Quest for Iraq status deal tests legal limits

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By Kelly Hearn

As Secretary of State Condoleezza Rice flew to Baghdad seeking to finalize a deal over the future status of U.S. troops in Iraq, legal scholars and congressional critics said the White House is overstepping constitutional prerogatives and exploring questionable tactics that could backfire.

A U.N. mandate giving U.S. troops in Iraq legal protections expires in December. To replace the mandate, the Bush administration has sought a status of forces agreement with Iraq, similar to pacts with other countries where U.S. forces are stationed. But Iraqi Prime Minister Nouri al-Maliki has called for a less comprehensive memorandum of understanding with a time line for U.S. troop withdrawals.

Miss Rice, who was visiting Baghdad on Thursday, said the two sides were close to a deal but not there yet. "The negotiators have taken this very, very far," she said. "But there is no reason to believe that there is an agreement yet. There are still issues concerning exactly how our forces operate."

U.S. officials are withholding details. But using a memorandum of understanding could present hurdles illustrated by the fate of an obscure agricultural agreement signed by the United States and Iraq three years ago.

The 2005 MOU promoting agricultural reform and cooperation was introduced in the Iraqi parliament only this January and has yet to be ratified.

Although Bush administration officials contend a new security deal with Iraq would have legal force, the State Department's Bureau of Near Eastern Affairs acknowledged in an e-mail that the agricultural MOU is "a political understanding" and "an expression of cooperation and good will" that does not "obligate resources." The e-mail was in response to a query from The Washington Times.

Shown the response, two legal scholars from Yale, Bruce Ackerman and Oona Hathaway, said the State Department has "accepted our position that Memorandums of Understanding with Iraq do not have legal force, especially when they have not been ratified by the Iraqi parliament."

"The Iraqi government still has not yet ratified an MOU with the United States that was first signed in 2005," the scholars wrote in an e-mail. "That means that trading the U.N. mandate for an MOU with Iraq is not only unconstitutional, but there is also a serious risk that it will leave U.S. troops unprotected and exposed."

The memorandum strategy has aroused opposition from both U.S. and Iraqi legislators.

"If you trace the legislative history of the 2005 memo, it is clear that isn't an option,"said Rep. William Delahunt, Massachusetts Democrat, who has led congressional scrutiny of the issue. "Put aside for a moment the issue of the MOU avoiding the authority of the U.S. Congress. If it is signed but not ratified by two-thirds vote in the Iraqi parliament, and the U.N. mandate expires, U.S. troops will find themselves without legal protections and any authority to be in Iraq."