An Agreement Without Agreement

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By Bruce Ackerman and Oona Hathaway
Friday, February 15, 2008; 4:30 PM

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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