Guest Post: The Truth About Criminal Jurisdiction Over U.S. Troops in Afghanistan: Questions for Secretary of State Kerry, the Loya Jirga… and National Public Radio

[Chris Jenks is an assistant professor of law and directs the criminal justice clinic at the SMU Dedman School of Law. He previously served as Chief of the U.S. Army’s International Law Branch, where he was responsible for the Department of Defense’s foreign criminal jurisdiction program. This post expands and revises  comments published by Al Jazeera America.]

Beware the U.S. expressing “great respect” for a State’s sovereignty.  You’re likely to find what follows more akin to the opposite — of both respect and sovereignty.

Such is the case with U.S. Secretary of State John Kerry and his recent misstatements on foreign criminal jurisdiction over U.S. service members and the US Afghan Bilateral Security Agreement (BSA).  Under the terms of the BSA, the U.S. would retain exclusive jurisdiction over any and all criminal offenses U.S. service members commit in Afghanistan. Secretary Kerry claimed on more than occasion that this is the same jurisdictional framework utilized wherever U.S. forces operate. It is not.

On October 12th, Sec Kerry, at a press conference in Afghanistan and while standing next to President Karzai, made a series of statements concerning the BSA’s criminal jurisdiction.  Among them,

[w]ith respect to the jurisdiction issue, we have great respect for Afghan sovereignty. And we will respect it, completely. And that is laid out in this agreement. But where we have forces in any part of the world, and we unfortunately have them in a number of places in the world – in Japan, in Korea, in Europe, in other parts of the world, Africa. Wherever our forces are found, they operate under the same standard. We are not singling out Afghanistan for any separate standard. We are defending exactly what the constitutional laws of the United States require.

Despite valiant Department of State attempts to “clarify” the Secretary’s remarks, the Washington Post initially awarded Sec Kerry “two Pinocchios”, meaning his statements at the Afghanistan press conference contained significant omissions and/or exaggerations.

Kerry then stripped away language which could be mistaken for accurate in an October 17th National Public Radio interview, claiming that “[There] is the question of who maintains jurisdiction over those Americans who would be [in Afghanistan]. Needless to say, we are adamant it has to be the United States of America. That’s the way it is everywhere else in the world.”  This  streamlined version of untruth prompted the Post to elevate Sec Kerry to a  “three Pinocchios” award for “significant factual errors and/or obvious contradictions.”

Why Sec Kerry’s misstatements matter

1. Sec Kerry’s false jurisdictional equivalency claims undermine his, and the U.S’. credibility, as well as Afghan President Hamid Karzai’s ability to explain the BSA to an upcoming Loya Jirga, whose approval is needed if U.S. troops are to remain in Afghanistan after 2014. Successfully concluding the BSA now depends on the Loya Jirga not realizing that any reliance on representations by the U.S. Secretary of State is misplaced. This bodes poorly for the agreement, and the strategic partnership between the two countries.

2. Sec Kerry’s claims of exclusive US jurisdiction over its service members around the world is strategically counter productive on a larger scale. There are a host of 2d and 3d order effects if the US does not have troops in Afghanistan after 2014, including “unraveling” war time authority to detain. More broadly, Kerry’s claims perpetuate the myth that the U.S. doesn’t “allow” foreign courts to prosecute U.S. service members for their criminal actions — the reality is that foreign countries permissibly (and appropriately) prosecute and jail U.S. service members each and every year.

3. Sec Kerry doubled down on wrong, repeating, even more clearly, his worldwide exclusive jurisdiction claim in the NPR interview.  In broadcasting, while not questioning or challenging, Kerry’s claims, NPR looks more like the Department of State Public Affairs Office and less like a journalistic entity.   As the media parrots the false statements from the NPR story, one wonders how many times Kerry’s claims will be repeated without challenge or correction.

US Afghan Criminal Jurisdiction Then and Now

The BSA would provide the U.S. exclusive criminal jurisdiction over its service members for their criminal acts in Afghanistan. This essentially continues the status quo.  Under the current framework, Afghanistan waived jurisdiction over U.S. Army Sgt Robert Bales, who murdered 16 Afghan women and children. And going forward under the new agreement, if a U.S. service member in 2015 were to rape and murder an Afghan, Afghanistan would, again, waive jurisdiction.

A State not having jurisdiction over individuals who, while in the territory of that State, rape and murder that State’s nationals, is the opposite of sovereignty. There are legitimate reasons, from the US perspective, for such a jurisdictional framework, notably that the current Afghan criminal justice system lacks the procedural safeguards guaranteed by the Constitution of the United States to ensure a fair trial.  This is not American exceptionalism, our NATO allies undoubtedly feel similarly about the prospect of their service members in an Afghan court.

But to stand next to the President of a country and profess great respect for their sovereignty in one sentence and in the next advance an agreement under which the country would never have jurisdiction over crimes occurring in that country is disingenuous.  To then make false equivalency claims risks snatching defeat from the jaws of security agreement victory.  Even if the Afghans do sign the agreement, down the line, not if, but when, there is a criminal incident involving U.S. service members, the damage to the US Aghan partnership will be much worse than it otherwise would be because of Sec Kerry’s misrepresentations.

Other Security Agreements and Criminal Jurisdiction

Sec Kerry’s claim that U.S. forces operate “in places like Japan, Korea, and Europe” under a similar, exclusive U.S. jurisdiction standard, is the full measure of false.  Japan, Korea and at least some NATO allies (notably Germany) prosecute and jail U.S. service members each and every year.

Had Bales committed his offense in Japan, Korea, or Germany, that foreign country could and would have permissibly prosecuted him under the criminal justice provisions of the applicable agreement.

The criminal jurisdiction provisions in those agreements result in those foreign countries having primary jurisdiction over U.S. service members for the vast majority of offenses. The only crimes for which the U.S. retains primary jurisdiction are those which arise from the service member’s official duty (think convoy vehicle accident or military aircraft incident) or where the victims are exclusively American. In all other instances where the crime violates both U.S. and the foreign country’s law, the foreign country has primary jurisdiction to prosecute the U.S. service member.

U.S.’ policy is to maximize U.S. jurisdiction over its service members. Every time a foreign country has a primary right of jurisdiction over U.S. service members, the U.S. requests the foreign country waive its jurisdiction so that the U.S. military may take appropriate action. And in the overwhelming number of cases, countries like Germany, Japan, and Korea do waive their primary right, because they know from decades of experience that the U.S. does in fact hold it’s service members accountable.  The U.S. commitment to holding its service members accountable extends to Afghanistan, the U.S. tried and convicted Bales for murder and he will spend the duration of his natural life in confinement without the possibility of parole.

The kinds and types of activities the U.S. military engage in while stationed in in Japan, Korea, and Europe look nothing like the combat activities in Afghanistan.  And that will still be true in 2014, if the security agreement is concluded and US forces transition to a combat support role.

Given the differences in US missions and host nation criminal justice systems between Japan, Korean, and Europe vs Afghanistan, the agreement governing the presence of US forces would naturally also be different.  For Kerry to reference those other countries and their agreements with the US in comparison to the situation in Afghanistan is to compare apples to footballs.

Any comparison to those other countries and agreements is not particularly relevant or helpful to the discussion of the US Afghanistan agreement.  Why Kerry brought them up at all is puzzling, to do so falsely is not helpful and to repeat the falsity approaches the simply bizarre,  and even more unhelpful.

The US Afghan security agreement, like all agreements, requires each side to balance their priorities and interests and make trade offs.  Given the U.S. redline on exclusive jurisdiction over its service members, this means that Afghanistan must weigh the cost of the loss of sovereignty against the benefits of U.S. military, funds, and equipment. Afghanistan must determine whether that security agreement benefits and costs will lead to more positive outcomes than the alternative, the US (and NATO) essentially completely withdrawing.

It is quite possible that Afghanistan could determine that they are better off with the security agreement than without.  But the route to that outcome should be candor.  And Secretary Kerry’s repeated misstatements on U.S. law, policy, and practice concerning jurisdiction over U.S. service members are anything but.