Legally, the 33,600 U.S. forces still deployed are covered by an existing status-of-forces document that took effect shortly after 9/11 and the start of America's engagement in Afghanistan. The existing agreement has no expiration date and prevents U.S. military personnel from being prosecuted under Afghan law—a must-have for status-of-forces agreements the U.S. signs with countries around the world.
"Unless the Afghans or the United States cancel the existing SOFA, it remains in effect," said retired Col. Manuel Supervielle, who was the lead lawyer for U.S. forces in Afghanistan in 2005 and 2006, worked on such agreements for U.S. troops stationed across the globe and advised on the drafting of the current bilateral security agreement that Afghan President Hamid Karzai says he won't sign.
U.S. officials privately acknowledge there is no legal reason that would force Obama to withdraw all troops if the new security agreement is not signed by Dec. 31, when the international combat mission ends. Yet even though a full troop exodus is not the administration's preferred option, blunt rhetoric coming from U.S.
National Security Adviser Susan Rice conveyed that message to Karzai when she was in Afghanistan in November. According to the White House account of their meeting, Rice told Karzai that "without a prompt signature, the U.S. would have no choice but to initiate planning for a post-2014 future in which there would be no U.S. or NATO troop presence in Afghanistan."
Last month, Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, told reporters traveling with him in Afghanistan that while the U.S. remains committed to helping Afghanistan after this year, "I can't ask the young men and women to serve in a country without the protections afforded by a bilateral security agreement."
Daoud Yaqub, a former official at Afghanistan's National Security Council, said there is no legal foundation for that argument because the existing status-of-forces agreement would remain in effect.
"To state that there is no legal cover for U.S. troops in Afghanistan beyond 2014 is not accurate, in my view," Yaqub said. "Whoever is making such an assumption is not motivated by legal issues, but by other things—perhaps politics."
Both the existing status-of-forces agreement and the new bilateral agreement give the U.S. criminal jurisdiction over American personnel and troops accused of crimes while they are in Afghanistan, preventing them from being subject to Afghan prosecution.
Other nations with troops in Afghanistan have said they won't stay without a U.S. presence and the exit of all international forces would jeopardize billions in foreign aid pledged to fund the Afghan security forces and help finance development in the impoverished country.
At a Senate Armed Services Committee hearing on Wednesday, the top commander of U.S. and international forces in Afghanistan was asked to identify the latest date that the U.S. could wait for the Afghan government to sign a new bilateral security agreement before it would have to proceed with implementing a total withdrawal by year-end.
"I wouldn't do anything different between now and July. ... Beginning in July, I think we have manageable risk during the months of July and August, and then I would assess the risk of an orderly withdrawal begins to be high in September, and that's simply a function of the tasks that have to be accomplished and how many days it needs to accomplish those tasks," Gen. Joseph Dunford said.
He said if Afghanistan eventually does sign a new bilateral security agreement, he would feel comfortable with a residual international force of between 8,000 and 12,000 troops to assist, train and advise Afghan forces. He says America would provide two-thirds of those troops and also would keep an additional few thousand forces in Afghanistan to conduct counterterrorism operations.
Without a post-2014 residual force, Dunford said there was a risk that the Afghan security force would deteriorate, units would run out of fuel, pay systems would fail and there would be a reduction in the overall readiness of the Afghan police and army. He also said al-Qaida was in "survival mode" in Afghanistan, but that if all international forces left this year, the terrorist network would see it as a victory, regroup and again use the region to plan and conduct operations against the West.
For now, the Obama administration continues to hold firm in its standoff with Karzai.
"The U.S. and the Afghan governments have long agreed on the need for any future U.S. military presence to be on a new basis, with a new invitation—the one now reflected in the draft BSA," Defense Department spokeswoman Elissa Smith said in a written statement. "As we have made clear, we need a willing and committed partner to pursue a post-2014 mission, and the conclusion of the BSA therefore remains a necessary prerequisite for any post-2014 U.S. military presence."
Obama last month ordered the Pentagon to accelerate planning for a full U.S. troop withdrawal by the end of this year. Still, he holds out hope that the agreement will be signed because the administration would like to leave up to 10,000 troops in Afghanistan to continue training, advising and assisting Afghan security forces and conducting counterterrorism missions.
Obama's order, following his first phone call with Karzai since June, appeared aimed at marginalizing the longtime Afghan leader's role in the high-stakes negotiations over the future of the lengthy American-led war. Karzai has deeply irritated Washington with anti-American rhetoric, as well as with his recent decision to release 65 prisoners over the objections of U.S. officials.
Karzai has ignored the recommendations of a council of more than 2,500 Afghan elders, who not only approved the agreement but urged him to sign it. Karzai also outlined new conditions for signing, saying the U.S. must curb night raids on Afghan homes and demonstrate a sincere commitment to help start stalled peace talks with the hard-line Taliban insurgents.
Moreover, he said the U.S. should wait to finalize the agreement with his successor. If there is no clear winner of the April 5 presidential election, there could be a second-round ballot. By some estimates, that could mean Afghanistan would not have a new president until late this year, giving the U.S. military even less time to implement plans for a post-2014 presence.