The Not-So-Final U.S.-Iraq SOFA

by Duncan Hollis

The last few weeks have seen a flurry of news stories on Iraqi political resistance to the “final” text of a U.S.-Iraqi status of forces agreement (“SOFA”).  Last week, the main storyline was that the Iraqi Parliament had better accept the agreed text or else, while the Iraqi Parliament gave every indication they would delay any decision till after U.S. and Iraqi elections.  This week the new storyline revolves around Iraqi proposed changes to the agreement, purpotedly to reflect Iraqi objections to U.S. forces attacking Syria from U.S. bases in Iraq.  Meanwhile, today brings news of a “confident” President Bush who somehow still envisions the deal getting done on his watch. 

Others have more expertise than I do on the Iraqi internal machinations over any SOFA with the United States, but I want to focus on the lurking U.S. domestic process question, assuming U.S. and Iraqi negotiators eventually agree on a new “final” text.  Bruce Ackerman and Oona Hathaway recently argued that Congress must approve the SOFA since its terms and surrounding circumstances exceed the conditions and terms of standard status of forces agreements that the Executive has concluded on its own in the past.  Michael Glennon has taken a similar stance.  For the most part, these objections are substantive; i.e., the obligations undertaken fall beyond existing Executive authorities.  In contrast, I’m more hung up on a process problem that needs resolving before we can fully engage with the substantive questions over the scope of the President’s powers.  Specifically, I’m troubled by the fact that we still don’t know what the old “final” agreement was, let alone what it might look like in a revised form.  Neither side has released the existing “final” text, although copies of it have leaked in Arabic and a rough English translation.  

As a former State Department lawyer, of course I understand that unlike multilateral negotiations, bilateral agreements continue to be negotiated in secret.  And I’m generally OK with that proposition vis-a-vis the public.  But, as I understand it–and more knowledgeable readers should correct me if I’m wrong–the Executive Branch continues to insist on keeping the text from members of Congress as well.  Therein lies the problem.  How can Congress judge whether it needs to weigh in on a text it doesn’t have access to?  The Executive has briefed congressional leaders on the main points of a deal.   But what the Executive thinks the main points are may differ from those provisions that Congress might view as worthy of its attention if they could review the text independently.   

Take the question of a U.S. security commitment to Iraq as an example.  The 2007 Declaration of Principles that formed the basis for the current negotiations provided that an eventual deal would include “security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace.”   Much debate over congressional approval has centered on the content of these commitments and assurances–i.e. would they mandate U.S. assistance or responses in the event of a threat to Iraqi sovereignty (i.e., a security commitment)?  Or, would they merely promise to consult with Iraq if its sovereignty were threatened on appropriate next steps (i.e., a security assurance)?  So, what does the current text provide?  Here’s the relevant passage, rough as the translation is, from the leaked Arabic version:  

For the purpose of supporting security and stability in Iraq and to participate in maintaining international peace and stability, both sides aim to enhance the Iraqi government’s political and military capabilities and to enable Iraq to deter threats against its sovereignty, independence, and territorial integrity. For these purposes, both sides work together in the following:

1. In the case of any internal or external threats against Iraq or in the case of foreign attacks that jeopardize Iraq’s sovereignty, independence, and the territorial integrity of its waters, airspace or land, or survival of its democratic institutions, both sides, based on a request by the government of Iraq, go directly into strategic discussions, and according to what they agree on the U.S. shall take the appropriate measures that includes diplomatic, economical, or military actions, or a combination of the three, to deal with such threats.

On the surface, this looks like something in between a security assurance and a security commitment.  On the one hand, it reads like an assurance — a promise to talk in the event of a threat to Iraq.  On the other hand, it clearly contemplates the United States taking some (i.e.,appropriate) measures in response, suggesting a security commitment may be lurking beneath the surface.   

I wonder whether the Executive might suggest that even if it is a security commitment, it’s “only” political in nature (i.e., it’s not intended to be legally binding) and thus it has no relevance to the question of congressional review.  Indeed, although the specific provision contains mandatory language (“shall take appropriate measures”), its operation depends on a much looser formula (“work together in the following”).  The latter language is suggestive of political rather than legal intent (at the same time, I expect the Executive would argue other provisions, such as those on jurisdiction or immunity, were intended to be legally binding).  As I’ve argued elsewhere, however, I don’t think the “political commitment” cloak should be used to escape constitutional scrutiny; Congress may have as much an interest in reviewing certain political commitments as it does certain legal commitments.  Conversely, I assume that certain political commitments will fall exclusively within the Executive sphere just as certain legal agreements do.   

Now, the Executive may insist that since they view this as a sole executive agreement, they do not have to give Congress a copy of the text until 60 days after its conclusion pursuant to the terms of the Case-Zablocki Act.  That statute was designed to ensure Congress could monitor the President’s sole executive agreement practice, which had operated largely outside its perview prior to the Act’s 1972 enactment.  And, indeed, on receipt of the text, Congress would have a chance to form its own view on whether it agreed with the Executive’s position, or, rather, believed the text should have had congressional approval.  As the current fight reveals, however, the post-hoc nature of the statute’s procedures has substantial limitations.  Once any SOFA enters into force (following, it appears, Iraqi parliamentary approval), there will be substantial institutional, not to mention foreign policy, obstacles to revising or resisting the agreement’s operation.  Thus, I wonder, whether the current fight will end up not only focusing on questions involving the Iraqi SOFA itself, important as they are, but also trigger a new review of the Case-Zablocki Act’s post-hoc approach and questions of how Congress preserves its power to police the boundaries between treaties, congressional-executive, and sole executive agreements going forward.

http://opiniojuris.org/2008/10/30/the-not-so-final-us-iraq-sofa/

5 Responses

  1. Well I have to say (meaning no disrespect to Prof. Hollis) that while I appreciate many of the issues raised here in the abstract, in the specific context of Iraq such considerations are simply beside the point.

    Mr. Bush is a war criminal, the invasion and occupation of Iraq are by far his worst crimes, and there is absolutely no reason to suppose that ANY act of his administration is binding on the US government in any way.

    The situation now is simple:

    If McCain is elected, we can look forward to an administration devoted to aiding, abetting, and replicating the crimes of the Bush administration over the past seven years.

    If Obama is elected, his administration should move to repudiate the Bush administration’s policies in everything (including Iraq) from A to Z, including a total withdrawal of US forces from Iraq.

    I’m not saying they will do that, but that’s what should should be done, and if it was up to me, I’d suggest doing it in 16 weeks, not 16 months. Iraq is a complete waste of time and resources, and our presence there has been harmful from start to finish: the United States is the worst problem Iraq has.  It’s time to pull the knife out and let them rebuild there country for themselves.

    We don’t even need an embassy in Iraq.

  2. Duncan, great post! you have spotted a very neat issue.  How can Congress ever know whether they need to vote until they see it? But unless I am missing something, there is no legal obligation on the President’s part to disclose the text of an international agreement, treaty or otherwise, until he is ready to submit it to Congress or the Senate or pursuant to Case-Zablocki. Certainly, there is no obligation to disclose prior to an agreement’s completion. And I don’t see that you are arguing any differently.  Isn’t the question of disclosure, and timing, wholly a political question at this point? 

  3. I believe Mr. Gittings is destined to be disappointed.

    However, I imagine it’ll be delayed, as the Iraqis have every reason to do so.

  4. M. Gross,

    I have no illusions, nor am I much for predictions, but this is about doing what is right and developing sound policies, not handicapping a horse race.

    Nevertheless, I’m confident that I’ll be much less disappointed the next four years than I was the last seven, even in the catastrophic event of a McCain victory next week. That’s the one good thing about leaders like George Bush — any difference is odds on to be an improvement.

    No more Cheney or Addington for example — we should proclaim a national day of thanksgiving for that small mercy alone.

  5. I do believe that Congress can decide to exercise oversight aggressively on the topic in the name of making sure the American people are not sold down the river.  I would suspect that even lame duck Presidents and Presidential candidates would blink twice before a screaming citizenry wanting their representatives to not be held in the dark.  See what happened the first time the bailout package went through.
    Best,
    Ben

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