Y 4.F 76/1:110-151
THE PROPOSED U.S. SECURITY COMMITMENT TO
IRAQ: WHAT WILL BE IN IT AND SHOULD
IT BE A TREATY?
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL
ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT
AND THE
SUBCOMMITTEE ON
THE MIDDLE EAST AND SOUTH ASIA
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
JANUARY 23, 2008
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2
mitments; well, the only comment to date has come from a re-
sponse to a question at a press conference by General Douglas
Lute, the deputy national security adviser for Iraq and Afghani-
stan. General Lute said that he does not, and these are his words,
"anticipate now that these negotiations will lead to the status of a
formal treaty, which would then bring us to formal negotiations or
formal inputs from the Congress."
I, for one, could not disagree more. Where have we ever entered
an agreement to defend a foreign country from external and inter-
nal attack that was not a treaty? This could very well implicate our
military forces in a full-blown civil war in Iraq.
If a commitment of this magnitude does not rise to the level of
a treaty, then it is difficult to imagine what could. Now, I have tre-
mendous respect for General Lute. He and his family have served
this country well, and that is why I invited him, as well as other
witnesses from the Defense and State Department, to be here today
to explain the administration's position, but I am cognizant of the
fact that General Lute is a soldier and not an international treaty
attorney and that there are others above his pay grade that are re-
sponsible for ultimate decisions.
It should be noted for the record that, in addition to General
Lute, invitations to this hearing were extended to Eric Edelman,
the under secretary of defense for policy; John Bellinger, III, the
State Department legal adviser; and Ambassador David Satterfield,
the State Department special coordinator for Iraq. All four invita-
tions were declined.
Now, many of us are aware of the propensity of this administra-
tion to interpret and expand executive power to a point never con-
templated by the Founding Fathers. The voluminous, so-called
"signing statements" issued by the White House are testimony to
that attitude.
Senator Hagel, our Republican colleague in the other body, has
said that, during the runup to vote to authorize the invasion of
Iraq, the Bush administration considered Congress to be, and,
again, these are his words, "an enemy and a constitutional nui-
sance."
Well, this is a different Congress. I find it particularly disturbing
that the Bush administration has even ignored State Department
regulations requiring that, and, again, this is language excerpted
from their regulations, "the appropriate congressional leaders and
committees are advised of the intention to significant new inter-
national agreements, consulted concerning such agreements, and
kept informed of developments affecting them, including, espe-
cially, where any legislation is considered necessary or desirable for
the implementation of a treaty or agreement. These regulations
specifically state that when it comes to questions about whether or
not an agreement is to be considered a treaty, consultations are to
be held with Congress in which . . ." and, again, this is language
taken from the State Department regulations, "every practical ef-
fort will be made to identify such questions at the earliest possible
date so that consultations may be completed in sufficient time to
avoid last-minute consideration."
I have inquired of our leadership on this committee and the
House leadership, and I can find no evidence that any of this has


5
So with that said, I am very anxious to hear the witnesses today,
and I am also jealous of the prerogatives of the legislative branch,
as we all should be, because we are here to fulfill the constitutional
role that was established by our Founding Fathers and the respon-
sibilities that have, of course, been given to us by the voters of this
country to represent their interests.
It is not all in the hands of the President and his appointees. We
play a major role, and, as I say, if there had been a better spirit,
perhaps examining the legal prerequisites would not be as impor-
tant a discussion.
So thank you very much for this hearing today, and I look for-
ward to participating fully.
Mr. Delahunt. Thank you, Mr. Rohrabacher. Now the chair of
the Middle East Subcommittee, Mr. Ackerman of New York.
Mr. Ackerman. Thank you, Mr. Chairman. Please do not mis-
interpret my sliding further away from you as an indication of any
disagreement. It appears that the microphones on either side of
you have both failed.
I appreciate Mr. Rohrabacher's statement as well. He proves, yet
again, that he is an equal-opportunity attack dog.
I think the very fact that this is a joint hearing of both sub-
committees is indicative of the fact that this is a very important
area of concern to so many Members of Congress. The war in Iraq
remains deeply unpopular with most Americans, as a review of any
number of recent polls will tell you, or perhaps simply a review of
the mail that comes into your office would suggest.
So it strikes me as unwise that the President would want to go
ahead and unilaterally commit the United States to a long-term se-
curity agreement with Iraq without trying to get the support of ei-
ther the American people or the people's representatives. But true
to form, the President has decided to go it alone on Iraq again, or
so one would believe, if you take the President's special deputy na-
tional security adviser for Iraq and Afghanistan, General Douglas
Lute, at his word, as you point out, Chairman Delahunt.
General Lute made it clear that the White House would be flying
solo on this question when he said, "We don't anticipate now that
these negotiations will lead to a formal treaty, which would then
bring to formal negotiations or formal inputs from the Congress."
I do not think we can dispute General Lute's view that the Presi-
dent certainly has the authority to enter into an executive agree-
ment with the Government of Iraq. Certainly, such agreements are
a commonly used tool in American diplomacy, and such agreements
are not ordinarily subject to congressional approval unless there
are U.S. domestic laws that need to be amended in order for our
nation to comply with the agreement.
No, the issue is not a question of legal authority; it is a question
of political wisdom and sustainability, and I think the President's
preferred course, as expressed by General Lute, is profoundly un-
wise and unsustainable.
Americans, in vast numbers, want our troops to come home.
They are no longer certain, if they ever were, what we are fighting
for. But I also think that most Americans, if you ask them, would
agree that, even after the United States withdraws its forces from
Iraq, we still need a framework for our relations with Iraq from


6
that point forward, and I think they would also agree that the
President, with less than 12 months left in his term, should not be
the sole arbiter of what that future relationship looks like.
It is precisely because a long-term security agreement would be
controversial that the President should involve Congress in the de-
liberations that shape such an agreement. It is my understanding
that the State Department regulations even call for consultations
with Congress, in deciding what form an international agreement
should take, the Department must expressly consider "the pref-
erence of the Congress to a particular type of agreement."
The concern by many of us in the Congress is that the Declara-
tion of Principles, signed last November, is so vague that it could
cover anything, from consulting with the Government of Iraq about
threats it faces to actually deploying United States troops to help
Iraq defend itself.
If all we are really talking about is consultation with Iraq's Gov-
ernment in the face of a threat, then maybe an executive agree-
ment is okay, but if the President intends to indefinitely commit
United States troops to defend Iraq against future threats, then I
believe the approval of Congress of any such agreement is required.
Indeed, the American people would accept nothing less.
So I call upon the President to reject General Lute's proposed
course and, instead, instruct the State Department to consult with
the relevant committees in Congress over the shape of our future
relations with Iraq and what the exact nature of any future com-
mitments will be.
Trying to build a democracy in Iraq by ignoring the democratic
process at home is ironic and certainly in keeping with the habits
of the President to date. But most of all, it is foolish, shortsighted,
and perilous. It should not be done, and I suspect that there could,
and would, be serious consequences if that is attempted. Thank
you, Chairman Delahunt.
Mr. Delahunt. Thank you, Chairman Ackerman.
Now, the distinguished ranking member on the Subcommittee on
the Middle East, the gentleman from Indiana, Mr. Pence.
Mr. PENCE. Thank you, Mr. Chairman. Thank you for calling this
joint hearing. I am captured by a sense, though, that today may
be a good example of how Congress can be a lagging indicator in
American public life.
It seems to me, our discussion today here on Iraq misses the de-
velopments in 2007 altogether. It is almost as if the "Anbar Awak-
ening" did not occur. It is as if we had not received preliminary re-
ports of refugees returning home from neighboring countries. It is
as if the last several months have not been the safest for U.S.
troops in years, or, specifically, the combat-related United States
casualties in Iraq were not 83 percent less in December 2007 than
they were in December 2006. It is as if the Iraq public does not
have the precious breathing space that it lacked 1 year ago. In fact,
it is almost as if the surge did not work.
Mr. Chairman, these things did occur. I am not certain that this
body has absorbed or appreciated the success story and the im-
proved security situation in Iraq and how dramatically better con-
ditions are.


8
With respect to the gentlelady who is present here today, H.R.
4959, the DeLauro Bill, provides for congressional consultation. It
is the language of the bill, "ensuring that the President produce a
treaty," that raises all of these questions. Even if it is the sense
of Congress, it strikes me as an unconstitutional solution in search
of a problem.
So I hope we have this conversation today. I am interested in the
testimony. I look forward to the dialogue, but I hope we do it in
the context of a widening American success in Iraq, and I hope we
also do it within the proper confines of the role of the House of
Representatives in the formation and implementation and ratifica-
tion of treaties, and I yield back.
Mr. Delahunt. I thank the gentleman.
Mr. Scott?
Mr. Scott. Thank you very much, Mr. Chairman. This is, indeed,
a very, very timely hearing, and I certainly want to say, at the out-
set, that we must not make the same mistakes that we made going
into this conflict in Iraq as we attempt to determine how we con-
clude the matter.
Now, I think it is very important for us to take a look at exactly
the breadth and the scope of what the President wants to do by
himself, without the consent of Congress, without the involvement
of Congress, and I think, when we look at this, I think it will illu-
minate the breadth and the scope of the arrogance of the President,
on one hand, and the direct failure of our responsibility as a Con-
gress if we do not object and insist upon congressional approval.
This is the mission, as contained in the Declaration of Principles,
for the security agreement. This is what it says:
"To support the Iraqi Government in training, equipping, and
arming the Iraqi security forces so they can provide security
and stability to all Iraqis, support the Iraqi Government in
contributing to the international fight against terrorism by
confronting terrorists, such as al-Qaeda, its affiliates, other ter-
rorist groups, as well as all other outlaw groups, such as crimi-
nal remnants of the former regime, and to provide security, fi-
nancial assurances to the Iraq Government to deter any exter-
nal aggression and to ensure the integrity of Iraq's territory."
Now, this is sweeping in its scope. It is soaring in its magnitude,
and it requires the Congress of the United States to stand up and
affirm its constitutional duties, as outlined in the Constitution. It
would be a considerable dereliction of our duties not to require that
both houses of this Congress, by majority vote, approve of this
agreement before we move forward, or else we will be a standing
joke in the public opinion of the people who elected us to office.
This is extraordinary, and I am just proud to be a part of this
committee that is taking it upon ourselves to, I think, today strike
the first blow, the first blow, for participatory government and de-
mocracy, as laid out by Hamilton, by Madison, and by Jay, that
was laid out in Article 2 of the Constitution of the United States.
We have a responsibility here, and we dare not shirk from this
responsibility today, and I just hope, Mr. Chairman, that we are
very strong in what we do and that we send a very loud and a very
purposeful message to the White House that this is not his job


14
shape of a long-term presence would be part of the negotiations,
but he denied that any agreement would specify timelines or goals
for the United States withdrawal from Iraq. However, the declara-
tion stipulation of the antiterrorism and Iraq security forces train-
ing mission will likely color how many troops would be needed
under the pact, if the pact is negotiated along the lines of the dec-
laration.
It is difficult to say precisely how many U.S. forces would be re-
quired to perform these missions. There are many intangibles. We
do not what the level of violence will be, the enemies, the threats,
et cetera. In my conversations with defense experts around town,
the common thinking puts the range of U.S. troops for these mis-
sions at between 50,000 to 100,000. Many experts seemed to be
centered on 70,000. Again, not mentioning any names, many of
these experts might not want to be held to these estimates, and
that is what they are; they are estimates.
The freedom of action for U.S. military forces will be key, as to
the provisions of this agreement, particularly, the degree to which
United States forces that are in Iraq under the pact must coordi-
nate with or obtain Iraq approval for specific combat operations.
Some Iraqi observers say the Iraqi side might likely try to demand,
for example, limits on the United States ability to employ air
strikes, potentially including the types of aircraft the United States
could station in Iraq.
The U.S. negotiating side is, undoubtedly, going to argue for the
maximum flexibility for U.S. forces in any bilateral pact in order
not to have their hands tied, if they come under threat. It was
mentioned, a legal Status of Forces Agreement will certainly be ne-
gotiated, but that is a component of this overall pact, referring to
whose law U.S. troops are under.
Permanent basing: General Lute said there might be negotia-
tions on permanent base. It was mentioned that several laws from
Congress, which were signed, prohibit that; however, many Iraqi
officials had said that the Iraqi side is not going to want to allow
permanent bases. So that may be an issue that is not confronted
in the final agreement because it appears the Iraqi side is leaning
against permanent bases.
The Declaration of Principles does not specifically provide how
these issues would apply to coalition partners, partner countries.
We have about 11,500 partner forces in Iraq right now. How would
it apply to them? I think it is reasonable to assume that there be-
lieve some provisions in any final pact that would provide for how
partner forces are treated.
Again, the agreement has a security component, a political com-
ponent, and an economic component. There are some points in the
political section of the declaration that are of interest, I believe. In
other words, the Declaration of Principles said the United States
might be committed to support Iraq in defending its democratic
system against internal and external threats.
That stipulation could have major implications if there is a polit-
ical upheaval that leads to the downfall of an elected Iraqi Govern-
ment. For example, would the United States be required to come
restore the elected government? There are many, many permuta-


19
the negotiations on a 2008 bilateral agreement would discuss the issue of per-
manent bases, although he did not give an indication of a likely outcome on
that issue. If there is a decision to seek permanent basing, the major facilities
that might be considered are such well-developed facilities as Balad, Tallil,
and Al Asad air bases, as well as the arms depot at Taji; all have been built
up with U.S. military construction funds in various appropriations.
• Some comments by Iraqi officials suggest that permanent bases might not be
included in a long term agreement. On December 12, 2007, Iraqi National Se-
curity Adviser Mowaffaq al-Rubai said in a press interview in UAE that "per-
manent forces or bases for any foreign forces is a red line that cannot be ac-
cepted by any nationalist Iraq."4 In addition, some U.S. law might constrain
U.S. options on the permanent bases issue. The Defense Appropriation for
FY2007 (P.L. 109-289); the FY2007 supplemental appropriation, (P.L. 110-
28); and the FY2008 Defense Appropriation (P.L. 110-116), and the con-
ference report on a FY2008 defense authorization (H.R. 1585), contain provi-
sions prohibiting the establishment or the use of U.S. funds to establish per-
manent military installations or bases in Iraq. These provisions comport with
Recommendation 22 of the December 2006 "Iraq Study Group" report, which
recommends that the President should state that the United States does not
seek permanent military bases in Iraq.
• Allies. The Declaration does not specifically provide for how these issues
would apply to U.S. coalition partners, if at all. However, several observers
believe that the United States is likely to seek help from willing foreign part-
ners to fulfill long-term security commitments to Iraq and that negotiations
would likely have to have provisions made for allied force contributions in
Iraq.
Political, Diplomatic, and Cultural Issues. Part one of the Declaration stipulates
a range of political and related issues that might be included in any U.S.-Iraq pact.
Of the seven points, most appear to commit the United States to relatively normal
diplomatic and political activity that the United States might undertake even with
countries with which there is no strategic pact. For example, point four of the polit-
ical section of the Declaration commits the United States to supporting Iraq's effort
to "enhance its position in regional and international organizations . . ." Point
seven commits the United States to encourage cultural, educational, and scientific
exchanges with Iraq.
At least two points in the political section of the Declaration raise broader ques-
tions about the degree of potential long-term U.S. involvement in the internal polit-
ical affairs and structure of Iraq. Point one in that section stipulates that a U.S.-
Iraq pact might commit the United States to supporting Iraq "in defending its demo-
cratic system against internal and external threats." That stipulation, if included in
an eventual pact, could have major implications if political upheaval leads to the
downfall of the elected Iraqi government. Some experts believe that there is a sig-
nificant possibility of such an outcome, even if it is not widely believed the most
likely scenario, based on current information. If the elected government were to be
forced out by violence, this stipulation could conceivably be interpreted to require
the United States to intervene to restore the elected government or to oust a govern-
ment, even a stable government, that came to power through un-democratic means.
Point two of the political section similarly raises questions about the potential to
draw U.S. forces into internal events in Iraq. It states that the United States would
assist Iraq in "standing against any attempt to impede, suspend, or violate" Iraq's
constitution. While the legalities could be complicated, some might argue that this
stipulation would allow the Iraqi government the right and responsibility to define
who is attempting to impede, suspend, or violate Iraq's constitution, and could
therefore compel the United States to act against activists in Iraq whose activities
or political ideology might not necessarily conflict with U.S. interests.
Economic Issues. The Economic section of the Declaration of Principles has a num-
ber of provisions that some believe would imply or entail a substantial U.S. financial
and political commitment to Iraq. For example, point three of that section of the
Declaration commits the United States to "[Support] the building of Iraq's economic
institutions and infrastructure with the provision of financial and technical assist-
ance to train and develop competencies and capacities of vital Iraqi institutions."
Would this mean a continued high level of State Department, USAID, and con-
tractor involvement in assisting Iraq's ministries?
4 Graff, Peter. "Permanent Bases Rejected by Official." Washington Times, December 12, 2007.
p. 12.


23
lems, that represents a particular segment of the political life of a
country? Don't we usually wait until those issues have been clari-
fied rather than exposing the United States to unpredictable polit-
ical changes?
Mr. Katzman. Sir, I would say that many of the benchmarks
that were set out have not been voted on and signed into law, have
not become law. The de-Baathification law was passed. There are
mixed reviews of it. The administration, I think, would argue that
there has been some local reconciliation.
Some senior Sunnis in the national government are continuing to
cooperate, particularly, Tariq al-Hashimi, the Deputy President.
The budget has not been passed yet, but they are sharing revenue,
roughly.
I think the basic rift in the society has not been healed. In other
words, the Sunni Arabs still resent what has happened to them in
the overthrow of Saddam and their new under status in the polit-
ical structure. That basic structure has not been resolved, yes.
Mr. Delahunt. But when one looks at that principle, which re-
fers to external and internal threats against the government, how
does that get interpreted if, after a draw down, if you will, the level
of violence spikes up once more, and we are bound by this agree-
ment?
Mr. Katzman. Yes. I think, if the troop surge is reduced, and
Secretary Gates has said that he might want to get down to a level
of about 100,000 U.S. forces by the end of this year—that has not
been decided yet, but there is a decision to get down to about
130,000 by July—if, indeed, these resentments in the society then
resurface, and the troop surge maybe has kept a lid on it for now,
if, indeed, there is not this fundamental reconciliation, and if the
violence spikes up again, it is possible, as I say, that this type of
pact would be interpreted by the dominant factions in power at the
time and could potentially be used to have the United States go
against their opponents, yes, sir.
Mr. Delahunt. I consider that an extremely vulnerable position
for the United States to be hostage to, if you will.
You indicated that Foreign Minister Zebari has pledged publicly
that the Maliki government would submit the draft agreement to
the Iraqi Parliament, pursuant to their constitution.
At an earlier hearing, in which you testified and Mr. Rubin testi-
fied, my memory is that those same representations were made
that the issue of the extension of the U.N. mandate would be sub-
mitted to the Parliament. Was it submitted to the Parliament, Mr.
Katzman?
Mr. Katzman. No, it was not. That was the extension of the
mandate.
Mr. Delahunt. It was not submitted to the Parliament, and my
memory is that there was a letter from a majority, 144 members
of the Iraqi Parliament, to the United Nations Security Council.
Can you describe for us what the import of that particular letter
was?
Mr. Katzman. Well, the letter seemed to be, in my analysis, a
coalescence of Maliki's opponents in the Parliament who coalesced
not only on that issue but on other issues, the oil laws and some
other laws. These are factions that basically are against Mr. Maliki


25
decided, that that is the best course of action, the way to go, and
what we have here is some distress on the part of people who fun-
damentally do not trust this administration—as I indicated earlier,
I think that there is perhaps some basis for not trusting this ad-
ministration—who are expressing some concerns.
Would you consider that their concerns being expressed justified,
or is this just as simple as you put it, just trying to take a step
so that they can be free of dependence on a U.N. mandate?
Mr. Katzman. I think the concern that I, as an analyst, perhaps,
on Iraq, have is that we do have a sectarian difference of opinion
in Iraq, and who is to say what is going to be in the final agree-
ment? It could not come out as the Declaration of Principles have
stipulated. It could be very different.
What I think some would be concerned about is the degree of
latitude that the declaration gave to the incumbent government in
power in Iraq, which is a narrow government, to define who the
enemy is.
Mr. Rohrabacher. What I am hearing is that the great concern
is that this will bind us in the future. Now, there was a similar
situation where the United States, a new administration, a Demo-
cratic administration, came in after a Republican administration
and wanted to fundamentally alter what seemed to be the policy,
as bolstered by agreements, and even treaties, and that was when
President Carter came in and decided that it was going to abrogate
the mutual defense treaty with Taiwan.
Now, it is my understanding that the Supreme Court decided
that, indeed, future Presidents and future Congresses are not
bound and that they can, indeed, move in their own direction so
that this, what looks like to me to be an irrational fear that we are
going to be set in cement forever, is not justified by the status of
the legal rights of the President and the legal rights of the Con-
gress, this one or the future Presidents or Congresses. Is that cor-
rect?
Mr. Katzman. Congressman, I am going to defer that question
to the next panel, since that seems to be more of sort of a treaty
law issue, if it is okay.
Mr. Rohrabacher. Yes. It does seem to me that we should not
be as concerned, to the point that it is irrational, that we are going
to be bound forever by a policy, but we should, instead, be focusing
on what the policy should be and whether or not we disagree with
that fundamental policy because I do believe that it is very clear
that future Presidents and future Congresses can go whatever di-
rection they darned well want to go and that President Bush is
positive or negative, as people think that he is, that he is not going
to be the dominant force in determining what the policy is of the
next administration. We will go our way, whether it is a Democrat
or a Republican administration.
Now, about that policy, let me just note that I, for one, would be
very opposed to any policy that would try to establish that America
will have long-term military installations in Iraq. First, they are
not needed because we have got other military installations in the
Gulf, where people want us; and, second of all, it sends exactly the
wrong message.


29
do not exist because they then took a majority in their parliamen-
tary elections.
That is what unreliable parties to agreements do, and we, as the
United States, should not do that, just based on a whim or a will,
or a notion, or a change of parties in control of Congress. There
should be a very substantial reason, if that is to be done, and I
would not take unseriously the administration negotiating some-
thing, as far as a policy agreement with Iraq, because the Demo-
crats, rather than the Republicans, are in control, or whoever next
time, and just say, "Well, that does not exist. We are going to pass
something else and negotiate something else."
That does not make us a responsible, respectable, reliable part-
ner when it comes to foreign policy, and that is the last thing that
we need to do is further upset the credit, whatever that might be,
as a residual existing in the world.
Dr. Katzman, there seems to be a question in Iraq, and I do not
profess to be an expert in their constitution, but there does seem
to be a question, at least, over there, as to whether or not their
Parliament has to ratify any agreement. It seems that the Foreign
Minister thinks that they would be hard pressed not to allow that
to happen. Mr. Maliki thinks that it is not going to happen. I guess
the administrations think that they are the only people, in their re-
spective capitals, whether it be here or there.
But it certainly would be unwise, on our part, to get into an
agreement that was not supported and understood by the American
people, and it would not be sustainable, even though popular at the
moment in this country, and I think, on their part, it would prob-
ably be equally unwise, as it would be in any other country, to ne-
gotiate a long-term relationship that is going to govern their re-
spective existence, as far as who their daddy is, that is not accept-
able to the people of that country.
Is there any historical notation that this kind of thing could
work, where leaders have agreements that the people on both sides
might disagree with?
Mr. Katzman. I think my comment on that would be, Maliki has
not said he does not believe this should be submitted to the Council
of Representatives. My perception is he is on board with going to
the Parliament, and Zaberi, the Foreign Minister, reflected that he
has not tried to argue that this should not be taken to the Iraqi
Parliament.
Mr. ACKERMan. Is it your understanding that it will or will not
pass, if it were brought before their Parliament?
Mr. Katzman. If what is negotiated is along the lines of the Dec-
laration of Principles, my judgment, as an Iraq expert, is that it
would have tremendous difficulty passing the Council of Represent-
atives, yes, sir.
Mr. Ackerman. And if it did not pass, it would not take effect.
Mr. Katzman. Correct. Presumably, presumably. I say that be-
cause if they submit it to the Parliament, and they have a vote,
and it does not pass, I do not see how they would argue that they
would just unilaterally begin to implement it.
Mr. Ackerman. Which is probably the resistance on the part of
Mr. Maliki to submit it, even though he has not said he would not
do so.


46
them, especially whether any legislation is considered necessary or desirable for the
implementation of the new treaty or agreement."12
With respect to security commitments and assurances, the history described above
gives useful guidance as to the form these commitments or assurances should take.
Security commitments in the technical sense have generally been undertaken by
treaty, or at a minimum by act of Congress.13 Certainly a binding commitment to
use armed force in defense of Iraq would call for such action. On the other hand,
properly limited security assurances—such as a simple promise to consult—have
taken various forms, including sole executive agreements and policy statements, and
the President could offer them on the basis of his own Constitutional authority.
Other types of commitments would have to be evaluated within the context of any
relevant existing legislation, which might or might not require further Congres-
sional action, depending on the content of the commitments and the applicable stat-
utory restrictions. For example, particular attention would have to be paid to any
commitments of U.S. funds, any commitments to provide military assistance or arms
sales, any forgiveness of obligations to the United States, and any immunities or
exceptions from the application of U.S. law.
But even if a proposed commitment falls within the President's independent Con-
stitutional authority, this does not mean that Congress should play no role in ex-
tending such commitments to Iraq. Given the obvious importance of the future U.S.-
Iraq relationship and in particular the role of U.S. forces in the future security of
Iraq, it would seem at a minimum that the Administration should engage in serious
consultation with Congress on both the form and substance of the agreements that
will implement the U.S.-Iraq Declaration of Principles. Hopefully that consultation
would produce a reasonable degree of consensus on the type of commitments the
United States should offer and the manner in which Congress will be involved in
their conclusion.
FUTURE LEGAL STATUS OF IRAQ
I would also like to comment on some aspects of the Declaration of Principles that
relate to the future legal status of Iraq. The Declaration says that, after a one-year
extension of the mandate of the current multinational force, "Iraq's status under
Chapter VII and its designation as a threat to international peace and security will
end, and Iraq will return to the legal and international standing it enjoyed prior
to the issuance of U.N. Security Council Resolution No. 661 (August, 1990). . . ."
Iraq has, of course, been subject to a complex system of Security Council resolutions
issued after August 1990 under Chapter VII of the UN Charter. While the goal of
returning Iraq to normal status as a sovereign nation is worthwhile, I suggest that
care be taken not to eliminate any parts of the current Chapter VII regime that
might still be in U.S. interests.
For example, Security Council resolutions provide for a continuing deduction of
5% of Iraqi oil export revenues to pay compensation awarded by the UN Compensa-
tion Commission to those suffering loss from the Iraqi invasion and occupation of
Kuwait (including American claimants).14 Since considerable amounts remain yet to
be paid, the question arises as to whether it would be appropriate to effectively end
this process now.
Likewise, Security Council resolutions continue to impose constraints on the ac-
quisition and possession by Iraq of various items related to its previous military pro-
grams, including biological, chemical and nuclear materials and long-range missile
systems.15 Iraq has treaty commitments not to acquire some of these items, but not
others, and could in the future withdraw from such treaty commitments. Therefore
the question arises as to whether the United States would be satisfied to end the
more rigorous UN requirements at this time.
Further, the Security Council has guaranteed the boundary demarcation between
Iraq and Kuwait that was completed under UN auspices after the 1990-91 Gulf
War.16 Maintaining the integrity of this boundary continues to be important, and
so the question arises as to whether the Council's guarantee should be terminated.
12 11 FAM 725.1(5).
13 Apparently security commitments were given to the Marshall Islands and Micronesia under
Compacts of Free Association approved by Congress. See note 4 above at p. 206.
14 See UNSC Res. 1483 (2003).
15See, e.g., UNSC Res. 687 (1991), 1483 (2003). In Resolution 1762 (2007), the Council termi-
nated the mandate of the UN Monitoring, Verification and Inspection Commission (UNMOVIC)
and the IAEA with respect to overseeing compliance by Iraq, but reaffirmed the applicability
of these constraints.
16 See UNSC Res. 833 (1993).