Immunity From Prosecution Still on the Menu?

US President Barack Obama (R) meets with Afghanistan's President Hamid Karzai September 20, 2011 at the Waldorf Astoria Hotel
US President Barack Obama (R) meets with Afghanistan's President Hamid Karzai September 20, 2011 at the Waldorf Astoria Hotel in New York City. AFP PHOTO/Mandel NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)

When President Obama met with Afghan leader Hamid Karzai on Friday, all eyes were on an endgame for troop withdrawal. The focus was on the president's stated goal, as The New York Times reports, that effective this spring U.S. troops would "play only a supporting role in Afghanistan."

This expedited exit of American forces is something about which both Mr. Obama, and Mr. Karzai can smile, but questions remain not merely about the possible size of forces left behind after 2014, but about their advisory role, as well as that what the Times terms "hunting down remnants of Al Qaeda."

Moreover, if you happen to find yourself one of the 645 or so prisoners, according to the BBC, who are still being held at Bagram Airfield, you have every right to question Mr. Obama's stipulation that any troops that remain past 2014 be granted legal immunity.

You have every right to ask immunity from prosecution for what?

And, you are not alone. We, citizens of the United States, as well as citizens of the global community, have every right to ask why Mr. Obama is so intent, as was his predecessor, on securing liability assurance for residual troops in Afghanistan.

While control of the prison in Bagram was formally handed over the Afghans this fall, as The Huffington Post has reported, not all of the detainees under U.S. control have been transferred to the Afghans. Indeed, their appears to be no appetite for completing this transfer.

Surely, Mr. Obama's signing of a Defense Authorization Act in 2011 that restricts the transfer of detainees captured during the so-called war on terror to other facilities including the possibility of transfer to facilities in the U.S. doesn't add to this appetite. It also makes the prospect of detainees still held at Bagram and at Gitmo more likely in 2014.

The fact that the president has, yet again, signed the National Defense Authorization Act with the same restricted movement in place virtually ensures that there will be prisoners in detention centers in Afghanistan, Cuba, and Iraq, as well as other black sites, who may well find themselves subjected to the practices of American forces whose mindset is that of "hunting down the remnants of Al Qaeda," and the methods they use.

On Friday, Afghan President Hamid Karzai assured President Obama that he will work hard to grant legal immunity to American troops that stay behind in an advisory capacity, but as Al Jazeera reports, it isn't up to Karzai, but to tribal elders to grant that immunity.

But, it's up to the American people to ask what Mr. Obama wants immunity for? Does he want troops protected from getting traffic tickets while driving over the speed limit in Kabul? Clearly not.

Again, while the U.S. officially handed over complete control of Bagram to the Afghans this fall, hundreds of Taliban and terror suspects remain there. The president is right to be concerned about the possibility of what may happen to service members who stand accused, in Afghan courts, of injuries resulting from harsh interrogation tactics, but didn't President Obama say, along with his predecessor, George W. Bush, that the U.S. doesn't torture? If that is the case, why is immunity from prosecution the signature issue behind whether the president opts to leave advisory forces in Afghanistan past the 2014 deadline?

Of course, the issue of immunity is not a new one, and has come up since the U.S. invasions of Iraq and Afghanistan more than a decade ago. Back in 2008, the Central Intelligence Agency has agreed to absorb the full cost of liability insurance for its workforce. They agreed to do so, in part, so agents don't have to worry about being litigated in civilian courts. This insurance, of course, covers only members of the CIA, and not private contractors.

According to the website Talking Points Memo, then-CIA director Michael Hayden is said to have expanded the parameters of who may be covered to include those working agents involved in covert, as well as all other counterterrorism activities.

Is this the same kind of liability protection, or immunity from criminal prosecution the president now seeks for troops staying behind in Afghanistan? Given that we are no closer to closing the detention center at Guantanamo Bay than we were when he first took the oath of office and, given that the handover of Bagram to the Afghans is mostly a formal, ceremonial gesture, this is a question for which every American is entitled to an answer.

This is not to suggest that the immunity the president seeks for troops that remain on the ground in Afghanistan is essentially any different from immunity enjoyed by troops that remain in place in any of the many countries around the world where Americans remain stationed. The only thing that is different here is, of course, the context. As McClatchy suggests, one of the reasons we no longer have troop presence in Iraq is because the Iraqi government refused to grant us immunity. We need to not only ask why, but address why, too.

In his decision not to hold his predecessor, George W. Bush, criminally accountable for tweaking the definition of torture such that it could, under any circumstances, be acceptable to allow waterboarding, Mr. Obama signaled that he was prepared to turn the page. It appears that he not merely turned the page, but opened a new chapter. A signing statement at the end of a bill authorizing defense spending that takes exception to a clause precluding the legal transfer of detainees sends a mixed signal not merely to our friends around the world, but to our adversaries, especially in light of the fact that the president, a constitutional lawyer, previously threatened to veto the measure.

To paraphrase the words of a visionary, the Rev. Martin Luther King Jr., whose birthday we celebrate this week: the arc of the moral universe is long, Mr. President, but it must be allowed to bend towards justice. Justice carries a high price tag. Ultimately, the price tag is even greater for those who countenance injustice in the name of moving forward.