N ur. Tº ſºlº |||||||| SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT BILL DELAHUNT, Massachusetts, Chairman IFORNI | | 03028 1034 RUSS CARNAHAN, Missouri DANA ROHRABACHER, California DONALD M. PAYNE, New Jersey RON PAUL, Texas GREGORY W. MEEKS, New York JEFF FLAKE, Arizona JOSEPH CROWLEY, New York CLIFF STAMMERMAN, Subcommittee Staff Director NATALIE COBURN, Subcommittee Professional Staff Member PHAEDRA DUGAN, Republican Professional Staff Member ELISA PERRY, Staff Associate SUBCOMMITTEE ON THE MIDDLE EAST AND SOUTH ASIA GARY L. ACKERMAN, New York, Chairman HOWARD L. BERMAN, California MIKE PENCE, Indiana DAVID SCOTT, Georgia STEVE CHABOT, Ohio JIM. COSTA, California JOE WILSON, South Carolina RON KLEIN, Florida J. GRESHAM BARRETT, South Carolina BRAD SHERMAN, California JEFF FORTENBERRY, Nebraska ROBERT WEXLER, Florida BOB INGLIS, South Carolina ELIOT L. ENGEL, New York CONNIE MACK, Florida RUSS CARNAHAN, Missouri GUS BILIRAKIS, Florida SHEILA JACKSON LEE, Texas VACANT DAVID ADAMS, Subcommittee Staff Director HOWARD DIAMOND, Subcommittee Professional Staff Member GREGORY MCCARTHY, Republican Professional Staff Member DALIS BLUMENFELD, Staff Associate (III) THE PROPOSED U.S. SECURITY COMMITMENT TO IRAQ: WHAT WILL BE IN IT AND SHOULD IT BE A TREATY2 WEDNESDAY, JANUARY 23, 2008 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT AND SUBCOMMITTEE ON THE MIDDLE EAST AND SOUTH ASIA, COMMITTEE ON FOREIGN AFFAIRS, Washington, DC. The subcommittees met, pursuant to notice, at 10:10 a.m. in Room 2141, Rayburn House Office Building, Hon. William D. Delahunt (chairman of the Subcommittee on International Organi- zations, Human Rights, and Oversight) presiding. Mr. DELAHUNT. The joint hearing of the Subcommittee on Over- sight and the Subcommittee on the Middle East will come to order. I would like to thank my distinguished colleague, Chairman Acker- man, for agreeing to this joint hearing, and on behalf of myself and my good friend, the ranking member from California, Mr. Rohr- abacher, I welcome the gentleman from New York and his distin- guished ranking member, Mr. Pence, who I understand is on his way. I would also note the presence of the gentlelady from Con- necticut, Ms. DeLauro, who has introduced legislation dealing with the subject of this hearing, and I ask unanimous consent that she and any other Member attending today's hearing be permitted to act as a member of the subcommittee for the purpose of taking tes- timony and asking questions. Hearing no objection, so ordered. The multitude of potential commitments embraced by the so- called “Declaration of Principles” signed by President Bush and Prime Minister al-Maliki on November 22nd of last year have pro- found consequences for the United States and the American people. This hearing will, in part, examine those proposed commitments and assess whether congressional approval is required in order for them to become legally binding. However, let me be perfectly clear. The White House should be on notice that, as a prerequisite to any agreement making the kind of commitments enumerated in the Declaration of Principles, Con- gress must be an integral part of the discussions and negotiations from the beginning. What we have heard from the administration regarding the proc- ess by which the United States would make such momentous com- (1) 6 that point forward, and I think they would also agree that the President, with less than 12 months left in his term, should not be the sole arbiter of what that future relationship looks like. It is precisely because a long-term security agreement would be controversial that the President should involve Congress in the de- liberations that shape such an agreement. It is my understanding that the State Department regulations even call for consultations with Congress, in deciding what form an international agreement should take, the Department must expressly consider “the pref- erence of the Congress to a particular type of agreement.” The concern by many of us in the Congress is that the Declara- tion of Principles, signed last November, is so vague that it could cover anything, from consulting with the Government of Iraq about threats it faces to actually deploying United States troops to help Iraq defend itself. If all we are really talking about is consultation with Iraq's Gov- ernment in the face of a threat, then maybe an executive agree- ment is okay, but if the President intends to indefinitely commit United States troops to defend Iraq against future threats, then I believe the approval of Congress of any such agreement is required. Indeed, the American people would accept nothing less. So I call upon the President to reject General Lute's proposed course and, instead, instruct the State Department to consult with the relevant committees in Congress over the shape of our future relations with Iraq and what the exact nature of any future com- mitments will be. Trying to build a democracy in Iraq by ignoring the democratic process at home is ironic and certainly in keeping with the habits of the President to date. But most of all, it is foolish, shortsighted, and perilous. It should not be done, and I suspect that there could, and would, be serious consequences if that is attempted. Thank you, Chairman Delahunt. Mr. DELAHUNT. Thank you, Chairman Ackerman. Now, the distinguished ranking member on the Subcommittee on the Middle East, the gentleman from Indiana, Mr. Pence. Mr. PENCE. Thank you, Mr. Chairman. Thank you for calling this joint hearing. I am captured by a sense, though, that today may be a good example of how Congress can be a lagging indicator in American public life. It seems to me, our discussion today here on Iraq misses the de- velopments in 2007 altogether. It is almost as if the “Anbar Awak- ening” did not occur. It is as if we had not received preliminary re- ports of refugees returning home from neighboring countries. It is as if the last several months have not been the safest for U.S. troops in years, or, specifically, the combat-related United States casualties in Iraq were not 83 percent less in December 2007 than they were in December 2006. It is as if the Iraq public does not have the precious breathing space that it lacked 1 year ago. In fact, it is almost as if the surge did not work. Mr. Chairman, these things did occur. I am not certain that this body has absorbed or appreciated the success story and the im- proved security situation in Iraq and how dramatically better con- ditions are. 10 fight against terrorism by confronting terrorists, such as al-Qaeda, its affiliates, other terrorist groups, as well as other outlaw groups, such as criminal remnants of the former regime, and to provide se- curity assurances to the Iraqi Government to deter any external aggression, and to ensure the integrity of Iraq's territory.” Sweep- ing commentary. The declaration appears, in many ways, to adopt the Maliki gov- ernment's definition of both “external and internal threats,” and that concerns me. What are these undefined threats? Would we be obliged to preemptively strike Sunni fighters beyond Iraq's borders, or even strike home-grown armed factions which Maliki's own gov- ernment deems to be a threat? After the principles were signed, as has been said already many times this morning, Deputy National Security Adviser for Iraq and Afghanistan Lieutenant General Douglas Lute said he does not an- ticipate, and I quote, “the status of the formal treaty, which would then bring us to formal negotiations or formal inputs from the Con- gress.” Because the administration apparently believes Congress should not be involved in the negotiation of this agreement, I recently in- troduced the Iraq Strategic Agreement Review Act. The bill makes clear that the administration must consult with Congress and ex- presses a sense that any long-term security, economic and political agreement with Iraq must come in the form of a treaty, following approval from the Senate. We have been in Iraq for nearly 5 years. I understand that map- ping out a future relationship with that country is vital to our na- tional interests in the region. A clear majority of Americans still believe we should bring our troops home as soon as possible, and this Congress has been elected, in large part, out of dissatisfaction with this war. Congress has a central role to play in formulating any long-term relationship with Iraq. This President simply should not be per- mitted to unilaterally tie the hands of his successor. I look forward to hearing our witnesses today and getting their expert opinions on this type of agreement. I thank Mr. Delahunt and Mr. Ackerman for inviting me to this hearing, and I thank the witnesses in advance for sharing their views. As I must be at a press conference shortly, I do not know if I will be able to hear Mr. Katzman's testimony, but let me just pose this question, and then I will leave my questions with Mr. Delahunt for the other witnesses. I say to Mr. Katzman, in your testimony, you talked about an August 2007 communiqué signed by the top five political leaders— Shiites, Kurds, and Sunnis—as a springboard for this proposed agreement. Later in your testimony, you go through probable sup- port, or lack thereof, for such an agreement in the Parliament. I count, at least, 100 seats against. So is it quite possible that the Iraqi Parliament would not be able to muster the seats to approve any treaty or agreement? I an- ticipate that their Parliament is going through much the same con- siderations as we are today. What do you think the prospects are of the al-Maliki government ignoring the Parliament, moving for- ward with this agreement without approval? What would the rami- 11 fications of that be among the various sects in Iraq and on the Iraqi street? I thank the Chair for his indulgence in allowing me to speak be- fore this hearing today, and I thank my colleagues. Mr. DELAHUNT. Thank you, Ms. DeLauro. Let me now go to the gentlelady from California, Ms. Woolsey. Ms. WOOLSEY. Thank you very much, Mr. Chairman, and thank you, Chairman Ackerman, for allowing me, as a member of the full committee, to sit in on this subcommittee joint hearing. It is so im- portant. You know, the first thing I have to do is respond to the gen- tleman from Indiana's statement that the surge is working. My re- sponse is, “Who said so?” Because I want to know who is meas- uring how many of our troops are being wounded. Do you read how many are wounded anymore? No. We will soon be able to be read- ing that 4,000 of our troops have been killed. How many are wounded? How many are mentally damaged? You know, who is taking account of the number of Iraqis who are dead, who are dying, who are injured? How many millions of Iraqis are refugees and continue to have to leave the regions that they live in, in the country that is theirs? h I do not consider the surge a success until we bring our troops Ome. Now, I am not going to pile on about the very idea that the Presi- dent, without congressional involvement, thinks he can come up with some agreement with any country, particularly Iraq, because it is wrong-minded, we know it, and we will insist that he come and work with us on this. If he has good ideas, the Congress should be glad to incorporate them in any agreement. Whatever that agreement is, I think it should include the provi- sions that have been expressed more than once—in fact, 10 sepa- rate bills have included provisions that prohibit expressing opposi- tion to the establishment of permanent military bases in Iraq. Five bills have been approved by Congress, in a bipartisan way, and the President has signed them into law. I want to know that they are going to be part of what do you think?—how they are going to be included in any agreement with the Iraqi Government. It is proof in the pudding to me that, whatever agreement, it is not going to be upheld, in the first place, because we have done this five times. So, Mr. Chairman, I am here to listen, I am here to question, and I thank you for letting me. Mr. DELAHUNT. Thank you, gentlelady. Would either our colleague from New York, Mr. Crowley, or our colleague from Florida wish to make any remarks? Mr. Crowley? Mr. CROWLEY. Mr. Chairman, only that it is always good to see you, and thank you for holding this event. At least, one of those statements is accurate and true. I do look forward to hearing the testimony of Dr. Katzman, and like my colleague, Ms. Woolsey, I am interested in hearing his per- spective on these issues later on in the hearing. And no comment from my colleague from Florida. Thank you. Mr. DELAHUNT. I thank Mr. Crowley, and I interpret your re- mark directed at me as a concern about February 3rd. That, by the 13 it is widely on record that the Iraqi Government will submit this to its Counsel of Representatives, its Parliament, for approval. I would like to discuss really what is at issue. If this Declaration of Principles of November 26th does, indeed, become a final agree- ment, and all of the provisions of the declaration are in it, what would it do? What would be in it? The judgment that the proposed pact will likely be long term is, as I said, based on the provisions pertaining to security. The Dec- laration of Principles is that the United States would provide Secu- rity assurances and commitments to Iraq to deter foreign aggres- Sion against Iraq that violates its Sovereignty and integrity of its waters and air space, and it goes further, to potentially include United States' support for the Iraqi Government against internal threats, and the declaration, in many ways, adopts the Maliki gov- ernment's definition of what the internal threats are. According to the declaration, the Iraqi Government is combating terrorist groups, at the forefront of which is al-Qaeda, Saddamists, and all other outlaw groups; it does not name these other outlaw groups. If a pact is negotiated in line with these principles, U.S. forces could conceivably be committed to combat any armed faction that the Maliki government, or any future government, defines as a threat to its security, without regard to why that armed group is fighting and whether or not the Maliki government has made best efforts to address the sources and causes of that armed opposition. Among the most significant implications, in my analysis, is the potential for Iraq and the United States to differ on their assess- ments of external threats to Iraq and for Iraq to, therefore, assume United States support in a dispute with countries that the United States is allied with. Iraq's Kurdish leaders could, for example, try to assert that the United States, under a pact, is committed to con- front Turkey over its military actions against the PKK Kurdish guerrillas, who have some safe haven in northern Iraq. Iraq's Shiite leaders could assert that the United States should act against Sunni Arab governments that are widely reported to be providing funds, arms, and transit to Sunni insurgents and the for- eign fighters helping these insurgents. Some of them are close United States allies, Saudi Arabia and Jordan, for example. There is the potential for the current Iraqi Government, widely considered to be dominated by pro-Iranian, Shiite parties, to try to minimize the extent to which Iran is contributing to any violence inside Iraq. Another indication that a proposed pact would be a long-term commitment comes from, as I said, Defense Minister Ubaydi, who visited last week and told journalists, and General Dubik testified before the Armed Services Committee just this week, agreeing with these numbers, essentially that Iraq would not be able to secure its internal security until 2012; 2009, at the minimum, but United States officials clearly think it will be the longer term of that range and would not be able to defend against external threats until 2018 to 2020. I would like to discuss some of the specific stipulations, for exam- ple, the mission. The Declaration of Principles stipulates a mission. Now, General Lute, who was mentioned, says that the size and 20 This section's point five commits the United States to encourage foreign invest- ment, particularly U.S. investment, into Iraq. Iraq still has not enacted national hy- drocarbon laws that would spell out the terms for foreign investment in the key en- ergy sector. Some might argue that this point represents a U.S. effort to “tilt the playing field” toward U.S. firms in competitions for energy development and other deals, and implies that the United States might increase its involvement in efforts to shape these laws. On the other hand, some might argue that it is appropriate for the United States to try to facilitate investment by U.S. and U.S. allied firms and to impede investment by potentially negative Iraqi partners such as Iran. Most of the other points in the Economics section appear to involve mostly U.S. diplomatic support, for example to help Iraq obtain debt forgiveness and forgiveness of the compensation payments mandated by U.N. resolutions following the 1991 war to liberate Kuwait, and to support Iraq’s efforts to obtain trade preferences and ac- cession to the World Trade Organization. Point six also commits the United States to assist Iraq in recovering cultural artifacts, properties, and funds spirited out of Iraq just prior to or after the fall of Saddam Hussein's regime. IRAQI VIEWS OF THE PROPOSED STRATEGIC FRAMEWORK AGREEMENT The complexities of any U.S.-Iraq pact forged along the lines of the Declaration of Principles would likely expose and possibly widen all the splits that now exist in the Iraqi political structure. Iraqi politics are certain to color the amount of flexi- bility the Iraqi side has during the negotiations. The Iraqi side of the debate over the pact may well pit those favoring a strong central government against those who support “federalism"—or strong powers for sectarian or ethnically-based regions. The “battle lines” of the debate are, in many ways, the same as those that charac- terize ongoing debates over new national hydrocarbons laws and over a major bloc of amendments to the constitution. In addition, the negotiations on a strategic framework agreement—and provisions addressing some key issues such as perma- nent basing—could harden the positions of those, inside and outside Iraq, who be- lieve the United States always intended a long-term occupation of Iraq as part of its effort to control Iraq's natural resources. Generally, Sunni Arabs in the COR, like most Sunnis in Iraq, support a strong central government. Sunni regions have few known major oil or gas deposits and will be dependent indefinitely on the distribution of Iraq’s oil revenues by a central government. The Sunnis in the COR consist mainly of the Consensus Front bloc (44 seats) and the National Dialogue Front (11 seats). They sought parliamentary re- view of the U.N. mandate renewal; they are likely to insist on strict conditions gov- erning the U.S. presence in any strategic framework agreement. Some Sunnis out- side the COR, including the hardline Muslim Scholars Association (MSA), whose members have been widely accused of ties to the Sunni insurgency, denounced the extension of the current U.N. mandate and will likely oppose any U.S.-Iraqi bilat- eral agreement as providing license for the United States to continue anti-Sunni in- surgent operations virtually indefinitely. Many Sunnis, both within and outside the COR, have viewed U.S. forces as an instrument wielded by the Shiite-dominated government and will want to limit U.S. freedom of action, such as the ability to take prisoners. On the other hand, there is a growing body of Sunni leaders outside the COR that might look more favorably on an agreement that gives wide latitude to U.S. forces. These Sunnis are associated with the various “Awakening Movements,” led mostly by tribal leaders, that began in Al Anbar Province in 2006 and have now spread to other Sunni provinces. These Sunnis are united by opposition to AQ–I and other extreme insurgent movements that have committed abuses against other Sunni Iraqi citizens. These movements have produced about 70,000 Sunni recruits, some of whom are former insurgents, that are now working as with U.S. forces as “Con- cerned Local Citizens” (CLC) to expel AQ–I from their neighborhoods. These Sunnis view U.S. forces as limiting the excesses of the Shiite-dominated government and the ISF, which many Sunnis distrust. However, because these Sunnis are not widely represented in the COR, their role in any review of a strategic framework agree- ment will likely be limited. Two important Shiite blocs have sided with the nationalist Sunnis on issues con- cerning the mandate for U.S. forces—the faction of Moqtad al-Sadr (30 seats in the COR), and another party called the Fadilah (Virtue) Party (15 seats). Both broke with the UIA bloc in 2007, and both generally represent poorer Shiites, although they themselves are in competition in Basra and other cities in southern Iraq. The Sadr faction led the efforts in 2007 to insist that the Maliki government submit the U.N. mandate extension request for COR approval. Many experts attribute the Sadr faction's views to its advocacy of Iraqi nationalism. Many Sadr supporters see U.S. 21 troops in Iraq as occupiers rather than liberators. In the view of many Sadr sup- porters, any §§§ that allowed U.S. forces to remain essentially under U.S. law, and permitted extensive facilities housing U.S. forces would constitute an unaccept- able infringement on Iraqi sovereignty. Part of the premise of the Sadr faction's in- sistence on a timetable for a U.S. withdrawal—and likely opposition to a long term U.S. presence—is its ongoing battle with U.S. forces in Baghdad and elsewhere, as noted above. Sadr’s “Mahdi Army” militia (Jaysh al-Mahdi, JAM) is perhaps the largest Shiite militia, with as many as 60,000 fighters throughout Iraq." Sadr might calculate that a U.S. withdrawal from Iraq–or at least a limited mandate to con- duct operations against the JAM—would benefit Sadr politically in his competition against other Shiite factions. Fadilah is politically strong in oil-rich Basra Province because many of the security forces (Facilities Protection Service) that protect the oil infrastructure are purportedly loyal to Fadilah. The governor of Basra Province, Mohammad Waili, is a Fadilah member and successfully has resisted efforts by Maliki and Maliki allies to replace him. The purported fears of many Fadilah sup- porters are that an extensive, long term U.S. presence would help Maliki and its other Shiite allies—mainly the Islamic Supreme Council of Iraq (ISCI)—to gain full and undisputed control of Iraq’s oil infrastructure and revenues. The bloc of former Prime Minister Iyad al-Allawi opposed the unilateral govern- mental mandate renewal but, by contrast to some of the other blocs, is not anti-U.S. or anti-U.S. presence. The bloc has 25 seats in the COR. Allawi is considered a staunch opponent of Maliki and he has, by many accounts, been campaigning to or- anize a vote of no confidence against Maliki. Allawi has tended to support the nited States; the opposition of his bloc to the mandate renewal might reflect Allawi's efforts to obstruct Maliki on virtually any issue where Allawi can do so. The bloc pulled out of the cabinet in August 2007, joining the Consensus Front which pulled its ministers out in June 2007 and the Sadr bloc, which pulled out of the cabinet in April 2007. On similar grounds, Allawi's bloc is likely to oppose the U.S.- Iraq pact as an expression of a U.S. commitment to keep Maliki's government in power. On the other side of the political equation in the COR are the blocs that support the Maliki government. These blocs—including Maliki's Da'wa Party, ISCI, Shiite independents within the UIA bloc (the bloc now has about 83 seats, down from 128 before the Sadr and Fadilah defections) and the two main Kurdish factions—the Pa- triotic Union of Kurdistan (PUK) and Kurdistan Democratic Party (KDP)—sup- ported the governmental request to extend the U.N. mandate and are likely to sup- port extensive concessions to the United States in any long-term bilateral agree- ment. Most of these blocs tend to support the concept of federalism, primarily be- cause they consider themselves politically and financially stronger in their regions than as part of a central government. At the same time, together, these blocs are dominant in the central government, and any agreement that keeps U.S. troops in Iraq helps preserve their grip on power. These blocs are not as concerned with the º that a bilateral agreement, with the limitations likely to be insisted on y the Iraqi government, would erode Iraq's sense of sovereignty and national pride. On the other hand, there are some divisions among these blocs that could emerge in the strategic framework agreement negotiations and on other issues. ISCI sup- ports a large Shiite region in southern Iraq, whereas the Da'wa Party opposes that concept. In addition, ISCI has a militia, the Badr Brigades, that has burrowed into the ISF, particularly the National Police and other police forces. A bilateral agree- ment with the United States could therefore benefit ISCI more so than Da'wa, since the U.S. forces would, under such agreement, remain in Iraq to train the ISF and thereby strengthen ISCI. The Da'wa Party does not have a militia force. It should be noted that it is not the stated intent of U.S. policy to benefit any one political faction in the effort to build up the national security forces. The Kurds already exercise control of their own legal region consisting of Dohuk, Irbil, and Sulaymaniyah Provinces. They are the most supportive of the United States of all the sects and ethnicities in Iraq. The Kurds, like many Shiites, see U.S. forces as having liberated them from Saddam Hussein's tyranny. All available data indicate that the Kurds do not see U.S. troops in Iraq as occupiers, whereas many Shiites, who tend to identify with oppressed Palestinians and with mostly Shiite Iran, which is at odds with the United States, have come to see the United States as occupiers. However, the Kurds view Turkey as an external threat because of Turkish military action against the PKK inside Iraq, and they could potentially ac- cuse the United States of violating a U.S.-Iraq pact if the United States continues, as has been acknowledged by U.S. officials, to provide intelligence to Turkey on PKK activities within Iraq. The United States is providing that assistance to Turkey *Iraq Study Group Report. December 2006. p. 5. 27 So, with that said, I thank you for holding this hearing, Mr. Chairman, and I do not find the issue at hand to be as ominous as some of the presentations would have us believe. Mr. DELAHUNT. Thank you, Mr. Rohrabacher, and now the chair of the Middle East Subcommittee, Mr. Ackerman. Mr. ACKERMAN. Thank you very much, Chairman Delahunt. My dad fought in World War II. If he were around today, he would still be amazed that we still have troops in Germany. Of course, they are there under different circumstances, and things do happen, things do change, and they are certainly not unwelcome there. It is part of a different overall picture. Dr. Katzman, traditionally, our first panel would ordinarily be witnesses from the administration, were they willing to participate, and Chairman Delahunt described the attempts to get them here, and they have all declined. So you sit as the first panel, certainly not representing the administration, but, nonetheless, have a great deal of expertise. Mr. DELAHUNT. Mr. Ackerman, would you yield for a moment? Mr. ACKERMAN. Surely. Mr. DELAHUNT. I intend, after this hearing, to sit with you and see whether we can determine a convenient date so that we can re- issue those invitations, in the aftermath of this particular hearing, and call upon the administration to fully explain their position and clarify how they intend to proceed. With that, I yield back and thank you. - Mr. ACKERMAN. I would welcome the opportunity, that and any opportunity to sit down and discuss that with you and to issue such an invitation, and perhaps we can invite our ranking members on the other side of the aisle to sit with us as we do that. Reference was made, before, to our relationship, I believe, by Mr. Rohrabacher, to the situation as it evolved with Taiwan. That was rather unique in its happenstance, as, during that time, Taiwan was, in effect, being decertified by us and the international commu- nity of their nationhood, as we replaced them in the U.N. and in our foreign policy with mainland China. Nonetheless, having been our partner and ally, we had an obliga- tion to deal with them, despite the fact of their soon-to-be sui ge- neris situation, and, in their uniqueness of not being a country, in some of the legal parlance, having a treaty with an entity such as a noncountry was something very, very different, and, therefore, the relationship that governs our policy toward Taiwan developed by, indeed, an act of Congress, which was the Taiwan Relations Act, which we passed into law, and, together with the letters that were exchanged with the PRC, have governed that relationship ever since. I point that out because I believe it is important to the discussion that we are having today. That relationship and those documents and that law has not been changed, and I think it has led to the stability between the parties in the region to understand what that relationship is, which calls for not the defense of Taiwan, as some misinterpret the reading of that, all sides of all of the oceans and seas involved, but call for providing for the defense of Taiwan and to do all in our power so that they can provide for their own de- fense. 44 PREPARED STATEMENT OF MICHAEL J. MATHESON, ESQ., VISITING RESEARCH PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL I have been asked to give my thoughts on the proposed “security assurances and commitments” that are referred to in the Declaration of Principles concluded by the U.S. and Iraqi governments on November 26, 2007. 1 I would also like to mention a few other issues concerning the future legal status and obligations of Iraq that are raised by the Declaration, based on my experience in dealing with such matters aS a career attorney in the Office of the Legal Adviser in the U.S. State Depart- ment.” SECURITY COMMITMENTS The Declaration calls for bilateral negotiations to achieve a series of agreements between the two countries by July 2008 for the purpose of enhancing cooperation in the political, economic, cultural and security fields. According to the Declaration, this new relationship will take account of a number of principles, including “pro- viding security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace.” The question of what constitutes a “security commitment” to another country and what form such a commitment should take has been the subject of dialogue between the Executive branch and Congress for decades. In 1969, the Senate adopted the National Commitments Resolution,” which asserted that any “promise to assist” a foreign country “by the use of Armed Forces” would be a “national commitment” that could only be given by means of a treaty, statute or concurrent resolution. The National Defense Authorization Act for Fiscal Year 1991 included a provision requiring the President to submit a report to Congress describing all existing “secu- rity arrangements with, or commitments to” other countries.4 In 1992, President George H.W. Bush submitted a report listing current U.S. security commitments and arrangements.” He defined a “security commitment” as “an obligation, binding under international law, of the United States to act in the common defense in the event of an armed attack on that country.” He provided a list of current U.S. secu- rity commitments, almost all of which were contained in treaties concluded between 1947 and 1960, including the North Atlantic Treaty, the Rio Treaty (with Latin American countries), the Southeast Asia Treaty, and treaties with Australia, New Zealand, the Philippines, South Korea and Japan.6 The provisions of these treaties vary somewhat, but each contains language that contemplates the possibility of U.S. armed action in the event of armed attack against one of the treaty parties. For example, Article 5 of the 1949 North Atlantic Treaty says that the Parties agree “that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense . . ., will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”7 Article V of the 1960 Treaty of Mutual Cooperation and Security between Japan and the United States says that each Party “recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in ac- cordance with its constitutional provisions and processes.”* The 1992 Presidential report contrasted such security commitments with “security arrangements”—that is, pledges by the United States to take some action in the event of a threat to the other country's security, typically to consult with that coun- 1 See www.whitehouse.gov/news/releases/2007/1/2007.1126–11. *I served in the Legal Adviser's Office for 28 years, retiring in 2000 as the Department's Act- ing Legal Adviser. Since then, I have taught international law at the George Washington Uni- versity Law School and at the Johns Hopkins School of Advanced International Studies. I have also served as the American member of the UN International Law Commission. *S.Res. 85, 91st Cong., 1st Sess., June 25, 1969. 4 Sec. 1457, P.L. 101–510; codified in 50 USC 404c. *See Treaties and Other International Agreements: the Role of the United States Senate, a study prepared for the Senate Foreign Relations Committee by the Congressional Research Service, 103d Cong., 1st Sess., November 1993, p. 206–07. °The State Department also maintains a list of “U.S. Collective Defense Arrangements,” con- sisting of these treaties. See www.state.gov/s/l/treaty/collectivedefense. 7 April 4, 1949; 63 Stat. 2241; TIAS 1964; 34 UNTS 243. 8.June 23, 1960; 11 UST 1652; TIAS 4510; 373 UNTS 186. 45 try—but containing no commitment with respect to the use of U.S. Armed Forces. It listed a number of such arrangements, including those with Israel, Egypt and Pakistan. For example, it cited the 1975 Memorandum of Agreement with Israel, which stated that in the event of a threat to Israel's security or sovereignty, the U.S. would “consult promptly with the Government of Israel with respect to what sup- port, diplomatic or otherwise, or assistance it can lend in accordance with its con- stitutional practices.”9 Pledges of this sort have also been called “security assur- ances.” In addition to such “security commitments” and “security assurances,” there are a variety of other steps that the United States might take to enhance the security of a friendly country, including providing military assistance, sales of military items and technology, and stationing U.S. forces. Some or all of these steps may be taken in conjunction with security commitments or assurances. It is not clear from the text of the U.S.-Iraq Declaration of Principles which of these various steps the Bush Administration contemplates taking during the next year. The Declaration refers to “security assurances and commitments,” but it is not at all clear whether these terms were used in the technical sense described above, and in particular, whether the Administration actually has in mind promising that U.S. forces would be used to counter any armed attack against Iraq. It may well be that, in the end, the Administration will limit itself to a promise of consultation or other steps that would not constitute “security commitments” in the way that term has historically been used. FORM OF COMMITMENTS From the point of view of the U.S. Constitutional system, there are essentially three types of international agreements. First are treaties which enter into force after the Senate has given its advice and consent. Second are agreements authorized or approved by act of Congress. Third are agreements based solely on the Constitu- tional authority of the President as Chief Executive, as Commander-in-Chief, or in exercise of his foreign policy functions; these are sometimes called “sole executive agreements.” The Constitution does not give clear guidance as to what form must be used for what type of obligations or commitments. Instead, the two branches are guided by historical practice and, hopefully, a sense of cooperation and mutual recognition by each of the proper role of the other branch in foreign affairs. The long-standing reg- ulations of the State Department (usually referred to as the “Circular 175 Proce- dure”) set out a list of factors that should be considered in determining which of these alternatives to use in a particular case: (1) The extent to which the agreement involves commitments or risks affecting the nation as a whole; (2) Whether the agreement is intended to affect state laws; (3) Whether the agreement can be given effect without the enactment of subse- quent legislation by the Congress; (4) Past U.S. practice as to similar agreements; (5) The preference of the Congress as to a particular type of agreement; (6) The degree of formality desired for an agreement; (7) The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and (8) The general international practice as to similar agreements.10 The regulations provide that where there is any question as to what procedure to follow, the matter is to be referred to the Legal Adviser's Office of the State De- partment and other concerned bureaus and, if unresolved, to be referred to the Sec- retary of State for a decision. The regulations say that consultations on such a ques- tion “will be held with congressional leaders and committees as may be appro- priate”;" and that “the appropriate congressional leaders and committees” are to be “advised of the intention to negotiate significant new international agreements, consulted concerning such agreements, and kept informed of developments affecting 9 September 1, 1975; 32 UST 2150; TIAS 98.28. 1911 FAM (Foreign Affairs Manual) 723.3. 11 11 FAM 723.4(c).