AP reported that on Saturday the U.S. began "negotiations" with "Iraq" on "a blueprint for a long-term relationship, plus a narrower deal to define the legal basis for a U.S. troop presence."[1]  --  The prospect of pacts defining the U.S.-Iraq relationship and establishing a status of forces agreements (SOFAs) is highly controversial, since the administration's position that they will not require congressional ratification is unconstitutional.  --  "A key negotiating issue for Washington is expected to be a desire to maintain U.S. military authority to gather intelligence and conduct counterterrorism activities, as well as ongoing combat missions," Robert Burns noted.  --  But this is highly unusual, and perhaps unprecedented, according to testimony by Lawrence J. Korb, presently director of national security studies at the Council on Foreign Relations in New York and assistant secretary of defense from 1981 to 1985, to a congressional committee last week, "the Bush administration must seek and obtain congressional approval for the Status of Forces Agreement in its current form as outlined in the Declaration of Principles."[2]  --  Korb has more than forty years of professional experience working with SOFAs.  --  He concluded his statement to the House Foreign Affairs Joint International Organizations, Human Rights, and Oversight Subcommittee and Middle East and South Asia Subcommittee with these words:  "Why is this administration unwilling to submit this treaty to the Congress?  The answer is clear.  It knows it will not be ratified because the American people have turned against this mindless, needless, and senseless war and want to withdraw our forces from this quagmire as soon as possible." ...

1.

U.S., IRAQ BEGIN NEGOTIATING STATUS OF FORCES
By Robert Burns

Associated Press
March 8, 2008

http://www.armytimes.com/news/2008/03/ap_iraq_negotiation_030608/

The U.S. and Iraq are opening negotiations in Baghdad on a blueprint for a long-term relationship, plus a narrower deal to define the legal basis for a U.S. troop presence, a Pentagon official said Friday.

Pentagon press secretary Geoff Morrell said the talks are scheduled to start Saturday.

Leading the U.S. negotiating team will be Ryan Crocker, the U.S. ambassador to Iraq. He will be assisted by senior officials from the Pentagon, the State Department, and the White House’s National Security Council.

Morrell said the U.S. expects a lengthy negotiation, with a goal of completing a deal by December, when the U.N. Security Council resolution that now governs the U.S. and coalition presence in Iraq will expire.

The process of negotiating a long-term deal with the Iraqi government has triggered criticism from some in Congress, in part because the administration’s position is that the deal will not require congressional approval and in part out of concern that it might commit to a specific U.S. troop level.

Morrell would not discuss specifics of the U.S. negotiating position.

“Like in any negotiation, the to-ing and fro-ing that inevitably will go on will go on behind closed doors,” he said.

Morrell said the deal sought by the administration “does not seek permanent bases; will not in any way codify the number of troops that will remain in Iraq; it will not tie the hands of a future commander in chief; it will not require Senate ratification, but we will make every effort to keep Congress apprised of progress in these talks.”

The intent is to simultaneously negotiate two parallel agreements. One, known as a strategic framework agreement, would spell out the basis for a long-term U.S.-Iraqi relationship in the political, economic, and security fields. Both sides see it as the basis for establishing a normal state-to-state relationship, enabling Iraq to function with full sovereignty.

The other would be what is known as a status of forces agreement, a standard arrangement that spells out the legal basis for the presence of U.S. troops on Iraqi territory and establishes the legal rights and obligations of the troops. The U.S. government has such deals with dozens of other countries.

What makes the Iraq case more complex is the U.S. interest in continuing to pursue terrorist threats inside Iraqi borders. Crocker addressed this issue in an Associated Press interview Feb. 1.

“I don’t think al-Qaida is going to have gone away after this year, and we and the Iraqis are going to want to make sure we are able to pursue them, but questions of force levels and whatnot, those will be executive decisions by this president and by the next,” Crocker said. “This agreement is in no way going to get into that executive decision prerogative.”

The U.S. now has 159,000 troops in Iraq and is expected to have more than 100,000 by the time a new president enters the White House next January.

David Satterfield, the senior Iraq adviser at the State Department, told Congress this week the status of forces agreement is intended to provide “all necessary legal authorities and protections for our troops to continue to operate in Iraq.” He said the two countries also will establish a separate strategic framework that will reflect “our shared political, economic, cultural, and security goals and interests.”

“Together, they seek an accord that both affirms Iraqi sovereignty and will permit the continued assistance of U.S. and coalition forces in that nation’s progress towards full security and peace,” he said.

Defense Secretary Robert Gates has said he expects the Iraqi government to agree to a longer-term U.S. troop presence, although the Americans would be focused less on combat than they are presently.

“I would anticipate that there would be some modest level of U.S. troops in Iraq at the invitation of a sovereign Iraqi government for some considerable period of time,” Gates said in India last week. “But it would be a fraction of what we have there now, and they would be there to participate in training and equipping of the Iraqi forces, helping them protect their borders, going after al-Qaida, and that sort of thing.”

While the agreements would not tie the U.S. to specific troop levels, officials do not rule out including some broad goals for the U.S. military presence there, reflecting the gradual transfer of security responsibilities to Iraqi forces.

A key negotiating issue for Washington is expected to be a desire to maintain U.S. military authority to gather intelligence and conduct counterterrorism activities, as well as ongoing combat missions.

Separately, President Bush met with Gates and members of the Joint Chiefs of Staff at the Pentagon on Friday. White House spokesman Gordon Johndroe said the topics included long-term budget planning. He said Bush will have additional meetings with Gates and the service chiefs before Crocker and Gen. David Petraeus, the top U.S. commander in Iraq, come to Washington in April for a status report on the war.

2.

National security

War in Iraq

DECLARATION OF PRINCIPLES: FUTURE UNITED STATES COMMITMENT TO IRAQ
By Lawrence J. Korb

** Testimony of Lawrence J. Korb, Senior Fellow, Center for American Progress, before the House Foreign Affairs Joint International Organizations, Human Rights, and Oversight Subcommittee and Middle East and South Asia Subcommittee **

American Progress
March 4, 2008

http://www.americanprogress.org/issues/2008/03/korb_testimony.html

Congressman Delahunt, ranking member Rohrbacher, and distinguished members, I appreciate the opportunity to appear before you to analyze President Bush’s Declaration of Principles with the government of Prime Minister Nouri al-Maliki. I cannot think of any issue more important to our future security and I commend you for holding this hearing.

At the end of 2008, the United Nation’s security mandate authorizing American combat operations will expire. To replace the mandate, President Bush and Iraqi Prime Minister Nouri al-Maliki issued a "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship” in November of 2007. Based on this declaration, the administration and the Iraqi government plan to issue a bilateral Status of Forces (SOFA) Agreement by the end of July.

As currently worded, the Declaration of Principles is substantially broader in scope than standard Status of Forces Agreements. The fact that the administration does not intend to submit the agreement for congressional approval is a testament to their own recognition of how the broad the implications of this agreement are and what type of debate it would spark on Capitol Hill and in the country. It is likely the administration will negotiate and sign an Iraqi SOFA without congressional authorization as Ambassador Satterfield just indicated.

It is my opinion, and that of every unbiased legal scholar, that the Bush administration must seek and obtain congressional approval for the Status of Forces Agreement in its current form as outlined in the Declaration of Principles.

STATUS OF FORCES AGREEMENTS

I have been dealing with Status of Forces Agreements for over 40 years. In 1964, I gained a bottom-up perspective when I was deployed to the Marine Corps Air Station in Iwakuni, Japan as a Naval Flight Officer with Patrol Squadron One (VP-1). Twenty years later, as an Assistant Secretary of Defense in the Reagan administration, with responsibility for troops and bases at home and abroad, I gained a top-down perspective.

Status of Forces Agreements do not deal with military operations nor what is referred to as the “authority to fight” or “right to fight” -- the authorization to conduct military operations within the receiving country. My understanding then and now is that a SOFA provides the framework for legal protections and rights while U.S. personnel are present in a country for agreed on purposes. Neither while on active duty nor while working in the Pentagon did I ever come across a SOFA that contained the authority, directly or indirectly, to protect a government from all enemies both foreign and domestic.

The SOFAs with Germany and Japan which govern the roles and responsibilities of our troops in those countries do not oblige the United States to defend those countries or their government. Those responsibilities are contained in separate treaties which have obtained congressional authorization.

The administration is pushing this bilateral Status of Forces Agreement for three principal reasons. First, under the current legal basis for American troops in Iraq (United Nations Security Council Resolution 1790) Iraqi consent for the U.S. troop presence can be withdrawn at any time. Second, the current U.N. mandate does not address the immunity of U.S. troops or private contractors before Iraqi courts. Third, and most importantly, in its current form, the U.S./Iraqi Declaration of Principles includes language guaranteeing "security assurances and commitments" requiring the United States to defend Iraq against internal and external threats," and to "support" Iraq's attempts to "defeat and uproot" all "terrorist groups," including "al-Qaeda, Saddamists, and all other outlaw groups," and to "destroy their logistical networks and their sources of finance."

This last provision is particularly troubling. As your Senate colleague, Sen. Joe Biden (D-DE), has noted, the agreement has the potential to mire American troops in an Iraqi civil war indefinitely, especially if a sectarian Iraqi government determines who qualifies as a “Saddamist” or “other outlaw group.”

As outlined, the Iraqi/U.S. Status of Forces Agreement would give the United States the “authority to fight.” As I mentioned, this is uncharacteristic of a SOFA. As a former witnesses before this committee, R. Chuck Mason of the Congressional Research Service, noted after examining the details of more than 70 Status of Forces Agreements, “none contain the authority to fight.” Nonetheless, as Ambassador Satterfield noted, the White House will seek to sign the SOFA agreement under the auspices of an “executive agreement” which does not require congressional approval.

While there are no agreed upon legal criteria by which to determine which agreements fall into the category of “executive agreements” (which do not require congressional approval) and “treaties” or “Congressional-Executive agreements” (which do require Congressional approval) there are several precedents requiring that agreements seeking a “security commitment” obtain congressional authorization.

* A 1992 report submitted to Congress by President George H.W. Bush, the executive branch defined a security commitment as “an obligation, binding under international law, of the United States to act in the common defense in the event of an armed attack on that country.”

* The National Commitments Resolution of 1969 expressed a sense of the Congress that defined a security commitment quite broadly, stating that, among other things, it includes any “promise to assist a foreign country, government, or people by the use of the Armed Forces . . . either immediately or upon the happening of certain events.”

Thus, there has been a general agreement that security commitments, which this agreement most certainly is, require congressional approval.

CONCLUSION

Common sense tells us that the primary reason the Iraqi government wants us to remain is to defend them from internal and external threats. As the Iraqi Defense Minister mentioned during his recent visit to the U.S., the Iraqis themselves will not be able to provide internal security until 2012 and external until 2020. Who will provide it in the interim if not our brave troops?

Why is it necessary to negotiate a SOFA in the midst of a war and a presidential campaign? The answer is that the Government of Iraq has expressed its strong desire that the U.N. Chapter VII mandate expire at the end of 2008. The Iraqi government cannot have it both ways. If it wants to require the United States to defend Iraq against internal and external threats and to support Iraq’s attempts to uproot and defeat all terrorist groups, including Al Qaeda, Saddamists, and all other groups, then it must be willing to have this arrangement ratified by the Congress. This is the way our government works. If the Maliki government wants us to respect its sovereignty, it must respect our Constitution.

Why is this administration unwilling to submit this treaty to the Congress? The answer is clear. It knows it will not be ratified because the American people have turned against this mindless, needless, and senseless war and want to withdraw our forces from this quagmire as soon as possible.