Thursday, November 20, 2008

Foreign Affairs Committee background on the treaty

This is a memo regarding the treaty masquerading as the SOFA. The Subcommittee on International Organizations, Human Rights and Oversight of the House Committee on Foreign Affairs compiled it and it's available online in PDF format here.

Committee on Foreign Affairs
Subcommittee on International Organizations,
Human Rights, and Oversight
November 18, 2008
TO: Members, Committee on Foreign Affairs
FROM: Bill Delahunt, Chairman
Subcommittee on International Organizations,
Human Rights, and Oversight
SUBJECT: Hearing on “Renewing the United Nations Mandate for Iraq:
Plans and Prospects”
Wednesday, November 19, 2008, at 10:00 a.m. in 2175
Rayburn House Office Building
This is the eighth in a series of hearings by the Subcommittee on
International Organizations, Human Rights, and Oversight on various
aspects of security arrangements and combat authority for U.S. forces in Iraq
-- ranging from the existing UN Mandate to the draft bilateral agreement
now under consideration by the Iraqi Parliament. This memorandum
provides a timeline for those hearings and other Subcommittee and
administration actions, and addresses a number of key questions:
 If the bilateral security agreement is not consummated by the
current Mandate’s expiration date of December 31, 2008, is it
politically possible for Iraq to seek and receive a renewal of
the UN Mandate -- which currently provides both domestic
and international combat authority and legal immunities to
U.S. forces?
 Can the bilateral agreement be legally consummated without
the approval of the U.S. Congress?
 What level of approval by the Iraqi Parliament (two-thirds or
one-half) is required for the bilateral agreement to be legally
Timeline of Administration and Subcommittee Action
November 26, 2007 -- President Bush and Prime Minister al-Maliki sign a
“Declaration of Principles for a Long-Term Relationship,” pledging to
negotiate by July 2008 a series of bilateral commitments that would replace
the UN Mandate when it expires at the end of 2008, as well as terminate
other obligations placed on Iraq by the UN Security Council since 1990.
This document envisions a wide-ranging set of commitments covering
political, economic, and security spheres. Key excerpts from the Declaration
imply a U.S. commitment to engage in combat on behalf of the Iraqi
Government against foreign and internal enemies, as well as against a coup.
December 5, 2007 – Chairman Delahunt sends a letter to the administration
asking its position on the claim by a majority of Iraqi Members of
Parliament that they must approve any extension of the UN Mandate.
December 18, 2007 -- UN Security Council approves one-year renewal of
the Mandate for Multinational Forces in Iraq, to expire on December 31,
December 19, 2007 -- Subcommittee hearing titled “The Extension of the
United Nations Mandate for Iraq: Is the Iraqi Parliament Being Ignored?”
Testimony at this first hearing indicates that the renewal of the UN Mandate
was requested by Prime Minister al-Maliki and the Iraqi executive branch
over the opposition of a majority of the Iraqi Council of Representatives, or
parliament. The parliamentarians signed a letter and passed legislation
stating that the Iraqi Constitution required parliamentary approval of
“international treaties and agreements” of this nature, and calling for the
inclusion of a timetable for the withdrawal of U.S. troops. Testimony also
demonstrates that the Maliki Government repeatedly stated its intention to
seek parliamentary approval of the request for an extension of the UN
Mandate, but failed to do so.
January 10, 2008 -- State Department responds in writing to the Chairman’s
letter of December 5, stating that it considers the Iraqi request for an
extension valid without the approval of Parliament.
January 23, 2008 -- Subcommittee hearing held jointly with the
Subcommittee the Middle East and South Asia, and titled: “The Proposed
U.S. Security Commitment to Iraq: What Will Be in it and Should it Be a
Treaty?” Testimony at this second hearing reveals broad agreement among
the witnesses that any agreement that included commitments to defend the
Government of Iraq against internal and external enemies, as promised in the
November 26 Declaration of Principles, would require the approval of both
Houses as a congressional-executive agreement, or ratification by the Senate
as a treaty. In addition, testimony indicates that the Administration has not
yet taken a series of consultative steps with Congress that are required by
both law and regulation at the beginning of any “significant” international
February 8, 2008 -- Subcommittee hearing titled: “The November 26
Declaration of Principles: Implications for UN Resolutions on Iraq for
Congressional Oversight.” Testimony was taken from public witnesses
with expertise on U.S. law and UN procedures.
February 8, 2008 -- Chairman Delahunt sends a letter to President Bush
asking for the administration’s interpretation of the source of its legal
authority to engage in combat in Iraq.
February 28, 2008 -- Subcommittee hearing titled: “Status of Forces
Agreements and UN Mandates: What Authorities and Protections Do They
Provide to U.S. Personnel?” Testimony was taken from Congressional
Research Service lawyers, including SOFA expert Chuck Mason, who
reviewed existing SOFAs and found none that included “authority to fight.”
March 4, 2008 -- Subcommittee hearing held jointly with the Subcommittee
the Middle East and South Asia, and titled “Declaration and Principles:
Future U.S. Commitments to Iraq.” Testimony was taken from
Ambassador David Satterfield, the State Department’s lead negotiator on the
bilateral agreement.
March 17, 2008 -- State Department responds to the Chairman’s letter of
February 8 with a letter rejecting the previous testimony of public legal
scholars, who had argued that U.S. domestic combat authority would expire
with the UN Mandate.
June 4, 2008 -- Subcommittee briefing titled: The Future of U.S.-Iraqi
Relations: The Perspective of the Iraqi Parliament” This briefing featured
testimony from two Iraqi Members of Parliament, Sheik Khalaf al-Ulayyan
and Professor Nadeem al-Jaberi. They presented a letter signed by members
of Parliament representing a majority of the parliament, which stated that a
two-thirds’ majority would be needed to affirm an international agreement.
July 23, 2008 -- Subcommittee hearing titled: “Possible Extension of the UN
Mandate for Iraq: Options. Testimony is taken from public witnesses on
Iraqi public opinion on various options for continued U.S. involvement. In a
briefing after the hearing, current Member of Parliament and former interim
Prime Minister of Iraq Ayad Allawi testifies on his party’s willingness to
accept an extension of the UN Mandate.
October 29, 2008 -- Chairman Delahunt and Representative Rosa DeLauro
send a letter to President Bush asking for immediate attention to laying the
groundwork at the United Nations for a renewal of the UN Mandate.
November 2008 -- U.S. and Iraqi negotiators announce concurrence on the
security agreement; the Iraqi cabinet re-opens negotiations with over 100
suggested changes; the administration and Iraqi negotiators agree on a new
document, which is approved by the Iraqi Cabinet on November 16 and
signed by U.S. Ambassador Ryan Crocker and Iraqi Foreign Minister
Hoshyar Zebari and submitted to the Iraqi Parliament on November 17.
First readings are held that day in Parliament of a bill approving the
agreement and a bill establishing the constitutional process for approving
international agreements.
Is a UN Mandate Renewal a Viable Option?
1. Iraqi Foreign Minister Hoshyar Zebari, September 11, 2008, interviewed
by the Saudi newspaper Asharq al-Awsat:
“If such an agreement is not signed -- which is a possibility – the
alternative would be for the United States to go to the Security Council in
agreement with the Iraqi government. We may request that the
Security Council resolution be extended for one year…If an
extension takes place, it will be a routine one. However, if the Iraqi
government asks for amendments and changes on the resolution, I
believe that the United State will use its veto power.”
2. Dr. Omar Abdelsattar Al-Karbuli, Member of Parliament from the
Islamic Party (part of the Iraqi Accord Front), November 17, 2008, from
the website of the Islamic Party:
Al-Karbuli said that "many complications will stand in the way of the
passing of the security agreement with the U.S. in parliament."
Al-Karbuli added, "The Council of Representatives has not passed the
law on treaties and agreements, in addition to lack of clarity on the voting
process and applying the law to the agreement by the parliamentarians."
Al-Karbuli clarified that "The Accord Front opposes the passage of the
agreement at this time, and supports working towards extending the
mission of the U.S. forces through a UN mandate. After the mandate
is extended, negotiations on the agreement should be resumed."
Al-Karbuli said that "giving the parliament one week to vote on the
agreement is not enough and does not allow a clear discussion of the
articles of the agreement." He added that he expects "the government
parties to put great effort into getting the agreement passed in the
parliament next week."
3. Current Member of Parliament and former Interim Prime Minister of Iraq
Dr. Ayad Allawi, July 23, 2008, in testimony before the Subcommittee:
“Extension of the UN Security Council resolution under Chapter 7 is an
option, but may be unacceptable in Iraq. A second option is a UN
Security Council resolution, but under Chapter 6. This option and its
ramifications need to be studied carefully because we are concerned
about the protection of Iraqi assets from claims by international creditors.
Either one of these two temporary options would give us more time
to negotiate a more permanent agreement in a transparent,
cooperative manner.”
“It is necessary to consider and present alternative legislation that
promotes the position of Iraq and its national unity. Another concept that
should be considered is proposing legislation that would either renew the
UNSC resolution, even if some minor adjustments were made to it, or
proposing legislation that contains a bundle of three interdependent
(a) Signing a strategic agreement with minor adjustments (different
from SOFA) that will be presented along with but separate from
(b) Issuing a joint declaration to discuss SOFA during a year or the
next year.
(c) Extending the UN mandate for another six months or one
4. Current Member of Parliament and former Interim President of Iraq Dr.
Ayad Allawi, November 14, 2008, in a letter to Chairman Delahunt:
“Therefore we believe for any bilateral agreement to be signed it would
be better to be done after the withdrawal of the American troops, when
Iraq is fully qualified and when the government is in a position to
defend the interests of the Iraqi people. We are also concerned about the
expediency and acceleration of signing this agreement, because there has
been very little time that has elapsed since the Declaration of Principles
and until this agreement is to be signed, and I do not believe it is
appropriate, it may not be convenient at this time, for the United States as
it is beginning to change its administration -- and therefore I ask when we
look into this agreement that it be delayed until a more convenient time.”
5. Member of Parliament Dr. Nadim al-Jaberi, June 4, 2008, in testimony
before the Subcommittee:
“Iraqi officials have said they would seek a renewal of the UN mandate if
the pact, which would allow American troops to stay in Iraq through
2011, is not passed by parliament by the end of the year.”
-- Associated Press news story, November 14, 2008.
Is Congressional Approval Required?
1. This statement by President-elect Barack Obama and Vice-president-elect
Joe Biden was posted on the Obama-Biden website during the campaign:
“Obama and Biden believe any Status of Forces Agreement, or any
strategic framework agreement, should be negotiated in the context of
a broader commitment by the U.S. to begin withdrawing its troops and
forswearing permanent bases. Obama and Biden also believe that
any security accord must be subject to Congressional approval. It
is unacceptable that the Iraqi government will present the agreement
to the Iraqi parliament for approval—yet the Bush administration will
not do the same with the U.S. Congress. The Bush administration
must submit the agreement to Congress or allow the next
administration to negotiate an agreement that has bipartisan support
here at home and makes absolutely clear that the U.S. will not
maintain permanent bases in Iraq.”
2. This statement appears on President-elect Obama’s transition website:
Obama and Biden believe it is vital that a Status of Forces Agreement
(SOFA) be reached so our troops have the legal protections and
immunities they need. Any SOFA should be subject to Congressional
review to ensure it has bipartisan support here at home.
3. On August 1, 2008, Senator Biden introduced a bill (S. 3433) with
Senators Chuck Hagel, Robert Casey, George Voinovich, and Jim Webb that
requires congressional approval and urges an extension of the UN Mandate
for Iraq until such approval is obtained:
“Prohibition on Entry Into Force of Certain Agreements- No
agreement containing a security commitment to, or security
arrangement with, the Republic of Iraq, may enter into force
except pursuant to Article II, section 2, clause 2 of the Constitution of
the United States (relating to the making of treaties) or unless
authorized by a law enacted on or after the date of the enactment of
this Act pursuant to Article I, section 7, clause 2 of the Constitution
(relating to the enactment of laws).”
“The notion that Iraq’s leaders plan to submit the agreement to their
Parliament – but our President does not – makes no sense,” Senator Biden
said in a press release. “The President cannot make such a sweeping
commitment on his own authority. Congress must grant approval first.”
4. On December 6, 2007, Senator Hillary Clinton introduced a bill (S. 2426)
that has been cosponsored by Senator Obama and 12 other Senators that
requires congressional approval of any security agreement with Iraq
“involving ‘commitments or risks affecting the nation’”:
“Prohibition on Use of Funds To Carry Out Certain Agreements- No
funds may be authorized or appropriated to carry out any
bilateral agreement between the United States and Iraq involving
`commitments or risks affecting the nation as a whole', including a
status of forces agreement (SOFA), that is not a treaty approved by
two-thirds of the Senate under Article II of the Constitution or
authorized by legislation passed by both houses of Congress.”
5. On March 13, 2008, Chairman Delahunt introduced H.R. 5626, which is
cosponsored by Representative Rosa DeLauro and 14 other Members of
Congress, which would require congressional approval of any security
agreement with Iraq and urges the Administration to support an Iraqi request
for an extension of the UN Mandate (Ms. DeLauro had previously
introduced a similar bill, H.R. 4959):
“No funds appropriated or otherwise made available to any
department or agency of the United States may be used--
(1) to establish or maintain any permanent or long-term United States
military base or facility in Iraq; or
(2) to implement any agreement that is consistent with the
security commitments of the United States to Iraq under the
Declaration of Principles, including the security commitments
described in subparagraphs (A) through (C) of section 1(2) of this Act,
or any agreement that provides `authority to fight' for United
States Armed Forces engaged in combat operations, other than for
self-defense purposes, unless the agreement is in the form of a treaty
with respect to which the Senate has given its advice and consent to
ratification under Article II of the Constitution of the United States or
the agreement is approved by an Act of Congress enacted after the
date of the enactment of this Act.”
6. On May 22, 2008, an amendment by Representative Barbara Lee to
require congressional approval of any security agreement with Iraq passed
the House by a vote of 234 to 183 (Ms. Lee also introduced a bill with a
similar prohibition, H.R. 6846, on September 9, 2008, which has eight cosponsors):
“No provision of any agreement between the United States and Iraq
described in section 1212 (a)(1)(A)(iv) shall be in force with respect
to the United States unless the agreement--
(1) is in the form of a treaty requiring the advice and consent of the
Senate (or is intended to take that form in the case of an agreement
under negotiation); or
(2) is specifically authorized by an Act of Congress enacted after the
date of the enactment of this Act.”
7. On March 4, 2008, constitutional scholar Professor Oona Hathaway (then
of the Yale Law School but now of the Berkeley Law School) testified that
before the Subcommittee that:
“(A)n agreement that would provide authority to engage in military
action in Iraq would exceed the President’s own constitutional
authority and thus must be approved by Congress.”
On November 7, 2008, Ms. Hathaway indicated in a memorandum to me
that the proposed agreement is not a traditional, executive branch Status of
Forces Agreement (SOFA) and would require congressional approval for
two reasons -- its provision of combat authority that only Congress can
provide once the UN Mandate expires, and the involvement of another
country in the approval of U.S. military operations:
“Domestic legal authority to engage in military operations in Iraq
expires on December 31, 2008. The bilateral agreement does not
replace that authority unless it is approved by Congress.”
“The administration has argued that the bilateral agreement with Iraq
may be concluded by the President as a sole executive agreement
because it is simply a status of forces agreement (SOFA), more than a
hundred of which have been concluded as sole executive agreements.
That is, however, not correct. Although this agreement has been
called a SOFA, it includes provisions that have never been a part of
any prior SOFA of which I am aware—most notably, provisions
granting the authority for U.S. troops to engage in military operations,
the grant of power over military operations to a joint U.S.-Iraq
Committee, and a specification of timetables for military operations.
These non-traditional extra-SOFA commitments go beyond the
President’s own constitutional authority and must be approved by
8. On February 20, 2008, legal specialist Chuck Mason of the Congressional
Research Service concluded from his review of scores of Status of Forces
Agreements (SOFAs) that the proposed agreement would be unique among
SOFAs if it provided combat authority:
“Authority to Fight: SOFAs do not generally authorize specific
military operations by U.S. forces….While SOFAs do not generally
provide authority to fight, the inherent right of self-defense is not
impacted or diminished either.”
Is Two-thirds or One-half the Standard for Approval by the Iraqi
1. Article 61 of the Iraqi Constitution states:
“The Council of Representatives specializes in the following:
…..Fourth: A law shall regulate the ratification of international
treaties and agreements by a two-thirds majority of the members of
the Council of Representatives.”
2. “The Iraqi constitution determines that the Council of Representatives
must first enact a law to ratify the Law of Treaties and Agreements, and
must vote or pass this law through parliament by a two-thirds majority.
This law will take long time to pass due to the two-thirds requirement, so
it will not be enacted before the end of this year. We are constitutionally
barred from ratifying any agreements without the enactment of this law
and the law has not been enacted so far.
The negotiating team is not authorized to take any decision until they
go back to Mr. Prime Minister. If he approves it, it will be sent to the
Political Council for National Security, and if it is approved by the
Political Council for National Security with two-thirds majority, then
they can send it to the parliament. The parliament must wait until it
enacts the law to ratify international treaties and agreements, then we
can submit the U.S.-Iraqi agreement to the parliament after the
approval of this law.”
-- Dr. Mahmoud Al-Mashhadani, Speaker of the Iraqi Parliament,
interviewed by the satellite news service al-Arabiya, August 31, 2008.
3. “The decision to accept or reject the agreement will require a long time
for reasons related to the legal proceedings that the agreement must go
through. Ratifying the agreement will require a 2/3 majority vote of
members of parliament.”
-- Khalid Shuwani, Member of Parliament, Legal Committee, October
25, 2008
4. “We were also very concerned when this agreement was not going to be
proposed in front of part of the Iraqi parliament, and this goes against the
Iraqi constitution. And you cannot put any agreement into application in
Iraq in accordance with the constitution unless you have majority or
2/3rds approval in parliament. Therefore not presenting it to parliament
might be a factor in the agreement failing.”
-- Dr. Nadim al-Jaberi, Member of Parliament, June 11, 2008, in
testimony before the Subcommittee.
5. “We, the undersigned members of the council, wish to confirm your
concerns that any international agreement that is not ratified by the Iraqi
legislative power is considered unconstitutional and illegal, in accordance
with the current rulings and laws of the Iraqi Republic. Furthermore, any
treaty, agreement, or “executive agreement” that is signed between Iraq
and the United States will not be legal and will not enter the stage of
implementation without first being ratified by the Council of
Representatives, in accordance with section four of article 61 of the Iraqi
-- Letter to Chairman Bill Delahunt, signed by parliamentarians
representing a majority of the Iraqi Parliament, May 29, 2008.
6. “Section four of Article 61 stipulates that the Parliament shall enact a law
by a two-thirds majority vote to regulate the approval of international
treaties and agreements. Apparently, no such law has been enacted. The
law regulating the approval of international treaties and agreements is a
procedural one, and does not affect the basic constitutional duty of
Parliament to approve all international treaties and agreements. In the
absence of such a law, each time the Parliament approves an international
treaty or agreement the act of approval becomes itself the procedural law
for that specific treaty or agreement and requires therefore a two-thirds
majority vote.”
-- Issam Michael Saliba, Senior Foreign Law Specialist, Law Library
of Congress, in testimony before the Subcommittee, December 19,
7. “According to the Iraqi Constitution, it is the job of the Iraqi Council of
Representatives, the Iraqi Parliament, to ratify international treaties. This
requires a two-thirds margin of support. Then the measure goes to the
President to ratify the treaty, although such treaties are considered
ratified after 15 days.”
-- Michael Rubin, PhD, resident scholar, American Enterprise
Institute for Public Policy Research, December 19, 2007, in testimony
before the Subcommittee.

[Disclosure, the above is noted at the request of a friend on the committee.]