As the Bush administration heads into months of negotiations with Prime Minister Nouri al-Maliki on the future of US troops in Iraq, it aims to stretch the bounds of executive power to unprecedented lengths. The administration plans to bypass Congress to forge a status of forces agreement (SOFA) that would grant the US an unlimited “authority to fight” provision, according to statements by the State Department’s Coordinator for Iraq, David Satterfield, and Assistant Secretary of Defense Mary Beth Long, at a House Foreign Affairs Committee hearing last week. Drafts of the SOFA, a binding pact, also provide legal immunity for US private contractors operating in Iraq, according to a January New York Times article.
With the UN mandate that allows US troops to be in Iraq due to expire in December, legal options to continue the occuation include a renewal of the mandate or a treaty approved by the Senate. But Long says the SOFA will allowing US forces to carry on status quo operations in Iraq without the consent of Congress.
Satterfield held that the result of the Bush-Maliki negotiations will simply be a routine measure to normalize relations with Iraq as it transitions to independent sovereignty; “an agreement which is in its shape similar, in many respects, to SOFAs we have across the world.” Yet no other SOFA has ever included the authority to fight or immunity for contractors. Oona Hathaway, a Yale Law School professor who testified at last week’s hearing, told Truthout: “With the SOFA, the administration is claiming the power to continue using force in Iraq without the consent of Congress.”
Satterfield maintained the administration has the authority to keep troops in Iraq beyond the expiration of the UN mandate, citing Congress’ 2002 authorization of the use of force by the president to “defend the national security of the United States against the continuing threat posed by Iraq.”
It remains to be seen if the SOFA will include a provision for private contractors in Iraq. “Unlike anywhere else in the world, we have this law-free zone for private military contractors,” Hathaway said. “In the moment, it appears there may not be any legal jurisdiction over these folks.”
Rep. Barbara Lee has introduced a non-binding resolution affirming the Constitution only grants the president sole authority over “essentially nonpolitical foreign engagements,” and any agreement regarding US military involvement in a foreign country should require the consent of Congress. “We have to restore our checks and balances,” Lee said.
Iraq’s Parliament is facing similar dilemmas: like Bush, Maliki has skirted his legislature in making agreements for a future US military presence. The House Foreign Affairs Committee hopes to bring several Iraqi Parliamentarians to the US to speak in April, according to Raed Jarrar, Iraq consultant to the American Friends Service Committee. Rep. Lee told Truthout that, although she is not aware of any formal cooperation between Congress and the Iraqi government, “that’s not to say that conversations aren’t happening.” (Maya Schenwar for Truthout, March 12)