US-Iraq Security Pact May Be In Violation, Congress Is Told

By Jenny Paul, Boston Globe

WASHINGTON -- Passage of the US-Iraq security pact under the terms both countries' leaders have advocated could violate the constitutions of both countries, specialists told a congressional subcommittee yesterday.

They instead pressed for an extension of the United Nations mandate authorizing US troop involvement in Iraq, which expires Dec. 31.

American constitutional law scholar Oona Hathaway said she believes the Constitution requires Congress to also approve the agreement. The Bush administration has labeled the pact a "status of forces agreement," which can be implemented without congressional approval.

But Hathaway said the US-Iraqi pact is more comprehensive than previous agreements because it allows US troops to engage in military operations and specifies timetables for military withdrawal.

"These are unprecedented in a standard status of forces agreement, have never been part of a standard status of forces agreement, and extend in my view far beyond what the president can do without obtaining congressional approval," said Hathaway, a professor at the University of California at Berkeley's School of Law.

She also dismissed contentions that the administration can continue combat operations in Iraq after Dec. 31 based on the congressional resolution that authorized the 2003 US invasion.

"This was enacted, remember, in 2002, when Saddam Hussein was in power, and we were hearing about weapons of mass destruction, and so it was clear what the threat posed by Iraq was," she said. "It was posed by the government of Iraq. Of course, that government has changed, and those same threats to the United States do not exist."

The hearing was held by the House Foreign Affairs Committee's subcommittee on international organizations, human rights, and oversight.

Its chairman, Representative William Delahunt, a Massachusetts Democrat, said that he has "serious reservations" about the pact and argued that an extension of the UN mandate would be a viable stopgap measure.

The security agreement, which the Iraqi Cabinet approved on Sunday and the United States and Iraq signed on Monday, requires US troops to leave Iraq by the end of 2011. Iraq's parliament must approve the agreement before it takes effect.
Iraqi lawmakers, however, are debating the number of votes needed to pass the agreement. Most of the ruling parties argue that current law requires only a simple majority, while opponents say a provision in the Iraqi constitution calls for a two-thirds majority of the 275-member parliament, said Raed Jarrar, an Iraqi architect who is a consultant to the American Friends Service Committee.

Opponents of the pact introduced a bill Monday that would set a two-thirds standard for approval of agreements like the security pact.

"No one has ever proposed to have a simple majority for this type of agreement," Jarrar said. "Many people think that the new argument of just requiring a simple majority is politically motivated."

Yesterday, opponents of the agreement, including followers of anti-American Shiite cleric Muqtada al-Sadr, disrupted a second reading of the agreement in parliament.

Jarrar told the House subcommittee a simple-majority approval of the pact could provoke unrest and violence in Iraq.

"Most of the groups who are opposing it in the parliament, have been saying, 'If you wanted to go through some loopholes - not send it to Parliament or pass it through a simple majority - we will quit this political process as a whole, and we will go back to armed resistance,' " he said.

Delahunt said US and Iraqi officials should begin working on a six-month to one-year extension of the UN mandate instead of pushing the security agreement through the Iraqi parliament before it recesses next week.

The extension would allow President-elect Barack Obama and his administration to review and "improve the agreement to meet the campaign promises of Sen. Obama." Obama has advocated a 16-month time frame for US troop withdrawal from Iraq.
Delahunt also berated the Bush administration for refusing to release an official copy of the agreement to the public.

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Gates, Rice Defend US-Iraq Security Agreement
Washingtonpost.com - November 19, 2008 - By Lolita C. Baldor, Associated Press

WASHINGTON -- The security agreement between U.S. and Iraq provides both the time and authority needed for American troops to train Iraqi forces and pursue terrorists, senior Bush administration officials said Wednesday.

Defense Secretary Robert Gates and Secretary of State Condoleezza Rice were explaining and defending the agreement in classified briefings to Congress, some members of which are skeptical of the agreement that lays out U.S. troop withdrawal timelines and gives Iraq limited legal jurisdiction over U.S. forces and military contractors who commit crimes.

The 21-page document was signed on Monday in Baghdad by U.S. and Iraqi officials after months of painstaking negotiations, but it still must be approved by the Iraqi parliament. Tempers ran high when debate began in the Iraqi parliament this week, including a clash between supporters and opponents on Wednesday.

Although the Bush administration contends congressional approval is not required on the U.S. side, the White House dispatched Gates and Rice to Capitol Hill to assuage lawmakers' concerns as the clock ticks down on the existing United Nations mandate for the troops' presence in Iraq. The U.N. mandate expires on Dec. 31.

The agreement sets a June 30, 2009, deadline for the withdrawal of U.S. combat forces from Iraqi cities and towns and a Dec. 31, 2011, deadline for the withdrawal of all U.S. troops from Iraq, according to a copy obtained by the AP.

The pact generally calls for the U.S. to coordinate military operations with the Iraqis and aid the country in deterring any security threats, but it also says that "Iraqi land, sea, and air shall not be used as a launching or transit point for attacks against other countries."

Officials dismissed suggestions that the U.S. has retreated on its initial vehement opposition to withdrawal deadlines, insisting that any troop drawdown be based on security conditions. Instead, they said that change is due to improved security and better Iraqi forces.

"Their competence, their confidence has increased tremendously. And so, that's why we're able to work on a date," said White House press secretary Dana Perino. She added that the document was a negotiation and, "we asked for some things that we didn't get; they asked for some things that they didn't get. And we met them somewhere right in the middle."

At the Pentagon, spokesman Geoff Morrell echoed those comments.
"The security situation has improved so dramatically, and the Iraqi security forces have improved so dramatically that we are confident that, if things continue to trend as they have been, our services will not be needed in Iraq, come 2012," Morrell told reporters.

He said officials believe the agreement both respects Iraqi sovereignty and provides U.S. forces with the authority to continue to go after insurgents, while still giving the Iraqis the training and equipment they need to take over security of their own country.

The agreement also gives Iraq an element of legal jurisdiction over U.S. troops and military contractors who commit "grave premeditated felonies" while they are off-base and off-duty. A list of those crimes is to be compiled by a joint Iraqi-U.S. committee. The United States, however, would retain custody of such soldiers and also determine if they were on or off duty during any alleged crime.

Both Rice and Gates have said they would not be pushing the agreement if they did not fully support it, but members of Congress, including Rep. William Delahunt, D-Mass., are troubled by some provisions and said they have had little time to review the agreement.

"Here we are with the clock ticking, running out. There's been no input from Congress and the American people have been kept in the dark," said Delahunt, who was chairing a hearing on the issue Wednesday ahead of the testimony from Rice and Gates. "I still have serious reservations about this agreement."

Delahunt and others, notably House Armed Services Committee Chairman Ike Skelton, D-Mo., have expressed concern about the "vague" nature of the agreement.

Senate Armed Services Committee Chairman Carl Levin, D-Mich., said he has some concerns about the agreement, particularly on the provisions providing immunity for U.S. troops and authorizing US combat operations. He would not elaborate, citing classification concerns.

But South Carolina Republican Sen. Lindsay Graham said he is not concerned about the provisions in the agreement that give the Iraqi government the right to prosecute U.S. troops for crimes committed when they are off duty and off base.

"We decide when someone's off duty, off base," he said.

The agreement calls for the United States to hand over a list of all detainees to the Iraqi government. The government will issue warrants for the prisoners it wants, with the remainder to be set free except under exceptional circumstances.

Graham said he had concerns about what will be done with all the roughly 16,000 prisoners, especially foreign fighters, that are currently in U.S. custody in Iraq, particularly given that Iraqi prisons are already over capacity.

"I don't know, you've got some really bad guys," Graham told reporters after leaving the briefing.

The agreement requires the U.S. to inform Iraq within 24 hours if it detains any new prisoners and be ready to hand them over. However, the Iraqi government may let U.S. forces continue holding them, Graham said.

Associated Press writers Matthew Lee and Pamela Hess contributed to this report.

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Senate May Hold Symbolic Vote Next Year to Address Iraq Security Deal
CQ TODAY PRINT EDITIOn - Nov. 19, 2008 ? 8:41 p.m.- By Josh Rogin, CQ Staff

Senate Democrats are considering holding a symbolic vote next year to register their opinion on the newly minted U.S.-Iraqi security agreement, which calls for a full withdrawal of U.S. troops by the end of 2011.

Several senators who were briefed on the deal by Defense Secretary Robert M. Gates and Secretary of State Condoleezza Rice on Wednesday said the Senate will debate the agreement, which takes effect Jan. 1. They expect there will be a vote on a "sense of the Senate" resolution on the deal, even though Congress has no formal say in the matter.

The agreement, which includes withdrawal timelines for U.S. troops and defines the jurisdiction of Iraqi law over both U.S. military personnel and contractors, has been an object of contention between congressional Democrats, who demanded the right to ratify it as a treaty, and the Bush administration, which considered it an executive agreement not needing ratification.

"There will be a vote to express the sense of the Senate" as well as a "vigorous debate," said Daniel K. Inouye, D-Hawaii, chairman of the Senate Defense Appropriations Subcommittee. He said he would support the agreement in its current form and believes it would meet approval.

Other Democrats weren't so sure.

"As far as I know, it's not going to be put to a vote," said Senate Armed Services Chairman Carl Levin, D-Mich. He said he still had outstanding concerns regarding "immunity and our combat operations," but declined to elaborate further.

"It's a good document with a few problems," said Levin, who doubted that the Senate would be able to imprint the agreement with its views.

In an interview, Senate Majority Leader Harry Reid, D-Nev., refused to say whether he would hold a vote on the agreement but expressed general approval.

"We are finally getting out of Iraq," Reid said.

Republican senators have been opposed to subjecting the agreement to a vote, saying it is not a treaty because it does not include an explicit mutual defense commitment that would compel U.S. military action.

Lindsey Graham, R-S.C., a member of the Armed Services Committee, said the deal sufficiently protects U.S. soldiers from the suspect Iraqi judicial system because American personnel would only be vulnerable when they are off-base and off-duty, and the U.S. side gets to define what that means.

Graham said either country could alter the deal's firm withdrawal deadline, something the Bush administration had consistently opposed.

"It has flexibility for the Iraqi government or us to accelerate things or slow down," Graham said. A subsequent agreement will allow for at least some U.S. troops to remain in Iraq past 2011, he predicted.

Use of Force Authority

Lawmakers also differ over whether the Dec. 31 expiration of U.N. authority for Iraq operations also invalidates the 2002 law authorizing U.S. force against Iraq (PL 107-243). The legislation authorized military operations to combat the threat posed by Saddam Hussein's regime or to enforce U.N. resolutions.
Democrat Bill Delahunt of Massachusetts, chairman of the House Foreign Affairs International Organizations Subcommittee, argued at a hearing on Nov. 18 that Congress must pass a new law authorizing offensive operations before the new year or pursue an extension of the U.N. mandate.

"If the mandate goes, the legal authority goes -a situation that can only endanger our troops and complicate President-elect [Barack] Obama's plan to undertake a responsible withdrawal," said Delahunt.