Yesterday, as noted in an earlier posting, and as reported by Reuters ("Lawmaker accuses Bush over Iraq Deal") and the Boston Globe ("US-Iraq security pact may be in violation, Congress is told"), a Congressional sub-committee heard testimony that the US Constitution may have been breeched in the act of negotiating a security treaty with the nation of Iraq. Yale Law School professor Oona Hathaway, seen here on C-Span in previous testimony on the same subject, notes that, based on Constitutional precepts provided by the Supreme Court in the case of Youngstown, "an agreement entered in by the President on his own authority could not guarantee that we [the US] would come to the defense of Iraq. That is because the President as Commander in Chief does not have the power to declare war, as that is a power granted to Congress."
However, the agreement as approved by the Iraqi cabinet, sets up a "Joint Military Coordination Committee" in Section 23 of the agreement, as below:
The Joint Committee of Ministers will create the Joint Military Operations Coordination Committee (JMOCC) that includes representatives from both sides. The Joint Military Operations Coordination Committee (JMOCC) will be jointly led by both sides.Problematically, this committee would cede aspects of operational command over the US Armed Forces.
The Bush administration has had earlier conflicts with even the most conservative elements of Congress (as when Attorney General Gonzalez tried to defend the wire-tapping executive orders before Republican Lindsey Graham of South Carolina) on the same issue of executive overreach. As noted by Creighton University Law Professor Michael Kelly, "Justice Jackson's concurring opinion in Youngstown said that a president's power is at its 'maximum' when he is acting with Congress, but his power moves into a 'twilight zone' when he is acting on his own in the face of Congressional silence, and his power is at its 'lowest ebb' when he is acting on his own against the implied or express will of Congress."
The will of Congress to be brought to the negotiating table has certainly been expressed, as in this Ocotber 29,2008, letter to George Bush from the House Foreign Affairs Sub-Committee Chair Bill Delahunt , which alludes to the troubling aspects of the US Congress and citizenry being shut out of any discussions with Iraq despite long-running requests for consultation by Congress. The letter goes on to discuss the imperative of Congressional Approval of this pact to meet standards of Constitutional legality:
In testimony earlier this year, Senior Advisor to the Secretary of State and the Coordinator for Iraq, Ambassador David M. Satterfield, suggested that the joint congressional resolution authorizing the use of force in Iraq gives your administration the authority to engage indefinitely in offensive combat operations in Iraq.What appears to be George Bush's final major stroke in Iraq, the signing of the US-Iraq Security Pact, resembles, in effect, a peace treaty (or at least the legally binding path to a peace), as it negotiates the halt of US combat operations on Iraqi soil with the government of Iraq. While it should be cause for optimism that the terms of peace have been discussed and laid out, the lack of public oversight in the process is more than just a cause for concern. It is a subversion of the checks and balances that our government is founded on.
We respectfully disagree. The joint resolution clearly provides you with authority to fight only to "defend the national security of the United States against the continuing threat posed by Iraq," which no longer exists, as Saddam Hussein's regime has been replaced with a friendly government, and to "enforce all relevant United Nations Security Council resolutions regarding Iraq." The UN Mandate is all that allows the administration to meet this second criteria, making a continuation of the Mandate, congressional approval of the U.S.-Iraq security pact as a congressional-executive agreement, or approval of the agreement as a treaty by the Senate essential to ensuring that our combat troops are on sound legal ground.
Without the Congress to give voice to the people, and the Judiciary to ensure the rule of law, the Executive becomes a voice unto itself, set upon the international body politic with no limits, to make decrees as it might wish. Pulitzer Prize-winning historian Arthur Schlesinger introduces this thesis in his work The Imperial Presidency:
"It is chiefly in its foreign relations," as Tocqueville noted long ago, "that the executive power of a nation finds occasion to exert its skill and its strength. If the existence of the American Union were perpetually threatened, if its chief interests were in daily connection with those of other pewerful nations, the executive would assume an increased importance." But the nation that Tocqueville inspected in the 1830s lived in happy isolation from world power conflicts. In consequence, he wrote, "the President of the United States possesses almost royal prerogatives which he has no opoportunity of exercising." In the last half century, international crisis, genuine, contrived or imagined, has at last given Presidents to exercise these almost royal prerogatgives--with the results Tocqueville predicted. This is the story of the imperial Presidency.
The practical implications of allowing the Bush administration free reign to direct the theatre of Iraq have been extraordinarily costly to date in terms of lives, expense to our economy, our standing in the world, and in terms of our security. Rather than allowing Bush to cloak this final act in secrecy (there have been no American press reports of the actual agreement), the Senate should act to debate this issue as a full body, and they should pass a resolution demanding that Congress be consulted; otherwise the issue should go immediately before the courts.
Not only in the United States, the manner of introducing this act before the Iraqi Parliament appears, at the least, to have been polically ill-prepared. Al-Sadr's supporters have been demonstrating en masse with snipers looking down from above, while al-Sistani's neutrality or support for the agreement is yet to be fully confirmed. The Bush administration has claimed that a simple majority of Iraqi Parliament will be required to pass the bill, but if broad consensus is not reached, al-Sistani could voice discontent, leading to mass unrest. In the interests of the American and Iraqi people, this issue deserves the scrutiny of the Congress.