When U.S. troops arrive back in Iraq to try to salvage its rapidly deteriorating situation, they have more to worry about than fighting ISIS terrorists. Those soldiers could also face criminal prosecution in Iraqi courts, since President Barack Obama failed to secure an immunity agreement for American forces.
Obama pulled troops out of Iraq in 2011 when he failed to get the Iraqis to sign a Status of Forces Agreement (SOFA), part of which would grant American troops immunity from lawsuits (including criminal prosecutions) in Iraq’s courts. Far from the “equal justice under law” that is the hallmark of America’s judiciary, Iraq’s courts are thoroughly compromised and unreliable.
As Obama sends U.S. forces back into Iraq without an immunity agreement, they would daily face threat of arrest and prosecution. Any American service member on the ground in the Islamic state could, therefore, end up in an Iraqi prison.
Official immunity is a vitally important protection enjoyed by government officials in America and other nations across the globe. Many federal and state officials have absolute immunity from suit for the execution of their official duties.
Congressmen, federal judges, and Obama himself, are 100 percent immune from lawsuits or legal process targeting them individually for their performance in office. No one can sue federal, state, or local legislators for anything they say or do during a legislative meeting. No one can get a subpoena to compel a judge to reveal his emails to his law clerks regarding a court case, or compel a congressman to reveal emails exchanged with another member or congressional staff.
Obama relies upon this protection on a daily basis. No matter how bad the conduct, the only remedy the Constitution allows is for Congress to impeach and remove a president, not sue him.
Such absolute immunity is an integral part of conducting foreign relations. Ambassadors are protected by diplomatic immunity, which, in addition to protecting their families and staffs, also covers U.S. Marines who guard embassies abroad, including the U.S. embassy on the outskirts of Baghdad.
Official immunity remains one of the largest obstacles to U.S. involvement in fighting the ISIS terrorist forces. The Pentagon’s Rear Admiral John Kirby told reporters on June 20, “We are pursuing something in writing. The Secretary [of Defense Chuck Hagel] is absolutely committed to making sure that our troops have the legal protections.”
Yet under Iraq’s form of government in its new constitution, Prime Minister Nouri al-Maliki cannot grant such immunity. He would have to pass it through Iraq’s parliament. No U.S. military commander recommended keeping U.S. forces on the ground in 2011 without guaranteeing this legal protection.
However, Iraq’s parliament is in disarray, and it may need to form a new government–electing a prime minister, president, and speaker–before taking up such legislation. So it is unclear how quickly Iraqi lawmakers could vote on granting such immunity, leaving any forces sent to Iraq in the meantime under continuous threat of full legal prosecution for anything that happens while they attempt to save the fledgling regime from collapse or overthrow.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.