The Future of the U.S. Military Presence in Iraq

There's been a lot of coverage over the last day of the negotiations following up on the November 26, 2007, Declaration of Principles for a Long­ Term Relationship of Cooperation and Friendship between Iraq and the United States, particularly the principle therein that the United States will "Support[] the Republic of Iraq in defending its democratic system against internal and external threats." The New York Times writes: "With its [Security Council] mandate in Iraq set to expire in 11 months, the Bush administration will insist that the government in Baghdad give the United States broad authority to conduct combat operations and guarantee civilian contractors specific legal protections from Iraqi law, according to administration and military officials." (See also the NPR story here; the AP story here; and the Reuters story here. The International Herald Tribune reported on the Declaration of Principles on the day they were issued.) Democrats are suggesting that any agreement that includes security guarantees must be characterized either as a treaty and subject to the constitutional requirement for Senate advice and consent to ratification or as a congressional-executive agreement and subject to the concurrence of both houses of Congress. (Examples of such mutual security or mutual defense treaties include the Security Treaty between Australia, New Zealand and the United States of America, the Treaty on Mutual Cooperation and Security Between Japan and the United States of America, and, of course, the North Atlantic Treaty.) Thus, Senator Biden, in a December 19, 2007, letter to the President (released yesterday), wrote: "The Constitution and our past practice clearly require that the executive and legislative branches act together in order to provide a legitimate security commitment to another country." The administration, for its part, analogizes any future agreement with Iraq to a status of forces agreement, which would not require congressional approval. (See, for example, the NATO SOFA here.) Thus, State Department Deputy Spokesperson Tom Casey said at yesterday's daily press briefing: "[SOFAs] basically outline the terms under which U.S. forces legally operate in the country. It includes things like, you know, whether they respond to the Uniform Military Code of Justice or whether they come under local government or local court authorities. It includes the kinds of arrangements that allow for duty-free transshipment of materials for troops and those kinds of things. It’s a very basic agreement. . . . It’s not something that establishes force levels either minimum or maximum or determines specific operations."

If (per Casey) that's all this negotiation is about, then this is much ado about nothing. One doubts that's the case, though. For some time, the United States has wanted a long-term commitment from the Iraqi government that would provide authority to the United States to maintain and employ troops there and in the region (something that would go beyond a standard defense cooperation agreement). And the Iraqi government may wish certain guarantees of its own concerning future U.S. military support. If that's the case, then this agreement looks less like a SOFA and more like a mutual security treaty. Certainly, the constitutional role of the Congress, if any, will depend on the details of the final agreement, but Biden and others are right to draw the line now. We'll see whether the executive power proponents in the administration decide to take them on.