PENTAGON — The number of U.S. troops who remain in Afghanistan after the withdrawal of NATO forces in 2014 depends largely on what the Loya Jirga, or gathering of tribal elders, decides in the coming days when it reviews a draft security agreement between the Afghan and U.S. governments. An Afghan government spokesman said the two sides have agreed to allow home raids by U.S. troops if President Barack Obama acknowledges mistakes by the U.S. military in Afghanistan. The U.S. says it has not agreed to this, and that Washington has its own conditions.
A key U.S. condition for leaving any troops in Afghanistan is that no American soldier can be tried under Afghan law if he or she is charged with a crime while deployed.
Defense Secretary Chuck Hagel, speaking at a gathering of NATO ministers in October, indicated that point remains non-negotiable.
"Our position has been very clear on this, especially on jurisdiction," he said.
The memory of crimes committed by U.S. Army Staff Sergeant Robert Bales, now serving a life sentence for massacring 17 villagers, is perhaps the most poignant. The dead, in Kandahar province last year, included several children.
Enforcing U.S. law
Michael O'Hanlon, at the Brookings Institution, said the U.S. has a longstanding policy of not allowing its soldiers to be tried under foreign laws.
“We recognize that our troops sometimes do criminal acts. And sometimes heinous acts, but we will hold them accountable," he said. "We will never give them a pass, but we will be the ones who are in charge because there are just too many countries around the world with too many different legal systems to allow our troops to be caught up in things that could be politicized, and that could often involve legal systems that are not as well developed and penal systems that are not as well developed."
Whether U.S. forces would be allowed to enter Afghan homes while pursuing militants is another sensitive issue.
U.S. officials have expressed confidence that Afghans will accept a bilateral security agreement, in part because many believe that peace beyond 2014 depends on the presence of U.S. troops.
Afghan security forces are developing, but still have a long way to go before they can stand up on their own against insurgents. U.S. officials are talking about leaving a force of as many as 12,000 troops to train, advise and assist the Afghans. The number depends on how stable Afghanistan remains, how far reconciliation efforts go, the strength of Taliban insurgents, the presence of al-Qaida militants, and the level of cooperation from neighboring Pakistan.
Hagel said any decision to stay will have to be at the invitation of the Afghans, and that should come soon.
"Obviously the sooner the better," he said. "We all need time to plan, to prepare."
For the U.S., the growing violence in Iraq is a reminder of a mistake Washington does not want to repeat. A failure to reach a security agreement there led to a complete pullout of U.S. forces.
The U.S. effort to stabilize Afghanistan has been going on for 12 years, the longest war in American history. Its outcome depends on decisions reached in the next few days.