Status of Forces Agreement (SOFA), also known as Bilateral Security Agreement (BSA), between the United States and Afghanistan is the most sought for American objective. Americans want to extract maximum concessions from the outgoing Afghan president. Afghanistan side is careful, and thus is in no hurry. Some years back, Dr Zalmay Khalilzad while sitting across the table in President Hamid Karzai’s office had cautioned him to be mindful of the fact that earlier Dr Najeebullah used to occupy the same chair. He couldn’t have been more prophetic and his words must be ringing alarm bells for Karzai as he negotiates the SOFA with Americans.
In late August, 2013 the Afghan government had hashed out a draft agreement. However, talks were suspended after Karzai was angered by the behaviour of the Taliban who flew their flag at their Doha office. In August, Karzai had said: "We are not in a hurry, if it happens in my government it will be good, if not, the new president can discuss it and either accept or reject it". He had also said he would consult the loya jirga (assembly of tribal elders) before ratifying any agreement.
Karzai is certainly between the devil and the deep blue sea. The bilateral security agreement between Kabul and Washington is threatened by disputes between Afghan and US officials, and there are fears that the agreement will be derailed if the issues are not resolved. Presidential spokesperson Aimal Faizi confirmed the Washington’s demand for unilateral and independent counter-terrorism operations in Afghanistan beyond 2014. And this is the main point of divergence between the two sides, “the US wants the freedom to conduct military operations, night raids and house searches”, Faizi said. Washington’s refusal on Afghan government’s demand to agree to a broad spectrum promise to protect Afghanistan from foreign aggression is the other main point of contention.
President Hamid Karzai is now directly leading the talks after they almost collapsed despite the urgency from the US side to complete the security agreement by the end of this month.  America plans to pull out the bulk of its 57,000 troops from Afghanistan by the end of 2014; but it intends to retain around 10,000 troops at nine bases, beyond 2014. Americans are eyeing for a decade long agreement to have the right to conduct military operations anywhere in the country. According to them, there are still 75 Al Qaeda operatives in Afghanistan; it is indeed an exaggerated figure.
Faizi said “Unilaterally having the right to conduct military operations is in no way acceptable for Afghans.”  The two sides also could not agree on how the bilateral security agreement (BSA) should define an attack on Afghanistan that would trigger US protection. “We believe that when terrorists are sent to commit suicide attacks here, that is also aggression,” Faizi said. “We are a strategic partner of the US and we must be protected against foreign aggression. For us and for the US, that’s the conflicting point. We are not of the same opinion and we need clarity from the US side,” he said.
In the meanwhile, the US Defence Secretary Chuck Hagel described the pact as critically important. “I hope we’ll have that agreement by the end of October, because we just can’t move without it,” Hagel said. However, Karzai is not rushing into signing the pact, and it may not be finalised until after his successor is chosen in April elections. If signed by the current president, he will be definitely held accountable in the history of Afghanistan. The collapse of a similar pact with Iraq in 2011 led to the US pulling all its troops out of the country. Such replication cannot be ruled out in case of Afghanistan as well.
While addressing the US troops in South Korea during his 30 September visit, Hagel highlighted few key points about Afghan conflict: the United States will not commit troops to a follow-on operation in Afghanistan without a security agreement; decisions on force levels to remain in the theatre would be made after that pact; US officials are working towards securing a SOFA with the Afghan government by the end of October that could shape the size and construct of NATO's post-2014 mission in Afghanistan; and the US president would make a decision on size and role/task of residual garrison after signing of SOFA.
The US has set the end of this month as its artificial deadline for signing a SOFA with Afghanistan. The driving force behind this push is to have the SOFA in place, far ahead of the end of next year to prevent a repeat of embarrassment that the US suffered when it was unable to get the terms it wanted–specifically, full criminal immunity for US troops–in Iraq and wound up withdrawing all troops instead of leaving a force behind after the stated end of military operations. The news out of Afghanistan does not bode well for the US to meet its deadline. Issue of criminal immunity is just as big a barrier in Afghanistan as it was in Iraq.
Karzai has long opposed operations in Afghanistan by US special operations forces and the CIA, particularly when they run the risk of causing civilian casualties. “These things are strongly related to our sovereignty,” Faizi said. “We find it to be something that will definitely undermine our sovereignty, if we allow the US forces to have the right to conduct unilateral military operations.” In February 2013, Karzai was frustrated with the death squad activities in Wardak province and called for the expulsion of US Special Forces from there.  Reference to special operations forces and the CIA actually means the death squads that the US organizes in Afghanistan, sometimes under the guise of Afghan police. These squads carry out brutal night raids described as “counter-terrorism” operations.
The second sticking point is also fairly interesting. It appears that in this case, the US is actually showing restraint, and rightly so, since they don’t want to give Afghanistan wide latitude in determining what constitutes an attack on Afghanistan that could trigger the US response in defence of Afghanistan. Cross-border skirmishes between various factions in Afghanistan and Pakistan is a frequent activity. Last week, there was a suicide bombing at the Chaman border crossing that killed at least eight people. Attacker appeared to have come from the Afghan side of the border; it appears that the US wishes to avoid being forced to carry out attacks inside Pakistan under the guise of the SOFA when a suicide attack originates from inside Pakistan.
While there is already a long term strategic partnership agreement in place governing US Afghan relationships from 2014 to 2024, the role and number of troops to remain in Afghanistan was left to be negotiated separately. The US demands that the residual troops be immune from Afghan law. Karzai so far has not agreed to that and has said that he will leave the matter to a loya jirga which may be quite unwilling to grant such immunity.
Apparently, negotiations on this issue are now being carried out through direct phone conversations between Karzai and Obama. It’s unlikely that either side will give up any portion of their position; hence the “deadline” is likely to be extended. There is a discussion that the new Afghan president taking office after the April elections will be tasked with finalizing the agreement since Karzai and Obama seem unable to come to agreement. Pakistan needs to carefully monitor the terms of reference and raise its voice, well in advance, if any thing appears cooking up that could impinge upon Pakistan’s security.
The writer is a freelance columnist.