Proposed SOFA Agreement Requires Congressional Approval Because It Contains Treaty Commitment
Proposed SOFA Agreement Requires Congressional Approval Because It Contains Treaty Commitment
Our guest blogger is Peter Juul, a Research Associate at the Center for American Progress Action Fund.
In Iraq, the proposed Status of Forces Agreement (SOFA) with the United States is generating a heated and near-violent debate in parliament. But here in the United States, the Bush administration has kept a tight lid on the contents of the agreement.
The Bush administration argues that the SOFA is an “executive agreement” that, unlike treaties or other international agreements, does not require congressional approval. Only after the agreement passed the Iraqi cabinet last weekend did the Bush administration deign to give lawmakers a closed-door briefing on it. As Rep. William Delahunt (D-MA), who has held a number of hearings on the subject of a U.S.-Iraq security agreement, noted in an opening statement on Wednesday:
… there has been no meaningful consultation with Congress during the negotiation of this agreement. And the American people have been kept completely in the dark.
Even now the National Security Council has requested that we do not show this document to our witnesses or release it to the public…
Now that’s 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 discussion.
Oona Hathaway, a legal scholar and one of Delahunt’s witnesses, argues that the SOFA the administration has negotiated – at least its Arabic translation – amounts to a new authorization to use military force, and that it therefore requires congressional approval. Delahunt similarly believes that the SOFA requires congressional approval, and President-elect Barack Obama made pledges during the campaign to a similar effect.
Beyond the domestic legal authority issues pointed out at Delahunt’s hearing, there appears to be language in the SOFA that refers to a U.S. security guarantee toward Iraq:
In the event of any external or internal threat or aggression against Iraq that would violate its sovereignty, political independence, or territorial integrity, waters, airspace, its democratic system or its elected institutions, and upon request by the Government of Iraq, the Parties shall immediately initiate strategic deliberations and, as may be mutually agreed, the United States shall take appropriate measures, including diplomatic, economic, or military measures, or any other measure, to deter such a threat.
This language suggests that the SOFA is, in fact, a treaty committing the United States to act in the defense of Iraq if its security is threatened. Even if it does not rise to the level of a firm security guarantee, the SOFA’s language is close enough to a treaty that Congress should have a say in it.
As we noted a month ago, there has been too little debate on the proposed security agreement between the United States and Iraq. This lack of debate is due largely to the incredible secrecy with which the Bush administration has conducted SOFA negotiations with the Iraqi government, while a necessary focus on the crashing economy here at home has distracted Congress. But Congress cannot let the Bush administration push forward a far-reaching agreement without having giving its own constitutionally-mandated input.
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Shocked that Bush is trying to slide one by under the radar? This buffoon needs to have demonstrated that there are consequences to actions Of course this bunch in congress are not much into consequences i.e. Lieberman and Stevens accountability tests
November 21st, 2008 at 12:41 pmI envision the Dems finding backbone and standing up to the president and insisting the troops are out sooner.
/snark
November 21st, 2008 at 12:41 pmGotta love those Iraqi’s for putting the agreement on line for all to see and have input.
HEY! Maybe they can invade and occupy our country so we can see what free speech and open government such is like!
Damn, 59 days seems like an eternity……
November 21st, 2008 at 12:43 pmBush repeatedly showed his contempt for the law as he shat on openness and transparency.
Recall, this is an agreement between two democracies. It should be on the web for the American and Iraqi public to peruse.
November 21st, 2008 at 12:45 pmIf Congress does not ratify the treaty then it will cease to be in force at the end of the current administration. While Bush is in office he can take executive action to enforce the terms of the treaty. Once he leaves office the Obama administration will not be bound by its terms since it was never ratified by the Senate. It’s basically just a handshake agreement between the current President and the Iraqis rather than the law of the land. If the Iraqis had any sense they would demand that Bush ratify it as a treaty.
November 21st, 2008 at 12:49 pmIt will be completely up to President Obama and the Democratically controlled Senate whether this SOFA stands or not. They will have to decide if they like the language or not. If they do, they can vote to approve it. If they don’t, they can inform the Iraqis that negotiations need to be reopened. It will be very interesting to see which of these options the new Prez takes.
November 21st, 2008 at 12:51 pmspeaking as a Native American, treaties are not exactly a strong suit of the United States…
November 21st, 2008 at 12:55 pmPlease Peter, the 110th Congress has long since abdicated its responsibility on oversight and only time will tell if the 111th will be any different. Power is the ultimate aphrodisiac, so as good a person as Obama may be, don’t expect him to insist Congress ratify the accord.
November 21st, 2008 at 12:55 pmIt would be excellent if someone with expertise in Arabic would translate the document from the Iraqi website and send it out viral to the American people. I understand that even Congress has never seen the actual document to this day. And if there is an agreement to keep our troops in Iraq, in any capacity, that will take additional appropriations, which is the job of Congress, not the Executive branch. One big unanswered question still remains about how this TREATY affects the militarized private contractors over there. There are apparently more private military contractors than U.S. troops. Damn straight our Congress should have to approve this TREATY. On the other hand, with the trouble that the Iraqi parliament is having with it, it may not be passed by Dec. 31st anyway when the U.N. agreement ends.
November 21st, 2008 at 12:56 pmThe irony of the most incompetent POTUS in our lifetime is behind the scenes trying to handcuff BO and the Congress. Funny, but isn’t the textbook case for crimes and misdemeanors threshold for impeachment? The fact that this Congress let him continue to be in office without any accountability will go down as the biggest blunder in our history.
November 21st, 2008 at 1:04 pm“Please Bushie, the 110th Congress has long stated it’s requisite for approval of a treaty with Iraq (the Dems anyway) and the 111th will be even less fraught with Republican obstruction and grandstanding due to their devastating losses this election cycle. Power is the ultimate aphrodisiac for a man as morally weak as Bush, so America may have to wait until the adults take over in January.”
fixed it for ya’, Bushie!
November 21st, 2008 at 1:11 pmArise, chicken. Arise.
November 21st, 2008 at 1:13 pmIn the event of any external or internal threat or aggression against Iraq that would violate its sovereignty, political independence, or territorial integrity, waters, airspace, its democratic system or its elected institutions…
Ok, now wait a minute here. Isn’t that what we did? So we are entering into an agreement to protect Iraq from any other country who would want to do what we have already done?
I totally agree. This SOFA needs to be fully disclosed and approved by Congress. If Iraq is requiring approval by their Parliament, then we should do the same with Congress.
Personally I would like to see the whole thing expire and for Iraq to tell us to get the hell out NOW!
November 21st, 2008 at 1:15 pmYay, does this mean impeachment is back on the table? Oh wait, I forgot Pelosi & Reid (motto: “thank you sir, may I have another!”) are still in charge.
Just what is this “believes” crap about whether a given agreement constitutes a treaty or not? Matters of law are not matters of personal opinion. Either it is, or it isn’t, and there needs to be a legal, impartial method of making that determination.
What I’m curious about is what exactly in the agreement they don’t want the public to see? Is there some huge horrific clause hidden in there that would freak everybody out? There must be, or else they’d show it to us.
Somebody needs to translate the Arabic copy into English and host it somewhere (preferably on a Swedish server). Anybody out there with the language skills willing to give it a shot?
November 21st, 2008 at 1:17 pmIs there not a deadline for sofa? Like 12/31? During this current session?
November 21st, 2008 at 1:18 pmlokidog Says:
Damn, 59 days seems like an eternity……
I agree. That’s why I would like to see a law or a constitutional amendment that says that an outgoing President can’t do anything other than sign or veto laws passed by Congress. There’s just way too much damage an outgoing President can do and this one is taking it to new levels. It’s like he is trying desperately to TOTALLY ruin this country rather than just partially ruining it.
November 21st, 2008 at 1:18 pmOut Now. We have poured the contents of the treasury down the Iraq rat hole as well as indebted future generations. Why is nobody speaking about how this affects our economy here at home. Neo-con dreams of empire dragging us all down. Congress had better step up and demand its right to fulfill its responsibilities. Save the Republic from the stupid emperor.
November 21st, 2008 at 1:24 pmAfter seven years and ten months of the illegitimate Bush/GOP regime’s endless lies, criminalities, tortures, and treasons, should we expect anything less than them trying to screw up puppet Iraq well into the next President’s term of office?
November 21st, 2008 at 1:30 pmSince Congress is giving him a pass on all the other violations of the Constitution he’s committed over the last eight years, you’d think he’d try to avoid doing it again in the last two months. But no. Signing a treaty agreement without the consent of the Senate is a violation of Article 2, Section 2 of the U.S. Consitution:
Violating the Constitution he has sworn to protect and defend is an impeachable offense.
November 21st, 2008 at 1:58 pmBut, but, but Al Sadr wants us to leave Iraq now.
¶ AIO
November 21st, 2008 at 1:58 pmElBruce Says:
Somebody needs to translate the Arabic copy into English and host it somewhere (preferably on a Swedish server). Anybody out there with the language skills willing to give it a shot?
November 21st, 2008 at 1:17 pm
________
McClatchy already did it:
November 21st, 2008 at 2:24 pmhttp://www.mcclatchydc.com/iraq/story/56116.html
Would some hero please kneecap that chimp bastard and put his ass in the hospital?
Petulant piece of shit, he has done more damage to our country than any external enemy could ever hope for. We need a hero to take him out now, 59 days is too long to leave that pouty fck behind the wheel.
November 21st, 2008 at 4:20 pmDelahunt is a stud. He’s a Congressman to watch.
-AF
November 21st, 2008 at 5:47 pmAndrew Sullivan Is A Fraud