US-Iraq security pact may be in violation, Congress is told

By Jenny Paul
Globe Correspondent / November 20, 2008
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WASHINGTON - Passage of the US-Iraq security pact under the terms both countries' leaders have advocated could violate the constitutions of both countries, specialists told a congressional subcommittee yesterday.

They instead pressed for an extension of the United Nations mandate authorizing US troop involvement in Iraq, which expires Dec. 31.

American constitutional law scholar Oona Hathaway said she believes the Constitution requires Congress to also approve the agreement. The Bush administration has labeled the pact a "status of forces agreement," which can be implemented without congressional approval.

But Hathaway said the US-Iraqi pact is more comprehensive than previous agreements because it allows US troops to engage in military operations and specifies timetables for military withdrawal.

"These are unprecedented in a standard status of forces agreement, have never been part of a standard status of forces agreement, and extend in my view far beyond what the president can do without obtaining congressional approval," said Hathaway, a professor at the University of California at Berkeley's School of Law.

She also dismissed contentions that the administration can continue combat operations in Iraq after Dec. 31 based on the congressional resolution that authorized the 2003 US invasion.

"This was enacted, remember, in 2002, when Saddam Hussein was in power, and we were hearing about weapons of mass destruction, and so it was clear what the threat posed by Iraq was," she said. "It was posed by the government of Iraq. Of course, that government has changed, and those same threats to the United States do not exist."

The hearing was held by the House Foreign Affairs Committee's subcommittee on international organizations, human rights, and oversight.

Its chairman, Representative William Delahunt, a Massachusetts Democrat, said that he has "serious reservations" about the pact and argued that an extension of the UN mandate would be a viable stopgap measure.

The security agreement, which the Iraqi Cabinet approved on Sunday and the United States and Iraq signed on Monday, requires US troops to leave Iraq by the end of 2011. Iraq's parliament must approve the agreement before it takes effect.

Iraqi lawmakers, however, are debating the number of votes needed to pass the agreement. Most of the ruling parties argue that current law requires only a simple majority, while opponents say a provision in the Iraqi constitution calls for a two-thirds majority of the 275-member parliament, said Raed Jarrar, an Iraqi architect who is a consultant to the American Friends Service Committee.

Opponents of the pact introduced a bill Monday that would set a two-thirds standard for approval of agreements like the security pact.

"No one has ever proposed to have a simple majority for this type of agreement," Jarrar said. "Many people think that the new argument of just requiring a simple majority is politically motivated."

Yesterday, opponents of the agreement, including followers of anti-American Shiite cleric Muqtada al-Sadr, disrupted a second reading of the agreement in parliament.

Jarrar told the House subcommittee a simple-majority approval of the pact could provoke unrest and violence in Iraq.

"Most of the groups who are opposing it in the parliament, have been saying, 'If you wanted to go through some loopholes - not send it to Parliament or pass it through a simple majority - we will quit this political process as a whole, and we will go back to armed resistance,' " he said.

Delahunt said US and Iraqi officials should begin working on a six-month to one-year extension of the UN mandate instead of pushing the security agreement through the Iraqi parliament before it recesses next week.

The extension would allow President-elect Barack Obama and his administration to review and "improve the agreement to meet the campaign promises of Sen. Obama." Obama has advocated a 16-month time frame for US troop withdrawal from Iraq.

Delahunt also berated the Bush administration for refusing to release an official copy of the agreement to the public.

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