Global Policy Forum

Experts: SOFA Faces Legal Uncertainty


By Maya Schenwar

November 19, 2008

The Bush administration's push to nail down a bilateral agreement governing the future US presence in Iraq faces serious stumbling blocks. Despite the agreement's near-unanimous passage in the Iraqi cabinet, fueled by deepening pressure from the Bush administration, it faces firm opposition from legal scholars and US Congress members, who say it undermines President-elect Barack Obama's powers and illegally bypasses Congress, and from Iraqi parliamentarians, who are not satisfied with its withdrawal provisions. The pact, termed a status of forces agreement (SOFA), is being read this week in the Iraqi Parliament. Prior to its cabinet approval, the SOFA underwent seemingly significant changes from previous drafts, giving flexibility to its 2011 deadline for a US withdrawal from Iraq. A primary reason cabinet members O.K.'d the SOFA was the addition of a clause allowing either the US or Iraq to request an early troop withdrawal, according to Juan Cole, president of the Global Americana Institute. However, the agreement's murky language and clumsy requirements could impede President-elect Obama should he attempt an accelerated withdrawal. According to a translation of the most recent version of the SOFA, provided to Truthout by American Friends Service Committee Iraq consultant Raed Jarrar, "The U.S. recognizes Iraq's sovereign right to request a U.S. forces withdrawal from Iraq at any time. The Iraqi government recognizes the United States' sovereign right to request a US forces withdrawal from Iraq at any time."

The terms of a "request" are left undefined, and the agreement contains no mandate that such "requests" be granted. No explanation is provided of how each side will deal with withdrawal requests. Moreover, the SOFA states, "Cancellation of this agreement requires a written notice provided one year in advance." Despite its gestures toward flexibility, the agreement could well tie Obama's hands, according to Berkeley Law Professor Oona Hathaway, who will testify on the SOFA before the House Foreign Affairs Committee's oversight subcommittee on Wednesday. "From this language, it appears that President-elect Obama may 'request' a change in the timetables, but that both sides must agree to it," Hathaway states in her testimony, provided to Truthout before the hearing. "In the absence of such an agreement, it appears that both sides are bound to continue abiding by the agreement for a minimum period of one year." With regard to its withdrawal provisions, the SOFA appears to mean different things to different parties. In fact, two of the main players affected by the pact - the Iraqi cabinet and the US military - offer clashing interpretations. "'The total withdrawal will be completed by December 31, 2011," Iraqi government spokesman Ali al-Dabbagh told reporters after the Iraqi cabinet's approval was announced. "This is not governed by circumstances on the ground."

Al-Dabbagh's statement conflicts with the Pentagon view, as expressed by Adm. Michael Mullen at the US Defense Department briefing following the cabinet vote. Mullen suggested that an extension of the deadline could be in the cards. "Three years is a long time. Conditions could change in that period of time," Mullen told reporters. When asked whether the agreement's absolute 2011 deadline could be altered, Mullen replied, "Well, clearly that's theoretically possible." The agreement often does not include mechanisms for implementation, stating only, "Both sides ... must enter into appropriate implementation arrangements to execute articles that did not include specific mechanisms for implementation in this agreement." The SOFA's ambiguity has prominent Congress members cautioning against it. "I am ... troubled by vague language in the agreement that will likely cause misunderstandings and conflict between the US and Iraq in the future," said House Armed Service Committee Chairman Ike Skelton in a statement. Other Congress members suggest that many of those confusions would be irrelevant if an earlier withdrawal deadline were built into the pact. "The Bush agreement commits the United States to a timetable that could leave U.S. troops in Iraq until Dec. 31, 2011," said Barbara Lee, a member of the House Foreign Affairs Committee, in a statement released on Monday. "Aside from the fact that the America people are plainly fed up with this unnecessary war and occupation in Iraq and want to see it ended, occupying Iraq for three more years under the Bush plan would cost American taxpayers $360 billion based on current spending levels. That money obviously could be better spent digging our economy out of the ditch the policies of the Bush Administration has put it in."

Skipping Congressional Approval

As the Bush administration has conducted negotiations with Iraqi Prime Minister Nouri al-Maliki over the past year, it has repeatedly dismissed calls for Congressional consultation, arguing that SOFAs are routinely concluded as sole executive agreements. However, the standard provisions of a SOFA include banking and postal procedures, legal protection of US military personnel and "covered persons" and the transport of Americans' property into and out of the country. According to Hathaway, the US-Iraq SOFA is markedly different: It grants US troops the authority to fight. Under the Constitution, Congress has the sole power to declare war. "This agreement goes far beyond a typical SOFA agreement," Hathaway told Truthout. "In my view, the president is legally required to obtain the support of Congress for the agreement, either through a majority vote in both houses or a two-thirds vote in the Senate." Beyond the unilateral authorization to fight, Bush's pact would open the door for an indefinite US presence in Iraq beyond 2011, despite controversy within Congress over that prospect. A clause in the SOFA states that, according to joint decisions, the US may respond militarily to "security threats" against Iraq, and will continue its "close collaboration" in supporting, training and maintaining the Iraqi army - all of which would keep US troops in Iraq, according to Joseph Gerson, author of "The Sun Never Sets: Confronting the Network of Foreign Military Bases." Gerson cautions that the election of Obama has made some US and Iraqi lawmakers complacent about the American presence in Iraq, as they anticipate an imminent withdrawal. In the midst of political euphoria, many have neglected to examine the SOFA's loopholes.

"Those loopholes remain, and they should be a source of concern for US, Iraqi and other peoples," Gerson told Truthout, adding that, considering the president-elect's shifts in his Iraq position throughout the campaign, an Obama presidency is no guarantee of a full combat troop withdrawal. "I fully expect that US troops will remain in Iraq for many years to come." Congressional consideration of the pact would likely take into account its broad conditions for an ongoing presence. However, if the SOFA is passed as a bilateral agreement, such expansive commitments are automatically approved as part of the presidential package deal. Additionally, the pact would place operational control in the hands of "joint mobile operations command centers," directed by a combined US-Iraqi committee - another unprecedented stretch of executive power. Ceding control over American troops to a foreign committee would sap both Congress and Obama of the wartime authority granted them by the Constitution, according to Congresswoman Lee. "Throughout history, American troops have been placed under foreign control in peacekeeping operations only where authorized under treaties ratified by the Senate," Lee said. "No American president has ever before claimed the unilateral power to cede command of American troops to a foreign power." Hathaway also points to issues raised by the agreement's immunity provisions, which have ignited controversy in Congress and would, she says, be best resolved there. For example, currently, civilian contractors who do not work for the Department of Defense (DoD) (for example, those employed by the State Department) are not under the jurisdiction of either Iraqi or US courts - essentially giving them a free legal pass. The SOFA attempts to solve that dilemma by placing non-DoD contractors under Iraq's jurisdiction. "This provision arises from a real and serious problem," Hathaway states in her testimony. "In my view, however, subjecting these contractors to the nascent Iraqi criminal justice system is almost certainly not the best answer to this problem. Instead, Congress should be involved in devising an appropriate solution."

The SOFA Debate in Iraq

In Iraq, the deal is not yet done: Its legislature is being consulted on the SOFA, and the agreement's passage is no certainty. Contrary to The New York Times's recent characterization of Iraq's cabinet as a "microcosm of the Parliament," the executive and legislative branches in Iraq differ starkly, with the administration largely backed by the US, and the Parliament representative of the Iraqi people. A spokesman for the Sadrist parliamentary bloc said on Sunday that the cabinet's approval of the pact "did not mean anything," since many parliamentarians reject it, according to Iran's international news network, Press TV. A large contingent of Parliament objects to addressing the SOFA before Iraq's "law to ratify international treaties and agreements" is passed, since the substance of that law would shape how the SOFA is considered and voted on. The treaties law itself is controversial and may take time to ratify, according to a September interview on Al-Arabiya with Mahmoud Al-Mashhadani, the Speaker of Parliament, translated by Raed Jarrar. "We are constitutionally barred from ratifying any agreements without the enactment of this law and the law has not been enacted so far," Al-Mashhadani said in the interview. "After enactment of this law we may introduce the agreement, and then it must be ratified by whatever majority decided by the law: it might be an absolute majority or it might be a two-thirds majority for important international agreements."

Parliament held its first reading of both the treaties law and the SOFA on Monday. According to Jarrar, this week Parliament will address whether it will consider the treaties law or the SOFA first - a decision that will determine the future of the SOFA. "If the Parliament wants to follow the correct constitutional and legal procedures, I don't think the agreement will pass," Jarrar told Truthout. "Most likely, the law would require a two-thirds majority for almost every agreement. If it needs a two-thirds majority, I can say 100 percent that [the SOFA] will not pass." However, intimidation, politicking and bribery may push the treaties law off the floor and let the SOFA be considered without it, in which case a simple majority may be allowed to decide the agreement's fate. In that case, according to Jarrar, the pact has a chance of passage. The United Nations mandate allowing US forces to stay in Iraq expires on December 31, so if the SOFA is rejected, or if it idles in Parliament while the treaties law is debated, the Bush and Maliki administrations need a quick Plan B. The UN Security Council would very likely approve a mandate renewal for another year, according to Jarrar, but the process might take weeks. Parliament adjourns at the end of November, so the next two weeks will be critical in deciding whether the occupation will be signed into international law for another year - or whether it will be authorized to continue indefinitely.


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