KABUL, Afghanistan (AP) — In a phone call Tuesday, U.S. Secretary of State John Kerry acknowledged "mistakes" and asked Afghan President Hamid Karzai to allow American forces to enter Afghan homes in "exceptional circumstances" as the two sides rushed to finalize the wording of a draft security agreement ahead of a meeting of tribal elders who must approve the deal.
Deep divisions in Afghanistan over legal immunity for American soldiers and contractors as well as night raids have threatened to derail diplomatic efforts to keep thousands of American soldiers in the country beyond next year's withdrawal deadline. The issue has taken on added urgency amid a spike in violence that has raised fears the Afghan forces aren't ready to take over the battle against the Taliban and al-Qaida linked militants without more training.
Night raids by American forces have been one of the touchiest issues in the 12-year-old war and an agreement to allow them to continue, even on a conditional basis, would clear a major obstacle that has held up the pact. U.S. officials said Monday that Karzai had conceded that the Americans could maintain exclusive legal jurisdiction over U.S. soldiers and contractors after 2014 as part of the deal.
The U.S. declined to release specific details about the negotiations and stressed nothing was final until the gathering known as the Loya Jirga makes its decision. State Department spokeswoman Jen Psaki said the two sides continue to make progress, but "we're not there yet."
Approval by the traditional council of 3,000 prominent Afghans that begins meeting on Thursday was by no means guaranteed. The group can revise or reject any clause of the draft agreement, and a flat-out rejection would most likely prevent the Afghan government from signing it. Even if it is approved, the final decision will be made by Parliament.
The U.S. wants to keep as many as 10,000 troops in the country to train and mentor the Afghan national security forces and go after the remnants of al-Qaida. If no security agreement is signed, all U.S. troops would have to leave by the end of 2014.
Many American allies have also indicated they will not keep troops in Afghanistan if there is no U.S. presence. Billions of dollars in funding for Afghan forces and development will also likely be at stake. Afghan security forces are generally considered to be not yet fully prepared to fight the Taliban without further foreign training and international funding.
A Dari-language statement from Karzai's office said Kerry asked the president to allow U.S. troops on counter-terrorism missions to conduct operations that might require entering Afghan homes in "exceptional" circumstances.
Karzai agreed to include the wording if Kerry defends it at the Loya Jirga debate. Otherwise the Afghan leader told Kerry to wait and negotiate the final agreement with the new government following next year's elections. Karzai is barred by the constitution from seeking a third term.
In response Kerry told Karzai that the U.S. government understood that the concerns of both the government and the Afghan people stemmed from "mistakes committed by American forces in the past in Afghanistan," according to the statement. The top U.S. diplomat also promised his government would write a letter detailing what would constitute "exceptional" and offering guarantees that Kerry would address concerns and objections based on past U.S. behavior.
A senior State Department official said that during their telephone call, Karzai asked for reassurances that he could communicate to the elders at the gathering regarding the security relationship with the U.S. going forward and addressing past issues, such as civilian casualties.
The official said that Kerry told Karzai that the U.S. would consider the Afghan president's request for reassurances, including the option of a letter from the Obama administration stating the United States' position. The official offered no further elaboration on what such a letter might say.
Susan Rice, Obama's national security adviser, said the prospect of Obama apologizing to Karzai "is not on the table." "There is no need for the United States to apologize to Afghanistan," Rice said in an interview with CNN.
Rice said no letter of apology has been drafted by the White House. The deaths of Afghan civilians at the hands of U.S.-led NATO forces have been a sensitive issue in the U.S.-Afghanistan relationship, although more Afghan civilians die as a result of insurgent attacks.
The official, who spoke on condition of anonymity because they were not authorized to publicly discuss details of the conversation with the media, said that during the call, both Kerry and Karzai agreed on a need to finalize a bilateral security agreement.
Karzai invited Kerry to attend the Loya Jirga, which will be held this week amid tight security, but Kerry said it would not be possible for him to attend, the official said. Many Afghans are angry over incidents including the February 2012 accidental burning of hundreds of copies of the Islamic holy book, the Quran, a March 2012 shooting spree by a U.S. soldier in southern Afghanistan that killed 16 people, and unintended civilian deaths from U.S. bombs. The night raids are particularly offensive because they are perceived as violating the sanctity of women in the house despite U.S. claims that they are a useful tool in killing insurgent leaders.
The other sticking point is legal immunity — an issue that was a deal breaker during failed negotiations over a similar deal in Iraq before U.S. forces withdrew from that country in December 2011. Karzai's National Security Adviser Rangin Dafdar Spanta told lawmakers at a weekend briefing that the U.S. position was clear: If Washington doesn't get jurisdiction over its soldiers and civilian personnel, it won't sign the agreement, and it won't leave any U.S. soldiers in Afghanistan when international combat troops withdraw at the end of 2014.
Hakimullah Mujahed, one of the Loya Jirga's organizers, said "the security agreement with the U.S. has to be in the framework of the Afghan constitution." "The trial of foreign soldiers accused of killing innocent Afghans or committing crimes against Afghanistan should be tried in an Afghan court. That's very important," he added.
Lawmaker Khaled Pashtun from southern Kandahar, where a Taliban insurgency flourishes, disagreed. He said Washington is right to demand jurisdiction over its troops. "Our justice system is still under construction. ... Even Afghans don't trust it yet," he said in a telephone interview.
Pashtun said the government "is so weak" that it hasn't been able to arrest a southern warlord accused of killing 117 civilians. If the pact is passed, U.S. troops will have sole control over Bagram Air Field, north of Kabul, but will share facilities on eight Afghan-run bases throughout the country, Pashtun said.
The independent Afghan Analysts Network, which gave details on Spanta's briefing, said Karzai also won a key security agreement from the U.S. that promised joint action — political, economic or military — against anyone attacking Afghanistan or giving safe haven to Afghan insurgents seeking to unseat the government.
While Pakistan was not mentioned, Karzai routinely accuses its neighbor of harboring members of the Afghan Taliban. The Bilateral Security Agreement is a sweeping document that incorporates the usual Status of Forces Protection Agreement, which the U.S. signs with every country where its troops are stationed. The document covers everything from taxation and customs duties to a promise to protect Afghanistan from hostile action.
While Afghans may be divided over the agreement, they are also pragmatic and know they need international forces in the country, said Kabul University professor Hamidullah Faruqi. "They will guarantee our stability. They will show to our neighbors that Afghans are not alone, and the financial aid that will come along with this agreement will benefit Afghans, and Afghans know this," he said.
Since the Taliban were ousted following the U.S. invasion in 2001, the government has turned to the traditional Loya Jirga to decide key milestones in Afghanistan's transition to democracy, including the framing of a constitution.
In eastern Afghanistan, scores of university students wearing headbands bearing an inscription from the Quran burned an effigy Tuesday of U.S. President Barack Obama to protest the pact and its provision relinquishing prosecution of American soldiers in an Afghan court. A protest meeting also was held Monday in the Afghan capital of Kabul.
Kathy Gannon is AP Special Regional Correspondent for Afghanistan and Pakistan and can be followed on www.twitter.com/kathygannon
Associated Press writer Rahim Faiez in Kabul and Lolita Baldor and Deb Riechmann in Washington contributed to this report.