U.S.-Iraq Agreement: Is a Treaty Required?

Next month, the U.S. government will begin negotiations with the government of Iraq concerning the terms under which the United States will operate in Iraq after the expiration of the previous U.N. mandate.

As the New York Times reports today, the negotiations with Iraq will center around a number of difficult issues, including immunity from local laws for U.S. contractors and whether the U.S. military will be able to operate unilaterally, or will be required to gain some level of approval from Iraqi officials.

However, the substantive debate in Congress, concerns whether or not the “status of forces” agreement will require congressional approval, or can be sanctioned by the White House alone, as part of the president’s war powers.

If the agreement contains specific security guarantees, such as a pledge to defend Iraq in the event of external attack, or if it specifies future force levels or basing rights, it could be more easily argued that a treaty, which requires Senate approval, would be required. Here’s the Times:

Administration officials are describing their draft proposal in terms of a traditional status-of-forces agreement, an accord that has historically been negotiated by the executive branch and signed by the executive branch without a Senate vote.

“I think it’s pretty clear that such an agreement would not talk about force levels,” Defense Secretary Robert M. Gates said Thursday. “We have no interest in permanent bases. I think the way to think about the framework agreement is an approach to normalizing the relationship between the United States and Iraq.”

. . .

Democratic critics have complained that the initial announcement about the administration’s intention to negotiate an agreement, made Nov. 26, included an American pledge to support Iraq “in defending its democratic system against internal and external threats.”

Representative Bill Delahunt, Democrat of Massachusetts, said that what the administration was negotiating amounted to a treaty and should be subjected to Congressional oversight and ultimately ratification.

The House Foreign Affairs subcommittee that Delahunt chairs held a hearing on whether the agreement should be a treaty yesterday, during which two legal experts testified about that question.

George Washington University Law School Professor Michael Matheson provided some historical context for the debate by noting the variety of security agreements the United States has with other countries, some codified in treaties, others in less formal ways:

The question of what constitutes a “security commitment” toanother country and what form such a commitment should take has beenthe subject of dialogue between the Executive branch and Congress fordecades. In 1969, the Senate adopted the National CommitmentsResolution, which asserted that any “promise to assist” a foreigncountry “by the use of Armed Forces” would be a “national commitment”that could only be given by means of a treaty, statute or concurrentresolution.

The National DefenseAuthorization Act for Fiscal Year 1991 included a provision requiringthe President to submit a report to Congress describing all existing”security arrangements with, or commitments to” other countries. In1992, President George H.W. Bush . . . provided a list of current U.S. securitycommitments, almost all of which were contained in treaties concludedbetween 1947 and 1960, including the North Atlantic Treaty, the RioTreaty (with Latin American countries), the Southeast Asia Treaty, andtreaties with Australia, New Zealand, the Philippines, South Korea andJapan.

The provisions of these treaties varysomewhat, but each contains language that contemplates the possibilityof U.S. armed action in the event of armed attack against one of thetreaty parties. . . .

The 1992 Presidential report contrasted such securitycommitments with “security arrangements” – that is, pledges by theUnited States to take some action in the event of a threat to the othercountry’s security, typically to consult with that country, butcontaining no commitment with respect to the use of U.S. Armed Forces.It listed a number of such arrangements, including those with Israel,Egypt and Pakistan. . . . .

In addition to such “security commitments” and “securityassurances”, there are a variety of other steps that the United Statesmight take to enhance the security of a friendly country . . .

It is not clear from the text of the U.S-Iraq Declaration of Principleswhich of these various steps the Bush Administration contemplatestaking during the next year. . . .

Michael Rubin of the Naval Postgraduate School and American Enterprise Institute, similarly testified that “there is no cut-and-dry answer.” His testimony mainly examined the precedents for “status of forces agreements” (SOFAs) that have not required treaties:

SOFAs apportion rights and responsibilities between a host government and our stationed or deployed forces. Typically, they serve to vest the United States with criminal jurisdiction over our forces in a host country. . . . Unknown in the case of Iraq would be the status of private security contractors. Many SOFAs also address exemption from inspections and customs duties, travel document requirements, and tax exemptions for the PX. Today, the United States has approximately 100 SOFAs.

Generally, SOFAs constitute agreements rather than treaties. It is a rare occurrence if a SOFA is sent to the Senate for approval. . . .

To determine whether ratification is necessary, what an agreement is called is less important than its contents. There is a point that an agreement can go so far in obligating the United States to defend another country that the Senate should ratify it. That line is when the obligation to defend another country becomes legally binding under international law. If such language is embedded in an Iraq SOFA, then there is little question that the SOFA should be voted on as a treaty by the U.S. Senate.

It is possible that the White House will stress that they consider any pact with security guarantee language to be an agreement rather than a treaty, and so not legally binding to the extent that a treaty would be. Should the White House try to adhere to this fine line, however, the Iraqi government would take note and consider the U.S. commitment ephemeral and perhaps demand a more formal treaty.

In the end, whether this debate will turn into a showdown between Congress and the Bush administration will depend largely on how far the administration wants to go in pushing the legal envelope. The administration has a track record, of course, of arguing for executive prerogative on such questions. However, having been stymied in their efforts to force an early end to the war, the Democratic Congress is likely to stringently interpret any elements of the agreement that skirt close to these fine lines. As such, the Bush administration would be wise to be flexible in areas where the language of the agreement is unlikely to have significant impact on the ability of U.S. forces to execute their mission.

1/28 UPDATE: In a Dec. 6 letter to President Bush, Democratic Sens. Casey, Webb, Byrd, Clinton, Kennedy and Levin, wrote, “We believe a security commitment that obligates the United States to go war on behalf of the Government of Iraq at this time is not in America’s long-term national security interest and does not reflect the will of the American people. Commitments made during the final year of your presidency should not unduly or artificially constrain your successor when it comes to Iraq.”

Read the full letter
(pdf file)

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