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The
Washington
Post
An Agreement Without
Agreement
By Bruce Ackerman and
Oona Hathaway, February 16, 2008
Washington, Feb. 15 -- The
Bush administration is so intent on securing its legacy in Iraq that it is once
again ignoring the Constitution. Without seeking the consent of Congress,
it is well on its way toward a long-term agreement with the Iraqi government
that threatens to deepen the American commitment without the congressional
support the Constitution requires.
President Bush's plan to cut out Congress has provoked a growing chorus of
criticism, joined by both Sens. Hillary Clinton and Barack Obama. In
response, the administration has begun to back-track from its vision of a
sweeping military and economic agreement. Speaking to the Senate Foreign
Relations Committee, Secretary of State Condoleezza Rice said that the agreement
would not contain a security guarantee committing the country to fixed troop
levels or permanent bases. Secretary of Defense Robert M. Gates, speaking
before the Senate Armed Services last week, stated that the agreement will be
"like other Status of Forces Agreements," which deal with the rights and
obligations of the military when operating on foreign soil.
Such agreements, the White House is quick to point out, are not usually subject
to congressional approval. That is true. But this truth will not
suffice, since the administration is still aiming for an agreement that moves
far beyond the traditional scope of these limited military accords. We
should not allow false advertising to serve as a cover for a constitutional
fait accompli.
For example, the administration plans to exempt civilian contractors from
prosecution under Iraqi laws. Military personnel also enjoy this
exemption, but they can be court-martialed. These military tribunals have
no jurisdiction over civilian contractors. Indeed, many of them will be
immune from prosecution anywhere. Current federal law only subjects
contractors working in support of the Defense Department to prosecution in
American courts for felonies in Iraq. Yet those working for the CIA or the
State Department could be left operating in a "no-law" zone if the president had
the power to commit America unilaterally. If that happens, contractors
could shoot Iraqi civilians without cause or commit sexual assaults against
their fellow contractors without facing prison time. No existing status of
forces agreement, including those used in such places as South Korea and
Germany, contains anything like this wide-ranging exemption.
And for good reason. As commander in chief, the president has the
constitutional power to make unilateral agreements concerning military personnel
and those directly supporting them. But the Constitution only makes him
commander in chief of the "army and navy" -- not all Americans working overseas.
He can't reach an agreement with Iraq that exempts independent contractors
without Congress getting into the act. At the very least, Congress should
not give its consent without amending existing statutes to assure that all
civilians granted immunity from Iraqi law can be held criminally responsible in
American courts.
Worse yet, the administration is keeping most of its plans secret. (Much
of what we have learned comes from leaks reported in the press.) Congress
has held two hearings -- on Jan. 23 and Feb. 8 -- on the legitimate scope of the
Iraqi agreement, and the administration has twice refused to testify.
While Gates and Rice have made a few reassuring remarks, they have fallen far
short of full disclosure.
This is unacceptable. Sen. Joseph Biden, as chairman of the Foreign
Relations Committee, is a strong critic of the administration's unilateral
approach. But if the stone-walling continues, he should make it his
committee's business to sponsor a congressional resolution declaring invalid any
military agreement that seeks to go beyond the traditional limits of the
standard Status of Forces Agreement. No president has the unilateral power
to impose broad international obligations on the nation without congressional
support. But it is especially wrong for a lame-duck president to make such
commitments about a controversial policy that is at the very center of the
debate among the candidates vying to succeed him.
The writers are professors at Yale Law School.
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