THE NOVEMBER 26 DECLARATION OF PRIN-
CIPLES: IMPLICATIONS FOR U.N. RESOLU-
TIONS ON IRAQ AND FOR CONGRESSIONAL
OVERSIGHT
FRIDAY, FEBRUARY 8, 2008
House of Representatives,
Subcommittee on International Organizations,
Human Rights, and Oversight,
Committee on Foreign Affairs,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:41 a.m. in Room
2175, Rayburn House Office Building, Hon. William D. Delahunt
(chairman of the subcommittee) presiding.
Mr. Delahunt. The subcommittee will come to order. This is the
third in a series of hearings on the Declaration of Principles signed
by President Bush and Iraqi Prime Minister Maliki on November
26, 2007. The declaration appears, and I underscore "appears," ap-
pears to be a pledge by the two leaders to negotiate a number of
substantial commitments. Most significantly, the declaration sug-
gests an indefinite United States military presence in Iraq with
multiple responsibilities to be assumed by our Armed Forces.
Let me read into the record excerpts from the declaration which
reflect some of the most significant of those responsibilities:
"Supporting the Republic of Iraq in defending its democratic
system against international and external threats; providing
security assurances and commitments to the Republic of Iraq
to deter foreign aggression against Iraq that violates its sov-
ereignty and integrity of its territories, waters or airspace; sup-
porting the Republic of Iraq in its efforts to combat all terrorist
groups, at the forefront of which is Al-Qaeda, Saddamists, and
all other outlaw groups regardless of affiliation, and destroy
their logistical networks and their sources of finance, and de-
feat and uproot them from Iraq."
I would note that the Declaration of Principles is not just about
military commitments, but also includes a broad political and eco-
nomic agenda that involves significant and possibly open-ended
commitments and obligations.
For the third time in 3 months, we have invited the administra-
tion to explain the import of this document to the Congress and to
the American people, and for the third time they have declined our
invitation.
(1)


2
I would note for the record, on January 29, Chairman Tom Lan-
tos sent an invitation to the Secretary of State, Condoleezza Rice,
asking her or someone she designated to testify at this hearing.
The State Department responded that no representative would ap-
pear on the grounds that the agreement to be negotiated was still
preliminary. This seems to contradict a January 25 New York
Times report that a 15-page draft proposal does in fact exist.
The State Department informed me that Ambassador David
Satterfield would be briefing members of the Foreign Affairs Com-
mittee in classified session yesterday. I could have attended that
briefing, and according to the State Department, could have asked
unclassified questions and received unclassified responses that I
then could discuss in public.
Well, I find that unsatisfactory. It is my position that the Amer-
ican people have a right to be fully and directly informed as to the
intentions of the administration regarding any agreement with the
Government of Iraq. The American people have paid dearly for that
right, almost 4,000 of our sons and daughters have died in that
conflict, and tens of thousands have been seriously injured. Pos-
sibly hundreds of thousands of innocent Iraqi civilians have been
killed and millions have been forced to flee their homes and are
now refugees in neighboring countries.
Furthermore, the financial cost of this war is on its way to $1
trillion with no end in sight, and the record of this administration,
in terms of consulting with Congress, has been abysmal. As Sen-
ator Hagel, our Republican colleague in the other body, has said in
regards to the run-up to the war, the Bush administration consid-
ered Congress, and these are his words, "to be an adversary, an
enemy in fact . . ."—that is what he said—"and a constitutional
nuisance."
Well, so be it. We will be a nuisance.
I find it particularly disturbing that the Bush administration has
even ignored State Department regulations requiring, and again I
am reading from the Department of State regulations, the fol-
lowing:
"The appropriate congressional leaders and committees are
advised of the intention to negotiate significant new inter-
national agreements, consulted concerning such agreements,
and kept informed of developments affecting them."
I have checked with the House leadership and I have checked
with the leadership of this committee as well as that of the House
Armed Services Committee, and there has been no such consulta-
tion unless you count the classified briefing that occurred yester-
day. There has been one exception to this lack of consultation and
transparency, and that occurred just this week.
Secretary Gates appeared before the Senate and House Armed
Services Committee on Wednesday and seemed to minimize the
Declaration of Principles as nothing more than a press release. He
testified that the administration is not seeking to make—and in
fact he pledged that it would not make—security commitments to
defend Iraq. All that is being negotiated, he said, is a standard Sta-
tus of Forces Agreement that governs the conduct of U.S. forces in
another country.


4
lowed to participate in this hearing today and inquire of the wit-
nesses as they may see fit. Without objection?
Mr. Rohrabacher. Yes, not a problem, and thank you for your
leadership in calling this hearing, and let me just note that your
microphone is now working and you may now resume the chair
Mr. Delahunt. Thank you.
Mr. Rohrabacher [continuing]. With my permission.
Mr. Delahunt. Thank you.
Mr. Rohrabacher. All right. [Laughter.]
See, that empty chair, it is just a lure for Republicans. [Laugh-
ter.]
Mr. Chairman, I have supported the Iraqi war from the begin-
ning, and I continue to support our efforts to ensure that we accom-
plish those things in Iraq which will permit us to have an honor-
able exit from that conflict rather than a retreat and a defeat from
that conflict, which I believe would have serious consequences,
long-term consequences for the security of the United States as
well as the stability of the entire Middle East.
With that said, I also support the Constitution of the United
States and what it says about the role of the United States Con-
gress. It is unacceptable, Mr. Chairman, that you, the chairman of
this Oversight Subcommittee, had to find out about a bilateral se-
curity agreement and the negotiations that were going on between
the United States and Iraq by reading it in the newspaper, and
also, it is embarrassing for me, as someone who worked in a Re-
publican White House for 7 years—I worked in the Ronald Reagan
White House for 7 years—and to find out that the administration
officials continue to ignore your requests for participation in an
open discussion and dialogue about issues that are of such signifi-
cance to our country.
This attitude breeds mistrust on the part of Congress and it un-
dermines the public's trust in this administration. Let me just note
that an open dialogue about such long-term, potential long-term
commitments and strategies that the United States should or
should not be making in the Middle East or elsewhere throughout
the world is something that will serve our country well.
If the people of the United States believe that there are deals
being reached behind closed doors, and that there hasn't been prop-
er discussion, we would not have the public support necessary to
be successful, and that is the difference between a society that
doesn't rely on public opinion and the democratic process and those
societies that are dictatorships.
George Bush was not elected President of the United States to
be King of the United States. There are three separate branches
of Government, equal branches of Government, and while we recog-
nize that the executive branch does have a lion's share of the re-
sponsibility in foreign policy, there is an important role for the
Congress of the United States and I do not see that this President
is respecting the constitutional authority and duties that we have
as Members of Congress, and that is demonstrated by the fact that
today we do not have someone here from the administration, and
have not had in our hearings before a representative here to have
some dialogue about what the goals in Iraq should be, and what
is trying to be accomplished in these negotiations.


8
who taught at Yale not that long ago. So my district is very well
represented here this morning. I hope our offices can work together
so that we better understand the constitutional issues that are at
stake as we move forward.
Again, thank you to the chairman and the ranking member for
allowing me to be here today.
Mr. DELAHUNT. Well, thank you, and this is truly a very distin-
guished panel. This is an independent—I feel like I am at a sem-
inar in a Ph.D. program at The Fletcher School, obviously, Pro-
fessor Glennon, and The Fletcher School, of course, is in Greater
Boston. I know that you are aware of that.
Ms. DeLauro. Mr. Chairman, you should that note many, many
years ago as a graduate of Marymount College, I really truly want-
ed to pursue my own career at The Fletcher School, but my life and
career took a different course, so I acknowledge The Fletcher
School.
Mr. Delahunt. Well, we are grateful you are here. You are a
welcome addition to this Congress.
We are going to begin with Dr. Macgregor and we will just go
down the row. So if you would proceed, Colonel.
STATEMENT OF DOUGLAS MACGREGOR, PH.D., COLONEL, U.S.
ARMY, RETIRED, SENIOR FELLOW, STRAUS MILITARY RE-
FORM PROJECT, CENTER FOR DEFENSE INFORMATION
Colonel MACGREGOR. Mr. Chairman, distinguished members, la-
dies and gentlemen, thank you for the opportunity to speak this
morning. What I would like to do is make a relatively short presen-
tation, focusing on just three points, some of which will echo some
of the comments that have already been made.
First, I think it is important that whatever course of action the
Bush administration decides to follow in Iraq, it should not pretend
under any circumstances that a major United States defense com-
mitment, internal and external to Iraq, is a matter for resolution
inside a Status of Forces Agreement.
A Status of Forces Agreement exists preeminently to protect the
legal rights of soldiers, sailors, airmen and Marines permanently
stationed on foreign soil in a country that is hosting a permanent
or semi-permanent U.S. military presence. It also is from the van-
tage point of those of us who were soldiers—and I might add here
that I served for 8 years of my 28-year career outside of the United
States, 6 of those in Germany and 2 of those in Belgium, and so
I frequently interacted with German Federal authorities for a
whole range of reasons, and I can tell you that the Status of Forces
Agreement not only protects United States forces but it creates a
framework through which we then can communicate with the local
citizenry and its government to ensure that whatever conflicts do
arise are quickly resolved.
But there is no language, as far as I am aware, in either the Ko-
rean SOFA or the German SOFA which, to my knowledge, are the
most important, given the numbers of forces involved that stipulate
when, where, or how United States military power will be em-
ployed against either external or internal enemies. Those things
are normally reserved for treaties involving mutual defense, and


12
Arab population ranging from quiet disdain to armed hostility.6 Today, Iraq is domi-
nated by militias of every kind and its central government wallows in corruption.
Khalid Jamal al-Qaisi, the deputy commander of one of the new, U.S. funded
Sunni Arab militias in Baghdad proclaims, "We are an independent state; no police
or army is allowed to come in."7 He and his contemporaries among the nearly
100,000 Sunni Arab Insurgents now on the Army payroll refuse to cooperate with
Iraqi Army and police, claiming with considerable justification that they too are in-
filtrated by Shi'ite militias and riddled with sectarian bias.
For these reasons, any elected official contemplating the commitment of U.S.
Forces to the survival of a government like Iraq's, a government that already con-
fronts powerful, armed opposition inside its own borders, should recognize the dam-
age that reliance on U.S. troops does to the legitimacy of Iraq's government. For this
reason, the best strategy for the United States is to stay out of Iraq's internal con-
flict until the conflict is resolved and a new, legitimate Iraqi leadership emerges
without direct U.S. military support.8
This was the general strategy the United States followed in El Salvador, often
cited as a case study in how the United States can defeat insurgencies. However,
it was not the U.S. military that defeated the FMLN guerrillas, but the Salvadoran
military under the control of its own government with U.S. encouragement and no
more than fifty U.S. military advisors. Moreover, El Salvador was not simply a sov-
ereign state, but El Salvadoran society was and is a single identity—an essential
prerequisite for successful internal defense of a government struggling for survival
and legitimacy.
These points notwithstanding, there are other considerations that merit the com-
mittee's attention. Iraq's borders are uncontrolled and for geographical reasons, they
are likely to remain so. In view of the popular hostility among the Muslim Arabs
to a permanent U.S. military presence in the region and Iraq's uncontrolled borders,
U.S. Forces concentrated in large, fixed installations could be at severe risk. The
possibility of a weapon of mass destruction (WMD) in the form of a low-yield nuclear
weapon smuggled into the country and detonated in close proximity to a large U.S.
installation like Balad Air Base where 30,000 U.S. troops and 7,000 contractors re-
side should not be excluded. Temporary U.S. military installations in Iraq have al-
ready presented radicalized elements in the region with an opportunity they would
otherwise never have—to directly attack U.S. forces. The use of WMD against a
more permanent U.S. base like Balad Air Base would probably constitute an imme-
diate catalyst for larger, regional war.
Finally, it appears to many in the United States and in Iraq, that the true basis
for the Administration's current approach is the popular narrative that Iraq has
turned a strategic corner that suddenly in the space of a few months, after nearly
five years of bloody conflict involving the massive loss of Arab life and property, new
U.S. counterinsurgency tactics are working and Iraq's Muslim Arab population wel-
comes the presence of American military power as the guarantor of their future
prosperity and freedom. Members must understand that this popular narrative is
an illusion, one that is likely to vanish as quickly as it was created.
Iraq's bloody Civil War created a brief strategic opportunity for U.S. ground forces
that a million additional U.S. troops could not. More than two year's of sectarian
6 BBC "Monitoring International Reports" carries a translation from the USG Open Source
Center of an interview on the situation in al-Anbar and Fallujah by Al-Arab al-Yawm, a Jor-
danian newspaper, with Dr. Tariq Khalaf Abdullah, head of al-Anbar Reconstruction Commis-
sion. Abdullah, from a strongly Sunni region, blames tensions between Sunnis and Shiites on
the government of Prime Minister Nuri al-Maliki: "so long as there is a sectarian government
in Iraq, it is highly likely that it will seek to divide the country." He blames terror attacks on
nihilists and the Iranians: "There are two types of occupation now in Iraq, the American
and the Iranian ..." He doesn't seem to have a problem with people attacking Amer-
icans—he refers to them as the "resistance." But he complains about those who conduct
random violence against Iraqis, implying that many are backed by Iran and also by the United
Statesl Moreover, he blames the Iranian presence and influence on the United States:
"the United States was the main reason that helped Iran come into Iraq." He is clearly
eager to get the US out of the towns and cities of al-Anbar Province, and thinks their
presence provokes violence. So to sum up, he dismisses the Iraqi government as "sectarian,"
sees Iraqi Shiites as cat's paws of Iran, wants the US out of his province, and blames the US
for bringing Iran into it and well as for secretly backing death squads. And this is a Concerned
Local Citizen with strong ties to the Awakening Council! Oh, yeah, the US is sitting pretty in
Iraq now.
7 Sam Dagher, "Market Bombings: Baghdad Locals Want Security, Not Iraqi Police. The Mon-
itor accompanied a high-level militia member on a walk through an area near Friday's bomb-
ing." Christian Science Monitor, 4 February 2008, page 3.
wChet Richards, If We Can Keep It, (World Security Institute's Center for Defense Informa-
tion, 2008), pages 50-53.


13
violence made the districts in and around Baghdad completely Sunni or Shi'ite, sig-
nificantly reducing the violence and improving conditions for neighborhood busi-
nesses to operate. Where once there was one country called Iraq, there are now
three emerging entities; one Kurdish, one Sunni and one Shi'ite. For the moment,
this new strategic reality combined with huge cash payments to the Sunni insur-
gents and Muqtada al Sadr's self-imposed cease fire, not the much touted troop
surge, explains the drop in U.S. casualties.
Officers with years of experience in Iraq warn that the "Great Awakening" could
be transitory. "The Sunni insurgents are following a fight, bargain, subvert, fight
approach to get what they want," said one colonel.9 And what the Sunni leaders
want and what they are getting is both independence from the hated Shi'ite-domi-
nated government with its ties to Tehran and money; lots of money.10 Meanwhile,
the Sunni leaders who sit on the Awakening Councils are telling the Arab press
that they defeated the American military that is leaving and paying reparations.11
Terms like, "concerned citizens" or "voluntary Iraqi security forces" conceal the
militant character of these heavily armed tribal and sectarian-based forces. Cash-
based deals that support what is called the Sunni Arabs' 'great awakening' have lit-
tle, if anything, to do with winning Arab "hearts and minds," or building democracy.
The Sunni "Awakening" is neither democratic nor permanent.12 Some of the water-
sheds that congress might anticipate as warnings of renewed and reinvigorated con-
flict inside Iraq might, for example, include a gradual Sunni Arab turn against U.S.
Forces, or when Moqtada al Sadr's 60,000 fighters "stand up" and resume attacks
on U.S. Forces.
Finally, adding mass in the form of more soldiers to fight an insurgency is not
the path to success13 and cash payments to the enemy are always a temporary solu-
tion. In time, hatred for the foreign military presence overwhelms greed. If numbers
of troops won insurgencies then Vietnam would be the 51st state today. Since the
end of World War II no Western army has defeated an insurgency without the over-
whelming majority of its soldiers coming from the host country. In fact, the very
act of flooding the host country with foreign troops always guarantees that the occu-
pied population will never support the foreign invader.
Finally, there is no incentive for the various Iraqi factions struggling for power
to settle their differences as long as the American military behaves as a co-bellig-
erent, manipulating factions with cash and violence in the country's internal strug-
gle for power. It is hard to imagine how the U.S. military would disengage from this
role if it were pledged to an internal defense role as envisioned in the November
2007 declaration of principles.
The British military and political leadership reached similar conclusions about the
futility of a continued British military presence in Ireland during the Irish insur-
gency against the British Army between 1917 and 1922 and opted to withdraw from
Ireland as a result. Thus, counterinsurgency (COIN) is a fatally flawed concept be-
cause it encourages a self-defeating strategy in the pursuit of "victorious" tactics as
seen in Iraq, in Ireland and in a host of other countries.
After World War I when the cost of maintaining British military control of Iraq
in the face of a Sunni and Shiite Arab revolt approached the cost of Britain's na-
tional health budget, Sir Winston Churchill, then, a member of the government,
made the following recommendation to the Prime Minister, David Lloyd George.
Winston S. Churchill to David Lloyd George
1 September 1922
I am deeply concerned about Iraq. The task you have given me is becoming
really impossible ... I think we should now put definitely, not only to Feisal
but to the Constituent Assembly, the position that unless they beg us to stay
9 From the author's discussion with officers on leave from Iraq.
10 Sam Dagher, "Will 'Armloads' of US Cash Buy Tribal Loyalty? The US policy of paying
Sunni Arab sheikhs for their allegiance could be risky," The Christian Science Monitor, 8 No-
vember 2007, page 1. Also, see Lauren Frayer, "US accidentally kills 9 Iraqi civilians," Associ-
ated Press, 3 February, 2008, 11:10 PM EST.
11 Question: [Al-Arab al-Yawm] "Do you believe that the Americans will withdraw just like
that without any resistance?"Answer: [Al-Abdallah] "I confirm 100 per cent that their with-
drawal in itself is the result of the honorable national Iraqi resistance, which has been con-
fronting them since the first day of the occupation to this day.'
12 "If there is no change in three months there will be war again. If the Americans think they
can use us to crush al-Qa'ida and then push us to one side, they are mistaken" said Abu Marouf,
the commander of 13,000 fighters who formerly fought the Americans. Patrick Cockburn, "If
there is no change in three months, there will be war again," The Independent, 28 January 2008,
page 1.
13 Simon Jenkins, "Fall Back, Men, Afghanistan Is a Nasty War We Can Never Win," London
Sunday Times, 3 February 2008, page 1.


19
Defense overseas,"16 then it is almost certainly beyond the President's commander-
in-chief power to unilaterally conclude an immunity agreement on their behalf.
It would also be permissible for the President to make individual agreements with
Iraq that draw on authority already granted by Congress in earlier legislation. For
example, the Declaration of Principles states that the United States will "assist Iraq
in its efforts ... to secure debt relief."17 During the 1980s and 1990s, the United
States concluded over two hundred international agreements granting debt relief—
all as executive agreements. Authority to enter into these agreements appears to
flow from prior authorization by Congress in the Act of International Development
of 1961 and other similar legislation.18 It is therefore possible that an agreement
to secure debt relief for Iraq could be entered as an executive agreement based on
one of these earlier sources of legislative authority. The same is likely true of an
agreement to "support the Iraqi government in training . . . the Iraqi Security
Forces."19
Finally, it would be permissible for the President to enter a nonbinding agreement
with Iraq. An exchange of letters or a memorandum of understanding that does not
create a binding international commitment on behalf of the United States would be
within the legal limits of a sole executive agreement.
WHY THE PRESIDENT MIGHT SEEK CONGRESSIONAL APPROVAL, EVEN IF IT IS NOT
REQUIRED
Even if a president may conclude an agreement on his or her own authority, it
is worth noting that he or she is never required to do so. Indeed, there are strong
reasons why a President might choose to seek congressional approval for an agree-
ment when that approval is not strictly necessary. Even when it is within a Presi-
dent's sole power to make an international agreement, the President can substan-
tially strengthen his or her authority, both as a matter of domestic and inter-
national law, by obtaining the approval of Congress.
As the Supreme Court has explained, when the President acts pursuant to an "ex-
press or implied authorization of Congress, his authority is at its maximum."20
When the President instead "acts in absence of either a constitutional grant or de-
nial of authority, he can only rely upon his own independent powers."21 In other
words, the President's authority is markedly strengthened when his or her actions
have the approval of Congress.
This is as true in international lawmaking as it is in domestic lawmaking. Sole
executive agreements are concluded by the President alone and hence carry force
only so long as they are not inconsistent with federal law. In a clash between ordi-
16 The Military Extraterritorial Jurisdiction Act of 2000, as amended in 2005, applies only to
those civilians who are "supporting the mission of the Department of Defense overseas." Military
Extraterritorial Jurisdiction Act of 2000, Pub. L. No. 106-523, § 3261(a), 114 Stat. 2488, 2488
(2000). Civilian contractors whose work does not support the mission of the Department of De-
fense therefore fall outside the Act's jurisdiction. It has been argued that Blackwater's employ-
ees, who primarily provide security to the State Department, are therefore not covered by the
Act. If true, this would mean that exempting such contractors from prosecution under Iraqi law
has the potential to leave them immune from criminal prosecution. By contrast, all other per-
sons (military and civilian) who are protected from prosecution in a host country under a status-
of-forces agreement can be prosecuted in an alternate jurisdiction.
17 Declaration of Principles, supra note 8, at p. 2.
18 There are at least three separate legislative acts that give authorization to the President
to negotiate debt relief agreements: (1) the Act of International Development of 1961, (2) the
Enterprise for Americas Act of 1992, and (3) An Act to Amend the Foreign Assistance Act of
1961 to Facilitate Protection of Tropical Forests Through Debt Reduction with Developing Coun-
tries with Tropical Forests. See Hathaway, supra note 6, at n. 74.
19 Declaration of Principles, supra note 8, at p. 2.
20Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
The full language is as follows: "When the President acts pursuant to an express or implied au-
thorization of Congress, his authority is at its maximum, for it includes all that he possesses
in his own right plus all that Congress can delegate. In these circumstances, and in these only,
may he be said (for what it may be worth) to personify the federal sovereignty." Id. at 635-
36.
21 Id. at 637 ("When the President acts in absence of either a congressional grant or denial
of authority, he can only rely upon his own independent powers, but there is a zone of twilight
in which he and Congress may have concurrent authority, or in which its distribution is uncer-
tain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a
practical matter, enable, if not invite, measures on independent presidential responsibility. In
this area, any actual test of power is likely to depend on the imperatives of events and contem-
porary imponderables, rather than on abstract theories of law."). There is also a third category
of presidential authority: When the President "takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress over the matter." Id.


20
nary federal legislation and a sole executive agreement, federal legislation has pri-
macy.22 An executive agreement that is approved by Congress, on the other hand,
automatically has the force of federal law. That means that if it conflicts with an
earlier statute, the later in time agreement will take precedence.23
Even more important, an agreement approved by Congress has the force of a com-
mitment supported by the American people. A sole executive agreement—particu-
larly a controversial one relating to an issue of intense domestic political debate—
does not carry the same force. While a President could enter a sole executive agree-
ment that is within the President's constitutional competence even if it were clear
that the agreement does not have the support of Congress, it would be inadvisable
to do so. Such an agreement is much more likely to be revoked by a subsequent
President or by Congress through a subsequent statute. In either case, the revoca-
tion harms the reputation of the United States and could make it more difficult for
the country to secure favorable international commitments in the future.
It is also highly advisable for the President to seek congressional approval in
cases where an agreement falls within prior congressional authorization yet still re-
quires an additional act by Congress to bring the agreement into effect. The most
common example would be a controversial agreement that requires a future appro-
priation of funds by Congress. Failure to seek and receive congressional support
under these circumstances might lead to an international commitment the United
States is at risk of violating. Once again, that result would undermine the country's
ability to enter advantageous international commitments in the future.
RECOMMENDED FORM OF CONGRESSIONAL APPROVAL
There remains the question as to what form any congressional approval of an
agreement between the United States and Iraq ought to take. It would be legally
permissible for congressional approval to be given either through the Article II Trea-
ty Clause or through the approval of a congressional-executive agreement by both
houses of Congress. There are a variety of reasons, however, that a congressional-
executive agreement might be preferable. In particular, the legislation approving a
congressional-executive agreement could be fashioned to include any appropriations
necessary to carry out the agreement, thereby rendering separate implementing leg-
islation unnecessary. A congressional-executive agreement also includes the House
of Representatives directly in the international lawmaking process. Particularly for
an issue that has been at the center of political debate in the country, that has sig-
nificant democratic advantages. And, finally, depending on how the legislation is
fashioned, a congressional-executive agreement could create more durable commit-
ments than a treaty.24
Mr. Delahunt. Thank you, Ms. Hathaway. Dr. Glennon, wel-
come.
STATEMENT OF MICHAEL J. GLENNON, ESQ., PROFESSOR OF
INTERNATIONAL LAW, THE FLETCHER SCHOOL, TUFTS UNI-
VERSITY
Mr. Glennon. Thank you, Mr. Chairman. Mr. Chairman, mem-
bers of the subcommittee, thank you for inviting me to testify today
on the proposed agreement with Iraq. I have prepared a written
statement but rather than read it I would simply ask that it be en-
tered in the record, and with your permission, I will then proceed
to summarize.
Mr. Delahunt. So ordered. Please proceed.
Mr. Glennon. Thank you.
My views on the proposed agreement can be quickly summarized.
First, as you mentioned, the administration has spelled out what
22 This is true unless the sole executive agreement was expressly intended to effect a treaty
obligation, in which case the last-in-time rule is applied. In this case the executive agreement
takes on the force of a treaty obligation, as a matter of domestic law. RESTATEMENT (THIRD)
OF THE FOREIGN RELATIONS LAW § 115, cmt. c. (1987).
23 This applies if the international agreement is concluded either as a congressional-executive
agreement or as a treaty. See Hathaway, supra note 6.
24 For more on the advantages of congressional-executive agreements over Article II treaties,
see Hathaway, supra note 6, Part III.


24
decide ex ante what form an agreement should take, recognizing instead that an
agreement's negotiation may produce something substantively different from what
was originally contemplated.
2. It is also unclear from the Declaration of Principles which provisions of the
Agreement will be binding under international law and which provisions will not be
binding. There are many precedents for non-binding international agreements,
ranging from the Ford Administration's 1975 Helsinki Accords on human rights to
the Carter Administration's 1977 "extension" of the SALT I interim agreement. The
latter expired but continued to be observed by both the United States and the Soviet
Union as a political matter, with no binding international obligation to honor it.
More important, within a single international agreement, some provisions can be le-
gally binding and others non-binding. It is conceivable that in making the Declara-
tion of Principles, the Administration contemplated that some of the provisions of
this Agreement will be binding and that others will be non-binding. It is also pos-
sible that the Administration did not know at the outset which would be which, or
that the Administration believed that whether a certain provision would be binding
will itself be a subject of negotiation.
3. International agreements that are valid under the Constitution are equally bind-
ing in international law, but an international agreement that is invalid under the
Constitution might not be binding under international law. There are not "degrees"
of "bindingness" in international law. All international agreements that are valid
under a state's domestic law are equally obligatory international law. This is true
regardless of the form that domestic approval might take. In the United States, for
example, some international agreements are entered into as treaties, requiring the
advice and consent of two-thirds of the Senate; others are entered into as "congres-
sional-executive agreements," requiring the approval of a majority of the House of
Representatives and a majority of the Senate; and others are entered into as "sole
executive agreements," without any form of Senate or congressional approval. A uni-
lateral statement made by a state can also be binding in international law if the
state intends to assume an international obligation. All are equally binding under
international law, provided they are constitutionally permitted.
An agreement that is invalid under the Constitution, however, might be invalid
in international law. Article 46 of the Vienna Convention on the Law of Treaties
provides that a state may invoke tbe invalidity of a treaty if four conditions are met:
(1) the state's consent to be bound by the treaty was expressed in violation of a rule
of its internal law; (2) the rule that was violated related to competence to conclude
treaties; (3) the rule was of fundamental importance; and (4) the violation is mani-
fest. Article 46 does not represent a codification of customary international law but
was devised by the drafters of the Convention to fill a gap in the law. This is impor-
tant because the United States is not a party to the Vienna Convention, and Article
46 thus has no direct application to the United States. Nonetheless, the Convention
is widely accepted, and many states therefore would seemingly accept the principle
that a sole executive agreement that is obviously ultra vires under the United States
Constitution is not binding on the United States under international law. The Re-
statement of the Law (3rd): Foreign Relations Law of the United States concludes
simply that international "case law" supports the rule "that a state is bound by ap-
parent authority where lack of authority is not obvious to outside parties." (§311,
Reporters' Note 4.) As indicated in point 4 below, the President's lack of authority
to conclude an agreement such as the NATO Treaty without Senate or congressional
approval might be regarded as "manifest." And as indicated in point 7 below, the
scope of the commitment seemingly contemplated in the proposed Agreement would
go beyond that of the NATO Treaty.
4. The President does not have authority under the Constitution, without Senate
or congressional approval, to make a binding international agreement that would
constitute a security commitment to Iraq. The concept of a "security commitment"
was defined by President George H.W. Bush in a report to Congress in 1992. The
report said that a "security commitment," as understood by the Executive, is an "ob-
ligation, binding under international law, of the United States to act in common de-
fense in the event of an armed attack on that country." The report proceeded to list
U.S. security commitments, none of which was concluded by the President acting
alone. All these security commitments were approved either by the Senate as trea-
ties or by both houses of the Congress as congressional-executive agreements. The
State Department web site maintains a current list of "U.S. collective defense ar-
rangements." Each of the arrangements listed was, likewise, approved by the Senate
as a treaty.
The practice of the Executive's concluding security commitments only with Senate
or congressional approval did not arise through political accident or historical hap-
penstance but rather reflects constitutional requirements. Absent an emergency ere-


30
Prepared Statement of Michael J. Matheson, Esq., Visiting Research
Professor of Law, The George Washington University Law School
the proposed agreement on the future u.s. presence in iraq
On January 23 I testified here on the subject of U.S. security commitments to
Iraq. Among other things, I suggested that the agreement or agreements con-
templated by the November 2007 U.S.-Iraq Declaration of Principles might or might
not require Congressional action, depending on their specific content and their rela-
tionship to applicable statutory restrictions. In particular, I suggested that Congres-
sional action would be needed if the agreements included a security commitment to
use U.S. forces in the defense of Iraq, or a commitment to build bases for a perma-
nent U.S. military presence in Iraq, or an exemption from U.S. laws for Iraqi per-
sonnel. On the other hand, I said that a simple pledge to consult in the event of
a security threat to Iraq or an exemption from Iraqi laws for U.S. forces and per-
sonnel might be done by means of an executive agreement without Congressional
authorization.
I also commented on the part of the Declaration that seemed to call for the end
of Iraq's status under Chapter VII of the UN Charter and its return to the legal
position prior to August 1990, when the Security Council began its series of resolu-
tions on Iraq. I pointed out that, if this literally meant that the Council's Chapter
VII resolutions on Iraq would be terminated, this would raise several issues of pos-
sible significance to the United States. In particular, those resolutions provide for
a continuing deduction from Iraqi oil export revenues to pay compensation awarded
by the UN Compensation Commission to those suffering loss from the Iraqi invasion
and occupation of Kuwait (including American claimants); and those resolutions con-
tinue to impose constraints on the acquisition and possession by Iraq of various
items that might be used in a program for biological, chemical or nuclear weapons.
I suggested that these questions merited policy consideration, so as not to result in
unintended consequences.
For this morning's hearing, I have been asked to focus on the mechanics of how
the Executive Branch makes international agreements, with particular emphasis on
the determination of what form the agreement will take and the procedures followed
for consultation with Congress. The U.S. process for the making of international
agreements is in fact one that is carefully regulated and subject to definite legal and
policy requirements, which I will try to describe.
AUTHORIZATION OF NEGOTIATIONS
It is of course the Constitutional responsibility of the Executive Branch to nego-
tiate international agreements. The process for doing so is governed by the regula-
tions of the State Department that are commonly known as the "Circular 175 proce-
dure." 1 The procedure is designed "to confirm that the making of treaties and other
international agreements by the United States is carried out within constitutional
and other legal limitations, with due consideration of the agreement's foreign policy
implications, and with appropriate involvement by the State Department."2 It is
also designed to ensure "that timely and appropriate consultation is had with con-
gressional leaders and committees" on such agreements and that the requirements
of U.S. law on the transmission of such agreements to Congress are complied with.3
The Circular 175 regulations state that:
Negotiation of treaties, or other "significant" international agreements, or for
their extension or revision, are not to be undertaken, nor any exploratory dis-
cussions undertaken with representatives of another government or inter-
national organization, until authorized in writing by the Secretary [of State] or
an officer specifically authorized by the Secretary for that purpose.4
A request for such authorization takes the form of a memorandum to the Sec-
retary of State, or to another principal officer to whom such authority has been dele-
gated (such as an Undersecretary of State), cleared by the Office of the Legal Ad-
viser, the Office of the Assistant Secretary of State for Legislative Affairs, and other
bureaus or agencies that may have a substantial interest in the matter. These re-
'The Circular 175 procedure originated in Department Circular No. 175 of December 13,
1955. It is currently codified in the State Department's Foreign Affairs Manual at 11 FAM 720-
25 and 22 CFR 181.4.
2 See the explanation of the Circular 175 procedure given by the Office of the Legal Adviser
of the State Department at www.state.gov/s/l/treaty/cl75.
311 FAM 722.
'11 FAM 724.1.


32
INVOLVEMENT OF CONGRESS
The Circular 175 procedure clearly contemplates the involvement of Congress in
the negotiation of significant agreements. This is true even if the agreement is to
be concluded as an executive agreement without formal Congressional authorization
or approval. Specifically, the "appropriate congressional leaders and committees" are
to be "advised of the intention to negotiate significant new international agree-
ments, consulted concerning such agreements, and kept informed of developments
affecting them, including especially whether any legislation is considered necessary
or desirable for the implementation of the new treaty or agreement." (Also, accord-
ing to the Circular 175 regulation, the interest of the public is "to be taken into ac-
count" and, where in the opinion of the Secretary of State or his or her designee
the circumstances permit, the public is to be given an opportunity to comment.)12
Consultation with Congress is to cover both the substance and form of the pro-
posed agreement. In particular, with respect to whether an agreement should be
concluded as a treaty or in some other form, "consultations on such questions will
be held with congressional leaders and committees as may be appropriate." Arrange-
ments for these consultations are to be made by the Assistant Secretary of State
for Legislative Affairs.13
The regulations do not specify precisely when consultations must take place. How-
ever, as noted above, the memorandum seeking authorization to negotiate is to say
whether congressional consultations on the agreement have been or will be under-
taken, and Congress is to be informed of the intention to negotiate such an agree-
ment—obviously before the negotiation occurs. If such consultations are to be mean-
ingful, they should logically start in sufficient time that Congressional views can be
taken seriously into account in the negotiation. No sensible negotiator would do oth-
erwise, particularly in a case where the implementation of the agreement will ulti-
mately depend on Congressional appropriations, implementing legislation or polit-
ical support from the Congress.
If the agreement is to be concluded in the form of a treaty, then it must be signed
subject to ratification, which of course can only occur after the Senate gives its ad-
vice and consent. If some other form of Congressional action is required and has not
been obtained in advance, it would normally be sensible to condition the agreement
on obtaining that Congressional action or hold it in abeyance until Congress acts.
Once the agreement is concluded, it must be reported to Congress. The 1972 Case-
Zablocki Act requires that the Secretary of State transmit to Congress the text of
any international agreement other than a treaty "as soon as practicable after such
agreement has entered into force with respect to the United States but in no event
later than sixty days thereafter."14 It also requires that the Secretary put such
agreements on the Department's website and maintain an annual compilation of all
treaties and other international agreements which have entered into force during
the previous year.15
UN RESOLUTIONS
Once again, the November 2007 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). ..." As I
noted in my previous testimony, this raises the question of whether it is con-
templated that the existing series of Chapter VII resolutions will be terminated or
modified in some way. If so, this would raise several issues, including the continu-
ation of deductions from Iraqi oil export revenues to pay compensation for damage
suffered during the invasion and occupation of Kuwait, the continuation of restric-
tions on Iraqi acquisition of items that might be used for weapons of mass destruc-
tion, and the guarantee of the border demarcation between Iraq and Kuwait.
If the agreement or agreements to be negotiated with Iraq do contemplate such
changes to the Security Council's resolutions, then of course the United States and
Iraq could not accomplish this on their own, and at most the agreement could only
commit the United States to pursue such changes with other members of the Coun-
cil. While it would be within the authority of the President to pursue such a course
of action, the Congress would of course have a legitimate interest in being consulted
on such changes and their effect on the interests of the United States and its na-
12 11 FAM 725.1.
13 11 FAM 723.4.
1'1 USC 112b.
lr'l USC 112a.


37
ment. ... we certainly do not consider the declaration of principles a security com-
mitment to the Iraqis." He also stated again that "My view is that there ought to
be a great deal of openness and transparency to the Congress as we negotiate this
status of forces agreement, so that you can satisfy yourselves that those kinds of
commitments are not being made, and that there are no surprises in this."
Mr. Gates also noted that "my view is that there is nothing in the Status of
Forces Agreement, that we are just beginning to negotiate, that would bind a future
administration. It basically, like other Status of Forces Agreements, sets forth the
rules by which we continue to operate in Iraq—in terms of protecting our soldiers,
in terms of the legal relationship, and so on. I don't think that there's anything here
that, in a substantive way, binds any future administration."
To be sure, Mr. Chairman, it is my private view that any future President will
be obliged to consider the long-term reputation of the United States as a reliable
partner. As President, he or she also will be bound to consider the situation of Iraq,
and the moral obligations that the world community has to help that country climb
back to a state of normalcy. But that judgment is not precluded by the November
2007 Declaration of Principles, though a wise President will want to pay heed to
the human aspirations that are reflected in its language.
For clarity, let me briefly address the general nature of "status of forces" agree-
ments—often called "SOFA's"—and what they typically entail. These are relatively
commonplace agreements. The United Nations uses SOFA agreements. NATO has
them, as does the Partnership for Peace or PfP. They are used in United Nations
peacekeeping missions. And of course, there are also bilateral SOFA agreements.
SOFA agreements are designed to clarify the important question of legal jurisdic-
tion over visiting forces. They are often rather dull. In a technical but useful book
called THE HANDBOOK OF THE LAW OF VISITING FORCES (Oxford University
Press 2001), German legal scholar Dieter Fleck has noted (at page 3) that SOFA
agreements are an attempt "to elaborate clear status provisions for military and ci-
vilian personnel of foreign armed forces in a receiving state" and may be used for
"exercises and even for transit operations."
Thus, even in an exercise of the Partnership for Peace or the Proliferation Secu-
rity Initiative, as well as United Nations peacekeeping, it is important to have
SOFA agreements to determine which state has jurisdiction over the activities and
status of soldiers, sailors, airmen and marines. Typically, a NATO SOFA is prac-
tically applied so that any mishaps arising in the course of official duties are han-
dled by the state of the so-called "sending state," whereas completely private acts
will fall under the concurrent jurisdiction of the so-called "receiving state."
SOFA's are important in protecting our armed services personnel all over the
world. During the negotiations of the treaty for the International Criminal Court,
the United States delegation took care to make sure that the "Rome" treaty text in-
cluded, in Article 98(2), a provision that the international court would respect the
terms of standing SOFA agreements all over the world, that immunized American
soldiers from foreign jurisdiction over official activities. We have not joined the
International Criminal Court or the Rome treaty, but to meet our concerns about
the Rome treaty's assertion of third-party jurisdiction, the SOFA agreements give
some important protection.
In layman's terms, a SOFA can be likened to an immunity treaty for diplomats
or consular personnel. The common element is that the responsibility to investigate
and proceed against any wrongful acts committed in the course of official duties is
left to the country of the alleged offender's nationality, i.e., the so-called "sending"
country. A SOFA is not a pledge to station a certain number of forces or indeed,
any forces at all. There is no mystery or diplomatic intrigue in a SOFA.
In our security posture around the world, there are difficult issues to be ad-
dressed, including the status and supervisory mechanism for private contractors,
and other non-military personnel. But again, a SOFA has no implications for the
size, duration or intensity of any military involvement. The virtue of a standing
SOFA agreement is that the matter does not have to be addressed anew, each time
official personnel are visiting or transiting or working in a foreign country.
This is not to prejudge our future relationship with the people of Iraq. There are
so many truly extraordinary people in the American armed forces, and in the forces
of cooperating allies, who are rightfully proud of their brave work in trying to quell
the wanton violence directed against innocent civilians by suicide bombers and al
Qaeda operatives. A future President may well conclude that we are honor bound
not to precipitously abandon the mission of assisting them in rebuilding their coun-
try.
But no matter who is chosen as the next President, and what view is taken of
America's role in assisting the Iraqi people, we would wish to have a SOFA agree-


41
agreement, if you will, I think there he probably can for two dif-
ferent reasons. One is that, in general, the President has the pre-
rogative through the State Department of negotiating immunities
for trade missions, anybody who is traveling abroad in a quasi-offi-
cial capacity. It is often done ad hoc and de facto. So ex ante, he
can do that before the fact.
Secondly, since these contractors were, I take it, allegedly acting
in support of the State Department to protect diplomats who were
abroad, it is very much part of the President's power in foreign di-
plomacy.
But I take the point and agree with the point that there ought
not to be a loophole in which there is a want of appropriate follow
up for misconduct, and additionally to that one needs to have peo-
ple embedded who are good at crime scene investigation, who know
how to conduct an investigation without giving unwarranted immu-
nity which then spoils the criminal case.
Mr. Delahunt. Well, and I am going to go to Dr. Hathaway, this
is an interesting discussion but I think what I am hearing is de-
spite the characterization by officials from the administration that
this is a typical SOFA—put aside all of the other concerns that I
and others have expressed about the declaration—it doesn't appear
to be a typical SOFA like we have with 80 or 100 other nations.
This is a different hybrid, if you will, that seems to require some
response or clarification if we are to follow the suggestion by Dr.
Hathaway and yourself to clarify the immunity in terms of private
contractors, and that is why I am baffled that there has been no
consultation to this point in time.
Now, some might say, well, the Declaration of Principles was
enunciated in November. We know that discussions have been
going on for better than a year surrounding a bilateral agreement,
and yet when I inquire of our leadership, and I am sure that the
Republican leadership has not been consulted on this either, there
is nothing, and I guess that goes to how one would define consulta-
tion. Is it a fait accompli or is it a legitimate back and forth in
terms of what our interests are even if it is just a SOFA and
doesn't include all of the other concerns?
Dr. Hathaway, I see you nodding and want to respond.
Ms. HatHAWAY. I just want to add one point. First of all, I agree
with everything you have just said, and I think it is extremely im-
portant to note that this is a point that the administration has not
backed off of as they have off of the defense guarantee. There has
been no indication that there is any intent not to include this in
the SOFA agreement, that is, an immunity for private military con-
tractors.
But I wanted to return to the constitutional point that I began
with, which is the question as to whether this could constitu-
tionally be included in a SOFA agreement without the assent of
Congress, because I think this is a bit of a point of disagreement
with Professor Wedgwood, my former colleague. I think that, in
fact, it is extremely questionable whether the President could do
this on his own authority. The President has authority to enter into
a typical SOFA because of his powers as Commander in Chief.
Now, if I am right, if in fact Blackwater doesn't fall under the
Military Extraterritorial Jurisdiction Act because it is not acting in


60
terms of my viewpoint the inconsistency between the Declaration
of Principles and what the reality appears to be if we can take the
comments by Secretary Gates, you know, is huge. It is a grand can-
yon between them.
I find that disturbing because it is misleading, and it is not being
up front and honest with the American people as well as the people
of Iraq. It is gamesmanship. That is really what it is. If it is the
Declaration of Principles and they sign it and they have a photo
opportunity so that everybody can maneuver and manipulate politi-
cally, this is too serious to do that. This is far too serious and the
consequences are far too profound, and we have paid too much of
a price as has the Iraqi people. Dr. Macgregor.
Ms. DeLauro. Mr. Chairman, can I
Mr. DELAHUNT. Sure.
Ms. DeLauro. I would like to get an answer with your view that
we put aside the Declaration of Principles.
Mr. DELAHUNT. I agree, yes.
Ms. DeLauro. I really would like to get an answer from you, and
quickly, whether you think that is what our course of action should
be. And anyone start wherever they would like.
Colonel Macgregor. Well, first of all, I recommended in the
statement that I submitted for the record that under no cir-
cumstances should the United States Congress, Senate and the
House support this joint Declaration of Principles for all of the
legal reasons that you have heard, but it is a potentially dangerous
document that commits us to all sorts of courses of actions that the
American people would not normally ever undertake.
I want to make the point that if you look carefully at this joint
declaration, setting aside the economic provisions, and those are
very disturbing because those are really reminiscent of what the
British Empire tried to do in Iraq after World War I, and I am cer-
tainly in favor of advancing the interests of American business,
that is not the issue, but we are dealing with a very weak state
right now, if you even want to dignify it with that word, and that
is disturbing.
But the real issue for me is that the focus of this agreement is
not really on an external thread of any kind, which has tradition-
ally been our position. It is on propping up, supporting, defending,
however you want to characterize it, this government in Iraq. It
has serious problems, so many problems that one wonders why one
would sign any agreement under these circumstances with the cur-
rent government.
Then there is an undercurrent here that I think deserves some
attention because Mr. Rohrabacher was very articulate in the way
he presented the political rationale that the White House uses. The
comparisons are always back to World War II, specifically, Ger-
many and Japan, and subsequently to Korea. We need to under-
stand that the conditions in that period of time that produced the
outcomes that we saw in those countries have nothing to do with
conditions today in Iraq. It is very important to understand that.
We staged in Germany because there were 15 million Soviet
troops poised to march to Paris. That is why we staged in Ger-
many, and the Germans, by the way, were very happy to have us