Bush to Sidestep Congress on Iraq Pact
By Maya Schenwar
t r u t h o u t | Report

Wednesday 12 March 2008

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."



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Maya Schenwar is an assistant editor and reporter for Truthout.
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Impeachingg tiiime

tho it was impeaching time on day 1

Doesnt surprise me

"Under the Constitution, Congress has the sole power to declare war."

And they did.

The Congress does not have the power to declare and end to war. That power is solely the Commander in Chief's aka The President of the United States.

This article is BS, it is lacking in any true journalism.

Did you even read it? Doesn't sound like it. But he has overextended his powers already. Enough is enough of dictator Bush

I read the entire article. Did you read my point? She outright used mistrusth at "TRUTHOUT". Dictator Bush, yet you are able to post such an article. Come on.

is it only stuff about bush that you post? how about all the messed up things congress has done? or the house? how about the republicans or democrats? or the hundreds of other government organizations?

nope, must be all bushes fault. i'm sure the bribes that just about every government official accepts is all his fault too? seriously, unless your gonna sit here and point out every little things that everybody has done threw out time don't sit here and blame everything on one man just cuz you don't agree with every single one of his decisions, i'm betting that if your elected you won't ever do a single thing to further your own bank accounts and every single person in the usa will agree will every single one of your decisions.

lets stop cutting and pasting these obviously biased articles and start thinking for ourselves shall we?

Careful starsailor. I posted a reply to one of her opinions she was trying to force on others, and they took it down. It was a totally harmless reply also. I guess this must be a liberal run site. So much for freedom of speech.......catch you later.

It is The Congress who are trying to overstep their powers as dictated by the Constitution. They declared war, the ONLY power Congress has in war is the ability to fund it. They have NO power, granted by the Constitution, to tell the Commander in Chief how the war is to be conducted, timetables, or a change of focus.

They have solely the power to declare war, which they did, and the ability to fund, which they continue to do; but if they had brass balls they would VOTE to not fund it INSTEAD of sitting on the bills and doing nothing, which they have done numerous times.

******Under the Constitution, Congress has the sole power to declare war.******

the united states has not had a declaration of war

since world war two



history of united states documents in chronological order

http://www.law.ou.edu/ushistory/index.shtml#2001

I thought you said this was an illegal war??????????

First, adj, you are correct this is a military action, not war, so congress did not declare war anyway.

The mandates for the UN were not met by us. Thus it is illegal. Look it up. I have posted it several times but I am short on time tonight.

I posted stuff on alot of things. I guess you only catch the ones on Bush, huh?

Congress DID declare military action. Same as Vietnam. Both are as much of a war as war can be. Same thing in the first Gulf War. We have declared war, just not used the exact words and steps.

They DID pass the right for the Commander in Chief to perform war-like actions in Iraq. This is a military operation. The Commander in Chief is the top military commander. The Congress cannot end military action without the authorization of the President. They can cut of funding for the....wait, what does the Congress say here? Oh yeah, they will cut off funding for the IRAQ WAR. They even call it war, and thus, legally, this can be considered a war as they refer to it as such.

They can only cut funding. That's it.

impeach the decider

The great dictator you mean, or maybe I mean

the aricle clearly states that there is a UN mandate for troops to be in Iraq..........You can't have it both ways.

Show me where the UN states that we have not met our mandates.....

heh. you may not remember, but he clearly said that he was the decider a couple years back. he meant to say that he makes the decisions, but you know how he manages with the english language..