Bush to Sidestep Congress on Iraq Pact
By Maya Schenwar
As the Bush administration heads into months of negotiations with Iraqi Prime Minister Nouri al-Maliki on the future of US troops in Iraq, it aims to stretch the bounds of executive power to unprecedented lengths.
The administration plans to bypass Congress to forge a status of forces agreement (SOFA) that would grant US forces an unlimited permit to continue engaging in military action in Iraq, according to statements by the State Department's Coordinator for Iraq, David Satterfield, and Assistant Secretary of Defense Mary Beth Long, at a House Foreign Affairs Committee hearing last week.
Drafts of the SOFA, a binding pact, also provide legal immunity for US private contractors operating in Iraq, according to a late January New York Times article, which assertions were not denied by administration officials during the hearing.
With the United Nations mandate that allows US troops to be in Iraq due to expire in December, clear legal options to continue the American presence include a renewal of the mandate or a treaty approved by the Senate.
Yet, Long confirmed last week the administration's SOFA will include an "authority to fight" provision, allowing US forces to carry on status quo operations in Iraq without the consent of Congress.
Under the Constitution, Congress has the sole power to declare war.
Satterfield held that the result of the Bush-Maliki negotiations will simply be a routine measure to normalize relations with Iraq as it transitions to independent sovereignty; "an agreement which is in its shape similar, in many respects, to SOFAs we have across the world."
However, the standard provisions of a SOFA include banking and postal procedures, legal protection of US military personnel and "covered persons" and the transport of Americans' property into and out of the country. No other status of forces agreement has ever included the authority to fight or immunity for contractors, according to Oona Hathaway, a Yale Law School professor who testified at last week's hearing.
"With the SOFA, the administration is claiming the power to continue using force in Iraq without the consent of Congress," Hathaway told Truthout. "These are issues that have never been in the status of forces agreement in the country's history."
In a belated response to a question asked at the March 4 hearing, Satterfield maintained the administration has the autonomous authority to keep combat troops in Iraq beyond the expiration of the UN mandate. Satterfield cited Congress's 2002 authorization of the use of force by the president to "defend the national security of the United States against the continuing threat posed by Iraq."
However, Bruce Ackerman, another Yale Law professor, argues the terms of the 2002 resolution have long expired, since the state of Iraq currently poses no direct threat to the United States. Furthermore, subsequent Iraq-related legislation, such as appropriations of money for the war, shouldn't be construed as an authorization for ongoing military action, he said during a March 6 press teleconference.
Additionally, according to Hathaway, the original legislation to allow force was enacted under the assumption that weapons of mass destruction existed in Iraq.
The SOFA's probable inclusion of an immunity provision for military contractors has both Ackerman and Hathaway calling foul.
"The president does not have authority to determine the legal status of civilians working abroad, and that's what these Blackwater personnel are," Ackerman said. "Congress must have that power."
US contractors employed by the armed forces in other parts of the world typically work for the Department of Defense, so, although they're exempt from prosecution by foreign governments, they fall under the jurisdiction of US military law. However, since many contractors in Iraq work for the State Department, the SOFA would leave them subject to no laws whatsoever, according to Hathaway.
"Unlike anywhere else in the world, we have this law-free zone for private military contractors," Hathaway said. "In the moment, it appears there may not be any legal jurisdiction over these folks."
The SOFA would solidify that legal loophole.
Efforts are sprouting up in Congress to curb the president's authority to make agreements with Iraq. Late last week, Congresswoman Barbara Lee introduced a resolution affirming the Constitution only grants the president sole authority over "essentially nonpolitical foreign engagements," and any agreement regarding US military involvement in a foreign country should require the explicit consent of Congress. The bill is nonbinding, but Lee hopes it will build momentum for a backlash against executive excess.
"We have to restore our checks and balances," Lee said during the March 6 teleconference. "Hopefully, the debate around [the Lee resolution] will help to wake people up and understand the kind of power the president continues to take from the Congress."
Bill Delahunt, chairman of the House Foreign Affairs Committee, is also at work on legislation to rein in the power of the president, according to his spokesman, who said Delahunt hopes to introduce a bill this week. He will also continue to hold hearings on the constitutionality of the proposed agreement.
A House leadership bill to recommend extending the UN mandate may also be in the cards, according to Hathaway. Extending the mandate - at least for a few months - would postpone the necessity of a bilateral agreement between the US and Iraq until a new president is in office.
Whether or not it goes anywhere, this flurry of legislation will serve as a reminder to the administration that Congress is still around, according to Erik Leaver, policy outreach director for Foreign Policy In Focus.
"The number of hearings, questions and general knowledge of the issues are indicative of the level of concern," Leaver told Truthout. "Measures like the Lee bill help to highlight this issue, and the general power the president has gained relative to the Congress on foreign policy decisions."
Iraq's Parliament is confronting similar dilemmas: Like Bush, Maliki has skirted his legislature in making agreements for a future US military presence.
The House Foreign Affairs Committee hopes to bring several Iraqi Parliamentarians to the US to speak in April, according to Raed Jarrar, Iraq consultant to the American Friends Service Committee.
Congresswoman Lee told Truthout that, although she is not aware of any formal cooperation between Congress and the Iraqi government, "that's not to say that conversations aren't happening."