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Explainer: The Main Sticking Points Of The Draft Afghan-U.S. Deal

Night raids involving American troops are one of the biggest bones of contention in a draft Afghan-U.S. security agreement. (file photo)
The text of a contentious security agreement between Afghanistan and the United States has been finalized; now it's up to a Loya Jirga to decide whether the terms are acceptable.

We take a closer look at the final wording of the draft text that was agreed upon by Washington and Kabul just before it was presented to the large traditional gathering of tribal elders, religious figures, and political leaders for review.

U.S. Night Raids

In the days leading up to the Loya Jirga, which began on November 21, the Afghan government was still demanding that a clause in the agreement explicitly state that U.S. forces would not be allowed to enter Afghan "homes or real-estate" under any circumstances.

ALSO READ: Loya Jirga To Decide Whether U.S. Troops Stay Or Go

The final wording of the draft does not meet that demand. It says that U.S. counterterrorism operations will "complement and support" Afghan missions, and that any U.S. missions will be carried out "with full respect for Afghan sovereignty and full regard for the safety and security of the Afghan people, including in their homes."

U.S. President Barack Obama, in a November 20 letter to Afghan President Hamid Karzai, wrote that "U.S. forces shall not enter Afghan homes for the purposes of military operations, except under extraordinary circumstances involving urgent risk to life and limb of U.S. nationals."

U.S. Troop Immunity

The draft bilateral security agreement gives any remaining U.S. troops in Afghanistan immunity from prosecution under Afghan law. U.S. troops who commit crimes while serving in Afghanistan will be subject only to U.S. military law.

Karzai had publicly demanded that American troops answer to Afghan law, but Washington maintained U.S. troop immunity was not negotiable.

The wording shows that no compromise was worked out on the issue:

"Afghanistan, while retaining its sovereignty, recognizes the particular importance of disciplinary control, including judicial and non-judicial measures, by the United States forces authorities over members of the force and of the civilian component. Afghanistan therefore agrees that the United States shall have the exclusive right to exercise jurisdiction over such persons..."

The proposed agreement does, however, give Afghanistan some legal jurisdiction over private military contractors.

External Aggression

Kabul made clear as the agreement was being drafted that it wanted assurances in writing that the United States would protect Afghanistan in the event of "foreign aggression." Draft documents show that Afghan negotiators specifically asked that the U.S. military intervene and defend Afghanistan if there were cross-border incursions or artillery attacks originating from Pakistan.

Such a guarantee would essentially have been a defense pact compelling the U.S. to retaliate, and was seen as a nonstarter by Washington

The draft text settles on the United States providing assurances that it would take cases of external aggression seriously, but commits it only to meeting with Afghan officials to determine what course of action should be taken:

"In the event of external aggression or the threat of external aggression against Afghanistan, the Parties [Afghanistan and the United States] shall hold consultations on an urgent basis to develop and implement an appropriate response, including, as may be mutually determined, consideration of available political, diplomatic, military, and economic measures."

U.S. Apology

Afghan presidential spokesman Aimal Faizi said on November 19 that the president would not approve an agreement unless President Obama sent a letter acknowledging "mistakes" the U.S. military had made in Afghanistan.

But a day later, U.S. Secretary of State John Kerry said Karzai had not asked for an apology and that none was forthcoming.

The letter sent by Obama to Karzai on November 20 fell well short of any sort of apology, but noted that the U.S. president does "honor the enormous sacrifices they [American soldiers] have made, side by side with Afghans."
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    Frud Bezhan

    Frud Bezhan is the editor for Afghanistan, Iran, and Pakistan in the Central Newsroom at RFE/RL. Previously, he was a correspondent and reported from Afghanistan, Kosovo, and Turkey. Prior to joining RFE/RL in 2011, he worked as a freelance journalist in Afghanistan and contributed to several Australian newspapers, including The Age and The Sydney Morning Herald.