Statement of Professor Oona A. Hathaway

Yale Law School

 

Before the House Committee on Foreign Affairs,

Subcommittee on Middle East and South Asia and the

Subcommittee on International Organizations, Human Rights and Oversight

 

March 4, 2008

 

I would like to thank the Subcommittee for inviting me to speak today about the proposed U.S. Agreement with Iraq.

I begin with the basic principle from which the rest of my remarks flow: The President cannot make an international agreement that exceeds his own constitutional authority without Congress’s assent.  As Justice Jackson explained in Youngstown Sheet & Tube, when the President acts pursuant to an “express or implied authorization of Congress, his authority is at its maximum.”[1]  When the President instead “acts in absence of either a constitutional grant or denial of authority, he can only rely upon his own independent powers.”[2]  That means that if a President seeks to conclude an agreement on his own he is severely limited in what he can agree to.[3]   

There are two separate proposed bilateral agreements between the United States and Iraq before the Subcommittee today:  the proposed Status of Forces Agreement (SOFA) and the proposed Strategic Framework Agreement.  Based on the principle articulated above, the first may be concluded as an executive agreement without the consent of Congress (if it is limited to the issues concluded in a typical SOFA).  The second, however, cannot.  I will conclude with a word about how the United States could address the probable need for international legal authority for the presence of U.S. troops in Iraq past the end of this year if there is no bilateral agreement that substitutes for the United Nations Mandate.

(1) Status of Forces Agreement

As I stated in my testimony before the Subcommittee on February 8, typical status of forces agreements provide for the protection of United States military personnel who may be subject to foreign jurisdiction, proceedings, or imprisonment.[4] They generally address issues necessary for day-to-day business, such as entry and exit of personal belongings of personnel, and postal and banking services.  They may grant exemption to covered persons from criminal and civil jurisdiction, or from taxation, customs duties, immigration, and similar laws of the foreign jurisdiction.  Standard status of forces agreements do not include an authorization to fight, immunity for private military contractors, or a mutual defense guarantee.  Because they generally have a limited purpose—connected directly to the President’s authority as commander-in-chief—all but a small number of the United States’ status of forces agreements have been concluded as executive agreements, usually without the express approval of Congress.[5] 

 

(2) Strategic Framework Agreement

            I understand from the recent statements of Secretary Rice and Gates and the written testimony of the Administration’s representatives today that the Administration is currently planning not only to conclude a Status of Forces Agreement with Iraq, but also to conclude what they are calling a Strategic Framework Agreement.  Ambassador Satterfield has indicated in his testimony that the Administration intends to negotiate both a status of forces agreement and a “framework for a strong relationship with Iraq.”[6]  Secretary Gates in his testimony before the Senate last month also referred to a “strategic framework agreement” with Iraq.  Together with the Status of Forces Agreement, the Strategic Framework Agreement will, Ambassador Satterfield states, “permit U.S. and coalition forces to assist in restraining extremists and outside actors who seek power through violence and terror.”[7] Although the Administration has clearly stated its intent to conclude the Status of Forces Agreement as a sole executive agreement, it has not made clear whether it also intends to conclude the Strategic Framework Agreement as a sole executive agreement. 

The Constitution requires that any binding Strategic Framework Agreement of the type that appears to be contemplated by the Administration be approved by Congress, either as an Article II treaty or through legislation passed by both Houses of Congress. That is because an agreement that would provide authority to engage in military action in Iraq would exceed the President’s own constitutional authority and thus must be approved by Congress.

             Practice concerning similar agreements supports this reading of the constitutional imperatives.  The closest analog to the Administration’s proposed strategic framework agreement would appear to be agreements between the United States and foreign countries in post-war situations where continuing occupation by American troops was required to maintain ongoing security and stability. The United States entered collective defense treaties with the North Atlantic Treaty Organization,[8] Japan,[9] and the Philippines,[10] after World War II.  Similarly, the United States entered a treaty with South Korea in the wake of the Korean War.[11]  All of these agreements were entered as treaties and were thus approved by two-thirds of the Senate as required under Article II of the U.S. Constitution.[12]   In all these cases, the United States also concluded separate status of forces agreements, which were limited in nature and were not independently approved by Congress.

            Of these agreements, the 1951 Security Treaty Between the United States and Japan is particularly instructive. That agreement was concluded by the United States and Japan after Japan gained full sovereignty at the end of the allied occupation. Article I of that agreement provided, “Japan grants, and the United States of America accepts, the right, upon the coming into force of the Treaty of Peace and of this Treaty, to dispose United States land, air and sea forces in and about Japan.  Such forces may be utilized to contribute to the maintenance of international peace and security in the Far East and to the security of Japan against armed attack from without, including assistance given at the express request of the Japanese Government  . . . .”  As in the case of the proposed strategic framework agreement with Iraq, the treaty did not require or obligate the United States to use military force nor did it provide any explicit security commitment from the United States to Japan.  But the security commitment was implied and understood by the parties to the agreement and hence the agreement was submitted to the Senate for approval as a treaty under Article II.

 

            (3) The UN Mandate

            The Administration has voiced a very real and legitimate concern about the need for legal authority for the presence of U.S. troops in Iraq past the expiration of the United Nations mandate at the end of this year.  This has been cited by Administration officials as a leading reason for the negotiation of a bilateral agreement that would give U.S. troops the authority to fight in Iraq past the end of this year.  It is important to note, however, that an extension of the United Nations Mandate would satisfy the same international legal concerns regarding the presence of U.S. troops in Iraq.  And an extension would have the added advantage of permitting adequate time for the conclusion of a bilateral agreement between the United States and Iraq that could be submitted to Congress for approval either as an Article II treaty or through legislation approved by both Houses of Congress.

 


[1] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).  The full language is as follows: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.”  Id. at 635-36.

[2] Id. at 637 (“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.”).  There is also a third category of presidential authority: When the President “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. 

[3] See Restatement (Third) of Foreign Relations Law § 303(4) (1987) (“[T]he President, on his own authority, may make an international agreement dealing with any matter that falls within his independent powers under the Constitution.”).   

[4] See, e.g., Department of the Army and the Navy,  Status of Forces Policies, Procedures, and Information, (15 December 1989) (specifying regulations regarding status of forces policies, procedures and information, and noting that “[t]his regulation provides for the implementation of the Resolution accompanying the Senate’s consent to ratify the North Atlantic Treaty Organization (NATO) Status of Forces Agreement (SOFA). . . . Although the Senate Resolution applies only to countries in which the NATO SOFA is currently in effect, the same procedures for safeguarding the interests of U.S. personnel subject to foreign jurisdiction will be applied, insofar as practicable, to all foreign countries”). 

[5] With the exception of the NATO Status of Forces Agreement, Jun. 19, 1951, 4 U.S.T. 1792, and an agreement entered with Spain prior to Spain’s accession to NATO, Agreement in Implementation of the Treaty of Friendship and Cooperation, Jan. 31, 1976, U.S.-Spain, T.I.A.S No. 8361, both of which are Article II treaties, all other status of forces agreements to which the United States is currently a party are executive agreements. See, e.g., Agreement Concerning the Status of Members of the United States Armed Forces in the Kingdom of Tonga, July 20, 1992, U.S.-Tonga, K.A.V. No. 3363; Agreement on the Status of United States Personnel, Jan. 22, 1991, U.S.-Isr., 30 I.L.M. 867; Agreement Concerning the Status of United States Forces in Australia with Protocol, May 9, 1963, U.S.-Austl., 14 U.S.T. 506. Many of these executive agreements are concluded, however, pursuant to obligations specified in a prior mutual defense treaty.  This is true, for example, of the agreements with Japan and Korea and all the supplementary arrangements to the NATO SOFA. See Agreement Under Article VI of the Treaty of Mutual Cooperation and Security Regarding Facilities and Areas and the Status of United States Armed Forces in Japan with Agreed Minutes, Jan. 19, 1960, U.S.-Japan, 11 U.S.T. 1652; Agreement Under Article IV of the Mutual Defense Treaty of October 1953, Regarding Facilities and Areas and the Status of United States Armed Forces in Korea with Agreed Minutes [Agreed Understandings, Exchange of Letters and Other Implementing Agreements], Jul. 9, 1966, U.S.-Korea, 17 U.S.T. 1677, as terminated by the Agreement Terminating the Agreed Understandings & Exchange of Letters Related to the Agreement of July 9, 1966 Under Article IV of the Mutual Defense Treaty Regarding Facilities and Areas and the Status of United States Armed Forces in Korea, Feb. 1, 1991, U.S.-Korea, T.I.A.S. No. 6127; Supplementary Agreement to the NATO Status of Forces Agreement with Respect to Forces Stationed in the Federal Republic of Germany, Aug. 3, 1959, 1 U.S.T. 531, 481 U.N.T.S. 262.

[6] Testimony of Ambassador David M. Satterfield, before the House Committee on Foreign Affairs,

Subcommittee on Middle East and South Asia (March 4, 2008).

[7] Id.

[8] The North Atlantic Treaty, was concluded April 4, 1949, and provided for the creation of a collective defense (parties include United States, Belgium, Bulgaria, Canada, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Turkey, and the United Kingdom).

[9] On September 8, 1951, the United States and Japan signed the Mutual Security Treaty, which provided the initial basis for the Japan's security relations with the United States and provided the legal basis for the continued presence of U.S. troops in Japan. It was later superseded by the U.S. and Japan Mutual Defense Assistance Agreement (March 8, 1954), which was in turn superseded by the Treaty of Mutual Cooperation and Security between the United States and Japan (January 19, 1960).  All of the agreements were concluded as Article II treaties.

[10] Mutual Defense Treaty Between the United States and the Republic of the Philippines (August 30, 1951).

[11] Mutual Defense Treaty Between the United States and the Republic of Korea (October 1, 1953).

[12] The United States is currently party to eight collective defense arrangements in total.  Seven have been concluded as treaties (with the North Atlantic Treaty Organization (1949); Australia and New Zealand (1951); Philippine (1951); Southeast Asia (1954); Japan (1960); the Republic of Korea (1953); and the American States (in the “Rio Treaty” of 1947)), and one as a congressional-executive agreement with express congressional approval  (with the Republic of the Marshall Islands and the Federated States of Micronesia, embodied in the Compacts of Free Association (1986)).