The proposed security agreements with Iraq.

"The Bush administration is also negotiating a so-called strategic framework agreement with Baghdad, though details of this accord remain unclear. Iraq experts disagree on what is likely to be included in the framework, and administration officials have been vague. The Congressional Research Service's Katzman says he believes the agreement may incorporate some of the more contentious security proposals, such as authorization for the use of force, contractor immunity, and perhaps approval for the United States to continue detaining prisoners. Patrick Cockburn, the Independent newspaper's veteran Iraq correspondent, writes that the agreement being pushed by the United States would give Americans "long-term use of more than fifty bases in Iraq," an assertion Ambassador Crocker calls "flatly untrue." The framework, if signed, would also give U.S. troops "a free hand to carry out arrests and conduct military activities in Iraq without consulting the Baghdad government," Cockburn reports. Yale's Hathaway, meanwhile, says public statements by administration officials have led her to believe contentious security details will remain part of the negotiated SOFA. The strategic framework "basically appears to be everything else" outlined in the November 2007 declaration of principles, she says."  CFR Paper

------------------------------------------------------------------------

If rumors are correct, the approaching SOFA and "strategic framework agreement" are documents which essentially would establish an American protectorate (muhamia) over Iraq for an indeterminate period of time.  The language of the agreements would be "gussied up" to look post-colonial but as the old American "saw" goes, lipstick on a pig does not change the nature of the pig.

As in the "good old days," there are ethnic and religious minorities conveniently to hand who will support the agreements for their own reasons.   The Kurds want American protection to continue and the majority of Sunni Arabs have come to understand that at least for a time, the Americans are preferable to Shia Arab rule limited only by the extent of their real coercive power.

The CFR article suggests that the US has already created a similar regime in Afghanistan.  I do not know about that.  Someone will comment on that thought I am sure.

Can such agreements be made by executive agreement without the consent of the senate?  This is a lawyer's question.  Please comment.  pl

http://www.cfr.org/publication/16448/us_security_agreements_and_iraq.html?breadcrumb=%2F

http://en.wikipedia.org/wiki/Protectorate

Comments

[frank durkee]

There is perhaps, especially in relationship to Afganistan, why do we want to? What are the trade offs that make a long term occupation worth while? Could whatever tose goals are be obtained by other means and how do those, if they exist, get into consideration?
I understand Bush's desire to lock the next president into his agenda, but I don't clearly understand the hoped for gains and risks, if we don't follow his agenda.

[John Shreffler]

According to Prof. Oona Hathaway of Yale Law School, this SOFA would require either enabling legislation or Senate ratification as a treaty because we have no authorizing collective defense treaty of the type we have with Nato, Japan, or South Korea. Naturally, the Adminstration disputes this. Most SOFAs have been done as Executive Orders but they were enacted pursuant to a treaty, which was the authorization.

[Mongoose]

Although I'm no expert on politics in the ME, nor on the ever shifting sands of political alignments and re-alignments in Iraq, I find it highly doubtful that this or any SOFA will be embraced there except by the few Green Zone politicians in the debt of al-Maliki (and I doubt there's that many of them). Perhaps a few of the Sunni Arabs tribes have concluded that in the short-term leaning on the Americans supports their survival. But the Shia Arabs are the ones that have to be convinced. I find it highly doubtful that the Grand Ayatollah Ali al-Sistani in Najaf will sign off on any SOFA as outlined by Cockburn and we know that al-Sadr's inclination (and that of his supporters) is to resist. The political coalition of Maliki's is and has been crumbling for a long time. The more he has to lean on the Americans the less likely it seems that al-Sistani will accept our continued presence. A few words from the old man in Najaf would suffice to put millions of people in the streets denouncing any SOFA agreement, as well as put the lie to McBush's claims that the surge is working. Bush can try to lock in the next US president but how in the world is he going to convince Sistani, the man who really counts in Iraq?

[PeterE]

In 1940 the French proposed to the Germans that the French Army seize the Iraqi fields (Mosul, Kirkuk). We're more high minded, I'm sure. Like the invasion, it's not about the oil. The tradeoff surely is freedom and democracy paid for with our money and soldiers' lives.

[Arun]

I see a lot of powers given to the US in the strategic framework agreement, but see no responsibilities. In which case, can't the next President simply not exercise those powers? Only definite responsibilities (e.g., secure Iraq's borders) would bind the next President.

[otiwa ogede]

Bush plots for American permanence in Iraq, while Obama talks about a Jewish "undivided" Jerusalem.

The Arab populations see Jews in Occupied Palestine and Americans in Occupied Iraq. Both western derived efforts to invade,occupy and control the places of devotion, and the places of material wealth towards the total subjugation of the Muslim world.

[William R. Cumming]

My guess is the current leadership of Iraq hopes to outwait the current US leadership on negotiations as critical to Iraq as those discussed in the post. SOFA's are not subject to Senate Ratification as far as I know.

[Sidney O. Smith III]

The issue is whether or not the SOFA and the SFA constitute a security agreement between Iraq and the US. If so, then Congressional approval is required, as the agreements, in fact, constitute a Treaty. If not, then an executive order can implement them both.

All expert testimony suggests in no uncertain terms that the specific provisions of the SOFA and the SFA amount to a security agreement and go well beyond that lawfully allowed under an executive order.

One key source of authority is a March 4, 2008 hearing before the House Committee of Foreign Affairs (Subcommittee of Middle East and South Asia and the Subcommittee on International Organizations, Human Rights and Oversight.) Everything a person needs to know can be found by reviewing the record, and it is absolutely fascinating. And I defy anyone to give me a better line up of constitutional heavyweights.

http://www.internationalrelations.house.gov/dayevent.asp?date=3/4/2008

The Hon. Bill Delahunt, quoting Prof. Michael Glennon, lays it out nicely: “[U]nder U.S. domestic law, authority for the President to use force ― “authority to fight” ― in Iraq must come either from the Constitution or the Congress. The Agreement with Iraq, which apparently will be entered into as a sole executive agreement, therefore could not serve as a source of such authority....And therefore, I reject the position held by the Administration that no formal inputs approved by the Congress are required.”

Hon. Gary Ackerman concurs: “[a]“s a matter of constitutional principle, as a matter of sound foreign policy and as a matter of plain old common sense, it seems to me that U.S. security commitments and especially solemn promises to defend another nation should come in the form of a treaty.

For those wanting a more legal specifice, I suggest the testimony of Yale Law Professor Oona Hathway. He actually laid out the template for an appellate brief -- one in all likelihood to be filed in the USSC. No doubt the Youngstown case will play a determinative role.

What will the USSC do? One hopes that the federal judiciary will play its role as the last barrier to prevent the rise of an imperial state. But in this day and age, it is a close call. The Menedez case is not apropos here.

But make no mistake about it, if the USSC rules in favor of the use of the executive order in this instance, then the American experience has all but ended.

As Addington so well knows, the path to an imperial American goes through the executive order. The strategy of those promoting the unitary executive theory is to expand the applicability of EO’s to the point where the executive mechanism simply devours the US Constitution. You can see this bent of mind by tracking how, five days after the invasion of Iraq, Bush signed executive order 13292 which eviscerated executive order 12958 and imputed commander in chief duties to Cheney . It in fact, gave rise to the imperialism operating out of the VP’s office.

This game -- the expansion of the scope of the EO’s -- is what is at play here. It is done under the cover of a traditional SOFA. But the real intent is for the Executive order to replace the Constitutional provision that Congress must ratify a treaty.

[Paul]

The use of the words “framework” and “regime” obfuscate the fact that SOFAs, and other international agreements, are simple contracts. Indeed, it is Contracts 101. International agreements tend to be more simple and direct because they don’t usually include the “cover your ass” gibberish so common in our legal documents. (Just look at the number of “whereases” in the AUMF for Iraq and determine for yourself how many are really accurate.)

Unlike commercial contracts between parties, these agreements can usually be terminated (with notice) be either party. A lot of these SOFAs involve the mere making of an offer by one government, followed by a written acceptance by the other; perfectly acceptable in the international convention relative to contracts.

Since the AUMF contains so many “whereases”, it is difficult to associate future occupation with the various UN Resolution cited therein.

If the cover for our presence in Iraq is a UN Mandate, and if it expires at the end of the year as Bush claims, a SOFA or other agreement will bind the United States of America to a future contractual responsibility. If that agreement requires the expenditure of funds, it must come under the purview of Congress. It is not anecdotal to George Bush. Congress can agree with it and fund it, or it can temper it in some way because money is involved. Congress can also reject it. Since when do we spend without the permission of taxpayers?

Naturally, Bush and his lawyers (and cronies in Congress) will twist the words and invent new definitions and meanings to the AUMF, but the people and the Congress must stand fast on this one because money spent there is not spent here. Imagine, we are getting screwed by the oil producing states in the Middle East – remembering the Gulf War - and here we are ready to spend more blood and treasure there. Doesn’t make sense.

Then again, this may be just a ruse to protect our 51st State (Israel).

[Duncan Kinder]

" The framework, if signed, would also give U.S. troops "a free hand to carry out arrests and conduct military activities in Iraq without consulting the Baghdad government," Cockburn reports.

The exclusive legitimate right to use force is an attribute of the nation state; so if this framework becomes established, "Iraq" will not be a nation state in the traditional sense of the term.

As such, the SOFA should be understood as part of a growing trend away from the nation state into as yet poorly understood social structures.

Obviously the Bush administration does have neocolonial intentions; but whether the SOFA will have neocolonial effects is a different question. Because if this trend away from the nation state strengthens and spreads, then the United States would have its hands full elsewhere; hence would be unable to keep "Iraq" under its thumb.

[Homer]

PL: [D]ocuments which essentially would establish an American protectorate (muhamia) over Iraq for an indeterminate period of time [snip] lipstick on a pig

Just as pork is forbidden, so will that pig......

With the respective histories of Messrs Maliki, Sadr, Hakim, et alia in mind, as well as the fervent anti-Americanism thriving throught the ME, it is quite difficult for some to even imagine that an American protectorate will be permitted in Iraq, a holiest of holies.

Judging by the total lack of pro-US legislation and political reconciliation, by the decades of history of al-Dawa and the SCIRI trying to transform a secular Iraq into a pro-Iranian Shiite fundamentalist republic, and by the total lack of co-operation between the US and al-Dawa and the SCIRI prior to 2003, etc. (e.g: no support for Israel; no participation as Annapolis), an American protectorate in the heart of the ME seems to be such a wild idea that can't possibly ever be concretized.

[Charles I]

I think Sidney O. Smith has perceived the forest for the trees, whatever the ultimate disposition of the USM in Iraq. For this reason, the precedent of allowing the Executive Order route outcome in the present negotiations shouldn't be blithely dismissed by musing that a future President may not choose to exercise the power, whether it exists in law or not. Congress has a duty to determine its constitutional role beyond one country's SOFA.

"This game -- the expansion of the scope of the EO’s -- is what is at play here. It is done under the cover of a traditional SOFA. But the real intent is for the Executive order to replace the Constitutional provision that Congress must ratify a treaty."

So the real question is, when will Congress restore the constitutional rule of law, as it is sworn to uphold? Until they do, what can be gotten away with will be done, the quieter the better. Then it will codified in some other Executive Order to prevent constitutional restoration, er, I mean, prevent backsliding in the unilateral UNCHALLENGED expansion of the Executive Presidency.

Past congressional performance is not encouraging.

[Jose]

Occupation leads to Jihad (Resistance).

Jihad invites all the Muslim world to hate us and also resist (Jihad) by all possible means.

So we are in a circular argument that can not be solved.

The surge has failed to produce any political climate for reconciliation or solved any of the fundamental problems of Iraq (Arab v Kurd or Sunni v Shiite).

The best thing for us to do is withdrawal and let the Iraqi's sort things out.

Correct me if I'm wrong folks, but most Iraqi tribes have Sunni and Shiite parts and would have to work things out.

Withdrawal would mean loss of American dominance in the region but I'm afraid it is also gone since we invaded Iraq.

We are now in the same position as the Israeli's, can't stay there but can't withdraw so we try to overlook the fundamentals of the problem at hand.

[b]

The possible trick Bush is trying here:

Congress will vote on the "Strategic Agreement" but not on the "SOFA".

The Iraqi parliament will vote on the "SOFA" but not on the "Strategic Agreement".

Neither would vote for both of these so the points have to be parted between the two arangements to make these vote results possible.

With a bit of 'coercive diplomcy' and lots of dollars put into the right hands this probably could be done.

[Montag]

Haven't we come full circle? My understanding is that Al Qaeda was organized because of our military bases in Saudi Arabia, which were there to protect them against Iraq. There's a poem or something: "In my end is my beginning..."

[Mark K Logan]

A link to the C-Span recording of Iraqi ministers Khalaf al Ulayyan and Nadeem al Jaberi
giving their opinions to the House Foreign Affairs subcommittee.

http://www.c-span.org/Topics/Iraq.aspx

Q&A starts at about 50 minutes. Rohrbackers
questions may provide insight to the administrations thinking.

And are amusing, pathetic,
but amusing.

[Homer]

Iraq 'won't be base for blitz'

TEHRAN: Iraqi Prime Minister Nuri Al Maliki sought to reassure Iran over a planned security pact with Washington yesterday, vowing Iraq would never be used as a platform to attack the Islamic republic. "We will not allow Iraq to become a platform for harming the security of Iran and neighbours," Maliki said after a late-night meeting with Iranian Foreign Minister Manouchehr Mottaki in Tehran. http://www.gulf-daily-news.com/Story.asp?Article=219804&Sn=WORL&IssueID=31081

Iraqi prime minister: Iraq will not be used to 'damage' Iran

TEHRAN, Iran (CNN) -- Iraq's Prime Minister Nuri al-Maliki on Sunday tried to allay Iranian fears over a planned U.S.-Iraq security pact, saying his government would not allow Iraq to become a launching pad for an attack on its neighbor.

[snip]

Earlier, Iran's state-run news agency IRNA quoted the Iraqi leader as saying that "Baghdad would not allow its soil to be used as a base to damage the security of the neighboring countries, including Iran."

[condfusedponderer]

The colonial nature of the entire thing is most obvious in Afghanistan, where the ex-US ambassador is running for the Afghan presidency. It can hardly get more obvious than that. And as for Iraq, the overt US arm twisting puts to the lie all pretensions of Iraqi sovereignty in US rhetoric.

Alas, certainly no new insights.

[vivelame]

I wonder, in light of this, whether the iranians will sign the exact same agreements with their Iraqi friends. That would border on awesome.

[Binh]

Crocker is right, Cockburn is wrong. The number is 41 bases:

http://www.campaigniran.org/casmii/index.php?q=node/4923

I wonder if Bush is pushing this so hard is because he is really really worried Obama will win and initiate a change in policy? This willingness to lock-in a (Democratic) successor into his policies is very worrisome when we look at Iran as well...

[Harper]

Ryan Crocker has acknowledged that a SOFA is not a treaty, and whatever Bush negotiates will not be binding on the next administration, unless it is brought to the Senate and has the status of a treaty. That ain't gonna happen, as Crocker freely acknowledged in an NPR interview I heard a month or so ago. How will Iran react to this? That will be interesting and revealing. My understanding from Pentagon sources is that the US wants permanent bases in Iraq, and envisions these bases as part of a larger buildup of bases throughout the region so the US can again be the "guarantor of the free flow of oil through the Persian Gulf." Asia beware! The numbers I hear is 20,000 troops remaining in Iraq, and an equal amount in other countries around the Gulf.

[Cold War Zoomie]

This popped up as the "Quote of the Day" when I was logging in at work:

The question isn't who is going to let me; it's who is going to stop me.
Ayn Rand

Such a simple encapsulation of the Bush Admin.

[TomB]

Col. Lang wrote:

"Can such agreements be made by executive agreement without the consent of the senate?  This is a lawyer's question.  Please comment."

Colonel:

Asking that I be cut a lot of slack for not making this more concise/elegant/comprehensive/or etc. due to some severe time constraints, I think I might be able to add at least a little something here.

Firstly just so as to provide some background and context, Executive Agreements have had a long pedigree in U.S. history going back at least to Prez. Monroe in 1817 with the Rush-Bagot Agreement limiting naval forces on the Great Lakes.

Indicative however of how rarely these sorts of things make it to the Supreme Court for a wide variety of still operative reasons, it wasn't until 1937 in the U.S. v. Belmont case that the SCOTUS formally said that they could even be valid at all. (Even though they are not mentioned in the Constitution.)

Getting then to the SOFA and SFA at hand, I think that Sidney Smith is spot on in saying that the *theoretical* legal issue hinges supremely on their details.

That is, can their specifics be said to *either* reflect (A) Constitutional power entrusted to the President alone (including his very very broad CinC powers), or (B) can they be said to be exercises of his own power *as well as* some given to him by Congress via this or that legislative action?

For instance, just as a general matter, given that I think there is little doubt that Bush had Congressional authorization to invade Iraq, using then his CinC power alone taking off from such a "valid" invasion I suspect that not many would claim a simple SOFA with Iraq is beyond his reach as a mere agreement governing the status and treatment of "his" troops by the Iraqi gov't. (Such as it is.)

On the other hand if under the guise of simple SOFA even after a "valid" invasion and occupation a Prez. tried to go way beyond the usual terms of same, those offending agreements or clauses might, theoretically or even actually, be found to trample on the Treaty Clause requiring Senate confirmation.

However, I think it is safe to say that it is very very unclear just where a President's sole foreign affairs powers end and where they need Senate ratification. Certainly the SCOTUS has never dilated on this to any broad general degree at all and that essentially means there simply is no Bible on the issue. But I have no doubt that, say, if a Prez. tried to make an EA really be a mutual defense treaty AND the Congress then clearly rejected same, that would clearly cross the line for the SCOTUS.

I would hasten to note however that one should not be deceived that a President's CinC power is about his or her only sole power when it comes to foreign affairs. It has been said in a number of different ways throughout history that a U.S. Prez. is the nation's "sole organ" of conducting the country's foreign affairs. For instance, I think it is beyond doubt that it is *solely* up to a Prez. whether to even recognize (or not) a foreign country. In fact this was involved in the Belmont case when FDR recognized the Soviet Union entirely on his ownsome. And remember too Truman's utterly ownsome decision to recognize Israel some mere 10 minutes or so after it declared itself sovereign. So this too has to be taken into account I think when theorizing just what a Prez.'s sole powers are; they ain't just limited to being the CinC by any means.

Plus I would also bet anything as regards any challenged SOFA or SFA clause that it would be argued that same was indeed based not only on Bush's sole Prez. powers but on Congressional power too. E.g., the authorizing act allowing him to invade Iraq in the first place, the post-9/11 "war on terror" authorization which was very very broad, and then any Congressional statements which could be construed as approving the "containment" of Iran, and etc., etc.

Again then, as to both the Bush SOFA as well as this very vague SFA (with the latter said to go further than what anyone could call a SOFA which thus raises deep suspicions), it would seem the devil is in the details. Sidney of course has noted that some academic legal eagles who have studied the details of the SOFA alone say it does violence to the Treaty Clause, although I would observe that throughout our modern history all the way back to the beginning of the last century academics have generally not looked kindly on EA's at all constitutionally, which doesn't seem to have had much meaning at all, with the only real constitutional heavyweights who matter being the Nine on the SCOTUS of course. And then Congress itself back in the 50's couldn't even bring itself to pass the proposed Bricker Amendment governing/limiting EA's, and Bricker-type proposals since have never made it anywhere either I don't think. (With it also seeming to be the case that even if one did pass, or indeed with anything passing that constituted a Congressional slapping at a Prez's EA authority, then of course it would probably have to do so by a supermajority given a likely Prez. veto.)

Beyond this I would also say that all this is pretty hypothetical in my view at least right now in terms of whether the SCOTUS will ever get to these questions. For instance, there is a "Political Question" doctrine the Court uses in some sticky situations to avoid deciding and here of course it might well say—depending on what specific issue is at hand of course, and the circumstances framing any such case—that "gee, if Congress really doesn't like a Bush SOFA or SFA it could pass a binding resolution denouncing it or refuse to fund it. Ergo, this is up to the other two branches to fight out." Plus these kinds of things also need to generate what is called a genuine "Case or Controversy" before the Court will take them, meaning you have to have someone genuinely aggrieved by the opposed action, and then you also have to have someone with something called "standing" before the Court will even agree to hear such cases and this can be no small thing, and blah blah blah.

So what this means to me is that it is only if Congress did take action clearly opposing this or that SOFA or SFA or clause thereof that things would get way less theoretical and might more likely make their way to the SCOTUS. Then at least I think there'd be a better chance of someone actually getting standing and etc., etc. (Although you still might have that Political Question doctrine problem. And it might be observed that a Dem Congress wouldn't care anyway and wouldn't want to risk a SCOTUS case since a Prez. Obama could just renounce any past EA, even though that may cause some other problems.)

I know this seems awfully messy and general, but you framed the question and I think that apart from my own lack of time to respond more clearly (for which I apologize again), that's just the nature of the field I think. So maybe I'll just state my own humble and "first-take" opinion on the broader, simpler question of whether with these EA's Bush will finally get at least some of the comeuppance so many here (including me) thinks he deserves generally with his Iraq buffoonery, with that opinion being no, I don't think so. Depends on the unknown details of course, but even given that I'd say the odds of a court striking anything down big-time in any such agreements is a good bit less than 50%. And as to Congress slapping Bush as regards same, I'd say while it's more likely, esp. in this political season, it's still less than 50% too, unfortunately. Just my real initial opinion on this as yet very vague stuff though.

Hope this isn't too incoherent and people aren't too harsh on me for same and at least find it worth the read....

Cheers,

[Curious]

99yrs? yeah right.

1. Iraq version of hezbollah under a decade

2. Iran going nuclear under 2 years

3. Iran has credible land force to counter our move under 5 yrs.

4. Iran has the ability to blitz Iraq+Palestinian under a decade.

5. West bank flipping to Hamas, under a decade.

6. We go bankrupt under some sort of banking crisis, under 5 yrs. (one or two more oil producing country unpegging dollar, we are over.)

http://www.atimes.com/atimes/Middle_East/JF10Ak04.html

Iraqi Foreign Minister Hoshyar Zibari has told the US media that Baghdad has a problem with the accord in the sections dealing with Iraq's sovereignty, and other Iraqi officials and lawmakers have focused in particular on the issues of "extraterritoriality" that would place American soldiers and contractors working in Iraq beyond the pale of the Iraqi judicial system. There is also concern over the US's request for "long-term bases" and the duration of the security agreement, with some Iraqis hinting the accord seeks a "ninety-nine-year agreement".

In light of the tense US-Iran relations, Tehran is adamantly opposed to any long-term US presence across the border, especially when there are unconfirmed reports that the US has specifically requested the right to use its bases in Iraq against hostile forces in the region beyond Iraq's borders.

[Homer]

Iranian leader: US military is Iraq's top problem

TEHRAN, Iran -- Iran's supreme leader told the visiting Iraqi prime minister Monday that the U.S. military presence is the main cause of Iraq's problems, according to Iranian state television, making clear his opposition to a U.S.-Iraqi security pact.

[snip]

Khamenei, who has the final say in Iran over government decisions, said the U.S. will fail to achieve its goals in Iraq.

"We are certain that the Iraqi people, through unity and effort, will get past these difficult conditions. For sure, America's dream for Iraq will not come true," Khamenei was quoted as telling al-Maliki.