Statement of Hon. Bill Delahunt

Hearing on “Declaration and Principles: Future U.S. Commitments to Iraq”

March 4, 2008

Thank you, Mr. Ackerman. I am deeply appreciative of your leadership on the many complex issues arising from the war in Iraq, and I am grateful for the opportunity today to have our subcommittee join yours in this hearing.

This is a hearing of particular importance. It is not only about the future of the bilateral relationship between Iraq and the United States. But also the constitutional role of Congress in authorizing the use of American military force overseas. I would submit that it is not only our prerogative -- but our obligation -- to ensure that the constitutional responsibility of Congress in the authorization of military force is not further eroded.

The announcement of the so-called “Declaration of Principles” -- with its expansive menu of apparent significant commitments in the economic, political, and security spheres -- went largely unnoticed in Congress. My own awareness was prompted by the public opposition of a majority in the Iraqi parliament to the one-year renewal of the U.N. mandate last December -- which according to legal experts on the Iraqi constitution should have required a two-thirds vote of approval by the Iraqi parliament.

That approval was never obtained by the Maliki Government. This apparent violation of the Iraqi Constitution was seemingly ignored by the Security Council, as well as the Bush Administration.

It behooves us to remember that the Iraqi Parliament is the only body in Iraq directly elected by the Iraqi people. It is interesting to note that the opposition of the Iraqi parliament was based on the failure to incorporate in the renewal an explicit timetable for the withdrawal of American troops.

In the Declaration of Principles the Bush Administration and the Maliki Government have signaled an intention to negotiate a broad and expansive agreement that would replace the UN Mandate upon its expiration on December 31, 2008.

On its face the Declaration would set the stage for American security commitments that are unprecedented. These would include, in the actual language of the Declaration:

* Supporting the Republic of Iraq in defending its democratic system against internal and external threats… and

* Providing security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq...

In light of the magnitude of the commitments apparently being contemplated, what I found particularly disturbing was the statement by General Douglas Lute, the President’s deputy national security advisor for Iraq and Afghanistan, that such agreements would not require “formal negotiations or formal inputs from Congress.” Congress, in other words, would be left out of that decision.

In addition, there has been an effort by the Administration to equate whatever is negotiated to a typical Status of Forces Agreement -- which is fundamentally an agreement that relates to legal immunities for U.S. military personnel. But the “Declaration of Principles” contemplates something far more expansive than that kind of arrangement -- which clearly can be the subject of a sole executive agreement.

And I would note that Secretaries Rice and Gates in a recent op-ed piece continue to present SOFA’s as something they are not, something of much greater consequence – something which would require congressional approval. They state that Status of Forces Agreements range from “authority to fight to rules for delivering the mail.” The key phrase here is “authority to fight.” And that requires congressional approval.

We have testimony from a hearing I chaired last Thursday in which Chuck Mason of the Congressional Research Service stated that he had read through over 70 SOFA’s achieved by sole executive agreement -- and found not one example of a provision which conferred “authority to fight.” The overwhelming consensus of scholars who have testified in the previous four hearings before our two Subcommittees is that the authority to fight is a power to be shared between Congress and the executive.

One of our previous witnesses, Professor Michael Glennon, the former Counsel of the Senate Foreign Relations Committee, has made this point in a letter he sent to me for this hearing, and I would ask that it be made part of the record. Let me quote from his letter:

Under U.S. domestic law, authority for the President to use force ― “authority to fight” ― in Iraq must come either from the Constitution or the Congress. The Agreement with Iraq, which apparently will be entered into as a sole executive agreement, therefore could not serve as a source of such authority....And therefore, I reject the position held by the Administration that no formal inputs approved by the Congress are required.

While the term “strategic framework agreement” has been alluded to by Administration officials, it now appears, after reviewing Ambassador Satterfield’s statement, that there are two separate and distinct agreements being considered. The Ambassador states that the strategic framework agreement will broadly address the topics outlined in the Declaration of Principles, and that it and the SOFA, “together,” will constitute: “an accord that both affirms Iraqi sovereignty and continues to permit U.S. and coalition forces to assist in restraining extremists and outside actors who seek power through terror and violence, should the U.S. Administration and Iraqi government deem such operations necessary.”

In light of this testimony, I would conclude that our Constitution requires congressional approval of the strategic framework agreement -- because such an accord necessarily implicates the authority to fight. And as others have said, the decision to use force overseas – except for limited defensive purposes – requires a collective judgment of the political branches of government.

I look forward particularly to the Ambassador’s testimony on this point. Thank you, Chairman Ackerman.