4.F 76/1:110-233
RENEWING THE UNITED NATIONS MANDATE FOR
IRAQ: PLANS AND PROSPECTS
SES
HEARING
BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL
ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
NOVEMBER 19, 2008
Serial No. 110–233
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COMMITTEE ON FOREIGN AFFAIRS
HOWARD L. BERMAN, California, Chairman
GARY L. ACKERMAN, New York
ILEANA ROS-LEHTINEN, Florida
ENI F.H. FALEOMAVAEGA, American CHRISTOPHER H. SMITH, New Jersey
Samoa
DAN BURTON, Indiana
DONALD M. PAYNE, New Jersey
ELTON GALLEGLY, California
BRAD SHERMAN, California
DANA ROHRABACHER, California
ROBERT WEXLER, Florida
DONALD A. MANZULLO, Illinois
ELIOT L. ENGEL, New York
EDWARD R. ROYCE, California
BILL DELAHUNT, Massachusetts
STEVE CHABOT, Ohio
GREGORY W. MEEKS, New York
THOMAS G. TANCREDO, Colorado
DIANE E. WATSON, California
RON PAUL, Texas
ADAM SMITH, Washington
JEFF FLAKE, Arizona
RUSS CARNAHAN, Missouri
MIKE PENCE, Indiana
JOHN S. TANNER, Tennessee
JOE WILSON, South Carolina
GENE GREEN, Texas
JOHN BOOZMAN, Arkansas
LYNN C. WOOLSEY, California
J. GRESHAM BARRETT, South Carolina
SHEILA JACKSON LEE, Texas
CONNIE MACK, Florida
RUBÉN HINOJOSA, Texas
JEFF FORTENBERRY, Nebraska
JOSEPH CROWLEY, New York
MICHAEL T. MCCAUL, Texas
DAVID WU, Oregon
TED POE, Texas
BRAD MILLER, North Carolina
BOB INGLIS, South Carolina
LINDA T. SANCHEZ, California
LUIS G. FORTUNO, Puerto Rico
DAVID SCOTT, Georgia
GUS BILIRAKIS, Florida
JIM COSTA, California
VACANT
ALBIO SIRES, New Jersey
GABRIELLE GIFFORDS, Arizona
RON KLEIN, Florida
BARBARA LEE, California
ROBERT R. KING, Staff Director
YLEEM POBLETE, Republican Staff Director
SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS,
HUMAN RIGHTS, AND OVERSIGHT
BILL DELAHUNT, Massachusetts, Chairman
RUSS CARNAHAN, Missouri,
DANA ROHRABACHER, California
Vice Chair
RON PAUL, Texas
DONALD M. PAYNE, New Jersey
JEFF FLAKE, Arizona
GREGORY W. MEEKS, New York
JOSEPH CROWLEY, New York
CLIFF STAMMERMAN, Subcommittee Staff Director
NATALIE COBURN, Subcommittee Professional Staff Member
PAUL BERKOWITZ, Republican Professional Staff Member
ELISA PERRY, Staff Associate
(II)





RENEWING THE UNITED NATIONS MANDATE
FOR IRAQ: PLANS AND PROSPECTS
WEDNESDAY, NOVEMBER 19, 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 10:09 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
eighth in a series of hearings which the subcommittee has held on
the Bush administration's efforts to consummate what was initially
described as a long-term security agreement with the Government
of Iraq. I appreciate the involvement of my friend and colleague
and ranking member, the gentleman from California, in this under-
taking; he is presently attending another meeting, and I am going
to proceed with my opening statement and when he arrives he will
deliver his.
The first hearing in this series was held on December 19, 2007;
almost a year ago. Much has changed since then. I would note that
the proposed agreement is now called Agreement on the With-
drawal-here he is. I am going to suspend, because in a prior con-
versation we discussed that I would defer to him to make his open-
ing statement, because I know he will be going back and forth be-
cause the Republican Conference is organizing today and I know
they have a series of votes.
So with that, let me recognize and welcome back my good friend
from California, the ranking member, Mr. Rohrabacher.
Mr. ROHRABACHER. Thank you very much, Mr. Chairman. And
first and foremost I would like to commend the chairman for being
one of the very first elected officials to understand the significance
of this Status of Forces Agreement, and he has made sure that our
subcommittee has been playing
ficant role in oversight of
that effort that is going on in Iraq. So I would commend you for
it. I think that the country is better for the hearings that we have
had and the discussions that we have had on issues relating to the
Status of Forces Agreement and the importance of it.
Let me note that I have supported the President during these
years of war in Iraq and I would probably do it again. Unfortu-
would say that the cost that we projected and that the
President presented was far less than what any of us expected.
Whether or not we should have made that decision in the first
. (1)


place, whether the President should have made that decision is, I
think, very debatable even on our side of the aisle; and certainly
our Democratic friends by and far disagree with that decision in
much greater unanimity than our side of the aisle.
In retrospect perhaps that was a wrong decision to try to replace
or displace Saddam Hussein, one of the world's most vicious dic-
tators, before we completed the task at hand in Afghanistan, and
it caused great turmoil in that by not completing the job in Afghan-
istan, that when you try to do too much, you end up not being able
to do anything at all well. And I have always told people, "If you
try to do everything, you are not going to be able to do anything.”
And the Status of Forces Agreement that we are now confron
is something that was predictable; something not only predictable,
something that is expected, and a totally justified-how do you
say—writing down of the rules, et cetera, and an understanding of
what exactly our agreement will be in terms of our forces in Iraq.
I have made it clear for over a year to the administration that
I would not be supporting a Status of Forces Agreement unless
part of that agreement was that the Iraqi Government pick up at
least a major share of the cost of the American troops being in
their country, similar to what we have in Japan, for example. If in-
deed the Iraqi Government, as we have helped the people of Iraq
establish that government, are unwilling to do so, that would sug-
gest to me, Mr. Chairman, that they do not want us there to help
them. And if, by and large, the people do not want us there to help
them thwart radical Islam or other forces that may be at play in
that region, well, then we should not be there.
I know that a lot of people claimed that Republicans think that
America is an imperial power. We are not an imperial power. We
are a country. And I believe that the motives of most of us who
supported the effort in Iraq have been honorable and have been
based on the idea of exchanging that vicious dictatorship of Sad-
dam Hussein that slaughtered hundreds of thousands of his own
people. Exchanging that for a more democratic system that could
be an example to the rest of the Islamic world was a goal that was
a laudatory goal.
It may well not have been as within reach as we thought it was.
However, Iraq to the degree that it has a representative govern-
ment now that we have helped them establish, that we have paid
dearly for in blood and in treasure, if that government does not
want American forces there to assist them in stabilizing their coun-
try and defeating radical elements, then they should refuse to pay
for it and we should heed that decision.
So I am looking forward-I am sorry I am going to have to run
back and forth. We are electing the leadership in the Republican
Party in Congress right now and I should participate in that elec-
tion as well. But I am very interested in the outcome of this hear-
ing to find out exactly what is included in the Status of Forces
Agreement and how it reflects the willingness of the Iraqi people
to express their gratitude to the United States by ensuring that
any help that we give them they will be willing to pay for in the
future, if not right off the bat, perhaps as even some sort of willing-
ness to give us an IOU for the future, some kind of debt to be re-
paid in the future. But just having the United States send our


troops over there, do the fighting for the other side, for the Iraqi
people, when they should be doing their own fighting, having us-
at a time when we have to borrow money from China in order to
maintain any type of operation while we are deeply in debt-for us
to assume the financial burden and to continue to assume the bur-
den of losing our own men instead of having the Iraqis fight their
own battle, I think we have left those days behind.
And I think this new Congress will see not only a new President
of the United States, but changes in basic policy that will demand
that all of us reexamine what our positions are and then we can
discuss whether or not in retrospect the decisions we made were
the right or wrong decisions. Thank you very much for holding this.
Let me just make one note before this, and that is this: When
the Iraqi Government, if the Iraqi Government refuses to pay for
the United States military operation in that country, and at the
same time is signing agreements with China in order to provide
them the use of their oil and other natural resources rather than
signing that contract with American companies, we should be get-
ting the message. The message is loud and clear to me if indeed
the Status of Forces Agreement does not have a payment clause
and the Iraqi Government continues to sign contracts with coun-
tries like China which are not necessarily friendly to the United
States.
So with that said, Mr. Chairman, I will be running back and
forth. I will try my best to keep up with what is being said, but
I also will read the testimony and hopefully we will have a chance
to participate as the hearing goes on. And thank you.
Mr. DELAHUNT. Thank you, Mr. Chairman. Mr. Chairman?
Mr. ROHRABACHER. Mr. Chairman?
Mr. DELAHUNT. I want to take that one back quickly.
Before you leave, I want to know: Are you a candidate in the Re-
publican Caucus for any leadership position?
Mr. ROHRABACHER. I am a candidate for best congressional fa-
ther of triplets of this session.
Mr. DELAHUNT. I think you win that one unanimously on both
sides of the aisle. And congratulations.
Okay, Dana, thank you.
I want to note the presence of the vice chair of the subcommittee,
the gentleman from Missouri, Mr. Russ Carnahan. I am having
trouble. And I always pronounce the gentlelady's name from Cali-
fornia inaccurately, but I am going to give it a real good try here.
We are joined by Congresswoman Lynn Woolsey.
Ms. WOOLSEY. You got it.
Mr. DELAHUNT. This is cause for applause. From us. Not from
you, from us.
As I was saying, the first hearing that the subcommittee held
was back in December 2007; almost a year ago now. As I said,
much has changed since then and one of the changes, of course, is
that the proposed agreement has been relabeled. It is now called
the Agreement on the Withdrawal of United States Forces from
Iraq.
I think it is fair to say that this particular hearing is most timely
in light of the signing this week of the proposed agreement by rep-
resentatives of the two executive branches. And we indeed have


come a long way since President Bush and Prime Minister Maliki
signed the so-called Declaration of Principles on a long-term rela-
tionship back in November 2007, which seemed to embrace a broad
American security commitment to defend Iraq against external and
internal threats. Now, there is a timetable that references specific
dates. American combat troops are scheduled to be withdrawn from
Iraqi cities by June 30th of next year, and all United States forces
must be withdrawn from Iraq by December 31, 2011.
I hope that the hearings that we held contributed to those posi-
tive changes. And when I think of the Iraqi parliamentarians who
sat before us this past June urging that a timetable for complete
withdrawal be at the core of any security agreement, I do believe
that my hope has some basis in reality, as we concurred with them.
However, I want to be very clear. I still have serious reservations
about this pact. For instance, I share the concerns expressed by our
colleague and friend, the chairman of the Armed Services Com-
mittee, Ike Skelton, who has been quoted as being deeply troubled
because the agreement contains, as he says, “vague language that
will cause misunderstandings and conflict between the United
States and Iraq in the future.”
I could go on and on, but a review of the substance of the agree-
ment is in fact not the purpose of this hearing. And by the way,
no one should forget that this agreement has just been provided to
Congress and that there has been no time to conduct the analysis
required by such a significant document, one that purports to end
the conflict that has had such momentous and tragic consequences
for both the Iraqi and the American people. And remember, there
has been no meaningful consultation with Congress during the ne-
gotiation of this agreement. And the American people, for all in-
tents and purposes, have been completely left out. Even now the
National Security Council has requested that we do not show this
document to our witnesses or release it to the public, a public that
for over 5 years has paid so dearly with blood and treasure.
Now, I find that incredible. Meantime, the Iraqi Government has
posted this document on its media Web site so that anybody who
can read Arabic can take part in the public discourse. But this is
typical of the Bush administration and its unhealthy and undemo-
cratic obsession with secrecy. As I said, much has changed in this
year.
Just yesterday, for example, the agreement was effectively en-
dorsed by the Government of Iran. I commend to you this quote
from Ayatollah Sharudi, and these are his words. He's in charge of
the Judiciary in Iran. “In regards to the agreement, the Iraqi Gov-
ernment has performed well, and we hope that the result will be
to the benefit of Islam and the sovereignty of Iraq.”
Well, in any event, one important thing has not changed. A re-
newal of the U.N. mandate may very well be the only option avail-
able to protect our troops, given the calendar and the time con-
straints. As we will hear in testimony today, the bilateral security
agreement will not become legally valid unless, number one, the
Iraqi Parliament enacts by a two-thirds majority—184 of its 275
members—a law governing the ratification of international agree-
ments.


10.
In the absence of an approval law so providing, there is no legal basis for a simple
majority vote of Parliament to ratify any international agreements or treaties.
But how would an agreement negotiated by the Government be ratified if no approval
law was enacted pursuant to Article 61, Section 4 of the Constitution?
In this situation the two-thirds majority of all members of Parliament that has the
authority to enact the approval law certainly has also the authority to ratify a specific treaty or
agreement
The Iraqi Parliament has not yet, as far as can be determined, enacted the approval law
provided for in Article 61, Section 4, of the Constitution. Therefore, it is logical to conclude that
the ratification of an agreement negotiated by the Iraqi government needs a two-thirds majority
of all members of Parliament for its ratification.


15
of these problems. It would give legal authority as a matter of
international law for U.S. troops to be present. But it would a
extend authority as a matter of U.S. law, because the resolution
that I just mentioned clearly incorporates any future Security
Council resolutions and extensions of those resolutions. So that is
very real and, I think, one of the best options available.
There is a second possible option as well, which is submitting
this agreement to Congress for approval. If Congress were to ap-
prove this agreement, then all of these concerns would also be ad-
dressed. Then this would no longer be a sole executive agreement
and the Congress would have had a chance to address, consider,
and respond to the concerns that might be raised about the sub-
stance of the agreement. And if it chooses to approve that agree-
ment, then these constitutional and legal concerns that I have
raised would be addressed. Thank you.
[The prepared statement of Ms. Hathaway follows:]


Berkeley Law
UNIVERSITY OF CAUFORNIA
Uuest of Califana, Berkeley.
Soncol of Lav!
Oona i karaway
Professor of Law
Ta 510.443-3169
Statement of Professor Oona A. Hathaway,
University of California, Berkeley, School of Law
Before the House Committee on Foreign Affairs
Subcommittee on International Organizations, Human Rights, and Oversight
November 18, 2008
The U.S.-Iraq Bilateral Agreement:
Constitutional and other Legal Concerns
I have been asked to review the key legal issues regarding the proposed bilateral agreement
between the United States Iraq. Here are my central remaining concerns.
(1) The Agreement Undermines the Constitutional Powers of President-Elect Obama.
The proposed agreement undermines the constitutional powers of President-elect Obama as
commander in chief in two ways. First, it gives operational control to a Joint Mlitary Operations
Coodination Committee (JMOCC), made up of Iraqis and Americans and "jointly led by both
sides.” It appears from the text of the agreement approved by the Iraqi Cabinet (as translated
from the Arabic) that American commanders in the field retain their power to act without
advance approval of JMOCC only in cases of self-defense. This is unprecedented and is, in my
view, unconstitutional in the absence of congressional approval. While American troops have
been placed under foreign control in peacekeeping operations, this has occurred only under
treaties approved by a majority of both houses of Congress or two-thirds of the Senate.
Second, the proposed agreement undermines the constitutional powers of President-elect Obama
as commander-in-chief by binding him to observe timetables for the withdrawal of U.S. troops.
Because the Administration has not released the official English text, I am working from an
English translation of the Arabic text that is far from transparent. It states that “The U.S.
recognizes Iraq's sovereign right to request a U.S. forces withdrawal from Iraq at anytime[sic].
The Iraqi government recognizes the United States' sovereign right to request a U.S. forces
withdrawal from Iraq at anytime[sic]” (emphasis added). Moreover, the agreement provides that
"Cancellation of this agreement requires a written notice provided one year in advance.” From
this language, it appears that President-elect Obama may "request” a change in the timetables,
but that both sides must agree to it. In the absence of such an agreement, it appears that both
sides are bound to continue abiding by the agreement for a minimum period of one year.


21
Mr. DELAHUNT. Thank you Professor.
Mr. Jarrar.
STATEMENT OF MR. RAED JARRAR, IRAQ CONSULTANT, MID-
DLE EAST PEACE BUILDING PROGRAM, AMERICAN FRIENDS
SERVICE COMMITTEE
Mr. JARRAR. Thank you, Chairman, for having me today. I will
be speaking about procedural and legal aspects of the debates in
Iraq more than the political ones. The political ones have been real-
ly confusing in the last few days. We saw how groups that have
been working for at least the last 5 years to demand the U.S. with-
drawal are the opponents of the agreement now, and how groups
who have been asking the U.S. to stay for the last 5 years are the
supporters of this agreement. So it is kind of confusing to have an
agreement that is supposedly ending the occupation but then the
roles inside Iraq.
Now, this confusion I think is based on a lot of skepticism from
the Iraqi side, because many of the Iraqi parliamentarians and po-
litical leaders who I have talked to don't think there are enough
guarantees in the agreement to implement this United States with-
drawal, and they don't think that there is enough oversight. In
fact, yesterday there was a form of small panic, I can call it, be-
cause the three names of the nominees to head this joint committee
from the Iraqi side, the joint committee that will decide the future
of the United States and Iraqi troops, the three names included the
name of Ahmed Chalabi, the same person who took the United
States into Iraq in the first place. Many people are saying this is
full circle. They are saying it is full circle; the same person who
started this mess will end up now getting charged.
Mr. DELAHUNT. That is cause for panic, Mr. Jarrar. I concur.
Mr. JARRAR. So there are many reasons to discuss about the con-
tent. Now, the issue that is really being discussed th
that the agreement has been sent to the Parliament on Monday
and the first meeting of the agreement has been done, is that peo-
ple are asking for more time. I have read a lot of statements of par-
ties who don't necessarily have reservations about the agreem
They think the agreement sounds okay, but they want more time.
They think that this agreement that will decide Iraq's future
should not be discussed in a few days in the Parliament; it should
be given at least a few months.
So that is why I think many people on the Iraqi side, many polit-
ical leaders in the Iraqi Parliament, legislative branch or in the ex-
ecutive branch, have been talking about doing both; doing the ex-
tension of the United Nations mandate and discussing bilateral
agreement with the United States that would end the U.S. occupa-
tion. So it is not either one, it is not choosing one option. But for
he time being, I think the extension of the U.N. mandate would
give some people enough time to discuss this.
Now let me talk about the procedural aspects. Mr. Chairman,
you mentioned a lot of the details and quotes showing how in the
last year, if not more, the discussion in Iraq has been going. I
found quotes in the Iraqi public record, of the Parliament that goes
back to March 2007, of discussions regarding this implementation


34
to Chapter VI decisions, and I don't see that as a problem. How-
ever, I understand that there may be political objections to the use
of Chapter VII at this point, in which case we could also consider
Council action under Chapter VI. This would be based upon the re-
quest or consent of the Iraqi Government, but in the past there
have been many military operations that have been authorized
under Chapter VI, and some have involved rather robust military
missions.
A Chapter VI resolution would not require a finding of the threat
to the peace, and since it would expressly rest upon the consent of
Iraq, there is no reason why Iraq should see any derogation of its
sovereignty in that.
I think a Chapter VI action would have essentially the same op-
eration consequences in the present circumstances as a Chapter
VII extension would. The existing mandate and authority of the
MNF forces would continue, this time as a result of Iraq consent.
The status and the immunity of the forces would continue under
CPA 17. The congressional authorization from 2002 would con-
tinue. So, in effect, it would have essentially the same con-
sequences whether under Chapter VI or Chapter VII.
Now, these are not the only possible options for extending the
current mandate and authority of United States forces in Iraq. You
could have the two governments bilaterally entering into some kind
of simple agreement which would extend the current mandate and
protections. This could be done, for example, by a simple exchange
of letters or by some other bilateral document.
This could raise questions as to whether there would then be a
need for further legislative action, either in the United States sys-
tem or in the Iraqi system. I think possibly such questions could
be resolved if the council were to adopt a further resolution which
would essentially give its blessing to this bilateral agreement and
would approve extension of the mandate under the agreement.
Then I think you could argue that both CPS 17 and the congres-
sional authorization would continue under the rubric of enforcing
a Council resolution.
Now, to the extent that any of these options involve action by the
Security Council, obviously that is going to require advance plan-
ning and consultation. If such action were needed by December 31,
I think it would be prudent to begin that process right away, if in
fact it has not already started.
Presumably what will be required is extensive consultation both
in New York and in capitals, particularly with Iraq, with the per-
manent members of the council, with the member of the council
who will be president during the time the action is taken, and pos-
sibly with other members of the council to ensure broader support.
Under any of these options, I think the two governments would
then have temporary breathing room to resolve the status of the
final arrangements. They would also have time to take whatever
legislative action they might consider to be appropriate in their re-
spective domestic systems. U.S. forces would still have the nec-
essary authority to operate, the necessary protection to operate. I
see no reason why Iraq would consider there would be any deroga-
tion of its sovereignty in such a situation.


38
n the Midmple, was tunder Cha
continue to be subject to certain other aspects of the existing Chapter VII regime
even after the expiration of the MNF mandate, such as the provisions for compensa-
tion for Gulf War victims from Iraqi oil export revenues, and Iraq's obligations not
to acquire weapons of mass destruction.?
The adoption of a further Chapter VII resolution could also have benefits to Iraq
in that it could also be used to continue Council measures affecting other states that
Iraq might find useful. Specifically, the current immunity from attachment of Iraqi
petroleum products and the proceeds of their sale, which was continued in the same
Council resolution that extended the MNF mandate, will expire on December 31,
2008, unless further extended by the Council.8 This would have to be done under
Chapter VII if it is to protect against attachment in other states.
Action under Chapter VI. If a Chapter VII extension is nonetheless thought to be
undesirable for political reasons, the same results could be achieved in the current
situation through a Council decision under Chapter VI, based on the request or con-
sent of the Iraqi Government. To be sure, Chapter VII is the vehicle that has gen-
erally been used in recent years to authorize the robust use of force by multi-
national forces. Nonetheless, in the past, a number of peacekeeping and other mili-
tary operations have been authorized by the Council under Chapter VI with the con-
sent of the affected states. 9 This, for example, was the case with respect to a num-
ber of peacekeeping operations in the Middle East, South Asia and the Congo, some-
times involving robust military missions.
A Chapter VI resolution would not require any finding of a threat to the peace;
and since the mission would rest expressly on the consent of Iraq, there would be
no question of intrusion on Iraqi sovereignty. This could all be made abundantly
clear in the text of the resolution and in communications to the Council by Iraq and
the United States. It could also be useful to have a brief U.S.-Iraqi agreement or
exchange confirming that the two governments had consented to the extension of
the mandate and status of MNF forces.
Such an extension would in practice have essentially the same operative con-
sequences as a Chapter VII resolution in the current circumstances in Iraq. The ex-
isting mandate and authority of U.S. forces within the MNF would continue, this
time based on the consent of Iraq. The status and immunities of U.S. forces would
continue under CPA 17, which continues to apply so long as the MNF authorization
continues under Security Council resolutions, without regard to whether they are
under Chapter VI or Chapter VII. Likewise, the provision in the 2002 Congressional
resolution authorizing the use of U.S. forces to enforce all relevant Security Council
resolutions, without regard to whether they are under Chapter VI or Chapter VII,
would continue to apply.
uncil resolutio apply so Tomunities of U.s.cootinue, this
Such a shift from Chapter VII to Chapter VI with respect to the MNF could well
be seen in Iraq as a positive reaffirmation of the Iraqi desire to reassert its sov-
ereignty and independent status and to avoid the appearance of a continuing inter-
national protectorate. The limited duration of such an interim extension would fur-
ther emphasize that it is not aimed at the indefinite continuation of the current sit-
uation. It might also simplify matters for the Iraqi Government under its own law,
since it would fall within the terms of CPA 17 that are already in force under the
Iraqi Constitution, and hopefully would not require further action by the Iraqi Par-
liament. (As already noted, certain other aspects of the existing Chapter VII regime
would continue, such as the provisions for compensation for Gulf War victims from
Iraqi oil export revenues.)
I would stress, in passing, that I am not at all suggesting that the use of Chapter
VII would be undesirable, or that it should be abandoned in other cases as the usual
vehicle for authorization of military operations where the robust use of force may
be necessary. Chapter VII authority is often necessary or desirable, particularly
where the Council cannot be confident that it will continue to have consent for the
operation, or where there is doubt about the authority or stability of the regime giv-
ing consent, or where there is some other reason to give binding legal effect to the
measures adopted by the Council. However, this should not be a problem with re-
spect to a temporary extension of the MNF mandate with the consent of Iraq.
6 UN Security Council Resolutions 687 (1991), par. 16–19; 1483 (2003).
7 UN Security Council Resolutions 687 (1991), par. 7-14; 1762 (2007).
8 UN Security Council Resolution 1790 (2007), par. 3; UN Security Council Resolution 1483
(2003), par. 22.
9 See, e.g., M. Matheson, Council Unbound: The Growth of UN Decision Making on Conflict
and Postconflict Issues after the Cold War (U.S. Institute of Peace, 2006), Chapters 4-5.


41
zorld. Otherwise, we
Our job is to watch out for the interests of the American people,
not the Iraqi people or not people all over the world. Oth
would have gone into Burma a long time ago, if it was just to get
rid of all the dictators. But we can be proud that we did go into
Iraq and eliminated one of the worst, brutal dictators on the plan-
et, and we gave the Iraqi people their chance.
Well, we have given them their chance. It is now time for them
to step up, and if they don't, we again should not have any hesi-
tation or feel bad about committing ourselves to step out. It is as
simple as that.
Let me ask you some things about this agreement. I take it it
does not have any payment within it, that they are going to pay
the bill.
Mr. DONNELLY. That is right.
Mr. ROHRABACHER. Which is something I would note.
For the last year—and Mr. Berman will note this as well—for
the last year I have been making it very clear that many of us on
the Republican side would be demanding for our support for this
agreement that it contain some sort of provision of having the
Iraqis paying the bill for our military operation.
Mr. BERMAN. Will the gentleman yield?
Mr. ROHRABACHER. Certainly.
· Mr. BERMAN. But no one is asking for our support for this pro-
posal.
Mr. ROHRABACHER. Okay. No one is asking. We will discuss that
later.
So their unwillingness at this point to step forward is an indica-
tion of what their just national desires are all about. The fact is-
now, can someone tell me whether or not Status of Forces Agree-
ments require permission of the host country for military action to
take place, for military operations to take place? With our other
Status of Forces Agreements, do the other countries demand that
right?
Mr. MATHESON. Typically a Status of Forces Agreement doesn't
address the authority to conduct military operations, but I think in
normal situations a Status of Forces Agreement is that the sending
country is not conducting combat operations in the host country-
for example, Japan and Korea and so on—so that it wouldn't be
surprising if it didn't go into that.
Mr. ROHRABACHER. Our Status of Forces Agreement with Korea,
does it demand that the Korean Government preapprove of military
operation in Korea?
Mr. MATHESON. I don't think there is any authorization for
United States forces to conduct operations at all in Korea.
Mr. ROHRABACHER. Say that again.
Mr. MATHESON. I don't believe there is anything in the Status of
Forces Agreement that authorizes United States military forces to
conduct combat operations in Korea.
Mr. ROHRABACHER. Even in case of an invasion?
Mr. MATHESON. That would be handled separately between the
two governments.
Ms. HATHAWAY. There is a treaty that governs the military oper-
ations. The typical arrangement is to have an Article 2 treaty ap-
proved by the Senate that authorizes the military relationship, and


47
Why doesn't it make more sense to take the agreement and in
a way, Mr. Donnelly sort of threw out this idea-authorize it and,
in the context of doing it, seek to clarify certain interpretations, or
perhaps reject specific provisions, or—perhaps even you could
throw out Mr. Rohrabacher's notion-impose some additional con-
is in terms of sharing burdens or things like this? Rather than
go through a process of trying to legislate the requirement that the
President must submit an agreement to us, get right to the notion
of—would that not have the same legal effect as an approval?
Would that have a legal impact, putting aside the ai
President's ability. to veto and the questions of an override? And
again January 1st becomes an interesting consideration on that
issue.
Ms. HATHAWAY. So this raises some very difficult issues. Let me
give you what I think is the answer.
My view is a non-anti-presidentialist view on international law.
In fact, I think that
Mr. BERMAN. Well, you raised Youngstown Steel, so that is a lit-
tle anti-presidential.
Ms. HATHAWAY. Yes. Well, I think that is applicable law in this
case.
So my view is that you cannot have an international agreement
without the President agreeing to it; so that this Congress could
not take that agreement, modify it, and declare that the agree-
ment, without the President agreeing to that, to the agreement
that Congress passes and certifying that as in fact the agreement
that he
Mr. BERMAN. But then we also could not mandate him to seek
a U.N. authorization for an additional 6 months probably. That
would be sort of anti-presidential.
Ms. HATHAWAY. Well, so it is a different-I actually disagree. I
think you could-well, could you mandate? Probably not.
you declare that this Congress would not accept this sole
executive agreement as a constitutional agreement and that this is
the only acceptable way forward? Certainly you could do that.
Again, these are tough questions, but in my view, Congress can-
not, without the President being on board, make international law.
But it is an essential player; it has to approve those agreements,
so Congress is absolutely necessary in this case. Congress abso-
lutely must approve the agreement, in my view, in order for it to
be constitutional.
Mr. BERMAN. Let's focus on that statement. I take your points
about these other issues. I came in somewhat late. I didn't hear
your testimony. I did quickly read your statement.
You have an interesting argument, because on the one hand this
agreement inappropriately, if it isn't approved by Congress, re-
stricts President-elect Obama's flexibility, and at the same time
you argue that this gives the President powers that Congress ap-
propriately has for itself. That is sort of your second argument. It
both restricts his power and gives him too much power at the same
time.
On the restrict side, you say this JMOCC, as you read it, pro-
vides an unprecedented authority to control U.S. forces. But what
if it is interpreted as, No, no, this does not give the Iraqis any say