White House spokesman Josh Earnest said the 300 special operators the U.S. is sending to Iraq as advisers will have certain protections from being prosecuted for possible crimes if they are forced to defend themselves.
The protections fall short of guaranteed immunity from crimes, but Earnest said it will provide protections for the arriving servicemen similar to those enjoyed by the remaining U.S. personnel at the embassy.
There has been an “exchange of diplomatic notes that give us the needed assurances,” Earnest said, referring to legal agreements between Iraqi and U.S. government officials.
Prime Minister Nouri al-Maliki is requesting the injection of U.S. military advisers, which helps assure U.S. officials that the Iraqi government won't turn around and try to pin them with potential crimes if they get pulled into some type of combat.
President Obama last week announced he would send 300 special operators into Iraq to help the country's security forces on intelligence, training and reconnaissance, and provide precise targeting if and when the U.S. decides to launch airstrikes against an al Qaeda-inspired extremist group that has taken control of a large swath of northern Iraq.
John Bellinger III, an attorney with Arnold and Porter who served as a legal adviser for the State Department and the National Security Council during President George W. Bush's administration, said it's possible that U.S. could have negotiated to have Iraqi officials add the military advisers to the list of “administrative and technical personnel” who are assigned to the U.S. embassy and given diplomatic immunity.
The Vienna Convention on Diplomatic Relations, an international treaty signed in 1961, protects all diplomats from legal prosecutions in order to allow them to do their jobs without fear of reprisal from the host country.
"This would give the advisers diplomatic immunity for their official acts," Bellinger said.
Greg Rinckey, managing partner at Tully Rinckey who specializes in military law, said it's difficult to assess the level of legal protection the Iraqi government is providing the 300 special operators without reading the diplomatic notes exchanged.
Still, he said, he's confident the Pentagon wouldn't agree to send the forces without solid agreements from al-Maliki that the government wouldn't turn around and try to pin crimes on the troops.
"I feel like it's pretty clear that we're not going to allow our servicement to be prosecuted in any way," he said.
The issue of immunity for a potential U.S. residual troop presence in Iraq was a sticking point in negotiating a Status Forces Agreement with al-Maliki in 2011.
Al-Maliki refused to agree to an immunity deal, and Obama has cited that intransigence as the reason he decided to pull all troops out of Iraq at the end of 2011.
Key Republicans argue that the Obama administration did not push hard enough to negotiate the Status of Forces deal.
Al-Maliki moved to consolidate his power after the U.S. left in 2011 by purging Sunnis from positions of leadership in the government and military.
Obama administration officials say Iraq must choose its own leaders, but privately indicated that al-Maliki should not serve a third term because of the steps he took to alienate Sunnis over the last three years.
Secretary of State John Kerry, during a surprise visit to Iraq Monday met with al-Maliki, as well as Sunni and Kurdish leaders, and afterward said al-Maliki assured him several times that the Iraqi parliament would convene July 1 to choose a new government, including a speaker, a president and a prime minister.
"He committed to try to move that process as expeditiously as possible," Kerry said.