely enter, exit, and transit Iraq"
• "U.S. vehicles, vessels, and aircraft must not be subject to taxes, fees, tolls, charges, regulation, registration, inspection, etc."
• "Iraq must accept U.S. driving licenses and permits as valid."

On "importation and exportation":

• "U.S. must be able to import and export equipment, supplies, and materials without inspection, restrictions, taxes, customs, duties, etc."

In regard to "contracting", CPA headquarters wrote:

• "U.S. must be free to contract for goods, services, and construction without restriction"
• "U.S. must be able to contract using its own rules"

On taxation:

• "U.S. forces must be exempt from all Iraqi taxes"
• "Iraq may not tax income of U.S. personnel and certain contractors received from U.S. government or sources outside Iraq."

All discussion of "claims" was withheld from disclosure.

CPA headquarters sent a cable on December 10 to the Defense Department, State Department, and NSC indicating that the drafting and approval of Iraq's "fundamental law," by the CPA and the Governing Council, were to be completed by February 28, 2004.  Security agreements were to be approved by March 31, 2004. (Note 3)  A highly redacted section of the cable touches on elements of the security plan -- those not withheld from disclosure are references to acquisition and servicing arrangements, nonproliferation, and "Protection of U.S. forces from the International Criminal Court."
 

The CPA, CJTF-7, and CentCom
 

On December 11, 2003, prior to CPA lawyer Castle's planned visit to Washington, he received a memo from CJTF-7, conveying its "requirements for what we would like to see reflected in the final agreement."  Attached were PowerPoint slides from CentCom listing its objectives, key provisions, and "redlines" (elements that in its opinion had to be, or could not be, in the agreement.)
 

The first of the CJTF-7 requirements was "authority for the Coalition Force, without interference or permission", to, in order: "fight the GWOT, fight anti-coalition forces" and "ensure a safe and secure environment in Iraq."
 

Other requirements in CJTF-7's list included a defined status for Coalition forces under international and Iraqi law; command authority; detention and interrogation rights; their own definition of the rules of engagement; complete freedom of movement; exemption from passport and visa requirements; exclusive criminal jurisdiction; use of public utilities; exemption from taxes and duties, and full diplomatic immunity for both Coalition personnel and contractors.

According to its PowerPoint slides, the Central Command's objectives and "Key Provisions" were similar to those of CJTF-7, including unlimited authority to conduct military operations; exclusive use of facilities at no cost; freedom of movement over land and through air, space, and territorial waters; immunity for contractors from legal process; and exemption for contractors from visa requirements, vehicle and aircraft registration, and income taxes.

Central Command's "red lines" included immunity for both U.S. personnel and contractors from international tribunals and foreign courts; priority use of public utilities; and exemption of U.S. contracts for goods, services, and construction from Iraqi jurisdiction.

CPA head Bremer met weekly with the Governing Council.  At the end of December he was advised to raise the issue of the Security Agreement at the next meeting, since "the GC has not yet focused on this issue and will likely take some time to organize itself for these negotiations."  In a subsequent memo to the Council he indicated that he would provide a briefing on his recent trip to Washington – which was to have included discussion of the Agreement – but he did not mention it specifically as part of the agenda. The Governing Council's then-president, Adnan Pachachi, said in late January 2004that the GC was "still waiting for a draft." (Note 4)

The Current Plan

It is not yet known whether the government of Iraq will sign on to this agreement.  Cockburn's reporting has indicated that this is likely. (Note 5)  Resistance to the pact in Iraq is growing, though opposition from some politicians could be a façade intended to defuse public anger. (Note 6)  On June 13, 2008, Prime Minister al-Maliki announced that negotiations had been suspended because of concerns about the plan's implications for Iraq's sovereignty, (Note 7) but this is unlikely to be the end of the story.  If Iraq does acquiesce, one probable reason would be its weakness – the government of a divided society with limited popular support may rely on a foreign patron for its survival, rather than aim for accommodations with political rivals that could ultimately improve chances for peace and national reconciliation.  The Bush administration intends to bypass the U.S. Congress in striking this deal, (Note 8) and, if news reports are correct, is using strong-arm tactics – including opening Iraqi assets on deposit in New York to judicial seizure – to coerce the Iraqis to comply. (Note 9)  If the SOFA is adopted on terms that appear non-responsive to public opinion, there can be little doubt that many will give credence to charges by Iran -- which opposes the pact -- that U.S. strategy included bribery on a grand scale. (Note 10)

Likely Fallout

When modern Iraq was created after World War I and the breakup of the Ottoman empire, there was widespread expectation among its people that independence and self-government would follow.  Instead the League of Nations (predecessor to the United Nations) granted administrative control to the British, who imposed a client monarchy and, for the next four decades, attempted to retain military bases in Iraq, exercise the unrestricted right to transport their troops across the country, and control Iraq's oil. (Note 11)  It took a revolution in 1958 to overthrow the British-installed monarchy, though political reconciliation in Iraq did not follow.  For Iraqis of all persuasions and most political inclinations, acquiescence to a SOFA imposed by a foreign power would seem like a throwback to the colonial era. (Note 12)

According to Cockburn's reporting, "President Bush wants to push [the security pact] through by the end of next month [July 2008] so he can declare a military victory and claim his 2003 invasion has been vindicated." (Note 13)  A prime beneficiary of the acceptance of a military agreement that the Iraqi people do not believe respects their rights or serves their interests would probably be the vast, privatized U.S. military/intelligence complex, positioned to profit from repressing the resistance sure to follow.  If the Bush administration's goal is achieved through secret deals and pressure tactics it would only confirm the widespread view that its commitment to democracy is primarily self-serving.  In Iraq as elsewhere there are many who would welcome a genuine American commitment to liberty and human rights but believe that U.S. actions contradict its rhetoric. 

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Read the Documents
Note: The following documents are in PDF format.
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Document 1:  U.S. Department of Defense Information Brief. "Security Agreement," November 27, 2003.  [Heavily Redacted]

These PowerPoint slides outline the purpose of a proposed U.S.-Iraq security framework, key features of a political agreement, the purpose of a military technical agreement, requirements for a status of forces agreement, organization of a joint planning structure, and a security agreement timeline.

Document 2.  U.S. Central Command Email. "SOFA, MTA, etc.," November 28, 2003, 9:15 a.m.; and Coalition Provisional Authority Response from Edwin S. Castle. "SOFA, MTA, etc.," November 28, 2003, 1:25 p.m.

This message exchange indicates that the Coalition Provisional Authority has prepared a Security Agreement draft based on information from the Office of the Under Secretary of Defense for Policy and will include Coalition Joint Task Force Seven and Central Command representatives in a working group formed to revise the draft.

Document 3.  Coalition Provisional Authority Email from Frederick C. Smith to Richard H. Jones, Gerald B. Thompson, and Paul Eaton [other recipients redacted].  "Security Agreement," November 30, 2003, 10:12 a.m., and Coalition Provisional Authority Response from Edwin S. Castle to Frederick C. Smith, Richard H. Jones, and Paul Eaton [other recipients redacted].  "Security Agreement," November 30, 2003, 11:36 a.m.

This message exchange indicates that those attending a November 29 meeting on the security agreement had agreed on the entities that would draft the agreement: CPA offices for governance and national security affairs and the CPA general counsel, Coalition Joint Task Force Seven, and the Central Command; and on plans for participation by L. Paul Bremer and officials in Washington. The planners would, by December 5, prepare "red lines": that is, items that had to be, and items that could not be, in the agreement.  A participant introduced a "dose of reality": Iraqi Governing Council members would have to face voters and would not wish to appear to have appeased the Coalition on issues like jurisdiction.

Document 4.  Coalition Provisional Authority Email from Eric J. Pelofsky to U.S. Department of State (Legal Staff).  [No Subject], December 3, 2003, 6:51 p.m.; Includes "Information Memorandum for DOD and DOS." [Heavily Redacted]

This email provides U.S. State Department legal staff with the CPA's "concept paper" to be used to brief Paul Bremer on the Security Agreement.  The paper incorporates input from CJTF-7 and CentCom. The paper lays out a timeline for implementation of a "Fundamental Law" and a Security Agreement by March 31, 2004 – that is, before the election of an Iraqi Transitional National Assembly on May 31, 2004, and a Transitional National Administration in June 2004.

Document 5.  Coalition Provisional Authority Headquarters Cable from L. Paul Bremer to U.S. Department of State, Department of Defense, and National Security Council.  "Drafting of Security Agreement to Begin," December 5, 2003.  [Heavily Redacted]

Paul Bremer states that "Coalition forces will need to remain in Iraq after the CPA dissolves," and has to "negotiate international agreements to provide for its role in the security of Iraq after the transitional Iraqi administration assumes full sovereignty, as planned for June 30, 2004." The CPA was consulting CentCom, developing a draft agreement, and "formulating a negotiating strategy." The cable addresses milestones, structure, use of facilities, logistics support, military and security operations, bearing of arms, uniforms, flags and markings, utilities and communications, privileges and immunities, entry and exit, movement of vehicles, vessels, and aircraft, importation and exportation, contracting, taxation, and claims.

Document 6.  Coalition Provisional Authority Headquarters Cable from L. Paul Bremer to U.S. Department of State, Department of Defense, and National Security Council.  "The Fundamental Law, Security Agreements and the Transfer of Governance Authority," December 10, 2003, 9:15 a.m.

Paul Bremer outlines "considerations that should be taken into account" during negotiation of a "fundamental law" and a Security Agreement to remain in effect in Iraq after dissolution of the CPA and establishment of an interim Iraqi government. He outlines a timeline, indicating that "the fundamental law and Security Agreement(s) are to be prepared and executed at the outset of the transition process." The final Security Agreement was to be approved by March 31, 2004.

Document 7.  U.S. Combined Joint Task Force Seven Headquarters Memo to Coalition Provisional Authority, Office of the General Counsel.  "Security Agreement," December 11, 2003; Includes Memo Entitled "CJTF-7 Red Lines for Security Agreement;" and U.S. Central Command PowerPoint Slides Entitled "Security Agreement."

Headquarters for CJTF-7 sends the CPA general counsel its Security Agreement requirements and those of CentCom, before his trip to Washington for consultations. The CJTF-7 and CentCom briefing materials address status issues; arrest, detention, and interrogation; WMD; rules of engagement; entry and exit; uniforms; criminal jurisdiction; use of radio spectrums and public utilities; taxes and duties; contractors; diplomatic immunity; seizure of documents; the "war on terrorism;" facilities use; uniforms; bearing of arms; freedom of movement; drivers' licenses; visas; passports, car registration; tolls; and legal immunity.

Document 8.  Coalition Provisional Authority Action Memo to L. Paul Bremer.  "Proposed Agenda for the December 31 Meeting," December 29, 2003; Includes Coalition Provisional Authority, Administrator Information Memorandum from L. Paul Bremer to Iraq Governing Council.  "Proposed Agenda for the December 31 Meeting," December 29, 2003.

A CPA aide suggests that Paul Bremer raise the Security Agreement during his next weekly meeting with Iraq's Governing Council. It is not clear from the attached proposed agenda whether he did so. 

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Notes