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April 09, 2008

Some Logical Questions For Ambassador Crocker

This is from the statement of Ryan Crocker, US Ambassador to Iraq, in front of the Foreign Relations Committee yesterday:

One conclusion I draw from these signs of progress is that the strategy that began with the Surge is working. This does not mean, however, that U.S. support should be open-ended or that the level and nature of our engagement should not diminish over time. It is in this context that we have begun negotiating a bilateral relationship between Iraq and the United States...The heart of this relationship will be a legal framework for the presence of American troops similar to that which exists in nearly 80 countries around the world...

U.S. forces will remain in Iraq beyond December 31, 2008, when the U.N. resolution presently governing their presence expires. Our troops will need basic authorizations and protections to continue operations - and this agreement will provide those authorizations and protections.

The agreement will not establish permanent bases in Iraq, and we anticipate that it will expressly foreswear them. The agreement will not specify troop levels, and it will not tie the hands of the next Administration. Our aim is to ensure that the next President arrives in office with a stable foundation upon which to base policy decisions, and that is precisely what this agreement will do. Congress will remain fully informed as these negotiations proceed in the coming weeks and months.

Both the US constitution and the Iraqi constitution require that treaties be approved by their respective legislative branches. Yet Crocker states that Congress will merely be "fully informed" about the US-Iraq agreement. And he doesn't even mention the Iraqi parliament. (It is highly unlikely that either the US Congress or the Iraqi parliament would approve this, let alone both.)

Crocker and the Bush administration justify this by claiming the agreement will not rise to the level of a treaty—that it will be a mere Status of Forces Agreement (SOFA), which can be concluded just between the respective countries' executive branches. However, all previous SOFAs have merely governed mundane issues, such as "wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims." R. Chuck Mason, the Congressional Research Service's expert on SOFAs, recently stated that a review of over 70 of them found that "none contained the authority to fight." It has always been treaties which do that. The United States does have a SOFA with Germany, but it is the NATO treaty which makes it legal for US troops there to kill people.

Thus the Bush administration position breaks completely with decades of precedent. Moreover, its extremism can be understood by the fact that it logically goes both ways: if Bush and Maliki can together agree without Iraqi parliamentary approval that Americans can be based in Iraq and kill Iraqis, then Maliki and Bush could together agree without US congressional approval that Iraqis can be based in the US and kill Americans.

So Ambassador Crocker (and other Bush administration functionaries) should have been asked this by congress:

1. Will the US-Iraqi agreement require the approval of the Iraqi parliament?

2. If not, could Bush and Maliki decide tomorrow that Iraqi troops and private contractors will be stationed in Des Moines and have the legal authority to shoot Americans?

Of course, given the administration's position on similar issues, perhaps we don't want to know the answer.

UPDATE: It turns out Crocker was asked about what would happen with the Iraqi parliament. They play such an important role in the process they may even, like 2nd graders, have it read to them:

CLINTON: Do you anticipate that the Iraqi government would submit such an agreement to the Iraqi Parliament for ratification?

CROCKER: The Iraqi government has indicated it will bring the agreement to the Council of Representatives. At this point, it is not clear, at least to me, whether that will be for a formal vote or whether they will repeat the process they used in November with the Declaration of Principles in which it was simply read to the members of the Parliament.

CLINTON: Does the administration plan to submit this agreement to our Congress?

CROCKER: At this point, senator, we do not anticipate the agreements will have within them any elements would require the advice and consent procedure. We intend to negotiate this as an executive agreement.

—Jonathan Schwarz

Posted at April 9, 2008 02:53 PM

"(Neither the US Congress nor the Iraqi parliament would approve this in a million years.)"

This is a surprising recognition of political astuteness on the democrats' behalf coming from you.

Is this an assertion meant only to bolster your central point that Bush/Maliki act as an entity unto themselves - free from laws, traditions, and the people they govern? Or do you really ascribe such political resoluteness to this dem controlled congress? And if you suddenly have faith the democrats - regardless of their motives - will do something that isn't totally fucked up, can you still hang out with your current posse? Or do you have to find new friends? Cause I'd totally hang out with you if your old friends shunned you provided you could stand a (much) less articulate digby: a dyed-in-the-wool liberal who happens to think the media, the D.C. culture, and republicans are a bigger problem than stupid cowardly self-defeating democrats.

Also, I live on the west coast, so you'd probably have to move if we're going to hang out.

Posted by: A Different Matt at April 9, 2008 04:22 PM

Why do you hate Des Moines?

Posted by: albany layman at April 9, 2008 04:32 PM

Actually, I changed the wording since I wrote that, since it was a little stronger than reality. I can imagine circumstances in which either congress or the Iraqi parliament would approve this. They're just unlikely circumstances. And congress would be more likely to approve something like this than the Iraqis.

In any case, it won't happen, since Bush is desperate to keep both legislative branches out of it -- both as a matter of principle, and because he wouldn't get everything he wants.

Posted by: Jonathan Schwarz at April 9, 2008 04:37 PM


Your new phrasing seems correct-ier.

Posted by: A Different Matt at April 9, 2008 05:02 PM

Good post, but I agree with albany layman -- why does Iowa always bear the brunt of these hypotheticals? Because they derailed Dean?

See also:
("I guess we didn't really need Iowa.")

I say let's pick on (What's the Matter with) Kansas instead.

Posted by: Whistler Blue at April 9, 2008 05:18 PM

then Maliki and Bush could together agree without US congressional approval that Iraqis can be based in the US and kill Americans.
Giving the Democratic majority in Congress another opportunity to do that adorable thing where they roll over on their back, and wiggle back-and-forth, and wag their tail, and implore with their big spaniel eyes . . .

Posted by: Monkay at April 9, 2008 06:05 PM

What a splendid idea. Bring in Iraqi contractors and troops. There's lots and lots of work to be done--in Detroit, DC, St. Louis and other cities, work American contractors are too expensive for and ill-equipped to perform. Third-world contractors for third-world areas and conditions!
Call it the Donescobar Plan. The Homeland Could Rise Again.

Posted by: donescobar at April 9, 2008 06:39 PM

> 2. If not, could Bush and Maliki decide tomorrow
> that Iraqi troops and private contractors will be
> stationed in Des Moines and have the legal
> authority to shoot Americans?

Try it this way:

Could Bush [...] decide tomorrow that [...] private contractors will be stationed in [New Orleans] and have the legal authority to shoot Americans?

I think that question has already been answered, so there is no need to postulate Iraqi involvement.

Posted by: at April 9, 2008 08:23 PM

How seriously should we take an agreement between the Bush administration and Maliki, the mayor of the Green Zone? If President Obama doesn't withdraw our troops from Iraq (and I'm sure he won't) it's not because his "hands are tied" by a piece of paper. It will be because he wants to keep troops in Iraq.

I suspect this "Bush is tying our hands!" is just preemptive bullshit on the part of Democrats who don't really want to withdraw from Iraq.

Posted by: SteveB at April 9, 2008 08:54 PM

@SteveB: It might be that kind of preemptive bullshit on the part of many Democrats. But for the rest of us, including a minority of Democrats in Congress, this is yet another serious step across the line on the part of this regime from constitutional republic to dictatorship.

Posted by: Nell at April 9, 2008 10:12 PM

SINCE WE are paying for it, WE does mean WE.

Posted by: Mike Meyer at April 10, 2008 12:13 AM

this is yet another serious step across the line on the part of this regime from constitutional republic to dictatorship.

Bush is certainly given to claims of dictatorial powers - the right to tap our phones without a warrant, the right to invade a country without UN authorization, the right to sign "agreements" like this without congressional approval - but those claims only have weight because Congress refuses to assert it's own powers. Bush does have congressional assent for his actions, even if its only the assent of inaction.

This month, Congress will be voting on another $100 billion for the war. How many of the Dem representatives and senators who are grousing about the Bush-Maliki agreement will refuse to vote for the funding? Not many.

That's why I object to the idea that Bush is a "dictator." Real dictators can't be stopped in their tracks by a simple "no" vote on a funding bill.

Posted by: SteveB at April 10, 2008 07:59 AM

Did Clinton, or anyone, ask ol' Crock how to view this agreement in light of the Constitution?

Posted by: Bob In Pacifica at April 10, 2008 09:10 AM


Posted by: Mike Meyer at April 10, 2008 09:21 AM

Evidently the Administration is ready to go to the mat on not triggering the "advise and consent" clause on this Iraq occupation agreement. Karen DeYoung has reported in the Washington Post
( an argument they have used: no need for Congress to approve again, the already did in 2002. Of course if Congress did keep the authority to approve this, the Democrats could stop/shape the war at their will. Let's take bets on the date the Democrats will abandon this potential power to lame duck Bush. I put my marker on Thanksgiving.

Posted by: at April 10, 2008 09:51 AM

Real dictators can't be stopped in their tracks by a simple "no" vote on a funding bill.

Nah. Plenty of real dictators have parliaments. For example, Cuba has National Assembly of People's Power - the legislative parliament of the Republic of Cuba and the supreme body of State power (according to wikipedia). But it's still a dictatorship. The point being that they - as a practical matter - can't be, in fact, stopped in their tracks.

Posted by: abb1 at April 10, 2008 10:07 AM

Cuba has National Assembly of People's Power...

You know, I like this analogy where U.S. Congress = Cuban National Assembly of People's Power. It explains a lot.

The point being that they - as a practical matter - can't be, in fact, stopped in their tracks.

OK, so Castro (or his Brother) can do whatever he wants, because the "National Assembly of People's Power" will rubber-stamp his every request. And Bush can do whatever he wants because...

Posted by: SteveB at April 10, 2008 11:22 AM

Yet another proof that civics classes should be at the top of the high school and college curricula. Perhaps it's because there are only about 100,000 Americans out there who know that our Constitution requires congressional approval of treaties that this sort of travesty of our laws is passively accepted. When you don't know what your government is supposed to do, you can't call it on its errors.

It reminds me of Mitt Romney saying during a debate last fall that he would consult with his lawyers before ddeclaring war on another nation. I think it was Ron Paul who called him on it.

Posted by: Lori Stokes at April 10, 2008 11:35 AM

Irretrievably worse happened in March 2003. (its just worser that's all)

Posted by: Mike Meyer at April 10, 2008 04:23 PM

The difference between Iraq and a lightbulb is you can unscrew a lightbulb.

Posted by: Mike Meyer at April 10, 2008 04:26 PM

SteveB, I kind of wish the problem was ignorance of the right to approve (or reject) treaties. It'd be much easier to fix than the real problem is.

Posted by: Save the Oocytes at April 11, 2008 12:04 AM