More on Bush's Iraq Treaty

Some have questioned whether or not the locking in of a status of forces agreement (SOFA) would create a situation that would make it difficult for a future President to halt military activities in Iraq. I just got off a conference call with legal scholars Bruce Ackerman and Oona Hathaway, and Rep. Barbara Lee, who has introduced a nonbinding resolution expressing the sense of the Congress that the Administration must go to them to get authorization for a bilateral treaty of this type. The issue is that the UN mandate for American troops in Iraq expires at the end of this year, and without anything to supplant it, US troops would be operating in the country illegally, in violation of international law. The two ways to remedy this are to extend the mandate (which will be the subject of an upcoming House bill from the leadership) for a short period of time until the next President sets the policy, or to create this bilateral status of forces agreement, which is binding on the US government. In addition to the standard SOFA arrangements - protection for military personnel, postal and banking services, criminal exemption for military members - this agreement as it is being negotiated by the Bush Administration would include, in a completely unprecedented fashion:

1) an "authority to fight" giving US troops the legal authority to operate inside Iraq beyond the UN mandate;

and

2) legal immunity for private military contractors like Blackwater who are operating in accordance with the US government.

One can easily see why this is problematic. The precedent would be that the President can dictate the terms of military involvement unilaterally and without the expressed consent of the Congress. The authority to fight is completely beyond what has ever been in a SOFA before, and could be used as a precedent for all sorts of additional military actions (for example, would the authority to fight include Iranian troops across the border accused of "meddling"?). So for that reason alone we should never allow this for one second. Even regular strategic framework arrangements like we saw in Japan or Germany received Congressional approval first. These go further and the Administration claims no need to involve Congress.

As far as tying the hands of the next President, there are legal considerations and political considerations. It is a fact that this agreement would If a Democrat wins and seeks a new course in Iraq, he or she would be obliged to break an international commitment, which they can do but not without some difficulty. Dana Perino today pushed back against this idea that this would commit the next President to staying in Iraq, but note the spin:

"It's important to note what this agreement will not do. It will not tie the hands of the next President. It will not say how many troops should be there. It will not establish permanent bases. What it does is it provides for a secure environment for our troops to work, in a legal framework," she said [...]

Perino sharply criticized Bush's Democratic critics -- some of whom have raised the alarm over the agreement, saying it would commit his successors to an open-ended commitment to a vastly unpopular war.

"The Iraqis want it. Iraq's Arab neighbors want it. It appears that the only ones who are agitated about it, and in fact demagoging about it, are a subset of Democrats," she said. "I don't that their concern is merited."

This obviously plays into the Dolschstosslegende. Now you have this setup where only these rogue America-hating Democrats want to take Iraqi's freedom away. Let's get real. Bush is unilaterally making this deal with Maliki, who was installed by the Americans and in no way speaks for the Iraqi people. Having to break an international commitment to move forward on leaving Iraq will renew calls of stabbing the country - and the Iraqis - in the back.

So on several fronts, we don't want the President to have the power to negotiate the terms of permanent military deployments all over the world, especially in Iraq, where this occupation remains a disaster. This is absolutely an effort to, in the words of Prof. Ackerman, to "commit the next Administration as explicitly as possible to the policies of this Administration."

Iraq Insider has more.