Look What’s Hiding Behind the SOFA

For the past year the Iraq and US governments (not really, but we’ll get to that later) have been working on a bilateral agreement regarding the scope and working details of the future US military involvement in Iraq. It has been widely referred to as a SOFA, or a Status Of Forces Agreement.
The effort began on November 26, 2007 when President Bush and Iraqi Prime Minister Nouri al Maliki co-signed the Declaration of Principles (pdf)for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America, which set out a number of issues concerning, among other things, a security agreement between the United States and Iraq.
Wow — Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America. A treaty, for sure.
Subsequently the US Administration announced(pdf) that there would be two agreements negotiated, a Status of Forces Agreement (SOFA) providing the legal basis between the two countries for the continued presence and operation of U.S. armed forces in Iraq once the U.N. Security Council mandate expires on December 31, 2008, and a Strategic Framework Agreement to cover the overall bilateral relationship between the two countries.
The US State Department hasn’t said much about this matter, but the Pentagon spokesman has said: “we are not the lead in either of those negotiations, the status of forces or the strategic framework agreement. The State Department has been in the lead.”

So State is in the lead, supposedly, on an important agreement that deals with a “Long-Term Relationship” including the duration of the US military occupation and the legal status of the US force members. This “strategic framework,” again, sounds like a treaty, doesn’t it, that involves the vital interests of the US and Iraq including matters such as the duration of the US military occupation and the use of Iraq bases for attacks on other countries. And treaties, according to the Constitution, require the advice and consent of the Senate. A SOFA, on the other hand, deals with legal minutiae and has typically been treated as an administrative, non-treaty matter.
But even though this proposed agreement is a treaty, Senate involvement is not in the cards. The President doesn’t want it and neither, apparently, does the Senate. It hasn’t been mentioned in the recent presidential campaign by Senators McCain, Obama or Biden. This is especially curious in the case of Obama, who after all has made an issue of the duration of the US military occupation in Iraq.
In spite of the claim that State is in the lead on this important matter, the Pentagon seems to be doing the heavy lifting. The Pentagon spokesman, again: “The secretary [of Defense] is in the process of consulting closely with members of Congress, those who have jurisdiction over this building. And in fact he has begun making a number of phone calls today to committee leaders and is intent on fulfilling his pledge to them to consult with them on this document before it is finalized.”
Oh good, he’s consulting by telephone with Congress. While translations of the Arabic text have been published, the English version is apparently ‘close hold’. The Pentagon spokesman: “He is not sharing the text per se with them. I think he is talking about specifics that are in the agreement without sharing the text itself. . . We are not to the point of sharing, I believe, the actual text with the members of Congress. . . But not until it is a final document will we be sharing it widely. This is still a work in progress, as it works its way through the executive branches.” They’ll share it when it’s done! Well thank you very much.
In the meantime, according to news reports, the Iraqi Parliament is involved with the Iraqi Prime Minister in all aspects of this treaty, er, SOFA. That really irks the US administration, which is not similarly burdened.

SecState Rice
: “Well, it’s an important agreement, and it’s an agreement that is both going to answer to questions about Iraqi sovereignty[really? what questions?] and is going to protect our troops[that old mantra]. And we believe that the work that the negotiators have done has produced an agreement that does both. Now, obviously, the Iraqis have a democratic system, and they’re debating this and they’re discussing it [which is more than the US is doing]. But the fact of the matter is, this is a good agreement and it’s an agreement that will allow our forces to operate there legally. And we need to have that basis because the Iraqis themselves recognize that they are not ready to operate without coalition forces.[actually, 71 percent of Iraqis want the US out within a year]”
Apparently we’ve exported our democracy and don’t have any left. The State Department and the Senate are less than effective, and the Constitution is in tatters. But hurrah for Iraq. They’re involved with what’s hiding behind the SOFA even if the US isn’t.
In particular, I think that the Senate is both a Prisoner Of War and Missing In Action. What do you think?

Don Bacon is a retired army officer who founded the Smedley Butler Society several years ago because, as General Butler said, “war is a racket.”

4 thoughts on “Look What’s Hiding Behind the SOFA”

  1. Secretary of State Thomas Jefferson … wrote in 1790:
    “The Constitution … has declared that ‘the Executive powers shall be vested in the President.’ . . . . The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portion of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.”
    (( General A. Hamilton, ‘Pacificus,’ 1793 ))
    “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the EXECUTIVE POWER shall be vested in a President of the United States of America.’ (…) The general doctrine of our Constitution…is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument. Two of [the exceptions are]…the participation of the senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned; the right of the legislature “to declare war, and grant letters of marque and reprisal.” …
    If on the one hand, the legislature have a right to declare war, IT IS on the other, THE DUTY OF THE EXECUTIVE TO PRESERVE PEACE, till the declaration is made; and in fulfilling this duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government . . . .

    Happy days.

  2. JHM,
    As Jefferson and Hamilton wrote, the making of treaties is an accepted exception to any executive powers the president might claim. Thank you for emphasizing this point. The Constitution is clear: “He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;”

  3. [actually, 71 percent of Iraqis want the US out within a year]
    That poll was in 2006. The figure is higher now. If you say by 2011, we’re talking about 80% or more of non-Kurds. It is that which is driving Maliki’s position over the SOFA.
    Of course, Don’s point is about the US and not about Iraq. However you could ask whether it is a real point, as it is not evident yet that the SOFA plus strategic framework agreement is going to come to fruition in its present form. Maliki is continuing to be evasive. When finally forced by Negroponte, he agrees to a draft text; then he hides behind the cabinet, and now the parliament. I can see why he does it – the penalties for him (and for Iraq) of signing an agreement are severe. I should think he’s waiting until Obama figures out that complete withdrawal is the only option. That will take several months yet. I should think they will let the 1 Jan deadline pass, just to show how empty the US threats are.

  4. alex,
    I understand what you’re saying, but I continue to believe that it is the Iraqis who are the real grown-ups in the room here. We should recognize that Maliki is having to deal with others in Baghdad and probably Teheran, and give him credit for that, and not just denigrate him by calling him evasive.
    Probably Maliki is just understandably unable to solve this conundrum that Bush has given him. Compared to Bush, after all, who childishly won’t share, and won’t cooperate as the Constitution requires, Maliki’s a paragon of democracy, isn’t he.

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