The Bush/al-Maliki agreement bypasses Congress.

The law, lawyers, and the court.
Oct. 21 2008 4:25 PM

Bush's Final Illusion

The president's agreement with Iraq bypasses Congress. Again.

Iraqi Prime Minister Nuri al-Maliki. Click image to expand.
Nouri al-Maliki

President Bush and Iraqi Prime Minister Nouri al-Maliki have reached an agreement governing American military forces in Iraq. But under the Iraqi Constitution, parliament has to approve the deal, and major political parties are already demanding changes. With the threat of an Iraqi parliamentary veto monopolizing the headlines, it is easy to forget that Bush is proposing to shut Congress entirely out of the process. He is claiming the unilateral right to commit the country to his agreement.

This claim has no constitutional merit, as we've explained previously. It is particularly problematic when Americans will soon be choosing between two presidential candidates who have taken positions that are at odds with the Bush agreement. In claiming unilateral authority, a discredited administration is trying to secure its legacy by striking at the very heart of the democratic process—and, ironically, making the Iraqi government look more democratic than our own.

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President Bush defends his action by pointing to "status of forces" agreements that a long line of American presidents have unilaterally negotiated with close to 100 countries around the world. These involve a host of day-to-day matters like delivery of supplies to the troops, which are well within the president's exclusive power as commander in chief. But the present initiative goes far beyond anything in these previous agreements.

For starters, the Bush proposal undermines the constitutional powers of the next president as commander in chief. It subjects American military operations to "the approval of the Iraqi government," giving operational control to "joint mobile operations command centers" supervised by a joint American-Iraqi committee. American commanders in the field will retain their power to act without advance Iraqi approval only in cases of self-defense. While American troops have been placed under foreign control in peacekeeping operations, this has occurred only under treaties approved by the Senate. No American president has ever before claimed the unilateral power to bargain away the military power of his successors.

The proposed agreement also submits thousands of private military contractors to Iraqi courts in the event that they are charged with a crime. This provision points to a serious problem. Many of these contractors are now beyond the jurisdiction of both American and Iraqi courts. Operating within a no-law zone, they can victimize Iraqi civilians with impunity. We should definitely bring this abuse to an end, but Congress should be involved in devising an appropriate solution. These contractors have no direct relationship to the military. They are working for the State Department and other federal agencies. It is up to Congress, not the president, to decide whether the embryonic Iraqi court system is up to the task of holding the contractors to account or whether American laws should instead be given extraterritorial force. 

If allowed to stand, these remarkable actions will serve as precedents for more presidential abuses in the decades ahead. But over the short term, the agreement's three-year schedule for the withdrawal of American combat troops will be more important. Barack Obama has insisted on a 16-month timetable, and John McCain has rejected all such limitations. Ignoring both of these positions, the Bush agreement charts its own course. It commits the United States to a timetable for withdrawing troops from cities, towns, and villages in Iraq by June 30, 2009, with final withdrawal by Dec. 31, 2011. The agreement also requires a full year's notice before either party may withdraw, another purported effort to control the next president's conduct of foreign policy.

Worse yet, the text governing early withdrawal of troops is a muddle. Since the Bush administration hasn't made its agreement generally available to the public, we are relying on an English translation from Arabic kindly provided to us by Raed Jarrar, a consultant to the American Friends Service Committee. It provides that "U.S. forces may withdraw by dates that are before the dates in the agreed timetable if either of the two sides should so request." But this creates a tension with another provision that makes any change in the June 2009 deadline "subject to both sides' approval." Confusion is compounded by a third clause stipulating that both sides must approve of any extension of the final December 2011 deadline. Putting all these provisos together, it appears that the Americans can "request" a change in the timetables, but that both sides must agree to it.

Only one thing is clear. The agreement is intended to make it harder for a potential Obama administration to carry through on its pledge to end combat operations within 16 months, not three years. This is hardly a move the Democratic majority in Congress would approve, precisely why the administration is refusing to recognize lawmakers' constitutional prerogatives. 

Congress is presently out of session, with senators and representatives back in their districts for the election. It is especially anti-democratic for President Bush to announce a unilateral deal at a moment when Congress isn't in a position to protest immediately the usurpation of its authority. 

When Congress returns, it should demand that the president submit the agreement to it for formal approval. This won't delay the final deal. Given the broad resistance to the agreement in Iraq, its parliament won't be in a position to ratify the agreement until next year anyway. Both Bush and Maliki recognize this. That's why their deal lays the groundwork for a temporary extension of the U.N. mandate that currently authorizes the American military occupation of Iraq. 

This mandate, however, is presently scheduled to expire at the end of the year. Bush and Maliki should request six additional months from the Security Council. And then the president should follow up by submitting the proposed bilateral agreement with Iraq to Congress. But before this can happen, the Bush administration must give up on its dream of making a last-minute deal with Iraq which will magically secure its legacy—at the expense of the next president.

Bruce Ackerman is a law professor at Yale. Oona Hathaway is a law professor at the University of California-Berkeley.

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