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

By Karen DeYoung

Washington Post Staff Writer
Thursday, August 28, 2008; Page A07

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."

Staff writer Ann Scott Tyson contributed to this report.