On November 27, 2008, the Iraqi parliament approved a landmark security agreement with the United States. More than half of the parliament voted for the agreement, which now must be approved by the Iraqi people in a nationwide referendum to be held by July 30.
In Washington, however, neither a “yea” nor a “nay” has been heard from Congress on the agreement. Insisting it had the authority to negotiate unilaterally, the Bush administration engaged Congress only symbolically (briefings, etc.) while working out the details with Iraq.
The persistent failure to consult Congress on an agreement that affects U.S. involvement in Iraq threatens the constitutional balance between the executive and legislative branches and sets a dangerous precedent for future American military engagement abroad.
The Obama administration should immediately redress this institutional deformity and submit the agreement to Congress for a vote, even if it is only a symbolic resolution.
Any peacetime U.S. troop presence on foreign territories usually is regulated through Status of Forces Agreements (SOFA) between the United States and host countries. We currently have 115 such agreements. They usually deal with unexciting things, such as how supplies should be delivered and the legal status of military personnel, and come into force upon approval by the President only.
The U.S.-Iraq pact, however, is quite different. The “Agreement on the Withdrawal of the United States Forces from Iraq and the Organization of Their Activities during their Temporary Presence in Iraq,” as the tongue-twisting name reveals, reaches much further than a regular SOFA would. It says U.S. forces should withdraw from Iraqi cities by June 30, 2009, and from all of Iraq by the end of 2011. It requires that U.S. combat troops coordinate with the Iraqi government; deliver prisoners to Iraqi custody; and leave to Iraqi authorities the primary responsibility for monitoring Iraq’s airspace.
Bypassing Congress on the agreement has sent the United States into “a legal no-man’s land,” potentially offering a legal precedent for the President to extend future military occupations without Congressional consent, wrote constitutional experts Bruce Ackerman and Oona Hathaway. As Senators Ted Kennedy (D-MA), Bob Casey (D-PA), and Jim Webb (D-VA) have noted, Americans have a right to know that their elected representatives get to weigh in on any agreement that demands as much blood and treasure as the Iraq war.
Even some prominent conservatives have expressed concern about the lack of Congressional involvement in the agreement. For example, as the Washington Post’s George Will recently wrote, “This deal … covers questions at the center of far-reaching policy debates that rightly require congressional participation – the timetable for the withdrawal of U.S. troops central among them.”
In their Senate days, Barack Obama, Hillary Clinton, and Joe Biden all supported legislation requiring that the President consult with Congress on any agreement involving commitment or risk for the nation. The Bush administration turned a deaf ear, but the new tenants in the White House and Foggy Bottom ought to know better than that.