Wednesday,
November 19, 2008. Chaos and violence continue, Turkey meets with Iraq
over PKK (US tags along), the US Congress explores the treaty, and more.
"This
is the eighth in a series of hearings which the Subcommittee has held
on the Bush administration's efforts to consummate what was initially
described as a long-term security agreement with the government of
Iraq," declared US House Rep Bill Delahunt as he brought the
Subcommittee on International Organizations, Human Rights and Oversight
of the House Committee on Foreign Affairs to order today. The topic
was the treaty the White House is trying to make with their puppets in
Iraq. Delahunt noted he shared "the concerns expressed by the Chairman
of the Armed Services Committee, our friend and colleague Ike Skelton,
who has been quoted as being 'deeply troubled' because the agreement
contains, as he says, 'vague language that will cause misunderstandings
and conflict between the United States and Iraq in the future'."
Rep
Bill Delahunt: And by the way, no one should forget that this agreement
has just been provided to Congress -- and that there has been no time
to conduct the analysis required by such a significant document -- one
that purports to end a conflict that has had such momentous and tragic
consequences for both the Iraqi and the American people. And remember
there has been no meaningful consultation with Congress during the
negotiation of this agreement. And the American people, for all
intents and purposes, have been kept completely left out. Even now the
National Security Council has requested that we do not show this
document to our witnesses or release it to the public -- a public that
for over five years has paid so dearly with blood and treasure. Now I
find that incredible. Meantime, the Iraqi government has posted this
document on its media website so that anybody who can read Arabic can
take part in the public discourse. But this is typical of the Bush
administration and its unhealthy and undemocratic obsession with
secrecy.
Delahunt went on to outline three things that had to take place for the treaty to be legal:
1)
The Iraqi Parliament enacts by a two-thirds majority -- 184 of its 275
members -- a law governing the ratification of international agreements.
2)
The Iraqi Parliament then enacts the proposed bilateral security
agreement under that ratification law -- which as introduced this past
Monday in their Parliament also would require a two-thirds vote of
approval, and
3)
The United States Congress enacts a law that approves and implements
the security agreement -- and authorizes offensive combat operations by
US forces.
Oona A. Hathaway,
Raed Jarrar, Michael Matheson, Issam Michael Saliba AEI's Thomas Donnelly offered testimony to the committee.
One
issue that arose was the possibility of extending the United Nations
Security Council mandate (the mandate expires December 31st). Jarrar
explained that there had been resistance in the past to extending the
mandate; however, today it is seen by proponents in Iraq "as the lesser
of two evils, but not as a strategic goal. Many Iraqi groups in the
Parliament think it is better to give the Parliament more time to
debate the agreement rather than just rushing it within the next few
weeks." Matheson, professor at George Washington University Law
School, also spoke of the mandate and noted that a UN mandate could
take place under Chapter 7 (as has been done) or under Chapter 6.
Saliba is a Senior Foreign Law Specialist with the Law Library of
Congress and his focus was the approval mechanism in the Parliament
which eh found to require support of two-thirds of the MPs ("it is
logical to conclude that the ratification of an agreement negotiated by
the Iraqi government needs a two-thirds majority of all members of
Parliament for its ratification").
"I will
focus my remarks on what I believe are the three most pressing legal
issues regarding the proposed bilateral agreement with Iraq,"
declared Professor Oona Hathaway of UC Berkeley's School of Law in her
opening statements. "There are, of course, many others I'm happy to
talk about. And then I'll conclude by outlining what I think are the
possible ways for addressing these concerns."
1)
"The agreement in my view threatens to undermine the Constitutional
powers of President-elect Obama as commander-in-chief and it does so in
two ways.
a) So first this agreement gives operational
control to a Joint Military Operations Coordination Committee which is
made up of Iraqis and Americans and is jointly led by both sides
according to the agreement."
The concern of
Hathaway is that before US commanders could engage in military
operations in the field they would have to receive approval from the
JMOCC with only an exception for self-defense. Hathaway noted this was
unprecedented and that US command control has never been handed out
over to foreign powers other than a very narrow peace keeping situation
approved by the Congress.
b) "The proposed
agreement also undermines the Constitutional powers of President-elect
Obama as commander in chief by binding him to observe specific
timetables that are outlined in the agreement for the withdrawal of US
troops."
Oona Hathaway: Here the
specifics of the timetables are fairly clear, it's sixteen months for
withdrawal from the cities, towns and villages and three years
withdrawal from Iraq. What is uncertain is what President-elect Obama
would have to do if he wanted to withdraw early. There are two
different texts that we are working with. One is a translation of the
Arabic language text which has been -- as Chairman Delahunt said --
made available by the Iraqi government. That text says the following,
it says, "The United States recognizes Iraq's sovereign right to
request a US forces withdrawal from Iraq at any time. The Iraqi
government recognizes the United States' sovereign right to request a
United States forces withdrawal from Iraq at any time." So the
language here seems to me suggest the United States can request the
right to withdrawal but cannot simply withdraw early. And if that is
in fact what the agreement says then that creates serious concerns
because, of course, President-elect Obama campaigned on a promise of
withdrawing forces much earlier than three years and this would seem to
require him to get the approval of the Iraqi government in order to
actually carry out that promise. Now the English language version
which I just received last night states what seems to be quite
different, it states the following, "The government of Iraq recognizes
the sovereign right of the United States to withdraw the United States
forces from Iraq at any time." So there is -- that seems to give much
more leeway to the president to withdraw troops earlier though, of
course, if conditions on the ground turn out to make it difficult or
impossible or unsafe to withdraw troops earlier than three years he
would have to obtain the approval of the Iraqi government in order to
keep troops in the country longer. In any case, this raises obvious
concerns about which of these texts we should be believing and whether
they in fact say the same thing. But the basic concern I have here is
that this agreement commits the president to abide by timetables that
he has had no role in shaping and may even make it more difficult for
him to meet his campaign promise of bringing troops home within sixteen
to eighteen months.
2) "The
conclusion of this agreement without any Congressional involvement is
unprecedented and, in my view, unconstitutional."
Oona
Hathaway: So presidents can enter into agreements on their own --
they're called Sole Executive Agreements. But these agreements must be
within the president's own independent powers. This agreement goes far
beyond the president's own independent, Constitutional powers in
several ways. Now the administration has responded to this critique in
the past by saying, "This is simply a Status Of Forces Agreement -- a
SOFA. We've got hundreds -- we've got more than a hundred of these
around the world. All of these have been concluded as Sole Executive
Agreements entered by the president by himself. So what are you so
concerned about?" And the answer is: This is not a SOFA. This is, in
fact, a much more comprehensive agreement than any Status of Forces
Agreement that is out there and includes a variety of provisions that,
as far as I'm aware -- and I've read about sixty to eighty of these
agreements, that have never been a part of any Status Of Forces
Agreement. In particular the provisions granting authority to US
troops to engage in military operations, the grant of power over
military operations to this joint committee that I mentioned
earlier and the specification of timetables for withdrawal of military
forces. These are unprecedented in a standard Status Of Forces
Agreement, have never been part of a standard Status Of Forces
Agreement and extend, in my view, far beyond what the the President can
do without obtaining Congressional approval. The administration has
also suggested that the agreement doesn't really grant the authority to
fight and therefore it does not need to be approved by Congress. In my
view that is manifestly incorrect. This agreement is -- the entire
purpose is to grant the authority to fight. It is meant to replace the
UN mandate. The UN mandate is the authority under which US troops are
currently present in Iraq and the entire reason for the proposal of the
agreement at this time is because that mandate is about to expire and
when it does there will no longer be a legal authority for the United
States troops to be present in Iraq. This agreement gives in fact
gives that authority to fight to replace the UN mandate. So to suggest
that it doesn't do that and therefore need not be approved by Congress
clearly is not correct.
3) "If the
administration proceeds as planned the war will likely become illegal
under United States law when the UN mandate expires on December 31st."
Oona
Hathaway: At present, domestic legal authority for the war in Iraq is
based on House Joint Resolution 114 which was passed in October of
2002. The resolution authorizes the president to use the armed forces
for two purposes. One, to defend the national security of the United
States against the continuing threat posed by Iraq and two to enforce
all relevant United Nations Security Council resolutions regarding
Iraq. And let me take the second first. The second is, in my view,
what is currently operative at this moment. There is a Security
Council resolution in effect that is currently governing the presence
of US troops and, therefore, it is the case that, in fact, we are --
that the president may enforce all relevant United Nations Security
Council resolutions regarding Iraq as long as that resolution is in
effect this domestic legal authority is also in effect. But when the
mandate expires at the end of the year -- as it is due to expire --
that no longer, that legal basis for the war in Iraq no longer exists.
So then we're left with the first part of the authorization: To defend
the national security of the United States against the continuing
threat posed by Iraq. Now this was enacted, remember, in 2002 when
Saddam Hussein was in power and we were hearing about threats of
Weapons of Mass Destruction. And so it was clear what the threat posed
by Iraq was, it was posed by the government of Iraq. Of course, that
government has changed and those same threats to the United States do
not exist. And, in fact, the bilateral agreement with Iraq recognizes
this change. That agreement itself states that, "The danger posed to
international peace and stability by the former Iraqi government is now
gone." So this agreement, to my mind, says what we all know to be true
which is that the threat that this resolution was meant to address has
been resolved and there no longer is this threat by the government of
Iraq against the United States. So once this mandate expires at the end
of the year -- if it is not renewed -- then legal authority for the war
in Iraq as a matter of United States' law no longer exists. So what do
we do? And this is where I am going to end. There are, in my view,
two legal options available. The first, as Chairman Delahunt
mentioned, is renewal of the UN mandate. A simple renewal of the
mandate for six months would address all these problems. It would give
legal authority as a matter of international law for US troops to be
present but it would also extend authority as a matter of US
law because the resolution that I just mentioned clearly incorporates
any future Security Council resolutions and extensions of those
resolutions. So that is a very real and I think one of the best
options available. There's' a second possible option as well which is
submitting this agreement to Congress for approval. If Congress were
to approve this agreement then all these concerns would also be
addressed, then this would no longer be a Sole Executive Agreement and
the Congress would have had a chance to address, consider and respond
to the concerns that might be raised about the substance of the
agreement and if it chooses to approve the agreement, these
Constitutional and legal concerns that I've raised would be addressed.
During
questioning, US House Rep Lynn Woolsey noted "It is clear to me that
there are many interpretations of what this treaty/agreement is." It
would be wise for those in the press who continue to miss that point to
pause and consider that. We'll focus on this section of the hearing
between Woolsey and Hathaway.
Rep Lynn
Woolsey: What is the legal standing? Will an agreement/treaty be --
have standing if it does not come before the House of Representatives
of the Congress in general?
Oona
Hathaway: Well this is a complicated question as you might imagine. In
my view it would be unconstitutional because it would extend beyond the
president's power to conclude an agreement under his own independent
powers and for all the reasons we've discussed it clearly goes beyond
those limits. The question is: How would you challenge it? How would
you demonstrate that? One possibility, obviously, is a resolution in
Congress, another is a challenge in the courts -- that's unlikely to
succeed. So the likely result would be that we would be operating
under an unconstitutional agreement and what worries me is not only
that -- although that is quite worrisome in and of itself -- but the
precedent that that sets. So we then set a precedent that the
president can enter into an agreement to commit US troops without
having to get the assent of Congress. And, moreover, that the limits
that we all thought applied to Sole Executive Agreements, the limits
that had been observed by presidents for a generation on agreements
that are entered into by presidents on their own no longer apply. All
bets are off. So could President Obama enter Kyoto on his own? Could
he enter the Law of the Sea Treaty on his own? If we don't know what
the limits are, it creates real questions about where those -- where
the Constitutional limits are? If they're not going to be observed then
that creates problems not just in this instance but in every future
case as well.
Rep Lynn Woolsey: So how do you think we can untangle this mess?
Oona
Hathaway: My view is I think that this legislation is very positive. I
think that, if in fact something like that were to pass demanding that
Congress approve the agreement, I think that could have a significant
effect. As I said, that would address all the questions that I've
raised about the procedural issues. Congress could work out the
substantive concerns if it had any about the agreement. But if this
agreement were approved by Congress -- and there's nothing that would
stop the president, I should say, from simply submitting this agreement
as it is for approval as what's called an ex post
congressional-executive agreement. That is a legal procedure that is
available to the president and then this Congress would be able to pass
that through majority votes in both houses and then it would become a
legal agreement with the seal of approval of Congress and would be
federal law and address all the concerns that I've raised. So that, to
my mind, is a very real and, I think, would be an extremely positive
development though, sadly I'm afraid, not entirely realistic. Another
possibility is, of course, a renewal of the UN mandate because that
does address both the international and domestic law issues that I've
raised. In effect, that kicks the ball down the road because then we
still have the issue of 'then what do we do?' That mandate would only
be in effect for a short period of time -- the period of time talked
about is six months. You'd have to enter an agreement then. My hope
would be that given the stated position of the president-elect and vice
president-elect on this issue that they would not only negotiate a good
agreement but would submit that to Congress for approval.
"There's
something strange" Rep Howard Byrne noted that the Iraqi Parliament was
expected to approve or not but the US Congress wasn't and that the
Iraqi Parliament and people can see the treaty but, in the US, Congress
is not allowed to release it to the American people.
We'll also note this exchange between Raed Jarrar and the subcommittee chair Bill Delahunt.
Bill
Delahunt: I'm just going to ask Mr. Jarrar a question. One of the
concerns that I have to go to the issue of the vote in Iraq on the
so-called implementation or ratification law. I -- My reading and the
statements that I've noticed from the Speaker of the Council of
Representatives and the legal committee of the Iraqi Parliament are
clear that a two-thirds vote is required. In your testimony, you
indicated that there is now discussion about a simple majority. If in
the end, there's a vote of approval by a simple majority, in your
opinion, could this provoke unrest and violence in Iraq predicated on
the opinion of some including elements in Iraq that are hostile to our
interests. Could this provoke them to cause mischief, if you will?
And provide them a rational which would be: Look, they're circumventing
the law and yet they preach respect for the rule of law and democracy.
Raed
Jarrar: Before I answer the question, let me just state very clearly
that the Iraqi Constitutional Court has not been formed yet. So the
Iraqi Constitutional Court that is supposed to deal with such questions
-- now, this is just another sign of how premature this bilateral
agreement is. It's falling on a very unprepared regime in Iraq that
still has a lot of its basic components uncreated -- they were not
created yet. Now the fact that -- the mere fact that the agreement was
sent to Parliament was not sent because there is a respect of the
Constitution or a following of the Iraqi law as it were. Actually it
was sent by coincidence, I think, because one of the major religious
leaderships in Iraq, Ayatollah Sistani insisted that the law must be
sent to the Parliament. The Iraqi executive branch lobbyied for months
with Ayatollah Sistani that I think has nothing to do with politics in
Iraq but it seems like the Iraqi executive branch disagrees with me.
They lobbyied for months that they should just sign the agreement as an
executive memo rather than sending it to the Parliament. He said no.
That's why they sent it to the Parliament. So there is no real respect
of the Constitution or laws and this I think should create a case that
if it's worrisome that maybe next year they will create the
Constituional Court to look back and say this bilateral agreement with
the US is void actually -- don't mean anything. And that will put
everyone in a status of limbo I'm sure. And that's why many people are
saying a multilateral agreement -- like the United Nations is more
guaranteed for both sides. Now regarding the particular question of
increased violence there is an overwhelming rejection of signing an
agreement with the US regardless of its content and this is not --
we're not talking about marginal groups in the Parliament or outside
the Parliament. We have major Ayatollahs, the major Ayatollahs from
the Shi'ite side like Ayatollah [al- Baqdadi, Ayatollah Shirzai or
Ayatollah Haeri" ?] who have given a fatawa against signing the
agreement, a religious order against signing the agreement. From the
Sunni side it's the same. The major mainstream Sunni leadership has
given fatawas against signing the agreement. So there is rejection
regardless of the content of it Inside the Parliament, this rejection
can be seen in all kinds of components in the Iraq groups, whether they
were Sunni, Shi'ites or seculars there is resistance to signing the
agreement. Now I think Ayatollah Sistani's as a very moderate voice,
actually asked for a national consensus. He said all major groups, all
major political groups must agree on this.
Delahunt
made his position clear during the hearing, "What we do now could very
well be referred to at some future date much to our chagrin if we don't
stand up and take some sort of action. My option is extend the UN
mandate because that solves all of these issues. It protects our
troops. It provides the authority to conduct offensive military
operations."
It
is not clear that all 150,000 American troops will be gone in three
years. "There is a provision for an extension by agreement of both
sides," a senior U.S. official said this week, speaking on the
condition of anonymity. The Iraqis could decide they see a continuing
role for U.S. troops, he said. "They have every right to ask us for
such a presence."
The role of U.S. troops in Iraqi cities after July
may also be greater than the agreement implies. The details of the
troops' activities would be worked out in negotiations between the
Iraqi and American military, the senior official said.
Campbell Robertson (New York Times) notes
that Nouri al-Maliki went on TV yesterday and insisted "there were no
secret side agreements to the" treaty. He moved his lips so well, it
might have seemed as though the puppet were speaking his own words on
Iraqi TV.
AFP reports
that (today) Moqtada al-Sadr supporters (Shi'ites) banged on the tables
to drown out Hassan al-Sined today as he attempted to read the treaty
outloud to the Parliament. The moment was broadcast on TV (which
quickly killed the feed) and Fala Shanshal has stated that guards of
Foreign Minister Hoshyar Zebari beat up MP Ahmed al-Masaudi. The treaty
is scheduled to be read to Parliament on Thursday when they reconvene.
We noted
Michael Abramowitz' report yesterday that Barack would be shelving the cry for Senate approval (of the treaty).
Raed Jarrar (Raed in the Middle) details
how the transition site set up by Barack has already altered the
position on Senate approval. Let's wait and see how long before such
alleged champions of the Constitution Matty Rothschild and Katty
van-van Heuvel speak out. (Chances are they'll both remain impotent and
silent. Remember, the Constitution only matters when Democrats aren't
in control with their kind.) [And, yes, Raed's post does back up
Michael's reporting.
Hurriyet reports that 1 "Turkish army officer was killed and five soldiers were injured" in armed clashes with the PKK today.
Hurriyet also reports
that, "Turkey, Iraq and the United States agreed Wednesday to form a
joint committee to combat the terror organization PKK, which uses
northern Iraq as a base for attacks on Turkey."
Reuters notes
the meet-up took place in Baghdad and "The delegations were headed by
Iraqi Minister of State for National Security Shirwan al-Waeli, Turkish
Interior Minister Besir Atalay and U.S. Ambassador Ryan Crocker, and
included both civilian and military officials, the U.S. embassy said."
UPI quotes
al-Maliki's spokesperson Ali Dabbagh stating the committee would be
"creating deterrent measures to stop any possible activities by this
organization inside Iraqi territory or within the Iraqi-Turkish border
areas."
In other diplomatic news,
yesterday
Iraq's Foreign Ministry undersecretary Labeed Abbawi met in Baghdad
with Shoji Ogawa (Japan's Ambassador to Iraq) as part of a continued
process over the last few days.
On Monday, the Ministry threw a reception for Martin Eshbakher, Switzerland's Ambassador to Iraq and this took place as
Sweden sent their Minister of Trade, Ewa Bjorling, to Iraq for a meeting with the Ministry's Minister Hoshyar Zebari.
Monday also saw Zebari meet with Hassan Kazemi who is Iran's Ambassador to Iraq. The Foreign Ministry
also highlighted their Embassy in Brussels recent participation in Arab Cultural Week. And
AFP reports
a meet-up in Jordan Thursday among "U.N. and Arab League officials" and
"[e]xperts from Iraq, Syira, Lebanon and Egypt" as well as reps from
Turkey and Iran to discuss the Iraqi refugee crisis.
Turning to some of today's reported violence . . .
Bombings?
Hussein Kadhim (McClatchy Newspapers) reports
two Baghdad roadside bombings which wounded five people, a Mosul
roadside bombing left two soldiers injured, a Mosul car bombing that
claimed the life of the driver and left two Iraqi soldiers injured and
a Samarra "magnetic" bombing claimed the life of 1 police officer.
Shootings?
Corpses?
hussein kadhim
the washington post
mary beth sheridan
raed jarrar
