On Thursday, November 21, 2013, a council of roughly 3,000 Afghan tribal elders, civic leaders and other prominent figures gathered to debate the draft bilateral security agreement (BSA) between Afghanistan and the United States. The council, referred to as a loya jirga (which means “grand council” in Pashto), was called by Afghan President Hamid Karzai to discuss and advise on the terms of the security pact. By the end of the four-day convention, the vast majority of the Jirga voted to approve the BSA and urged Karzai to sign the agreement without delay. Despite the Jirga’s overwhelming endorsement, however, Karzai declared that he would wait to approve the BSA until after he receives several assurances from the U.S. Karzai has maintained this line for the past four months, steadfastly resisting signing the agreement to the apparent dismay of the Afghan people. This controversy has sparked debate over the role the loya jirga plays in Afghan governance and, particularly because a loya jirga is presumed to reflect the will of the Afghan people, its overall influence in Afghan politics.
Traditionally, a jirga is a tribal assembly of elders that makes decisions by consensus, with its roots deeply embedded in Afghan history. According to the Afghanistan government’s website, the jirga legacy stretches back to the times of ancient Aryans and the Kushan Dynasty where “councils of elders and influential people” came together to resolve issues and make major decisions. Arguably the most important convocation took place in 1747 when Pashtun tribal chiefs gathered to elect the king who would then found the state of Afghanistan. Since then, loya jirgas have elected presidents, engaged in peace talks and dictated the course of defense and military operations.
The convocation Karzai called together in November functioned solely in a consultative capacity. While the concept of a loya jirga is unique to Afghanistan, it is based on the Islamic principle of “Shura” – the practice of resolving mutual disputes through consultation. Consultative loya jirgas, also referred to as traditional loya jirgas, “have been the vehicle to solve issues from tribal disputes to national matters and international affairs as faced by the Afghan state.” The loya jirga is not a legislative body and its decisions are not binding; nor does it have the authority to ratify or veto any presidential action. The consultative loya jirga is typically called together only to discuss matters of national importance and make recommendations on the issues in question.
The function of the loya jirga as a political tool has garnered both criticism and support from the international public. Some skeptics view the jirga’s convocation as a mere “invented tradition,” essentially created “to rubber stamp decisions made by a king, or in recent times, by President Karzai.” A more charitable characterization, one might say, highlights the jirga’s utility as a conclusive barometer of Afghan public opinion, thus creating a type of collective responsibility that mitigates presidential accountability in making such important decisions. But from either lens, convening a loya jirga is also a way for the political leader to gain credibility by being able to say that he has consulted with the people and that his decisions, once approved, reflect their will.
In the traditional manner, members of a loya jirga, the majority of whom are older Muslim clerics, are selected by their communities across Afghanistan. While more recent reports indicate that members are handpicked by the president, the precise selection process remains shrouded by mystery. The Afghanistan government’s website outlines the numerous preparatory committees involved in the logistics, appointment and administration of November’s loya jirga but falls short in identifying the protocol used for the appointment process.
Over the course of a particular jirga, members split up into smaller groups for debate in town-hall style meetings before reconvening for a final vote. Noted Afghan historian Thomas Barfield observed the loya jirga that was convened to consult on the Afghan constitution in 2004. In an interview with Nate Rawlings for Time, Barfield illustrates the inner workings of a jirga and sheds light on how it ultimately operates:
“During the constitutional loya jirga, proposed sections of the constitution were read aloud, and when someone was unhappy with a proposal, he left. [S]omeone would run after him, they would discuss the issue outside and cut a deal…. ‘There are no losers, that’s the essence of the loya jirga,’ Barfield says. ‘It’s a consensus thing. It’s not a question of two-thirds majority; it will vote unanimously, because the dissenters will refuse to attend and refuse to vote.’”
Indeed, the loya jirga process is different from most political gatherings. Delegates listen and argue, but when someone disagrees, generally he walks out. If enough people walk out, as Barfield explains, the jirga is illegitimate, but no one wants to be the only person to leave. It is precisely because of the unique procedural character, and the consequent overwhelming influence the loya jirga wields, that Karzai’s refusal to sign the BSA came as such a shock – to both the international community at large, and, more notably, to the Afghan citizens themselves.
 See Kathy Gannon, Lawmaker: Afghans Wary of U.S. Pact Concession, Military Times (Nov. 19, 2013), http://www.militarytimes.com/apps/pbcs.dll/article?AID=2013311190002. While various media outlets have placed the number of Jirga representatives at between 2,500 and 3,000, Afghanistan’s government website reports that the preparatory committee sought 2,030 – 2,500 delegates for this particular convocation. See Members of the Traditional Loya Jirga, Afghanistan Loya Jirga, http://jirga.gov.af/en/page/2956/2717 (last visited Feb. 11, 2014).
 Masoud Popolzai & Ben Brumfield, Loya Jirga Approves U.S.-Afghan Security Deal; Asks Karzai to Sign, CNN (5:48 AM, Nov. 24, 2013), http://www.cnn.com/2013/11/24/world/asia/us-afghanistan-security-agreement/.
 See Ian Pannell, US Planning Full Afghan Pullout, Obama Tells Karzai, BBC (Feb. 24, 2014), http://www.bbc.com/news/world-us-canada-26346115?utm_source=Sailthru&utm_medium=email&utm_term=*AfPak Daily Brief&utm_campaign=South Asia Daily Brief 2-26-14.
 Consultative Loya Jirga – Preparation Commission, Afghanistan Loya Jirga, http://jirga.gov.af/en/page/preparation-commission-for-convention-of-consultative-loya-jirga/consultative-loya-jirga (last visited Feb. 11, 2014).
 Tom A. Peter, What is a Loya Jirga? Afghanistan’s Most Pivotal Jirgas Since 2002, Christian Science Monitor, http://www.csmonitor.com/World/Asia-South-Central/2011/1116/What-is-a-loya-jirga-Afghanistan-s-most-pivotal-jirgas-since-2002/June-2002-Karzai-becomes-president (last visited Feb. 11, 2014); see also Becca Mopper, Karzai Government “Talks” with Taliban – The Explanation, Detained by U.S. (Aug. 18, 2011), http://www.detainedbyus.org/karzai-government-“talks”-with-taliban-–-the-explanation/.
 Dan Murphy, What is a Loya Jirga Anyways?, Christian Science Monitor (Nov. 21, 2013), http://www.csmonitor.com/World/Security-Watch/Backchannels/2013/1121/What-is-a-loya-jirga-anyways.
 Nate Rawlings, Afghanistan’s Big Tent Politics: Time Explains the Loya Jirga, Time (Nov. 20, 2013), http://world.time.com/2013/11/20/afghanistans-big-tent-politics-time-explains-the-loya-jirga/.
 Greg Myre, Everything You Wanted to Know About an Afghan Loya Jirga, National Public Radio (12:45PM, Nov. 21, 2013), http://www.npr.org/blogs/parallels/2013/11/21/246536898/everything-you-wanted-to-know-about-an-afghan-loya-jirga.
 See, e.g., Rawlings, supra note 12, quoting Thomas Barfield: “Who controls the invite list? It’s the leader. If a jirga goes against you, it’s a bad change in the political wind.”
 Consultative Loya Jirga, supra note 8.
 Rawlings, supra note 12.