US, Afghan military relations governed by diplomatic note

WASHINGTON - For the past six years, military relations between the United States and Afghanistan have been governed by a two-page "diplomatic note" giving US 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 US troop presence and other bilateral ties, no such agreements were ever drawn up.

But following a US-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 now being negotiated between the United States and Iraq.

The prospect of codifying the ad hoc rules under which US forces have operated in Afghanistan since 2001 sends shudders through the Bush administration, which has struggled to complete its agreement with Baghdad. "It's never been done because the issues have been too big to surmount," said one US 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 US 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 US troops in Afghanistan, 19,000 operate under US Central Command, while an additional 14,000 form the largest single component of a separate, 40-nation force led by NATO under a UN 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.

US 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 US operation.

The United Nations 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 US force, which is covered under the diplomatic note exchanged between the United States and a non-elected, interim Afghan government in the months following the Sept. 11, 2001, Al Qaeda attacks and the launch of US 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 US troops "a status equivalent" to diplomatic immunity and exempting them from any Afghan "disciplinary authority" or legal jurisdiction.

Similar legal immunity is included in US status-of-forces agreements with more than 80 countries. But it has become the biggest roadblock to conclusion of an accord with Baghdad, and US officials believe 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 US 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 action on the ground has remained relatively static at fewer than 100 each year, casualties due to air strikes have reached more than 200 through the first eight months of this year, compared with 321 in 2007 and 116 in 2006.