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.