- The Washington Times - Friday, August 22, 2008

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 timeline for U.S. troop withdrawals.

Miss Rice, who was visiting Baghdad on Thursday, said the two sides were close to a deal but had not reached one. “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 memorandum promoting agricultural reform and cooperation was not introduced to the Iraqi parliament until January and has not been ratified.

Although Bush administration officials contend that a 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 memorandum 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. Bill 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.”

Two Iraqi parliamentarians who briefed lawmakers in Washington this summer, Nadim al-Jaberi of the Shi’ite Fadhila Party and Sheik Khalaf al-Ulayyan, founder of the Iraqi National Dialogue Council, told The Times in June that the Iraqi parliament must approve all international agreements. “If an MOU or other international agreement does not get approval from parliament, it is not legal,” Mr. al-Jaberi said.

Iyad Allawi, a former Iraqi prime minister, told a U.S. congressional hearing last month that the al-Maliki government hasn’t consulted the Iraqi parliament about any deal. That makes the chances the parliament would approve a pact by the end of this year “unlikely,” he said.

“There are five Sunni, Shi’ite, and Kurdish parties that are running the Iraqi executive branch exclusively,” said Raed Jarrar, an Iraq policy consultant for the American Friends Service Committee. “These five parties control a minority of seats in the Iraqi parliament. This is why the Iraqi executive branch has been systematically and repeatedly bypassing the Iraqi legislative branch during the last few years.”

Congressional critics want to determine whether Bush administration officials have made promises to Iraq that are different from normal executive agreements that cover military issues, turning the pact, in essence, into a treaty requiring congressional ratification.

“This is one of the biggest constitutional issues going, and it seems hardly anyone is paying attention,” said Mr. Delahunt. A former U.S. prosecutor and district attorney, he has co-sponsored legislation to make President Bush seek a temporary extension of the U.N. mandate to cover U.S. troops past Jan. 1.

Republicans are also concerned.

“Keeping Congress in the dark about these negotiations is the height of arrogance,” said Rep. Dana Rohrabacher, California Republican. “Congress should be playing a major role in this process.”

A senior U.S. official in Baghdad said negotiators are aware of lawmakers’ desire to be informed but have had difficulty keeping Congress in the loop because the terms of the negotiations are constantly changing. “We’re not trying to freeze anybody out,” said the official, who asked not to be identified because of the sensitivity of the topic.

On Aug. 1, five Democratic senators, including Sen. Joseph R. Biden Jr. of Delaware, chairman of the Senate Foreign Relations Committee, introduced legislation that would block the Bush administration from entering into a binding security agreement without the approval of Congress.

Presumptive Democratic presidential nominee Sen. Barack Obama of Illinois was not among the sponsors of the legislation.

Richard Danzig, a national security adviser to Mr. Obama, said he does not anticipate problems keeping U.S. troops in Iraq past Dec. 31.

“I expect that it will come to closure because both the Iraqis and the United States realize that the U.N. resolution expires Dec. 31 and you have to have some framework” governing the presence of U.S. troops, he said.

At the same time, Mr. Danzig said, the Bush administration and Congress should have more coordination. “You have the irony that this has to be approved by the Iraqi parliament but not the U.S. Congress.”

The presidential campaign of Sen. John McCain, Arizona Republican, declined to comment on the issue.

The senior U.S. official in Baghdad said quibbling over legal terminology clouds the main point, which is that the deal will be made legally binding by the substance and intention of the signatories.

“It is a binding international agreement,” he said. “Period.”

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