Wednesday, November 19, 2008. Chaos and violence continue, Turkey meets with Iraq over PKK (US tags along), the US Congress explores the treaty, and more.
"This is the eighth in a series of hearings which the Subcommittee has held on the Bush administration's efforts to consummate what was initially described as a long-term security agreement with the government of Iraq," declared US House Rep Bill Delahunt as he brought the Subcommittee on International Organizations, Human Rights and Oversight of the House Committee on Foreign Affairs to order today. The topic was the treaty the White House is trying to make with their puppets in Iraq. Delahunt noted he shared "the concerns expressed by the Chairman of the Armed Services Committee, our friend and colleague Ike Skelton, who has been quoted as being 'deeply troubled' because the agreement contains, as he says, 'vague language that will cause misunderstandings and conflict between the United States and Iraq in the future'."
Rep Bill Delahunt: And by the way, no one should forget that this agreement has just been provided to Congress -- and that there has been no time to conduct the analysis required by such a significant document -- one that purports to end a conflict that has had such momentous and tragic consequences for both the Iraqi and the American people. And remember there has been no meaningful consultation with Congress during the negotiation of this agreement. And the American people, for all intents and purposes, have been kept completely left out. Even now the National Security Council has requested that we do not show this document to our witnesses or release it to the public -- a public that for over five years has paid so dearly with blood and treasure. Now I find that incredible. Meantime, the Iraqi government has posted this document on its media website so that anybody who can read Arabic can take part in the public discourse. But this is typical of the Bush administration and its unhealthy and undemocratic obsession with secrecy.
Delahunt went on to outline three things that had to take place for the treaty to be legal:
1) The Iraqi Parliament enacts by a two-thirds majority -- 184 of its 275 members -- a law governing the ratification of international agreements.
2) The Iraqi Parliament then enacts the proposed bilateral security agreement under that ratification law -- which as introduced this past Monday in their Parliament also would require a two-thirds vote of approval, and
3) The United States Congress enacts a law that approves and implements the security agreement -- and authorizes offensive combat operations by US forces.
Oona A. Hathaway, Raed Jarrar, Michael Matheson, Issam Michael Saliba AEI's Thomas Donnelly offered testimony to the committee.
One issue that arose was the possibility of extending the United Nations Security Council mandate (the mandate expires December 31st). Jarrar explained that there had been resistance in the past to extending the mandate; however, today it is seen by proponents in Iraq "as the lesser of two evils, but not as a strategic goal. Many Iraqi groups in the Parliament think it is better to give the Parliament more time to debate the agreement rather than just rushing it within the next few weeks." Matheson, professor at George Washington University Law School, also spoke of the mandate and noted that a UN mandate could take place under Chapter 7 (as has been done) or under Chapter 6. Saliba is a Senior Foreign Law Specialist with the Law Library of Congress and his focus was the approval mechanism in the Parliament which eh found to require support of two-thirds of the MPs ("it is logical to conclude that the ratification of an agreement negotiated by the Iraqi government needs a two-thirds majority of all members of Parliament for its ratification").
"I will focus my remarks on what I believe are the three most pressing legal issues regarding the proposed bilateral agreement with Iraq," declared Professor Oona Hathaway of UC Berkeley's School of Law in her opening statements. "There are, of course, many others I'm happy to talk about. And then I'll conclude by outlining what I think are the possible ways for addressing these concerns."
1) "The agreement in my view threatens to undermine the Constitutional powers of President-elect Obama as commander-in-chief and it does so in two ways.
a) So first this agreement gives operational control to a Joint Military Operations Coordination Committee which is made up of Iraqis and Americans and is jointly led by both sides according to the agreement."
The concern of Hathaway is that before US commanders could engage in military operations in the field they would have to receive approval from the JMOCC with only an exception for self-defense. Hathaway noted this was unprecedented and that US command control has never been handed out over to foreign powers other than a very narrow peace keeping situation approved by the Congress.
b) "The proposed agreement also undermines the Constitutional powers of President-elect Obama as commander in chief by binding him to observe specific timetables that are outlined in the agreement for the withdrawal of US troops."
Oona Hathaway: Here the specifics of the timetables are fairly clear, it's sixteen months for withdrawal from the cities, towns and villages and three years withdrawal from Iraq. What is uncertain is what President-elect Obama would have to do if he wanted to withdraw early. There are two different texts that we are working with. One is a translation of the Arabic language text which has been -- as Chairman Delahunt said -- made available by the Iraqi government. That text says the following, it says, "The United States recognizes Iraq's sovereign right to request a US forces withdrawal from Iraq at any time. The Iraqi government recognizes the United States' sovereign right to request a United States forces withdrawal from Iraq at any time." So the language here seems to me suggest the United States can request the right to withdrawal but cannot simply withdraw early. And if that is in fact what the agreement says then that creates serious concerns because, of course, President-elect Obama campaigned on a promise of withdrawing forces much earlier than three years and this would seem to require him to get the approval of the Iraqi government in order to actually carry out that promise. Now the English language version which I just received last night states what seems to be quite different, it states the following, "The government of Iraq recognizes the sovereign right of the United States to withdraw the United States forces from Iraq at any time." So there is -- that seems to give much more leeway to the president to withdraw troops earlier though, of course, if conditions on the ground turn out to make it difficult or impossible or unsafe to withdraw troops earlier than three years he would have to obtain the approval of the Iraqi government in order to keep troops in the country longer. In any case, this raises obvious concerns about which of these texts we should be believing and whether they in fact say the same thing. But the basic concern I have here is that this agreement commits the president to abide by timetables that he has had no role in shaping and may even make it more difficult for him to meet his campaign promise of bringing troops home within sixteen to eighteen months.
2) "The conclusion of this agreement without any Congressional involvement is unprecedented and, in my view, unconstitutional."
Oona Hathaway: So presidents can enter into agreements on their own -- they're called Sole Executive Agreements. But these agreements must be within the president's own independent powers. This agreement goes far beyond the president's own independent, Constitutional powers in several ways. Now the administration has responded to this critique in the past by saying, "This is simply a Status Of Forces Agreement -- a SOFA. We've got hundreds -- we've got more than a hundred of these around the world. All of these have been concluded as Sole Executive Agreements entered by the president by himself. So what are you so concerned about?" And the answer is: This is not a SOFA. This is, in fact, a much more comprehensive agreement than any Status of Forces Agreement that is out there and includes a variety of provisions that, as far as I'm aware -- and I've read about sixty to eighty of these agreements, that have never been a part of any Status Of Forces Agreement. In particular the provisions granting authority to US troops to engage in military operations, the grant of power over military operations to this joint committee that I mentioned earlier and the specification of timetables for withdrawal of military forces. These are unprecedented in a standard Status Of Forces Agreement, have never been part of a standard Status Of Forces Agreement and extend, in my view, far beyond what the the President can do without obtaining Congressional approval. The administration has also suggested that the agreement doesn't really grant the authority to fight and therefore it does not need to be approved by Congress. In my view that is manifestly incorrect. This agreement is -- the entire purpose is to grant the authority to fight. It is meant to replace the UN mandate. The UN mandate is the authority under which US troops are currently present in Iraq and the entire reason for the proposal of the agreement at this time is because that mandate is about to expire and when it does there will no longer be a legal authority for the United States troops to be present in Iraq. This agreement gives in fact gives that authority to fight to replace the UN mandate. So to suggest that it doesn't do that and therefore need not be approved by Congress clearly is not correct.
3) "If the administration proceeds as planned the war will likely become illegal under United States law when the UN mandate expires on December 31st."
Oona Hathaway: At present, domestic legal authority for the war in Iraq is based on House Joint Resolution 114 which was passed in October of 2002. The resolution authorizes the president to use the armed forces for two purposes. One, to defend the national security of the United States against the continuing threat posed by Iraq and two to enforce all relevant United Nations Security Council resolutions regarding Iraq. And let me take the second first. The second is, in my view, what is currently operative at this moment. There is a Security Council resolution in effect that is currently governing the presence of US troops and, therefore, it is the case that, in fact, we are -- that the president may enforce all relevant United Nations Security Council resolutions regarding Iraq as long as that resolution is in effect this domestic legal authority is also in effect. But when the mandate expires at the end of the year -- as it is due to expire -- that no longer, that legal basis for the war in Iraq no longer exists. So then we're left with the first part of the authorization: To defend the national security of the United States against the continuing threat posed by Iraq. Now this was enacted, remember, in 2002 when Saddam Hussein was in power and we were hearing about threats of Weapons of Mass Destruction. And so it was clear what the threat posed by Iraq was, it was posed by the government of Iraq. Of course, that government has changed and those same threats to the United States do not exist. And, in fact, the bilateral agreement with Iraq recognizes this change. That agreement itself states that, "The danger posed to international peace and stability by the former Iraqi government is now gone." So this agreement, to my mind, says what we all know to be true which is that the threat that this resolution was meant to address has been resolved and there no longer is this threat by the government of Iraq against the United States. So once this mandate expires at the end of the year -- if it is not renewed -- then legal authority for the war in Iraq as a matter of United States' law no longer exists. So what do we do? And this is where I am going to end. There are, in my view, two legal options available. The first, as Chairman Delahunt mentioned, is renewal of the UN mandate. A simple renewal of the mandate for six months would address all these problems. It would give legal authority as a matter of international law for US troops to be present but it would also extend authority as a matter of US law because the resolution that I just mentioned clearly incorporates any future Security Council resolutions and extensions of those resolutions. So that is a very real and I think one of the best options available. There's' a second possible option as well which is submitting this agreement to Congress for approval. If Congress were to approve this agreement then all these concerns would also be addressed, then this would no longer be a Sole Executive Agreement and the Congress would have had a chance to address, consider and respond to the concerns that might be raised about the substance of the agreement and if it chooses to approve the agreement, these Constitutional and legal concerns that I've raised would be addressed.
During questioning, US House Rep Lynn Woolsey noted "It is clear to me that there are many interpretations of what this treaty/agreement is." It would be wise for those in the press who continue to miss that point to pause and consider that. We'll focus on this section of the hearing between Woolsey and Hathaway.
Rep Lynn Woolsey: What is the legal standing? Will an agreement/treaty be -- have standing if it does not come before the House of Representatives of the Congress in general?
Oona Hathaway: Well this is a complicated question as you might imagine. In my view it would be unconstitutional because it would extend beyond the president's power to conclude an agreement under his own independent powers and for all the reasons we've discussed it clearly goes beyond those limits. The question is: How would you challenge it? How would you demonstrate that? One possibility, obviously, is a resolution in Congress, another is a challenge in the courts -- that's unlikely to succeed. So the likely result would be that we would be operating under an unconstitutional agreement and what worries me is not only that -- although that is quite worrisome in and of itself -- but the precedent that that sets. So we then set a precedent that the president can enter into an agreement to commit US troops without having to get the assent of Congress. And, moreover, that the limits that we all thought applied to Sole Executive Agreements, the limits that had been observed by presidents for a generation on agreements that are entered into by presidents on their own no longer apply. All bets are off. So could President Obama enter Kyoto on his own? Could he enter the Law of the Sea Treaty on his own? If we don't know what the limits are, it creates real questions about where those -- where the Constitutional limits are? If they're not going to be observed then that creates problems not just in this instance but in every future case as well.
Rep Lynn Woolsey: So how do you think we can untangle this mess?
Oona Hathaway: My view is I think that this legislation is very positive. I think that, if in fact something like that were to pass demanding that Congress approve the agreement, I think that could have a significant effect. As I said, that would address all the questions that I've raised about the procedural issues. Congress could work out the substantive concerns if it had any about the agreement. But if this agreement were approved by Congress -- and there's nothing that would stop the president, I should say, from simply submitting this agreement as it is for approval as what's called an ex post congressional-executive agreement. That is a legal procedure that is available to the president and then this Congress would be able to pass that through majority votes in both houses and then it would become a legal agreement with the seal of approval of Congress and would be federal law and address all the concerns that I've raised. So that, to my mind, is a very real and, I think, would be an extremely positive development though, sadly I'm afraid, not entirely realistic. Another possibility is, of course, a renewal of the UN mandate because that does address both the international and domestic law issues that I've raised. In effect, that kicks the ball down the road because then we still have the issue of 'then what do we do?' That mandate would only be in effect for a short period of time -- the period of time talked about is six months. You'd have to enter an agreement then. My hope would be that given the stated position of the president-elect and vice president-elect on this issue that they would not only negotiate a good agreement but would submit that to Congress for approval.
"There's something strange" Rep Howard Byrne noted that the Iraqi Parliament was expected to approve or not but the US Congress wasn't and that the Iraqi Parliament and people can see the treaty but, in the US, Congress is not allowed to release it to the American people.
We'll also note this exchange between Raed Jarrar and the subcommittee chair Bill Delahunt.
Bill Delahunt: I'm just going to ask Mr. Jarrar a question. One of the concerns that I have to go to the issue of the vote in Iraq on the so-called implementation or ratification law. I -- My reading and the statements that I've noticed from the Speaker of the Council of Representatives and the legal committee of the Iraqi Parliament are clear that a two-thirds vote is required. In your testimony, you indicated that there is now discussion about a simple majority. If in the end, there's a vote of approval by a simple majority, in your opinion, could this provoke unrest and violence in Iraq predicated on the opinion of some including elements in Iraq that are hostile to our interests. Could this provoke them to cause mischief, if you will? And provide them a rational which would be: Look, they're circumventing the law and yet they preach respect for the rule of law and democracy.
Raed Jarrar: Before I answer the question, let me just state very clearly that the Iraqi Constitutional Court has not been formed yet. So the Iraqi Constitutional Court that is supposed to deal with such questions -- now, this is just another sign of how premature this bilateral agreement is. It's falling on a very unprepared regime in Iraq that still has a lot of its basic components uncreated -- they were not created yet. Now the fact that -- the mere fact that the agreement was sent to Parliament was not sent because there is a respect of the Constitution or a following of the Iraqi law as it were. Actually it was sent by coincidence, I think, because one of the major religious leaderships in Iraq, Ayatollah Sistani insisted that the law must be sent to the Parliament. The Iraqi executive branch lobbyied for months with Ayatollah Sistani that I think has nothing to do with politics in Iraq but it seems like the Iraqi executive branch disagrees with me. They lobbyied for months that they should just sign the agreement as an executive memo rather than sending it to the Parliament. He said no. That's why they sent it to the Parliament. So there is no real respect of the Constitution or laws and this I think should create a case that if it's worrisome that maybe next year they will create the Constituional Court to look back and say this bilateral agreement with the US is void actually -- don't mean anything. And that will put everyone in a status of limbo I'm sure. And that's why many people are saying a multilateral agreement -- like the United Nations is more guaranteed for both sides. Now regarding the particular question of increased violence there is an overwhelming rejection of signing an agreement with the US regardless of its content and this is not -- we're not talking about marginal groups in the Parliament or outside the Parliament. We have major Ayatollahs, the major Ayatollahs from the Shi'ite side like Ayatollah [al- Baqdadi, Ayatollah Shirzai or Ayatollah Haeri" ?] who have given a fatawa against signing the agreement, a religious order against signing the agreement. From the Sunni side it's the same. The major mainstream Sunni leadership has given fatawas against signing the agreement. So there is rejection regardless of the content of it Inside the Parliament, this rejection can be seen in all kinds of components in the Iraq groups, whether they were Sunni, Shi'ites or seculars there is resistance to signing the agreement. Now I think Ayatollah Sistani's as a very moderate voice, actually asked for a national consensus. He said all major groups, all major political groups must agree on this.
Delahunt made his position clear during the hearing, "What we do now could very well be referred to at some future date much to our chagrin if we don't stand up and take some sort of action. My option is extend the UN mandate because that solves all of these issues. It protects our troops. It provides the authority to conduct offensive military operations."
It is not clear that all 150,000 American troops will be gone in three years. "There is a provision for an extension by agreement of both sides," a senior U.S. official said this week, speaking on the condition of anonymity. The Iraqis could decide they see a continuing role for U.S. troops, he said. "They have every right to ask us for such a presence."
The role of U.S. troops in Iraqi cities after July may also be greater than the agreement implies. The details of the troops' activities would be worked out in negotiations between the Iraqi and American military, the senior official said.
Campbell Robertson (New York Times) notes that Nouri al-Maliki went on TV yesterday and insisted "there were no secret side agreements to the" treaty. He moved his lips so well, it might have seemed as though the puppet were speaking his own words on Iraqi TV.
AFP reports that (today) Moqtada al-Sadr supporters (Shi'ites) banged on the tables to drown out Hassan al-Sined today as he attempted to read the treaty outloud to the Parliament. The moment was broadcast on TV (which quickly killed the feed) and Fala Shanshal has stated that guards of Foreign Minister Hoshyar Zebari beat up MP Ahmed al-Masaudi. The treaty is scheduled to be read to Parliament on Thursday when they reconvene. We noted Michael Abramowitz' report yesterday that Barack would be shelving the cry for Senate approval (of the treaty). Raed Jarrar (Raed in the Middle) details how the transition site set up by Barack has already altered the position on Senate approval. Let's wait and see how long before such alleged champions of the Constitution Matty Rothschild and Katty van-van Heuvel speak out. (Chances are they'll both remain impotent and silent. Remember, the Constitution only matters when Democrats aren't in control with their kind.) [And, yes, Raed's post does back up Michael's reporting.
Hurriyet reports that 1 "Turkish army officer was killed and five soldiers were injured" in armed clashes with the PKK today. Hurriyet also reports that, "Turkey, Iraq and the United States agreed Wednesday to form a joint committee to combat the terror organization PKK, which uses northern Iraq as a base for attacks on Turkey." Reuters notes the meet-up took place in Baghdad and "The delegations were headed by Iraqi Minister of State for National Security Shirwan al-Waeli, Turkish Interior Minister Besir Atalay and U.S. Ambassador Ryan Crocker, and included both civilian and military officials, the U.S. embassy said." UPI quotes al-Maliki's spokesperson Ali Dabbagh stating the committee would be "creating deterrent measures to stop any possible activities by this organization inside Iraqi territory or within the Iraqi-Turkish border areas."
In other diplomatic news, yesterday Iraq's Foreign Ministry undersecretary Labeed Abbawi met in Baghdad with Shoji Ogawa (Japan's Ambassador to Iraq) as part of a continued process over the last few days. On Monday, the Ministry threw a reception for Martin Eshbakher, Switzerland's Ambassador to Iraq and this took place as Sweden sent their Minister of Trade, Ewa Bjorling, to Iraq for a meeting with the Ministry's Minister Hoshyar Zebari. Monday also saw Zebari meet with Hassan Kazemi who is Iran's Ambassador to Iraq. The Foreign Ministry also highlighted their Embassy in Brussels recent participation in Arab Cultural Week. And AFP reports a meet-up in Jordan Thursday among "U.N. and Arab League officials" and "[e]xperts from Iraq, Syira, Lebanon and Egypt" as well as reps from Turkey and Iran to discuss the Iraqi refugee crisis.
Turning to some of today's reported violence . . .
Hussein Kadhim (McClatchy Newspapers) reports two Baghdad roadside bombings which wounded five people, a Mosul roadside bombing left two soldiers injured, a Mosul car bombing that claimed the life of the driver and left two Iraqi soldiers injured and a Samarra "magnetic" bombing claimed the life of 1 police officer.
Hussein Kadhim (McClatchy Newspapers) reports an armed clash in Salahuddin Province that resulted in 6 deaths. Reuters notes 3 'suspects' shot dead by the Iraqi military in Baghdad.
Hussein Kadhim (McClatchy Newspapers) reports 1 corpse discovered in Baghdad.