Afghan tribal leaders now get to decide whether US troops can stay, balancing the indignity of relying on foreigners with their fear of the Taliban - and their fear of losing US money.
A draft of a document that could see the extension of the longest foreign war in US history was released today by the Afghan Ministry of Foreign Affairs, just hours before Afghan tribal figures are set to meet to vote on the document.
The so-called Bilateral Security Agreement between the US and Afghanistan would govern the rights and responsibilities of US troops in Asia's poorest country beyond the end of next year, when the current legal arrangement expires. The current draft envisions a robust US military presence in Afghanistan until the end of 2024.
For the past year, Afghan President Hamid Karzai has played coy with agreeing to a new deal with the US, seeking to extract maximum concessions, including transfers of cash and material. He has repeatedly groused that giving US troops complete immunity from Afghan prosecution - a dealbreaker for the Obama administration - would be a hard pill for proud Afghanis to swallow.
That pill is now half way down.
Article 13 of the draft (or "pre-decisional" document in its own language) that Afghanistan released today says that US troops won't be at risk of prosecution in the country's politically-compromised and incompetent courts. "Afghanistan, while retaining its sovereignty, recognizes the particular importance of disciplinary control, including judicial and non-judicial measures, by the United States forces authorities over members of the force and of the civilian component," it reads. "Afghanistan therefore agrees that the United States shall have the exclusive right to exercise jurisdiction over such persons in respect of any criminal or civil offenses committed in the territory of Afghanistan."
The article also promises that US troops will not be placed at risk of being handed over to any international body like the International Criminal Court in The Hague. "Afghanistan and the United States agree that members of the force and of the civilian component may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the United States."
So far, so good, from the perspective of the Obama administration. But the deal will still require the agreement of the Loya Jirga scheduled to start tomorrow.
That meeting of tribal figures was given formal responsibility for approving a deal with the US by Karzai. The reason is that the president doesn't want be on the hook for what may prove an unpopular decision. The men and women (note: an earlier version of this piece incorrectly stated there are no women on the jirga) on the council have a tough choice to make. Do they want the presumed indignity of a large contingent of US troops, not subject to Afghan law, remaining in the country? Or do they want to turn off the spigot of US money, which greases the Afghan government and goes into the pockets of various warlords and businessmen?
There is also the small problem of the Taliban, who remain powerful and undefeated throughout much of the country and would have a much better shot of gaining territory if the Afghan military was denied US training, logistical support and funding.
The agreement makes it clear that Afghanistan will get a lot in return for allowing US troops - likely to be around 10,000 - to stay.
"The United States shall have an obligation to seek funds on a yearly basis to support the training, equipping, advising and sustaining of (Afghan security forces), so that Afghanistan can independently secure and defend it self against internal and external threats, and help ensure that terrorists never again encroach on Afghan soil and threaten Afghanistan, the region, and the world."
Leaving aside the irony of the US being obligated to pay and "sustain" an Afghan military that is described as "independently security." For the past decade, the US has spent over $55 billion on a military that can't be sustained out of an organic Afghan government budget and doesn't currently have the logistical ability to operate on its own. The US is spending about $5 billion on Afghan security forces in the current fiscal year. Absent that money, the wheels would come off the Afghan military almost immediately, leaving the position of President Karzai - and many of the men gathered for the Loya Jirga - extremely tenuous.
To be sure, Obama hasn't got everything he wanted. Karzai has made a big show of concern about US raids of Afghan homes and accused US troops of war crimes. He had insisted that any new agreement would deprive US commanders of the authority to raid Afghan homes any longer - and appears to have carried the day.
"Unless otherwise mutually agreed, United States forces shall not conduct combat operations in Afghanistan," the document says. "Parties acknowledge that US military operations to defeat al-Qaida and its affiliates may be appropriate in the common fight against terrorism. The Parties agree to continue their close cooperation and coordination toward those ends, with the intention of protecting U.S. and Afghan national interests without unilateral US military counter-terrorism operations."
Now the ball is in the Loya Jirga's court. The presumption is that they'll stare into the abyss that would be an end of direct US military involvement and sign. But anything is possible.