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On November 26, 2007, U.S. President George W. Bush and Iraqi Prime Minister Nouri Kamel Al-Maliki signed a Declaration of Principles for a Long- Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America. Pursuant to this Declaration, the parties pledged to "begin as soon as possible, with the aim to achieve, before July 31, 2008, agreements between the two governments with respect to the political, cultural, economic, and security spheres." Among other things, the Declaration proclaims the parties' intention to enter an agreement that would commit the United States to provide security assurances to Iraq, arm and train Iraqi security forces, and confront Al Qaeda and other terrorist entities within Iraqi territory. Officials in the Bush Administration have subsequently stated that the agreement will not commit the United States to militarily defend Iraq. The nature and form of such a U.S.-Iraq security agreement has been a source of congressional interest, in part because of statements by General Douglas Lute, Assistant to the President for Iraq and Afghanistan, who suggested that any such agreement was unlikely to take the form of a treaty, subject to the advice and consent of the Senate, or otherwise require congressional approval.
It is not clear whether the security agreement(s) discussed in the Declaration will take the form of a treaty or some other type of international compact. Regardless of the form the agreement may take, Congress has several tools by which to exercise oversight regarding the negotiation, form, conclusion, and implementation of the arrangement by the United States. This report begins by discussing the current legal framework governing U.S. military operations in Iraq. The report then provides a general background as to the types of international agreements that are binding upon the United States, as well as considerations affecting whether they take the form of a treaty or an executive agreement. Next, the report discusses historical precedents as to the role that security agreements have taken, with specific attention paid to past agreements entered with Afghanistan, Germany, Japan, South Korea, and the Philippines. The report then discusses the oversight role that Congress plays with respect to entering and implementing international agreements involving the United States. Finally, the report describes legislation proposed in the 110th Congress to ensure congressional participation in the conclusion of a security agreement between the United States and Iraq, including S. 2426, the Congressional Oversight of Iraq Agreements Act of 2007, introduced by Senate Majority Leader Harry Reid on behalf of Senator Hillary Clinton on December 6, 2007; H.R. 4959, Iraq Strategic Agreement Review Act of 2008, introduced by Representative Rosa DeLauro on January 15, 2008; and H.R. 5128, introduced by Representative Barbara Lee on January 23, 2007.
Contents I. Current Legal Framework Governing U.S. Military Operations In Iraq II. International Agreements Under U.S. Law Treaties Executive Agreements Congressional-Executive Agreements Executive Agreements Made Pursuant to Treaties Sole Executive Agreements Choosing Between a Treaty and Executive Agreement II. Historical Practice Regarding Security Agreements Categories of Legally Binding Security Agreements Collective Defense Agreements/"Security Commitments" Consultation Requirements/"Security Arrangements" Other Types of Military Agreements Agreements Granting the Right to Military Intervention Examples of Bilateral Security Agreements Afghanistan Germany Japan South Korea Philippines III. Congressional Oversight Notification Notification Pursuant to the Case-Zablocki Act Notification Pursuant to Circular 175 Procedures Annual Reporting of Security Arrangements Required by the National Defense Authorization Act of 1991 Consultation Approval, Rejection, or Conditional Approval of International Agreements Implementation of an Agreement That Is Not Self-Executing Continuing Oversight IV. Legislative Activity
Congressional Oversight and Related Issues Concerning the Prospective Security Agreement Between the United States and Iraq
On November 26, 2007, U.S. President George W. Bush and Iraqi Prime Minister Nouri Kamel Al-Maliki signed a Declaration of Principles for a Long- Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America. (1) Pursuant to this Declaration, the parties pledged to "begin as soon as possible, with the aim to achieve, before July 31, 2008, agreements between the two governments with respect to the political, cultural, economic, and security spheres." (2) Among other things, the Declaration proclaims the parties' intention to negotiate a security agreement
To support the Iraqi government in training, equipping, and arming the Iraqi Security Forces so they can provide security and stability to all Iraqis; support the Iraqi government in contributing to the international fight against terrorism by confronting terrorists such as Al-Qaeda, its affiliates, other terrorist groups, as well as all other outlaw groups, such as criminal remnants of the former regime; and to provide security assurances to the Iraqi Government to deter any external aggression and to ensure the integrity of Iraq's territory. (3)
The New York Times reported in January 2008 that the Bush Administration has crafted a draft proposal for a U.S.-Iraq security agreement which would, if agreed upon by the parties, provide the United States with broad authority to conduct military operations in Iraq, guarantee U.S. military forces and contractors immunity from Iraqi law, and provide the United States with the power to detain Iraqi prisoners. (4) The New York Times also reported that the draft proposal does not call for the establishment of permanent U.S. military bases in Iraq, authorize future troop levels in the country, or describe the specific security obligations of the United States should Iraq come under attack. (5) During testimony before the Senate Committee on Armed Services on February 6, 2008, Secretary of Defense Robert M. Gates stated that the prospective security agreement would not obligate the United States to militarily defend Iraq in the event of a threat to Iraqi security. (6)
It is not clear whether the agreement(s) discussed in the Declaration will take the form of a treaty or some other type of international compact. However, in a November 26, 2007 press briefing regarding the Declaration, General Douglas Lute, Assistant to the President for Iraq and Afghanistan, stated that the Administration did not foresee a prospective agreement with Iraq having "the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress." (7) According to a February 5, 2008 report by the Congressional Quarterly, the National Security Council offered to brief Congress on the nature of the prospective U.S.-Iraq security agreement. (8) In a February 13, 2008, op-ed piece for the Washington Post, Secretary of Defense Gates and Secretary of State Condoleezza Rice claimed that the Administration "will work closely with the appropriate committees of Congress to keep lawmakers informed and to provide complete transparency. Classified briefings have already begun, and we look forward to congressional input." (9)
Regardless of the form the agreement may take, Congress has several tools by which to exercise oversight regarding the negotiation, form, conclusion, and implementation of the arrangement by the United States. This report begins by discussing the current legal framework governing U.S. military operations in Iraq.
The report then provides a general background as to the types of international agreements that are binding upon the United States, as well as considerations affecting whether they take the form of a treaty or an executive agreement. Next, the report discusses historical precedents that security agreements have taken, with specific attention paid to past agreements entered with Afghanistan, Germany, Japan, South Korea, and the Philippines. The report then discusses the oversight role that Congress plays with respect to entering and implementing international agreements involving the United States. Finally, the report describes legislation proposed in the 110th Congress to ensure congressional participation in the conclusion of a security agreement between the United States and Iraq.
I. Current Legal Framework Governing U.S. Military Operations In Iraq
U.S. military operations in Iraq are congressionally authorized pursuant to H.J.Res. 114 (P.L. 107-243), which authorizes the President to use the armed forces of the United States
as he determines to be necessary and appropriate in order to--(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
It also requires as a predicate for the exercise of that authority that the President determine that diplomatic efforts and other peaceful means will be inadequate to meet these goals and that the use of force against Iraq is consistent with the battle against terrorism. (10) H.J.Res. 114 appears to incorporate any future resolutions concerning the continuing situation in Iraq that the Security Council may adopt, as well as those adopted prior to its enactment. (11) The authority also appears to extend beyond compelling Iraq's disarmament to implementing the full range of concerns expressed in those U.N. resolutions, as well as for the broad purpose of defending "the national security of the United States against the continuing threat posed by Iraq."
The United States and Great Britain, along with a number of other countries, invaded Iraq in March of 2003, asserting the authority to enforce compliance with earlier Security Council resolutions that addressed the situation in Iraq and Kuwait. (12) Other Security Council members disagreed with this interpretation of the previous resolutions, denying that these resolutions contained a continuing authorization to use force against Iraq. Despite the initial lack of consensus regarding the legality of the invasion, the Security Council adopted subsequent resolutions recognizing the occupation of Iraq and generally supporting the coalition's plans for bringing about a democratic government in Iraq. (13)
The first of these, Resolution 1511 (October 16, 2003), recognized the Coalition Provisional Authority (CPA) and underscored the temporary nature of its obligations and authorities under international law, which it said would cease "when an internationally recognized, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the [CPA]." (Para. 1). In paragraph 13, Resolution 1511 authorized
a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme [for establishing a permanent government in Iraq] as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure.
The Security Council included in Resolution 1511 a commitment to "review the requirements and mission of the multinational force ... not later than one year from the date of this resolution." It further established that "in any case the mandate of the force shall expire upon the completion of the [electoral process outlined previously]," at which time the Security Council would be ready "to consider ... any future need for the continuation of the multinational force, taking into account the views of an internationally recognized, representative government of Iraq."
The Security Council resolutions do not provide for the immunity of coalition troops from Iraqi legal processes. No status of forces agreement (SOFA) was deemed possible prior to the recognition of a permanent government in Iraq. (14) Immunity for coalition soldiers, contract workers, and other foreign personnel in Iraq in connection with security and reconstruction was established by order of the CPA, which relied for its authority on the laws and usages of war (as consistent with relevant Security Council resolutions.) CPA Order 17, Status of the Coalition Provisional Authority, MNF--Iraq, Certain Missions and Personnel in Iraq, (15) established that all personnel of the multinational force (MNF) and the CPA, and all International Consultants, are immune from Iraqi legal process, which are defined to include "arrest, detention or proceedings in Iraqi courts or other Iraqi bodies, whether criminal, civil, or administrative." Such persons are nevertheless expected to respect applicable Iraqi laws, but are subject to the exclusive jurisdiction of their "Sending States." States contributing personnel to the multinational force have the right to exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by their domestic law over all persons subject to their military law. (16)
In June, 2004, in anticipation of the dissolution of the CPA and handover of sovereignty to the Interim Government of Iraq, the Security Council adopted Resolution 1546, reaffirming the authorization for the multinational force in Resolution 1511 while noting that its presence in Iraq "is at the request of the incoming Interim Government of Iraq." The terms of the mandate for the MNF are expressed in paragraph 12, in which the Security Council
Decides further that the mandate for the multinational force shall be reviewed at the request of the Government of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out ... above, and declares that it will terminate this mandate earlier if requested by the Government of Iraq.
Resolution 1546 incorporated letters from U.S. Secretary of State Colin Powell and Prime Minister of the Interim Government of Iraq Dr. Ayad Allawi. Secretary Powell wrote:
In order to continue to contribute to security, the MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes. In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions.
Prior to the handover of sovereignty to the interim government, Ambassador Bremer issued CPA Order 100 to revise existing CPA orders, chiefly by substituting the MNF-Iraq for the CPA and otherwise reflecting the new political situation. (17) CPA Order 100 stated, as its purpose,
to ensure that the Iraqi Interim Government and all subsequent Iraqi governments inherit full responsibility for these laws, regulations, orders, memoranda, instructions and directives so that their implementation after the transfer of full governing authority may reflect the expectations of the Iraqi people, as determined by a fully empowered and sovereign Iraqi Government. (18)
Under Article 26 of the Transitional Administrative Law of Iraq (TAL), (19) "The laws, regulations, orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under international law shall remain in force until rescinded or amended by legislation duly enacted and having the force of law."
Accordingly, CPA Order 17 (as revised) survived the transfer of authority to the Iraqi Interim Government, which took no action to amend or rescind it. Iraq's permanent constitution was adopted in 2005. Article 130 of the permanent constitution continues the validity of existing laws, presumably including CPA Orders that were not rescinded by the Transitional Government.
The U.N. Security Council extended the mandate for the multinational forces until December 31, 2006, (20) and again until December 31, 2007, (21) and finally, until December 31, 2008. (22) Iraqi Prime Minister al-Maliki requested the Security Council extend the MNF mandate "one last time" until the end of December, 2008, "provided that the extension is subject to a commitment by the Security Council to end the mandate at an earlier date if the Government of Iraq so requests and that the mandate is subject to periodic review before June 2008." (23)
By its terms, CPA Order 17 remains in force for the duration of the U.N. mandate and terminates only after the departure of the final element of the MNF from Iraq, or at such time as it is rescinded or amended by duly enacted legislation having the force of law. (24) Neither it nor CPA Order 100 establishes a timetable for the departure of all MNF elements from Iraq after the U.N. mandate ends. Order 17 could be interpreted effectively to expire concomitantly with the U.N. mandate, because it defines Multinational Force with reference to the U.N. resolutions. (25) However, the order appears to have been designed to stay in force for a time after the expiration of the U.N. mandate, for a long enough period at least to allow the departure of all MNF personnel. If the U.N. Security Council or the Iraqi government adopts a timetable for the departure of the MNF, it seems logical that CPA Order 17 would continue in force until the deadline for departure passes. On the other hand, if the government of Iraq invites the United States or any other coalition government to maintain troops in Iraq after the U.N. mandate terminates, it may be expedient for the Iraqi government to continue to recognize CPA Order 17 until a new agreement establishing the role and status of such troops is reached.
It bears emphasis that the foregoing is subject to the sole interpretation of the Iraqi government. Whether the immunity of coalition troops and other personnel will continue in force after the U.N. mandate expires depends on whether the Iraqi government deems them to be part of elements of the MNF that have not yet departed or military forces that have overstayed their mandate. It is not clear which branch of the Iraqi government would make that determination. Even more significantly, the Iraqi legislature could decide to repeal, amend, or possibly extend the order at any time, even before the U.N. mandate expires.
Another question regarding the status and role of U.S. forces in Iraq post- U.N. mandate is whether the congressional …