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The issue of legal immunity for deployed U.S. troops in Iraq was the ultimate deal breaker that ended talks last year about a continued U.S. troop presence there.
Now the same issue is cropping up in Afghanistan.
As U.S. officials begin negotiations with the Afghan government about what a post-2014 mission for U.S. troops might look like, a key question will be whether the Afghan government will grant broad legal protections for U.S. troops and agree not to arrest them for alleged crimes and try them in the fledgling Afghan judicial system.
Another key question is whether the U.S will maintain the same hard line as it did with Iraq — no immunity, no deal, no troops. A Pentagon spokesman declined to say Tuesday whether that will be a deal-breaker in the current talks with the Afghan government as it was in 2011 when the U.S. was trying to negotiate a status of forces agreement with Iraq.
"I think there's likelihood that protections for U.S. personnel are obviously part of any [Status of Forces Agreement] discussion, so I would expect that to be on the agenda," Pentagon spokesman George Little told reporters. "But we're not to the point yet where any decisions have been reached by either side on specific legal provisions in an agreement,"
In Iraq, many military and civilian U.S. officials wanted to keep a small contingent of American troops there beyond the stated withdrawal date of December 2011. But those talks broke down after it became clear that the Iraqi parliament was refusing to grant the same legal immunities that U.S. troops have in virtually every other country around the world.
The U.S relationship with Afghan President Hamid Karzai has been rocky over the past several years and the political environment in Kabul is volatile, making it unclear how the issue will play out over the next two years. U.S. officials say the current combat mission will conclude at the end of 2014.
Without legal protections, the Afghans could arrest and detain U.S. troops for alleged crimes. And in a politically charged environment, troops conducting routine operations and exercising the right of self-protection might be accused as violating Afghan laws.
Gen. Joseph Dunford Jr., the Marine officer who will assume command of the Afghanistan war next year, told Congress that he hopes to complete the negotiations by May 2013, more than a year before the current combat mission is due to end.