By Frud Bezhan

For both Kabul and Washington, having a traditional gathering of Afghan tribal chiefs and political leaders decide the fate of a contentious bilateral security deal offers strategic advantages.

The Loya Jirga, which opens on November 21, can provide legitimacy to the decision-making process, whatever the outcome. If the gathering backs a deal that would allow for a U.S. troop presence after 2014, both Kabul and Washington can say it reflects national consensus. If the terms of a draft agreement are rejected, it can provide an out for the negotiating parties that can be chalked up to the will of the people.

It was Afghan President Hamid Karzai’s idea, after months of wrangling between Washington and Kabul over the terms of a long-term security arrangement, to let the Loya Jirga decide on the matter. Technically, the Loya Jirga’s decision is not legally binding — the Afghan parliament must accept any agreement for it to be ratified — but lawmakers would take their cue from the traditional gathering. And because each of the 2,500 or more participants is handpicked by the government, Karzai can use his influence to shape the proceedings the way he wants.

If Karzai is truly interested in having the United States help maintain security down the road, for example, the Loya Jirga can help him sell it to the Afghan people.

According to Thomas Ruttig, co-director of the Afghanistan Analysts Network, an independent research organization in Kabul, Karzai needs consensus, or at least the appearance of consensus, to ratify the controversial agreement.

“Loya Jirgas are seen amongst Afghans as the reflection of the will of the Afghan nation,” he says. “President Karzai, of course, needs support if he wants to have an agreement with the U.S. We have seen, of late, that there is a lot of opposition to it.”

Bones Of Contention

When the consultative Loya Jirga opens, participants from around the country will debate a draft version of a Bilateral Security Agreement (BSA) and an associated Status of Forces Agreement (SOFA) with the United States. The agreements, if signed, would authorize a further 10-year U.S. military presence in Afghanistan.

In the run-up to the gathering, major points of contention were evident. On November 19, reports emerged that President Karzai would be willing to drop his objections to U.S. troops being able to participate in raids of Afghan homes and mosques if U.S. President Barack Obama admitted to military “mistakes” made during the 12-year war.

That quid pro quo appeared to have replaced an earlier one that centered on Kabul agreeing to Washington’s demand that any remaining U.S. troops be granted immunity from Afghan law, in exchange for the U.S. agreeing to allow Afghan forces to conduct all raids.

Washington has given strong indications that it is not in the mood to negotiate, saying it could take the “zero option” of pulling out all its forces if its demands are not met.

Afghans, meanwhile, have vented their anger at Washington’s unbending demands. Hundreds of people have taken to the streets over the past two weeks to protest any deal that would allow U.S. troops to remain on Afghan soil.

Numerous incidents involving U.S. soldiers have fueled animosity over the U.S. presence. They include: the burning of hundreds of copies of the Koran at a U.S. military base in 2012; a rampage by a U.S. soldier in southern Afghanistan that left 16 civilians dead, many of them women and children; images of abuse carried out by U.S. troops against Afghan prisoners; and the deaths of civilians by U.S. airstrikes.

If the United States intends to smooth things over with the Afghan people, the Loya Jirga could also help with this.

U.S. troops could stay on the ground with the blessing of a respected institution that represents, at least in theory, the voice of the Afghan people.

‘An Incredibly Smart Move’

In Ruttig’s view, a deal would also have staying power because the Loya Jirga’s decision could not be easily revoked by the next Afghan administration after the country’s presidential election in April.

“Since the Loya Jirga, according to the Afghan Constitution, is the embodiment of the highest will of the Afghan nation, it will be very difficult for the next parliament, or even the existing parliament, to undo it,” he says.

On the other hand, if the Afghan government or the United States is willing to walk away from the bargaining table, each could use the Loya Jirga’s rejection of a deal as political cover.

Michael Shank, adjunct faculty at George Mason University’s School for Conflict Analysis and Resolution, believes it is a wise strategy by Karzai to give the final decision to the Loya Jirga.

“It’s an incredibly smart move by Karzai to say ‘let’s let the Loya Jirga decide’ and therefore share responsibility for a decision that could go very badly.”

Shank,¬†who is also the director of foreign policy at the Friends Committee on National Legislation, says the United States could also use the Loya Jirga’s disapproval as an excuse to cut its losses and pull out of Afghanistan.

In the United States, the popularity of the Afghan war is at an all-time low and the thought of more troop and financial expenditures does not sit well with many Americans.

Shank suggests that any excuse to cut the losses would be welcome in some quarters in Washington.

“The U.S. is probably fine washing their hands of this and saying to the American public that ‘we tried working with Karzai and local leaders through the Loya Jirga to come to some compromise, but they were the ones who rejected us,” he says. “We can’t force our will on people, so we have to leave.”