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Bush Doesn't Need Congress For Iraq Security Pact
On Monday, commenting on President Bush's forthcoming long-term security guarantee to Iraq, top White House war adviser Douglas Lute said, "We don't anticipate now that these negotiations will lead to the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress." In other words, Bush can commit the U.S. to protecting the security of Iraq -- including, as Lute said, enduring U.S. bases in Iraq and a residual troop presence -- without Congressional approval. Can he?
"That reflects historical practice," says Peggy McGuinness, a former State Department official and current law professor at the University of Missouri.
To boil down an arcane legal debate to a thick constitutional sauce, Article II, Section 2, Clause 2, says that the President can enter into treaties with foreign countries "provided two thirds of the Senators present concur." But not every foreign agreement is what McGuiness calls a "capital-T Treaty." Security guarantees, and particularly garrisoning agreements for U.S. troops abroad -- a category called a Status of Forces Agreement, or SOFA -- are not usually treated by the executive branch as capital-T Treaties. Historically, Congress doesn't insist that the executive does, and the Supreme Court has never ruled that all such arrangements require Senate advice and consent. As a result of this historical practice, "a SOFA is usually a purely executive agreement," McGuiness explains.
In practice, the executive branch typically decides for itself which international agreements require Senate advice and consent. For the vast majority that don't, the State Department accepts that "reportable agreements must be transmitted to Congress within 60 days of entry into force." That's because of Congress's major power over foreign affairs: the power of the purse. "The reason why you report things is because you don't want Congress to pull the plug on funding it," McGuiness says.
If President Bush wants to play constitutional hardball, then, he's within historical practice to commit the United States to the long-term security of Iraq without a word of discussion with Congress.
Comments (19)
Michael wrote on November 28, 2007 11:56 AM:The analysis appears to be correct regarding not needing a treaty, but he does need caaaassssshhhh to pay for the bases. Where does he get that? The rnc? The republican faithful? Nope congress. Soooooo CUT OFF FUNDING NOW. Morons.
mutt wrote on November 28, 2007 12:09 PM:What Michael said........morons.
Scott L wrote on November 28, 2007 12:22 PM:Ditto in spades
JA wrote on November 28, 2007 12:31 PM:No, no, the dems can't cut off funding that is what the majority of Americans want. No, they have to do whatever Bushco. wants. That way they can say it is all his fault.
hoppy wrote on November 28, 2007 12:35 PM:So, yeah they are total morons.
No agreement made by Bush that isn't a Treaty has any standing when we get a new president in January 2009. The most that Bush can do unilaterally is to commit himself to keeping troops in Iraq.
We are back to the question about which of the Democratic candidates will promise to remove the troops from Iraq. If we get a Democratic president, and it is doubtful that we will, he/she will decide what to do in Iraq, not Bush. The new Repub president will, of course, play the game the same way Bush does.
brian wrote on November 28, 2007 12:42 PM:Overseas bases are just fine with most Americans, I would guess. The purposes of the bases are not questioned.
How many bases worldwide are there now ? Hundreds.
Americans, mostly, have no idea where these bases are. They are not interested either.
Gypsy wrote on November 28, 2007 12:46 PM:Forgive me for being fact based but didn't Bush blow off treaties that were negotiated by prior President's when he came into office? So that pretty much makes his word worthless too I would think. So cut off the funding morons.
P J Evans wrote on November 28, 2007 12:48 PM:"In practice, the executive branch typically decides for itself which international agreements require Senate advice and consent."
Time to take another look at those checks and balances, Harry. I think it's time to tell George and Dick that they've overdrawn the account.
Anonymous wrote on November 28, 2007 12:49 PM:American Politics: all very funny.
Anonymous wrote on November 28, 2007 12:50 PM:"So cut off the funding morons."
Sorry. Couldn't resist;
Ann Myers wrote on November 28, 2007 12:50 PM:This whole topic of "special arrangement" Bush & Maliki has received very little media distribution.The teevee is all atwitter with photos of Annapolis hand-shaking.Perhaps WH released the Iraq deal Mon. knowing full well reporters were unable to follow 2 stories same time. Fine print, details of Bush-Iraq deal demands wide discussion:perm bases,perm occupation forces,cost of monster embassy,oil deals for Bush/Cheney cronies. The blogs, bless them, are only ones even interested.
John H. Farr wrote on November 28, 2007 1:08 PM:What difference does any of this make? Bush ignores treaties all the time. The U.S. is a rogue state, a lawless entity. The next president can undo anything.
redirect wrote on November 28, 2007 1:09 PM:Any attempt to cut off funding will be offset with re-direction of existing funds. The Pentagon has already re-directed funds from the anti-IED program to make the war look under funded.
Our leadership seems to live by the mantra: It's far better to endanger the lives of Americans than to lose a political argument.
These guys will always win because they don't care what the cost is to the innocent to get there.
MW wrote on November 28, 2007 1:17 PM:Perhaps WH released the Iraq deal Mon. knowing full well reporters were unable to follow 2 stories same time.
Perhaps?
This is their MO. Their dirty deeds get ignored because they're ready with a klieg light.
On one side of the military base, Bush gives an innocuous speech about freedom and national purpose. Nightly news camera crews gather to fill the emptiness between pharm commercials with footage of Glorious Leader we're all so desperate to see.
Meanwhile at the other end of the base, flag draped coffins, grieving families, grief counselors and MPs guard against the reality of Glorious Leader's policies.
God forbids that we see the devastation wrought upon the innocent country of Iraq.
Orwell's Intuition wrote on November 28, 2007 1:22 PM:Let's pay for those bases with a 50 percent reduction in pensions and benefits for the bush administration and the salaries of Congress. Then the shortfall can be made up by the taxpayers, a separate bill, not inserted into some other bill, with full disclosure of the current cost and future cost. Then let's see how long this idea remains alive.
Morons.
quasar wrote on November 28, 2007 1:51 PM:The protests at the meeting in Annapolis was eye-popping interesting. With Orthodox rabbical Jews protesting Zionism and the statehood of Israel. Some were totally confused. With the Mideast protests in Palenstinan regions citing no true representation at the summit coupled with Iran's "uninvitation" all of it was more posturing for another photo-op for Bush and Olmert.
Bush gave his opening speech, full of histronic catch phrases,(embarassing at a peace summit, and he also flub the names of Olmert and Abbas) then left to go back to the White House. He didn't even stay for the substance of the conference.
Olmert is under investigation in Israel, his office has been raided by a special prosecutor in Israel's government and a criminal trial ensuing because of his propogation of corruption and bribery.
Bush promise of BFF (best friends forever) with Maliki will be short lived because of Maliki's growing problems in Iraq with Sunni representation and his own dealings of corruption coming to light.
Bush IS like the "C" student in school. He screws around bullying, being the class clown, skipping, getting other people to do his homework when he can.
Then at group project presentation time he only has to be there. And read a couple of paragraphs he plagarized.
I hate when that happens. He should get an "F"!
quasar wrote on November 28, 2007 2:00 PM:I should clarify in the above post that "Some were totally confused" were the Pro-Israel, Zionist and bystanders themselves. I do fully understand that Zionists do not like Judaism.
Riviting images.
rjj wrote on November 28, 2007 3:24 PM:Orwell's I. Why not do that as a national extra-legislative national plebiscite. People would [try to] change the subject by fulminating about the evils of mob rule - it would not pass but it would get their attention.
Bob wrote on November 28, 2007 9:31 PM:True remarks about SOFAs. Understandable, as well -- if every international argeement were treated as a capital-T treaty, the Senate would get even less done than it does now.
However, the thing about executive agreements is they are NOT treaties. They have no legal persistence. The executive generally abides by them, because why would you bother to negotiate an agreement if you weren't going to use it; and too much reneging leads to problems in future negotiations. Nevertheless, we regularly re-negotiate SOFAs, sometimes at US initiative; sometimes at the request of the "host country" (usually when THEY have had a change of government.
While new Presidents usually keep the existing SOFAs until they are due for re-negotiation, there is no legal reason why they have to, no matter how many times the word "enduring" is used. They're not treaties.
The bigger thing to watch out for is major capital spending to create, or convert, "enduring" bases. While we could still walk away from such (cf. the former Clark AFB), there is a lot of money involved in permanent bases.