Oct 15, 2013 4 min read

Imagine having a conversation with a friend who tells you he just bought a house. Says the friend, “We’ve agreed that the appliances will stay, and the seller will pay $1,000 toward closing costs. Of course, we haven’t agreed on a price.” Say what?

We all can probably agree that without a deal on the purchase price, there really is no agreement to buy the house. It’s much the same situation with the United States’ negotiations with Afghanistan on a security agreement that would be put in place after the bulk of American troops are withdrawn next year.

After extensive meetings with Afghan President Hamid Karzai, U.S. Secretary of State John Kerry proudly proclaimed on Saturday that they had reached a “partial agreement” on such an accord.

Said Karzai, “We have reached an agreement on the respect of national sovereignty, preventing civilian casualties, a definition for aggression and also the prevention of unilateral acts by foreign forces.”

But there’s an elephant in the room, and it’s a big one. Kerry and Karzai found no agreement on the issue of who would handle the prosecution and punishment of any American soldier accused of crimes on Afghan soil.

The United States has demanded, correctly in our view, that U.S. military courts must handle such matters. Karzai has refused to budge. He now says he will defer to an assembly of tribal elders who will gather to consider the matter within the next few weeks.

To make his point that the United States will act responsibly against any of our soldiers who commit misdeeds, Kerry could reference the case of Army Staff Sgt. Robert Bales, who recently was convicted by a U.S. military court and sentenced to life without parole for the killings of 16 people in a pair of villages in southern Afghanistan last year.

But Karzai might well look toward the handling of the 2005 massacre in Haditha, Iraq, where two dozen unarmed Iraqi civilians, including women and children, were killed by U.S. Marines. Eight Marines initially faced prosecution in military courts, but when all was said and done, only one Marine was convicted, and that was on a lesser count of dereliction of duty, which got him a reduction in rank and a pay cut. Final tally: 24 Iraqi civilians dead. No jail time served. A lawyer for the victims told Agence France-Presse, “This is an assault on humanity.”

These diverse outcomes illustrate the United States has a mixed track record when it comes to punishing its own for misdeeds against civilians in war zones, but regardless, the United States cannot put its soldiers in a position where their fate is decided by whatever passes for a justice system in Afghanistan these days. The government in Afghanistan is among the most corrupt and inept on the planet, and one can only wonder about its judiciary. Also, the future leadership of the country is uncertain. Karzai, now in his second term as president, cannot run in next year’s election.

Fortunately, Kerry said he has made it clear that while the United States will respect the recommendation of Karzai’s assembly of tribal elders, this country will not be bound by that, and any final agreement will be contingent on an acceptable resolution of the jurisdictional issue.

The United States hopes to keep perhaps 10,000 troops in Afghanistan after the drawdown next year in order to battle terrorist elements that remain there. Those soldiers would face enough peril without also being subjected to an Afghani kangaroo court in the event of an unintentional civilian death in the course of one of their missions.

This issue needs to be resolved quickly, and if the Afghan government does not accede to the U.S. position, a full troop withdrawal should be accomplished as quickly as possible, and the leaders of that country will have to bear the consequences if they again allow their nation to be a haven for terrorists who harm Americans or American interests.