| March 6, 2008 | by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Ali Frick, and Benjamin Armbruster Contact Us | Tell-a-Friend | Archives | Permalink |
Constitutional Showdown On Iraq Occupation
On Nov. 26, President Bush and Iraqi Prime Minister Nouri al-Maliki issued a "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship." The contentious issue has been the subject of five congressional hearings; the administration is attempting to pass the agreement in the wake of an expiring U.N. mandate without Congressional approval. During a hearing this week, the State Department Coordinator for Iraq, Adm. David Satterfield, refused to say whether it was "a constitutional requirement" for the administration to "consult with Congress...in the commitment of U.S. forces in a battle zone." As conservative columnist George Will noted, "Hundreds of such agreements, major (e.g., NATO) and minor (the Reagan administration's security commitment to the Marshall Islands and Micronesia), have been submitted to Congress." Frustrated with the administration's power grab, Rep. Bill Delahunt (D-MA) said that the Bush administration's rhetoric "creates the basis for a constitutional confrontation." Legislation has been introduced in both the House and Senate to bar the White House from making any such long-term deals with Iraq without congressional approval.
HOW WE ARRIVED HERE: The administration has repeatedly attempted to muddle the exact parameters of its commitment to Iraq. Initially, the Declaration of Principles committed the United States to helping "deter foreign aggression against Iraq" as well as "defending its democratic system against internal and external threats." After congressional outrage, the administration removed the "security guarantee." While the administration publicly opposes permanent bases in Iraq, Bush issued a signing statement to a defense authorization bill in January, saying he would disregard a provision that "bars funding for permanent bases in Iraq." Furthermore, last month, the White House said it does not view any U.S. military installations overseas as "permanent," even those present since World War II. Secretary of State Condoleezza Rice and Defense Secretary Robert Gates wrote in the Washington Post this month that the agreement with Iraq was routine, used with "more than 115 nations." But as Rep. Gary Ackerman (D-NY) noted, "there is nothing routine about it or the situation in Iraq." Curiously, the agreement "won't prohibit combat missions either," he added.
AVOIDING CONGRESS: "It's the position of this Administration that they do not need to come before Congress to receive authorization?" Delahunt asked in the hearing. Satterfield replied, "That's correct." While there may no longer be a "security guarantee" in the agreement, "[s]uch an accord necessarily implicates the authority to fight" in Iraq and should thus be authorized by Congress, Delahunt observed. "The Iraqi/U.S. Status of Forces Agreement (SOFA) would give the United States the 'authority to fight,'" explained Lawrence Korb of the Center for American Progress, making it broader than SOFAs with other nations. Oona Hathaway of the Yale Law School said that anything that includes an authority to fight -- which Satterfield implied the administration's agreement with Iraq would do -- "becomes an agreement that really must be submitted to Congress for approval either as a treaty or as a congressional-executive agreement." She added that the Strategic Forces Agreement, also part of the administration's Declaration of Principles, should be approved by Congress as an Article II treaty, as it "permits U.S. and coalition forces to assist in restraining extremists and outside actors."
IS IRAQ STILL A 'THREAT?': In a follow-up letter to Satterfield's testimony, Assistant Secretary of State Jeffrey Bergner "reaffirmed the administration's position that it does not need international or congressional approval to conduct military operations around the world, particularly when going after terrorists." Bergner explained to Ackerman that Iraq military operations can continue past 2008 without a U.N. mandate "under the laws passed by Congress and the president's authority as commander in chief," referring to the 2002 resolution authorizing force against Saddam Hussein and the resolution passed after 9/11. These authorizations, Bergner said, permit "use of force" to "defend the national security of the United States," allowing indefinite combat operations in Iraq. Ackerman observed, "I don't think anybody argues today that Saddam Hussein is a threat. Is it the government of Iraq that's a threat?"
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