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‘W’ says he has authority to sign treaty without Congress


By Richard Walker

Two agreements that will define the future relationship of the United States and Iraq are due to be signed in July but the deadline may not be met if opposition to them builds within the Iraqi parliament and if Pentagon planners are unable to finalize the exact terms of the agreements.

At the end of last year, the White House announced the president had reached a “video-phone” consensus with his Iraqi counterpart on the long-term standing of the two nations and the terms of a legal status for U.S. forces now in Iraq, as well as those that will be there years from now. The need to resolve those issues was motivated by a realization that December 2008 would bring to an end the UN mandate permitting U.S. intervention in Iraq.

There has been much debate about whether the proposed agreements, reached only in principle by President Bush, represent a framework for treaties. The White House says they are merely agreements, but some experts point out that agreements of that nature, particularly when they relate to the future of U.S. policy in Iraq, will in effect be treaties when signed by two sovereign governments.

The Bush White House position is that a strategic partnership deal does not require congressional oversight and approval because it will by definition be an agreement and not a treaty. That position has angered many Democrats who see the move as an attempt to by-pass Congress and tie the hands of the next president when shaping an Iraq policy.

Irrespective of the debate about how the deal with Iraq should be defined, there is uncertainty about what the “agreements” will mean. One is called the Strategic Framework and the other the Status of Forces. The Status of Forces Agreement, or SOFA, is purported to be the kind of agreement the U.S. normally has in counties where there is a static U.S. military presence such as Japan, Germany, South Korea, Japan and the United Kingdom. Its purpose is to provide a legal framework for the operation of U.S. military bases and personnel, with the specific aim of protecting U.S military and civilian personnel from being subjected to criminal jurisdiction in respect of certain crimes.

For example, it is generally an established SOFA principle that U.S. courts have jurisdiction over crimes committed by service personnel in the course of their duty or in commission of crimes against other service personnel. In Iraq, no SOFA has been in place and a substantial number of Iraqi parliamentarians are concerned such an agreement would give cover to the U.S. military and the contractors.

If, as the Bush administration now envisages, the U.S. will have a long-term military presence in Iraq, then a SOFA is essential and has to be in place before the UN mandate expires in December otherwise U.S. service members and contractors will have no legal protection from the Iraqi courts.

In February 2008, Secretary of Defense Robert Gates addressed the issue by pointing out that the SOFA for Iraq would be no different from agreements with other nations such as Germany or Japan, as well as many other countries across the globe where U.S. forces were based.

However, he admitted there was still a lot of work to be done before the dynamics of the Iraq SOFA were agreed.

Just when it appeared the Bush administration might have an easy ride on signing off on the agreements, a draft of the Strategic Framework Agreement was leaked to the media. It immediately caused a stir in Iraq, where leading Shiites claimed it went far beyond any agreement the U.S. had with other countries.

They added that the draft document provided no limit on the numbers of U.S. forces that could remain in Iraq or their legal powers in respect to Iraqi citizens. In Washington, the leaked document raised eyebrows among leading Democrats, who said some of its wording promised that the U.S. would be prepared to defend the internal and territorial integrity of Iraq, making it possible the U.S. might have to intervene if a civil war broke out in the future, or if there were border skirmishes between Iraq and its neighbors.

Aside from the merits or otherwise of the proposed “agreements,” the planning for a strategic relationship can be seen in light of several key elements in U.S. foreign policy. The building of the largest U.S. embassy in
the world in Baghdad indicated sometime ago that the Bush White House saw a major, long-term U.S. commitment to Iraq. That was made clearer with the recent construction of a U.S. military base near the border with Iran, as well as the planning for U.S. bases in other parts of the country in the event of a draw-down of the present U.S. complement of 150,000 service personnel and approximately 100,000 contractors.

Another element in any decision about the future of the U.S. relationship with Iraq is oil, and though that will not be defined within the Strategic Partnership Agreement, there can be little doubt it was on the minds of Vice President Dick Cheney and his advisers. His office has been central to formulating foreign policy as it relates to energy, going back to the early months of the Bush presidency.

Richard Walker is the nom de plume of a former mainstream news producer who now writes for AFP.

(Issue # 23 & 24, June 9 and 16, 2008)

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