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Bill Delahunt and Oona Hathaway

Bush should include Congress

By Bill Delahunt and Oona Hathaway
November 26, 2008
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THE IRAQI parliament is expected to vote today on the security agreement with the United States. Its approval, by the required two-thirds majority, would mark an important moment in the development of Iraq's constitutional democracy. How sad, then, that our own Congress has been denied the opportunity to vote on the agreement.

The bilateral agreement with Iraq would replace the UN Security Council mandate that now provides the international legal basis for US combat operations in Iraq and protects US military and civilian personnel from prosecution by the Iraqi courts.

Unlike Nouri al-Maliki, the prime minister of Iraq, President Bush has decided to go it alone. He has not submitted the agreement to Congress for approval - or even engaged in any meaningful consultation. He has insisted on keeping the American people in the dark by refusing to release the English text of the agreement, while in Iraq the Arabic version is available to all.

Bush's approach is unwise as a matter of policy and raises serious constitutional concerns. Just as the Iraqi constitution requires international agreements to be approved by Parliament, the US Constitution and precedent require that most international agreements be approved by Congress. Presidents may make some limited agreements on their own, but this one goes far beyond previous boundaries and involves national security decisions that are best shared with Congress.

The agreement accepts an Iraqi grant of authority for US troops to engage in offensive combat operations, gives power over US military operations to a joint US-Iraq Committee, and commits the United States to a set of withdrawal timetables that - depending on which leaked version of the agreement you read - President-elect Barack Obama may not be able to change for at least one year.

Ignoring traditional limits on the president's authority to make international commitments on his own creates a dangerous precedent. If Bush can exceed these limits in this case, what is to stop his successors from ignoring them in the future? Supporters of the Bush administration's go-it-alone approach should consider whether they are helping set a precedent that would allow a future president to sign the United States up to the Kyoto Protocol, the International Criminal Court, or the Law of the Sea Convention without congressional approval.

There is a simple way forward. If the president does not reconsider his decision to go it alone, then Congress should take the agreement up on its own, for an up or down majority vote. Congressional approval of the agreement would ease constitutional concerns. A rejection would make clear to the Iraqi people that this agreement is Bush's alone.

We cannot guarantee that Congress will approve the agreement. That is likely to turn on the administration's answers to a number of questions about the vague language and undefined commitments it contains on immunity for US personnel, the joint control of combat missions, and whether the new American president can speed up the deadlines for withdrawal.

Getting answers to these questions is not only good for our democracy, it will be good for the future of our relationship with Iraq.

Ike Skelton, chairman of the House Armed Services Committee, has said that he is "deeply troubled" because the agreement contains "vague language that will cause misunderstandings and conflict between the United States and Iraq in the future."

Given the limited congressional schedule and the deliberation that an agreement of this importance deserves, it is unlikely that Congress would be able to vote on the security agreement before the UN mandate expires on Dec. 31. But there is an easy solution: a temporary renewal of the UN mandate.

Both Maliki and Foreign Minister Hoshyar Zebari have said that Iraq will request a renewal if the agreement is not in place before the end of the year. If Iraq does so, the Security Council would quickly approve the request and our troops would be protected - along with the democratic process, both here and in Iraq.

US Representative Bill Delahunt of Massachusetts is chairman of Subcommittee on International Organizations, Human Rights, and Oversight of the Committee on Foreign Affairs. Oona A. Hathaway is a professor of law at the University of California, Berkeley, School of Law.

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