What Happened to Immunity for U.S. Troops in Iraq?

President Obama’s recent moves in Iraq seem to have violated the one thing on which virtually everyone inside and outside of both the Obama and the Bush administrations agreed upon — that U.S. troops in Iraq required parliamentary-approved immunities. In light of the President’s recent escalation of U.S. forces, what are the immunity protections for the 3,000 U.S. troops in Iraq? Why weren’t those protections enough to provide for a stay-behind force in 2011? And why does it matter?

First let’s review the bidding. The Bush administration had hoped to leave in place in Iraq a force as large as 20,000, whereas the Obama administration had tried to secure a deal that would leave behind a smaller but still sizable presence of perhaps 3,000 to 5,000. Reasonable experts on either side have debated whether a better-managed Obama effort could have secured an agreement with former Prime Minister Nouri al-Maliki’s government that would have provided for such a sizable stay-behind force to assist in the long-term training and bolstering of the Iraqi Security Forces. Despite being optimistic about the negotiations — Vice President Joe Biden, who was in charge of the negotiations boasted that he would bet his vice presidency on his chances of getting the deal — Obama failed to do so and only the small embassy protection detail remained. One of us is on record arguing that the failure can be attributed at least in part to myriad missteps by the Obama team. But others with legitimate claim to expertise in this area have argued that the Obama missteps were irrelevant to the outcome because the result was foreordained by Iraqi politics (and Iranian influence).

Even if the Obama administration attributed its diplomatic failure as residing with Baghdad, it always had a bipartisan trump card: no one wanted U.S. troops to remain without the customary parliamentary-enshrined immunity protections that were a sticking point in the negotiations. So once it became clear that Maliki could not or would not win a parliamentary vote on providing immunity, then it was simply impossible to have a large U.S. military presence. The small contingent of Marines protecting the embassy could be covered by other measures, but anything larger required an immunity agreement and the immunity agreement required a parliamentary vote. There was broad bipartisan agreement that it was folly to leave a sizable U.S. presence in Iraq without immunity protections, and although some critics argued that Maliki had the authority to grant immunity without a parliamentary vote, the unanimous position of U.S. government lawyers was that such protections required the formal vote of the Iraqi parliament.

Only now, nearly six months into the gradual escalation of the renewed ground forces commitment to Iraq, there does not appear to be any such immunity protections. There is an interim immunity agreement covered only by an exchange of diplomatic notes dating from June 2014 when Obama ordered the first escalation of 300 U.S. boots on the ground. But as far as we can determine, there has been no Iraqi parliamentary vote ratifying that immunity protection. Instead, even as the U.S. ground presence has ballooned by an order of magnitude, the immunity protections appear to be only covered by the exchange of diplomatic notes.

These new troop deployments come within ballpark range of the stay-behind force Obama offered Maliki in 2011. These deployments would seem to be inviting exactly the same risks that the White House used as the main justification in 2011 for its previous policy not to deploy U.S. forces. When the U.S. troop presence was small and concentrated in the Green Zone, the risks may have been manageable. But with 3,000 troops distributed around the country, and perhaps more to follow, the risks are now far greater.

This matters not only because of the safety of U.S. personnel, as important as that is. It is sobering that in 2011, when Iraq looked far more peaceful and stable than it looks today, the consensus view was that the troops needed stronger immunity protections than they appear to have now.

And not only because of the questions it raises about whether the current disaster in Iraq might have been avoided, if only the Obama administration had left a sizable force behind in Iraq. Some defenders of the administration claim that the negotiation failure does not matter. But a successful negotiation would have strengthened the U.S.-Iraq partnership, giving the United States more leverage over Maliki and thus helping dissuade his more pernicious choices. Certainly Maliki was better behaved when U.S. troops were in country than he was when he was left alone. And the troops would have greatly improved our intelligence picture, and thus the warning of the rise of the Islamic State (IS), and probably would have improved the initial Iraqi efforts to block IS’s advance.

However you come down on the counterfactual, it is clear that the Obama administration now believes that 3,000 troops can make a difference.

All of this is important, but there is another disturbing question left hanging by the current immunity situation. How much of the original rationale for giving up on a stay-behind force was driven by the immunity issue and how much was driven by political considerations related to Obama’s reelection campaign? As things played out in 2011, it fit a convenient presidential narrative that Obama would end our wars and bring our troops home. Campaign strategists could spin this "Obama-ended-the-war" story to help the president win re-election. Well, the war in Iraq has not ended (actually, it never did for the Iraqis) and our troops are back in the country — but without the immunity protections Obama claimed were essential.

So the question remains: Why have President Obama and his advisors changed their minds on the necessity of having immunity for our troops?