Testimony of Lawrence Korb

Senior Fellow, Center for American Progress

House Committee on Foreign Affairs

Declaration of Principles: Future United States Commitment to Iraq

March 4, 2008

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 SOFA’s 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 been 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 UN mandate does not address the immunity of US 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 U.S. 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.