(Washington, DC) - The subcommittees will come to order.  First I’d like to thank our Administration witnesses today for fulfilling Secretary Rice’s commitment that the Department would provide witnesses to appear before our subcommittees.  This is the beginning of what I believe should be intensive and continuous consultations with the Congress on the nature and substance of the agreements to be negotiated between the United States and Iraq as envisioned in the November 26, 2007 Declaration of Principles.

            I suspect that the Bush Administration is somewhat surprised by the reaction to the Declaration here in Congress and that they probably wish they had drafted that document with a little more precision.  On their face, the plain meaning of the words in the Declaration look to us very much like a commitment for U.S. forces to defend the government of Iraq against foreign and domestic threats in perpetuity.

            Since the Declaration was released there has been testimony by Secretary Rice and Secretary Gates, an op-ed piece by the two secretaries in the Washington Post and there has been a classified briefing for the Foreign Affairs Committee all designed to tell us what the security agreement to be negotiated won’t do:  it won’t mandate that we continue combat missions; it won’t set troop levels; it won’t commit the United States to join Iraq in a war against another country or provide other such security commitments; and it won’t authorize permanent bases.  So far so good.

            But it isn’t entirely clear yet, what the proposed security agreement will do.  Secretaries Rice and Gates suggested in their Washington Post piece two weeks ago that the agreement will provide appropriate authorities to help the Iraqi government “fight al-Qaeda, develop its security forces and stem the flow of lethal weapons and training from Iran.”  We are also told that we shouldn’t worry so much about this agreement because we have these types of agreements with 115 nations around the world covering everything from authority to fight, to delivering mail.  With respect, I think the agreement that both secretaries are describing is likely to be a little more robust than what would be necessary to ensure our soldiers get their mail.  And therein lies the problem.

            Describing the proposed agreement as merely routine is disingenuous at best.  There is nothing routine about it or the situation in Iraq.  And trying to dampen concerns in Congress by suggesting that the Declaration doesn’t mean everything it says, suggests the Administration either doesn’t understand English or has deliberately misled the Iraqis.  Neither interpretation is flattering.

            What exactly did Prime Minister al-Maliki think when he signed a document that provided United States “security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq?”  Did he think President Bush was just kidding or does he and his government actually expect us to help if the neighbors start getting too pushy?  And if he does expect help what does he think that help looks like?  Leading Congress to believe one thing and the Iraqis another, is a recipe for political disaster at home and diplomatic catastrophe abroad.  The most likely outcome of such irresponsible behavior is the loss of the last remnants of our national reputation.

            So bearing those potential costs in mind, let’s go back to one of the things that Secretaries Rice and Gates say the agreement won’t do:  it won’t mandate combat missions.  That sounds like good news but, based on their essay, it won’t prohibit combat missions either.  So the Administration clearly expects that U.S. forces will continue to be engaged in combat in Iraq beyond the expiration of the U.N. mandate later this year which in turn means the Administration will need authority for U.S. forces to fight, authority for them to take prisoners and presumably immunity from Iraqi law for our soldiers.  According to a New York Times story from January, and without objection I will put the story in the record, the Bush Administration has drafted just such an agreement.  It contains broad authority to conduct military operations, guarantees immunity from Iraqi law for U.S. forces and contractors and provides the United States with power to detain Iraqi prisoners.  If the proposed agreement is as the Times describes that sounds to me like much more than a status of forces agreement and anything but routine.  It sounds more like a commitment for continued, open-ended combat and I think it would constitute precisely the type of long-term commitment that should not be entered into during the current Administration without the express approval of the Congress.

            As a matter of constitutional principle, as a matter of sound foreign policy and as a matter of plain old common sense, it seems to me that U.S. security commitments and especially solemn promises to defend another nation should come in the form of a treaty.  Even in instances where we have reserved for ourselves the right to intervene to defend another nation, as we have done repeatedly in Latin America, those interventions were done based on a treaty ratified by the Senate, whatever one might think about the treaties themselves.  While some have pointed to our current operations in Afghanistan as a precedent, the underlying legal authority for our presence there comes from the Congress and from the international community in the form of United Nations mandates, not from a bilateral agreement with the Government of Afghanistan.

            So far, what I know about the Administration’s intentions leads me to the inexorable conclusion that there is quite a lot for us to be concerned about, that Congress does need to be intensely involved in this process, and that this afternoon’s hearing, as I noted, is only the beginning of our discussions, not the end.  The State Department’s own rules require it to always ensure “that the utmost care is exercised to avoid any invasion or compromise of the constitutional powers of the President, the Senate and the Congress as a whole.”  My thoughts exactly.
 

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