Congressional Oversight and Related Issues Concerning the Prospective Security Agreement Between the United States and Iraq
Prepared for Members and Committees of Congress
On November 26, 2007, U.S. President George W. Bush and Iraqi Prime Minister Nouri Kamel
Al-Maliki signed a Declaration of Principles for a Long-Term Relationship of Cooperation and
Friendship Between the Republic of Iraq and the United States of America. Pursuant to this
Declaration, the parties pledged to “begin as soon as possible, with the aim to achieve, before
July 31, 2008, agreements between the two governments with respect to the political, cultural,
economic, and security spheres.” Among other things, the Declaration proclaims the parties’
intention to enter an agreement that would commit the United States to provide security
assurances to Iraq, arm and train Iraqi security forces, and confront Al Qaeda and other terrorist
entities within Iraqi territory. Officials in the Bush Administration have subsequently stated that
the agreement will not commit the United States to militarily defend Iraq. The nature and form of
such a U.S.-Iraq security agreement has been a source of congressional interest, in part because of
statements by General Douglas Lute, Assistant to the President for Iraq and Afghanistan, who
suggested that any such agreement was unlikely to take the form of a treaty, subject to the advice
and consent of the Senate, or otherwise require congressional approval.
It is not clear whether the security agreement(s) discussed in the Declaration will take the form of
a treaty or some other type of international compact. Regardless of the form the agreement may
take, Congress has several tools by which to exercise oversight regarding the negotiation, form,
conclusion, and implementation of the arrangement by the United States. This report begins by
discussing the current legal framework governing U.S. military operations in Iraq. The report then
provides a general background as to the types of international agreements that are binding upon
the United States, as well as considerations affecting whether they take the form of a treaty or an
executive agreement. Next, the report discusses historical precedents as to the role that security
agreements have taken, with specific attention paid to past agreements entered with Afghanistan,
Germany, Japan, South Korea, and the Philippines. The report then discusses the oversight role
that Congress plays with respect to entering and implementing international agreements involving th
the United States. Finally, the report describes legislation proposed in the 110 Congress to
ensure congressional participation in the conclusion of a security agreement between the United
States and Iraq, including the engrossed amendment to H.R. 2642, the Supplemental
Appropriations Act, 2008, which passed the House on May 15, 2008; S. 2426, the Congressional
Oversight of Iraq Agreements Act of 2007; H.R. 4959, Iraq Strategic Agreement Review Act of
2008; H.R. 5128, disapproving of any formal U.S.-Iraq security agreement absent congressional
authorization; and H.R. 5626, the Protect Our Troops and Our Constitution Act of 2008. The
White House has suggested that the President would veto legislation that attempted to define the
legal effect or content of any agreement with Iraq prior to the completion of diplomatic
I. Current Legal Framework Governing U.S. Military Operations In Iraq......................................3
II. International Agreements Under U.S. Law.................................................................................7
Tr eaties ...................................................................................................................................... 8
Executive Agreements Made Pursuant to Treaties............................................................10
Sole Executive Agreements...............................................................................................11
Choosing Between a Treaty and Executive Agreement..........................................................13
II. Historical Practice Regarding Security Agreements.................................................................14
Categories of Security Agreements.........................................................................................14
Collective Defense Agreements/”Security Commitments”..............................................15
Consultation Requirements/”Security Arrangements”......................................................16
Other Types of Military Agreements.................................................................................17
Agreements Granting the Legal Right to Military Intervention........................................18
Non-Binding Security Arrangements......................................................................................19
Examples of Bilateral Security Agreements............................................................................21
Afghanista n ....................................................................................................................... 21
Germany ............................................................................................................................ 24
Japan .......................................................................................................................... ....... 25
Philippi nes ........................................................................................................................ 27
III. Congressional Oversight.........................................................................................................28
Notification ................................................................................................................... .......... 29
Notification Pursuant to the Case-Zablocki Act...............................................................29
Notification Pursuant to Circular 175 Procedures............................................................30
Annual Reporting of Security Arrangements Required by the National Defense
Authorization Act of 1991.............................................................................................30
Consultation ............................................................................................................................ 31
Approval, Rejection, or Conditional Approval of International Agreements..........................32
Implementation of an Agreement That Is Not Self-Executing................................................33
IV. Legislative Activity..................................................................................................................34
Author Contact Information..........................................................................................................36
n November 26, 2007, U.S. President George W. Bush and Iraqi Prime Minister Nouri
Kamel Al-Maliki signed a Declaration of Principles for a Long-Term Relationship of
Cooperation and Friendship Between the Republic of Iraq and the United States of 1O
America. Pursuant to this Declaration, the parties pledged to “begin as soon as possible, with the
aim to achieve, before July 31, 2008, agreements between the two governments with respect to 2
the political, cultural, economic, and security spheres.” Among other things, the Declaration
proclaims the parties’ intention to negotiate a security agreement
To support the Iraqi government in training, equipping, and arming the Iraqi Security Forces
so they can provide security and stability to all Iraqis; support the Iraqi government in
contributing to the international fight against terrorism by confronting terrorists such as Al-
Qaeda, its affiliates, other terrorist groups, as well as all other outlaw groups, such as
criminal remnants of the former regime; and to provide security assurances to the Iraqi 3
Government to deter any external aggression and to ensure the integrity of Iraq’s territory.
The New York Times reported in January 2008 that the Bush Administration has crafted a draft
proposal for a U.S.-Iraq security agreement which would, if agreed upon by the parties, provide
the United States with broad authority to conduct military operations in Iraq, guarantee U.S.
military forces and contractors immunity from Iraqi law, and provide the United States with the 4
power to detain Iraqi prisoners. The New York Times also reported that the draft proposal does
not call for the establishment of permanent U.S. military bases in Iraq, authorize future troop
levels in the country, or describe the specific security obligations of the United States should Iraq 5
come under attack. During testimony before the Senate Committee on Armed Services on
February 6, 2008, Secretary of Defense Robert M. Gates stated that the prospective security
agreement would not obligate the United States to militarily defend Iraq in the event of a threat to 6
It is not clear whether the agreement(s) discussed in the Declaration will take the form of a treaty
or some other type of international compact. However, in a November 26, 2007 press briefing
1 The text of this agreement is available at http://www.whitehouse.gov/news/releases/2007/11/20071126-11.html
[hereinafter “Declaration of Principles”]. The Declaration is rooted in an August 26, 2007 communique, signed by five
top political leaders in Iraq, which called for a long-term relationship with the United States. The strategic arrangement
contemplated in the Declaration is intended to ultimately replace the United Nations mandate under which the United
States and allied forces are responsible for contributing to the security of Iraq. For further background on the
implications of the prospective U.S.-Iraq agreement, see The Proposed U.S. Security Commitment to Iraq: What Will
Be In It and Should It Be a Treaty?: Hearing Before the Subcomm. on International Organizations, Human Rights, and
Oversight & Subcomm. on the Middle East and South Asia of the House Comm. on Foreign Affairs, January 23, 2008
(statement by CRS Specialist Kenneth Katzman). For further discussion of U.S. operations in Iraq and issues related to
Iraqi governance and security, see CRS Report RL31339, Iraq: Post-Saddam Governance and Security, by Kenneth
Katzman, CRS Report RL31701, Iraq: U.S. Military Operations, by Steve Bowman; and CRS Report RL33793, Iraq:
Regional Perspectives and U.S. Policy, by Christopher M. Blanchard et al.
2 Declaration of Principles, supra note 1.
3 White House Office of the Press Secretary, Fact Sheet: U.S.-Iraq Declaration of Principles for Friendship and
Cooperation, November 26, 2007, available at http://www.whitehouse.gov/news/releases/2007/11/20071126-1.html.
4 Thom Shanker and Steven Lee Myers, U.S. Asking Iraq for Wide Rights in Fighting War, N.Y. TIMES, January 25,
2008, at A1.
6 Hearing Before the Sen. Comm. on Armed Services to Receive Testimony on the Defense Authorization Request for
Fiscal Year 2009, the Future Years Defense Program, and the Fiscal Year 2009 Request for Operations in Iraq and
Afghanistan, February 6, 2008 (statement by Defense Sec. Robert M. Gates in response to questioning by Senator
Edward Kennedy regarding a prospective U.S.-Iraq security agreement).
regarding the Declaration, General Douglas Lute, Assistant to the President for Iraq and
Afghanistan, stated that the Administration did not foresee a prospective agreement with Iraq
having “the status of a formal treaty which would then bring us to formal negotiations or formal 7
inputs from the Congress.” According to a February 5, 2008 report by the Congressional
Quarterly, the National Security Council offered to brief Congress on the nature of the 8
prospective U.S.-Iraq security agreement. In a February 13, 2008, op-ed piece for the
Washington Post, Secretary of Defense Gates and Secretary of State Condoleezza Rice claimed
that the Administration “will work closely with the appropriate committees of Congress to keep
lawmakers informed and to provide complete transparency. Classified briefings have already 9
begun, and we look forward to congressional input.” On March 4, 2008, during a joint hearing
before the House Foreign Affairs Subcommittee on the Middle East and South Asia and the
Subcommittee on International Organizations, Human Rights and Oversight, Ambassador David
M. Satterfield, Senior Advisor to the Secretary and Coordinator for Iraq, testified that seven
background briefings by senior administration officials had been held with Members of Congress 10
concerning the prospective U.S.-Iraq agreement.
Presently, the Administration intends to negotiate two separate security agreements with Iraq. The
first agreement would constitute a legally binding Status of Forces Agreement (SOFA) to define
the legal status of U.S. forces within Iraq. On April 10, 2008, Ambassador Satterfield testified
during a hearing before the Senate Foreign Relations Committee regarding the similarities and
differences between the proposed Iraq SOFA and the SOFAs that the United States has entered
with other countries:
This agreement is similar to the many [SOFAs]...we have across the world, which address
such matters as jurisdiction over U.S. forces; the movement of vehicles, vessels, and aircraft;
non-taxation of U.S. activities and the ability of U.S. forces to use host-government facilities.
The SOFA is also unique in that it also takes into account the particular circumstances and
requirements for our forces in Iraq, in particular, by providing for consent by the
Government of Iraq to the conduct of military operations. Neither we nor the Iraqis intend 11
for this to be a permanent provision of the SOFA.
The second agreement, described as a “strategic framework agreement,” would broadly address
topics outlined in the Declaration of Principles. According to Ambassador Satterfield, the
7 White House Office of the Press Secretary, Press Gaggle by Dana Perino and General Douglas Lute, Assistant to the
President for Iraq and Afghanistan , November 26, 2007, available at http://www.whitehouse.gov/news/releases/2007/
8 Adam Graham-Silverman, White House Backs Off From Asserting Long-Term Security Agreements with Iraq,
CONGRESSIONAL QUARTERLY, February 5, 2008 (quoting anonymous congressional aide).
9 Condoleezza Rice and Robert Gates, What We Need Next in Iraq, WASH. POST, February 13, 2008, at A19.
10 Hearing of the Subcommittee on the Middle East and South Asia, and the Subcommittee on International
Organizations, Human Rights, and Oversight of the House Foreign Affairs Committee; Declaration and Principles:
Future U.S. Commitments to Iraq, March 4, 2008 (statement by Ambassador David M. Satterfield in response to
question by Representative William Delahunt) [hereinafter “Satterfield Testimony of March 4”].
11 Hearing of the Senate Foreign Relations Committee; Negotiating a Long Term Relationship with Iraq, April 10,
2008 (statement by Ambassador David M. Satterfield).
not at this stage contemplate it as a legally binding agreement.... Should that change in the
course of the discussions, we will, of course, so inform the Congress and we’ll take 12
appropriate measures in accordance with our constitutional provisions.
Regardless of the form any agreement may take, Congress has several tools by which to exercise
oversight regarding the negotiation, form, conclusion, and implementation of the arrangement by
the United States. This report begins by discussing the current legal framework governing U.S.
military operations in Iraq. The report then provides a general background as to the types of
international agreements that are binding upon the United States, as well as considerations
affecting whether they take the form of a treaty or an executive agreement. Next, the report
discusses historical precedents that security agreements have taken, with specific attention paid to
past agreements entered with Afghanistan, Germany, Japan, South Korea, and the Philippines.
The report then discusses the oversight role that Congress plays with respect to entering and
implementing international agreements involving the United States. Finally, the report describes th
legislation proposed in the 110 Congress to ensure congressional participation in the conclusion
of a security agreement between the United States and Iraq.
U.S. military operations in Iraq are congressionally authorized pursuant to H.J.Res. 114 (P.L. 107-
243), which authorizes the President to use the armed forces of the United States
as he determines to be necessary and appropriate in order to - (1) defend the national security
of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant
United Nations Security Council resolutions regarding Iraq.
It also requires as a predicate for the exercise of that authority that the President determine that
diplomatic efforts and other peaceful means will be inadequate to meet these goals and that the 13
use of force against Iraq is consistent with the battle against terrorism. H.J.Res. 114 appears to
incorporate any future resolutions concerning the continuing situation in Iraq that the Security 14
Council may adopt, as well as those adopted prior to its enactment. The authority also appears
to extend beyond compelling Iraq’s disarmament to implementing the full range of concerns
expressed in those U.N. resolutions, as well as for the broad purpose of defending “the national
security of the United States against the continuing threat posed by Iraq.”
The United States and Great Britain, along with a number of other countries, invaded Iraq in
March of 2003, asserting the authority to enforce compliance with earlier Security Council
12 Satterfield Testimony of March 4, supra note 10 (statement by Ambassador David M. Satterfield in response to
question by Representative William Delahunt concerning legally binding nature of proposed agreement).
13 In March 2003, President George W. Bush reported to Congress the determination that was required by P.L. 107-243
regarding his exercise of authority for military operations against Iraq. House Document 108-50. March 19, 2003. A
report in connection with Presidential Determination under Public Law 107-243. Communication from the President of
the United States transmitting a report consistent with Section 3(b) of the Authorization for Use of Military Force
Against Iraq Resolution of 2002.
14 For an historical overview of Security Council Resolutions addressing the situation in Iraq prior to 2003, see CRS
Report RS21323, The United Nations Security Council—Its Role in the Iraq Crisis: A Brief Overview, by Marjorie Ann
resolutions that addressed the situation in Iraq and Kuwait.15 Other Security Council members
disagreed with this interpretation of the previous resolutions, denying that these resolutions
contained a continuing authorization to use force against Iraq. Despite the initial lack of
consensus regarding the legality of the invasion, the Security Council adopted subsequent
resolutions recognizing the occupation of Iraq and generally supporting the coalition’s plans for 16
bringing about a democratic government in Iraq.
The first of these, Resolution 1511 (October 16, 2003), recognized the Coalition Provisional
Authority (CPA) and underscored the temporary nature of its obligations and authorities under
international law, which it said would cease “when an internationally recognized, representative
government established by the people of Iraq is sworn in and assumes the responsibilities of the
[CPA].” (Para. 1). In paragraph 13, Resolution 1511 authorized
a multinational force under unified command to take all necessary measures to contribute to
the maintenance of security and stability in Iraq, including for the purpose of ensuring
necessary conditions for the implementation of the timetable and programme [for
establishing a permanent government in Iraq] as well as to contribute to the security of the
United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other
institutions of the Iraqi interim administration, and key humanitarian and economic
The Security Council included in Resolution 1511 a commitment to “review the requirements and
mission of the multinational force ... not later than one year from the date of this resolution.” It
further established that “in any case the mandate of the force shall expire upon the completion of
the [electoral process outlined previously],” at which time the Security Council would be ready
“to consider ... any future need for the continuation of the multinational force, taking into account
the views of an internationally recognized, representative government of Iraq.”
The Security Council resolutions do not provide for the immunity of coalition troops from Iraqi
legal processes. No status of forces agreement (SOFA) was deemed possible prior to the 17
recognition of a permanent government in Iraq. Immunity for coalition soldiers, contract
workers, and other foreign personnel in Iraq in connection with security and reconstruction was
established by order of the CPA, which relied for its authority on the laws and usages of war (as
consistent with relevant Security Council resolutions). CPA Order 17, Status of the Coalition 18
Provisional Authority, MNF - Iraq, Certain Missions and Personnel in Iraq, established that all
personnel of the multinational force (MNF) and the CPA, and all International Consultants, are
immune from Iraqi legal process, which are defined to include “arrest, detention or proceedings in
Iraqi courts or other Iraqi bodies, whether criminal, civil, or administrative.” Such persons are
nevertheless expected to respect applicable Iraqi laws, but are subject to the exclusive jurisdiction
of their “Sending States.” States contributing personnel to the multinational force have the right to
15 See Sean Murphy, Assessing the Legality of Invading Iraq, 92 GEO. L.J. 173 (2004).
16 For an overview of the process, see CRS Report RL31339, Iraq: Post-Saddam Governance and Security, by Kenneth
17 The United States reportedly made an effort to establish a SOFA with the Iraqi Governing Council prior to the
handover of sovereignty and establishment of the Iraqi Interim Government, but Iraqi officials took the view that only a
permanently established government in Iraq would have the authority to enter binding international agreements. See
Robin Wright, U.S. Immunity in Iraq Will Go Beyond June 30, WASH. POST, June 24, 2004, at A01.
18 Available online at http://www.cpa-iraq.org/regulations/
exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by their 19
domestic law over all persons subject to their military law.
In June, 2004, in anticipation of the dissolution of the CPA and handover of sovereignty to the
Interim Government of Iraq, the Security Council adopted Resolution 1546, reaffirming the
authorization for the multinational force in Resolution 1511 while noting that its presence in Iraq
“is at the request of the incoming Interim Government of Iraq.” The terms of the mandate for the
MNF are expressed in paragraph 12, in which the Security Council
Decides further that the mandate for the multinational force shall be reviewed at the request
of the Government of Iraq or twelve months from the date of this resolution, and that this
mandate shall expire upon the completion of the political process set out ... above, and
declares that it will terminate this mandate earlier if requested by the Government of Iraq.
Resolution 1546 incorporated letters from U.S. Secretary of State Colin Powell and Prime
Minister of the Interim Government of Iraq Dr. Ayad Allawi. Secretary Powell wrote:
In order to continue to contribute to security, the MNF must continue to function under a
framework that affords the force and its personnel the status that they need to accomplish
their mission, and in which the contributing states have responsibility for exercising
jurisdiction over their personnel and which will ensure arrangements for, and use of assets
by, the MNF. The existing framework governing these matters is sufficient for these
purposes. In addition, the forces that make up the MNF are and will remain committed at all
times to act consistently with their obligations under the law of armed conflict, including the
Prior to the handover of sovereignty to the interim government, Ambassador Bremer issued CPA
Order 100 to revise existing CPA orders, chiefly by substituting the MNF-Iraq for the CPA and 20
otherwise reflecting the new political situation. CPA Order 100 stated, as its purpose,
to ensure that the Iraqi Interim Government and all subsequent Iraqi governments inherit full
responsibility for these laws, regulations, orders, memoranda, instructions and directives so
that their implementation after the transfer of full governing authority may reflect the
expectations of the Iraqi people, as determined by a fully empowered and sovereign Iraqi 21
Under Article 26 of the Transitional Administrative Law of Iraq (TAL),22 “The laws, regulations,
orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under
international law shall remain in force until rescinded or amended by legislation duly enacted and
having the force of law.”
Accordingly, CPA Order 17 (as revised) survived the transfer of authority to the Iraqi Interim
Government, which took no action to amend or rescind it. Iraq’s permanent constitution was
19 Id. § 4.
20 CPA Order 100, Transition of Laws, Regulations, Orders, and Directives Issued by the Coalition Provisional
Authority, June 28, 2004, available at http://www.cpa-iraq.org/regulations/
21 Id. § 1.
22 Law of Administration for the State of Iraq for the Transitional Period, 8 March 2004, available at http://www.cpa-
adopted in 2005. Article 130 of the permanent constitution continues the validity of existing laws,
presumably including CPA Orders that were not rescinded by the Transitional Government.
The U.N. Security Council extended the mandate for the multinational forces until December 31, 232425
2006, and again until December 31, 2007, and finally, until December 31, 2008. Iraqi Prime
Minister al-Maliki requested the Security Council extend the MNF mandate “one last time” until
the end of December, 2008, “provided that the extension is subject to a commitment by the
Security Council to end the mandate at an earlier date if the Government of Iraq so requests and 26
that the mandate is subject to periodic review before June 2008.”
By its terms, CPA Order 17 remains in force for the duration of the U.N. mandate and terminates
only after the departure of the final element of the MNF from Iraq, or at such time as it is 27
rescinded or amended by duly enacted legislation having the force of law. Neither it nor CPA
Order 100 establishes a timetable for the departure of all MNF elements from Iraq after the U.N.
mandate ends. Order 17 could be interpreted effectively to expire concomitantly with the U.N. 28
mandate, because it defines Multinational Force with reference to the U.N. resolutions.
However, the order appears to have been designed to stay in force for a time after the expiration
of the U.N. mandate, for a long enough period at least to allow the departure of all MNF
personnel. If the U.N. Security Council or the Iraqi government adopts a timetable for the
departure of the MNF, it seems logical that CPA Order 17 would continue in force until the
deadline for departure passes. On the other hand, if the government of Iraq invites the United
States or any other coalition government to maintain troops in Iraq after the U.N. mandate
terminates, it may be expedient for the Iraqi government to continue to recognize CPA Order 17
until a new agreement establishing the role and status of such troops is reached.
It bears emphasis that the foregoing is subject to the sole interpretation of the Iraqi government.
Whether the immunity of coalition troops and other personnel will continue in force after the
U.N. mandate expires depends on whether the Iraqi government deems them to be part of
elements of the MNF that have not yet departed or military forces that have overstayed their
mandate. It is not clear which branch of the Iraqi government would make that determination.
Even more significantly, the Iraqi legislature could decide to repeal, amend, or possibly extend
the order at any time, even before the U.N. mandate expires.
Another question regarding the status and role of U.S. forces in Iraq post-U.N. mandate is
whether the congressional authorization to use military force will also end. H.J.Res. 114 does not
contain explicit time requirements or call for the withdrawal of U.S. troops by any specific date or
set of criteria. Presumably, continued force is authorized under the resolution only so long as Iraq
poses a continuing threat to the United States and the U.S. military presence is not inconsistent
with relevant U.N. resolutions. Because the specific threats posed by Iraq during Saddam
Hussein’s regime that were emphasized in the preamble to H.J.Res 114 no longer exist (with the
23 U.N.S.C. Res. 1637 November 11, 2005).
24 U.N.S.C. Res. 1723 (November 28, 2006).
25 U.N.S.C. Res. 1790 (December 18, 2007).
26 Letter from Nuri Kamel al-Maliki, Prime Minister of the Republic of Iraq, to the Security Council, attached as Annex
I to U.N.S.C. Res. 1790.
27 CPA Order 17, supra note 18, § 20.
28 Id. § 1 (defining MNF to mean “the force authorized under U.N. Security Council Resolutions 1511 and 1546, and
any subsequent relevant U.N. Security Council resolutions”).
possible exception of the presence of al Qaeda in Iraq), it may be argued that Iraq no longer poses
a danger to the security of the United States, at least, not of the same kind that led Congress to
pass H.J.Res 114 in the first place. Once the U.N. mandate for the multinational forces in Iraq
expires (and assuming that the U.N. Security Council does not adopt new language supporting a
new U.S. military role in Iraq), it is arguable that the U.S. use of military force in Iraq is not
necessary or appropriate to enforce U.N. Security Council resolutions regarding Iraq. A
determination by the U.N. Security Council that the situation in Iraq no longer poses a threat to
international peace and security compelling the exercise of its authority under Chapter VII of the
U.N. Charter could also undermine the argument that Iraq continues to pose a threat to the United
States. Such conclusions do not necessarily support a view that U.S. troops are automatically 29
required to be withdrawn when the U.N. mandate expires, but suggest that new legislation may
be necessary to support a new role for U.S. troops under a possible agreement with Iraq. The
Administration has expressed its view that no new congressional authorization will be necessary 30
to support U.S. combat operations in Iraq after the U.N. mandate ends.
Under the U.S. system, a legally binding international agreement can be entered into pursuant to 31
either a treaty or an executive agreement. The Constitution allocates primary responsibility for
entering such agreements to the executive branch, but Congress also plays an essential role. First, 32
in order for a treaty (but not an executive agreement) to become the “Law of the Land,” the
Senate must provide its advice and consent to treaty ratification by a two-thirds majority.
Alternatively, Congress may authorize congressional-executive agreements. Many treaties and
executive agreements are not “self-executing,” meaning that in order for them to take effect
domestically, implementing legislation is required to provide U.S. bodies with the authority
necessary to enforce and comply with the agreements’ provisions. While some executive
agreements do not require congressional approval, adherence to them may nonetheless be
dependent upon Congress appropriating necessary funds or authorizing the activities to be carried
out (where compliance with the agreement would contravene some statutory provision).
29 For an analysis of Congress’s role in shaping the mission in Iraq, see generally CRS Report RL33837, Congressional
Authority to Limit U.S. Military Operations in Iraq, by Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola.
30 See Letter from Assistant Secretary of State Jeffrey T. Bergner to Congressman Gary L. Ackerman, Response for
Record from Ambassador Satterfield, March 5, 2008 (citing laws authorizing military force in Iraq and against
terrorists responsible for the September 11, 2001 attacks, the President’s authority as Commander in Chief, and
congressional appropriations of funds to support military operations in Iraq as sources of authority for continued
operations in Iraq); Karen DeYoung, No Need For Lawmakers’ Approval Of Iraq Pact, U.S. Reasserts, WASH. POST,
March 6, 2008, at A18.
31 Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a legally
binding international agreement. For discussion of criteria used to distinguish between legally binding and non-binding
international commitments, see infra at 35. See also 22 C.F.R. § 181.2(a); State Department Office of the Legal
Adviser, Guidance on Non-Binding Documents, at http://www.state.gov/s/l/treaty/guidance/.
32 U.S. CONST., art. VI, § 2. In this regard, it is important to distinguish “treaty” in the context of international law, in
which “treaty” and “international agreement” are synonymous terms for all binding agreements, and “treaty” in the
context of domestic American law, in which “treaty” more narrowly refers to a particular subcategory of binding
international agreements. It should be noted, however, that the term “treaty” is not always interpreted under U.S. law to
refer only to those agreements described in Article II, § 2 of the Constitution. See Weinberger v. Rossi, 456 U.S. 25
(1982) (interpreting statute barring discrimination except where permitted by “treaty” to refer to both treaties and
executive agreements); B. Altman & Co. v. United States, 224 U.S. 583 (1912) (construing the term “treaty,” as used in
statute conferring appellate jurisdiction, to also refer to executive agreements).
Under U.S. law, a treaty is an agreement negotiated and signed33 by the executive branch, which
enters into force if it is approved by a two-thirds majority in the Senate and is subsequently 34
ratified following Presidential signature. The Senate may, in considering a treaty, condition its 353637
consent on certain reservations, declarations and understandings concerning treaty
application. If accepted, these reservations, declarations, and understandings may limit and/or 38
define U.S. obligations under the treaty.
The great majority of international agreements that the United States enters into are not treaties 39
but executive agreements—agreements made by the executive branch that are not submitted to
the Senate for its advice and consent. There are three types of prima facie legal executive
agreements: (1) congressional-executive agreements, in which Congress has previously or
retroactively authorized an international agreement entered into by the Executive; (2) executive
agreements made pursuant to an earlier treaty, in which the agreement is authorized by a ratified
treaty; and (3) sole executive agreements, in which an agreement is made pursuant to the
President’s constitutional authority without further congressional authorization. The Executive’s
authority to promulgate the agreement is different in each case.
Although executive agreements are not specifically discussed in the Constitution, they
nonetheless have been considered valid international compacts under Supreme Court 40
jurisprudence and as a matter of historical practice. Starting in the World War II era, reliance on
33 Under international law, States that have signed but not ratified treaties have the obligation to refrain from acts that
would defeat the object or purpose of the treaty. Vienna Convention on the Law of Treaties, entered into force January
27, 1980, 1155 U.N.T.S. 331 [hereinafter “Vienna Convention”], art. 18. Although the United States has not ratified the
Vienna Convention, it recognizes it as generally expressing customary international law. See, e.g., Fujitsu Ltd. v. nd
Federal Exp. Corp., 247 F.3d 423, 433 (2 Cir. 2001) (“we rely upon the Vienna Convention here as an authoritative
guide to the customary international law of treaties...[b]ecause the United States recognizes the Vienna Convention as a
codification of customary international law...and [it] acknowledges the Vienna Convention as, in large part, the
authoritative guide to current treaty law and practice”) (internal citations omitted).
34 Oftentimes, a bilateral treaty will only come into effect after the parties exchange instruments of ratification. In the
case of multilateral treaties, ratification typically occurs only after the treaty’s instruments of ratification are submitted
to the appropriate body in accordance with the terms of the agreement.
35 A “reservation” is “a unilateral statement... made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State.” Vienna Convention, art. 2(1)(d). In practice, “[r]eservations change U.S. obligations
without necessarily changing the text, and they require the acceptance of the other party.” CONGRESSIONAL RESEARCH
SERVICE, TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, A STUDY
PREPARED FOR THE SENATE COMM. ON FOREIGN RELATIONS 11 (Comm. Print 2001); Vienna Convention, arts. 19-23.
36 Declarations are “statements expressing the Senate’s position or opinion on matters relating to issues raised by the
treaty rather than to specific provisions.” TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 11.
37 Understandings are “interpretive statements that clarify or elaborate provisions but do not alter them.” Id.
38 As a matter of customary international law, States are “obliged to refrain from acts which would defeat the object
and purpose of a treaty,” including entering reservations that are incompatible with a treaty’s purposes. Vienna
Convention, arts. 18-19.
39 LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 215 (2nd ed. 1996).
40 E.g., American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (“our cases have recognized that the President has
authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate...this power
executive agreements has grown significantly.41 Whereas 27 executive agreements (compared to
between 1939 and 2004 the United States concluded 15,522 executive agreements (compared to 42
Although some have argued that certain agreements may only be concluded as treaties, subject to 43
the advice and consent of the Senate, this view has generally been rejected by scholarly 44
opinion. Adjudication of the propriety of executive agreements has been rare, in significant part
because plaintiffs often cannot demonstrate that they have suffered a redressable injury giving 45
them standing to challenge an agreement, or fail to make a justiciable claim. In 2001, the
Eleventh Circuit Court of Appeals held that the issue of whether the North American Free Trade
Agreement (NAFTA) was a treaty requiring approval by two-thirds of the Senate presented a 46
nonjusticiable political question. It does not appear that an executive agreement has ever been 47
held invalid by the courts on the grounds that it was in contravention of the Treaty Clause.
having been exercised since the early years of the Republic”); United States v. Belmont, 301 U.S. 324, 330 (“an
international compact...is not always a treaty which requires the participation of the Senate”).
41 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 38-40.
42 WILLIAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW 376 (5th ed. 2007). Between 1789
and 2004, the United States entered 1,834 treaties and 16,704 executive agreements, meaning that roughly 10% of
agreements concluded by the United States have taken the form of treaties. Id.
43 E.g., Edwin Borchard, Treaties and Executive Agreements: A Reply, 54 YALE L. J. 616 (1945) (arguing that the
congressional-executive agreement is not a constitutionally permissible alternative to a treaty, and that sole executive
agreements are permissible in limited circumstances); Laurence H. Tribe, Taking Text and Structure Seriously:
Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (arguing that the
Treaty Clause is the exclusive means for Congress to approve significant international agreements); John C. Yoo, Laws
as Treaties?: the Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757 (2001) (arguing that
treaties are the constitutionally required form for congressional approval of an international agreement concerning
action lying outside of Congress’s constitutional powers, including matters with respect to human rights,
political/military alliances, and arms control, but are not required for agreements concerning action falling within
Congress’s powers under Art. I of the Constitution, such as agreements concerning international commerce).
44 RESTATEMENT (THIRD) OF FOREIGN RELATIONS, § 303 n.8 (1987) (“At one time it was argued that some agreements
can be made only as treaties, by the procedure designated in the Constitution.... Scholarly opinion has rejected that
view.”); HENKIN, supra note 39, at 217 (“Whatever their theoretical merits, it is now widely accepted that the
Congressional-Executive agreement is available for wide use, even general use, and is a complete alternative to a
treaty...”); Yoo, supra note 43, at 759 (noting that “a broad intellectual consensus exists that congressional-executive
agreements may serve as full substitutes for treaties”). Cf. Bruce Ackerman & David Golove, Is NAFTA
Constitutional?, 108 HARV. L. REV. 799 (1995) (arguing that developments in the World War II era altered historical
understanding of the Constitution’s allocation of power between government branches so as to make congressional-
executive agreement a complete alternative to a treaty); Myres S. McDougal and Asher Lans, Treaties and
Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (parts I and II),
54 YALE L. J. 181, 534 (1945) (arguing that historical practice supports the interchangeability of congressional-
executive agreements and treaties).
45 RESTATEMENT, supra note 44, at § 302, n. 5; HENKIN, supra note 39, at 142-148. See also Greater Tampa Chamber of
Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980) (finding that plaintiffs lacked standing to challenge the
propriety of the form taken by an international agreement between the United States and United Kingdom). Executive
agreements dealing with matters having no direct impact upon private interests in the United States (e.g., agreements
concerning military matters or foreign relations) are rarely the subject of domestic litigation, in part because persons
typically cannot demonstrate that they have suffered an actual, redressable injury and therefore lack standing to
challenge such agreements. RESTATEMENT, supra note 44, at § 303, n. 11.
46 Made in the USA Foundation v. United States, 242 F.3d 1300 (11th Cir. 2001).
47 In 1997, a federal district court in Texas ruled petitioner was not extraditable pursuant to a federal statute
implementing an executive agreement, and held that extradition requires an extradition treaty ratified by the President
Nonetheless, as a matter of historical practice, some types of agreements have been concluded as 48
treaties, while others have been concluded as executive agreements.
In the case of congressional-executive agreements, the “constitutionality...seems well 49
established.” Unlike treaties, where only the Senate plays a role in authorization, both Houses of
Congress are involved in the authorizing process for congressional-executive agreements.
Congressional authorization takes the form of a statute passed by a majority of both Houses of
Congress. Historically, congressional-executive agreements cover a wide variety of topics, 50
ranging from postal conventions to bilateral trade to military assistance. NAFTA and the
General Agreement on Tariffs and Trade (GATT) are notable examples of congressional-
Congressional-executive agreements also may take different forms. Congress may enact
legislation authorizing the Executive to negotiate and enter agreements with other countries on a 51
specific matter. A congressional-executive agreement may also take the form of a statute passed
following the negotiation of an agreement which incorporates the terms or requirements of the 52
agreement into U.S. law. Such authorization may be either explicit or implied by the terms of 53
the congressional enactment.
The legitimacy of agreements made pursuant to treaties is also well established, though
controversy occasionally arises as to whether the agreement was actually imputed by the treaty in 5455
question. Since the earlier treaty is the “Law of the Land,” the power to enter into an
and approved by two-thirds of the Senate. In re Surrender of Ntakirutimana, 988 F.Supp. 1038 (S.D.Tex. 1997). The
Fifth Circuit Court of Appeals overturned the district court’s finding and held that a person could be extradited by th
statute rather than treaty. Ntakirutimana v. Reno, 184 F.3d 419 (5 Cir. 1999).
48 See Yoo, supra note 43 (discussing the kinds of agreements historically taking the form of treaties in contrast to
those taking the form of executive agreements). See also infra at 17-25 (discussing form that different types of U.S.
security agreements have historically taken).
49 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 5. See also HENKIN, supra note
39, at 215-18.
50 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 5. Reciprocal trade agreements which were
once concluded as treaties now typically take the form of congressional-executive agreements. RESTATEMENT, supra
note 44, at § 303, n. 9. See also 19 U.S.C. § 2111 (conditionally authorizing the President to enter trade agreements
with other nations); CRS Report 97-896, Why Certain Trade Agreements Are Approved as Congressional-Executive
Agreements Rather Than as Treaties, by Jeanne J. Grimmett.
51 See, e.g., 16 U.S.C. § 1822(a) (authorizing the Secretary of State to negotiate international fishery agreements); 22
U.S.C. § 6445(c) (authorizing the President to enter binding agreements with other nations pledging to end practices
violating religious freedom).
52 See, e.g., 19 U.S.C. § 3511 (approving agreements resulting from the Uruguay Round of multilateral trade
negotiations under the auspices of GATT).
53 See, e.g., 19 U.S.C. § 3471 (authorizing U.S. participation in and appropriations for Commission on Labor
Cooperation, established by a supplemental NAFTA agreement not expressly approved by Congress).
54 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 5.
55 U.S. CONST. art. VI, § 2 (“the laws of the United States...[and] all treaties made, or which shall be made, under the
agreement required or contemplated by the treaty lies fairly clearly within the President’s
executive function. However, the Senate occasionally conditions its approval of a treaty upon a
requirement that any subsequent agreement made pursuant to the treaty also be submitted to the 56
Senate as a treaty.
Sole executive agreements rely on neither treaty nor congressional authority for their legal basis.
There are a number of provisions in the Constitution that may confer limited authority upon the 57
President to promulgate such agreements on the basis of his power to conduct foreign affairs.
The Litvinov Assignment, under which the Soviet Union assigned to the United States its claims
against American nationals, is an example of a sole executive agreement.
If the President enters into an executive agreement pursuant to and dealing with an area where he
has clear, exclusive constitutional authority—such as an agreement to recognize a particular State
for diplomatic purposes—the agreement is legally permissible regardless of Congress’s opinion 58
on the matter. If, however, the President enters into an agreement and his constitutional
authority over the subject matter is unclear, or if Congress also has constitutional authority over
the subject matter, a reviewing court may consider Congress’s position in determining whether 59
the agreement is enforceable as U.S. law. If Congress has given implicit approval to the
President to enter into the agreement, or is silent on the matter, it is more likely that the
agreement will be deemed valid. When Congress opposes the agreement and the President’s
constitutional authority to enter the agreement is ambiguous, it is unclear if or under what
circumstances a court would recognize such an agreement as controlling.
Because sole executive agreements do not rely on treaty or congressional authority to support
their legality, they do not require congressional approval to become binding, at least as a matter of
international law. Courts have recognized, however, that if a sole executive agreement conflicts 60
with pre-existing federal law, the earlier law will remain controlling in most circumstances.
authority of the United States, shall be the supreme Law of the Land”).
56 See RESTATEMENT, supra note 44, § 303 cmt. d.
57 U.S. CONST. art. II, § 1 (“The executive power shall be vested in a President of the United States of America...”), § 2
(“The President shall be commander in chief of the Army and Navy of the United States...”), § 3 (“he shall receive
ambassadors and other public ministers...”). Courts have recognized foreign affairs as an area of very strong executive
authority. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
58 See RESTATEMENT, supra note 44, § 303 (4).
59 See Dames & Moore v. Regan, 453 U.S. 654 (1981) (establishing that Congress’s implicit approval of executive
action, such as historical practice of yielding authority in a particular area, may legitimize an agreement); Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“When the President acts pursuant to an express or implied
authorization of Congress, his powers are at their maximum.... Congressional inertia, indifference or quiescence may...
invite, measures of independent Presidential responsibility.... 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.”) (Jackson, J., concurring).
60 Executive agreements have been held to be inferior to conflicting federal law when the agreement concerns matters
expressly within the constitutional authority of Congress. See, e.g., United States v. Guy W. Capps, Inc., 204 F.2d 655 th
(4 Cir. 1953) (finding that executive agreement contravening provisions of import statute was unenforceable);
RESTATEMENT, supra note 44, § 115, n.5. However, an executive agreement might trump pre-existing federal law if it
concerns an enumerated or inherent executive power under the Constitution, or if Congress has historically acquiesced
to the President entering agreements in the relevant area. See id.; United States v. Pink, 315 U.S. 203, 230 (1942)
Even if a sole executive agreement does not conflict with prior federal law, Congress may still act
to limit the agreement’s effect through a subsequent legislative enactment, so long as it has 61
constitutional authority to regulate the matter covered by the agreement. In the security context,
Congress has clear constitutional authority to enact measures that would limit the effect of sole
executive agreements involving military commitments. Article I, § 8 of the Constitution accords
Congress the power “To lay and collect Taxes ... to ... pay the Debts and provide for the common
Defence,”“To raise and support Armies,” “To provide and maintain a Navy,” “To make Rules for
the Government and Regulation of the land and naval Forces,” and “To declare War, grant letters
of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” as well as “To
provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions” and “To provide for organizing, arming, and disciplining, the Militia, and for 62
governing such Part of them as may be employed in the Service of the United States.” Further,
Congress is empowered “To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers ...” as well as “all other Powers vested by this Constitution in the 63
Government of the United States, or in any Department or Officer thereof.”
In addition to the constitutional provisions that provide Congress with authority to legislate on 64
matters concerning military affairs, Congress also has virtual plenary power over
appropriations—authority not qualified with reference to Congress’s enumerated powers under
Article I, § 8. The Appropriations Clause provides that “[n]o money can be paid out of the 65
Treasury unless it has been appropriated by an act of Congress.” Accordingly, adherence to
pledges made in sole executive agreements may be dependent upon the availability of
appropriations authorized by Congress. Congress may specify the terms and conditions under
which appropriations may be used, so long as it does not impose unconstitutional conditions upon 66
the use of appropriated funds.
(“[a]ll Constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity
and obligation as if they proceeded from the legislature”) (quoting THE FEDERALIST NO. 64 (John Jay)); Dames &
Moore, 453 U.S. at 654 (upholding sole executive agreement concerning the handling of Iranian assets in the United
States, despite the existence of a potentially conflicting statute, given Congress’s historical acquiescence to these types
61 The “last in time” rule establishes that a more recent statute trumps an earlier, inconsistent international agreement,
while a more recent self-executing agreement may trump an earlier, inconsistent statute. Whitney v. Robertson, 124
U.S. 190 (1888).
62 U.S. CONST. art. I, § 8.
64 For additional discussion, see CRS Report RL33837, Congressional Authority to Limit U.S. Military Operations in
Iraq, by Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola, supra note 29.
65 U.S. CONST. art. I, § 9. Congress may specify the terms and conditions under which appropriations may be used, so
long as it does not impose unconstitutional conditions on the use of appropriated funds.
66 See United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an appropriations proviso that effectively
nullified some effects of a presidential pardon and that appeared to prescribe a rule of decision in court cases); United
States v. Lovett, 328 U.S. 303 (1946)(invalidating as a bill of attainder an appropriations provision denying money to
pay salaries of named officials). For further discussion of Congress’s ability to use its appropriations power to limit the
deployment or use of U.S. military forces, see CRS Report RL33837, Congressional Authority to Limit U.S. Military
Operations in Iraq, by Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola, supra note 29, at 29-35, 41-49.
A recurring concern for the executive and legislative branches is whether an international
commitment should be entered into as a treaty or an executive agreement. The Senate may prefer
that significant international commitments be entered as treaties, and fear that reliance on
executive agreements will lead to an erosion of the treaty power. The House may want an
international compact to take the form of congressional-executive agreement, so that it may play
a greater role in the consideration. In cases where congressional action is necessary for an
agreement to be implemented, the Executive may prefer to submit an international compact as a
congressional-executive agreement, so that approval of the agreement and necessary
implementing legislation may be accomplished in a single step. The Executive’s preference as to
whether an international compact takes the form of a treaty or executive agreement may also be
influenced by the agreement’s prospects for approval by a two-thirds majority of the Senate or a
simple majority of both Houses.
State Department regulations prescribing the process for coordination and approval of 67
international agreements (commonly known as the “Circular 175 procedure”) include criteria
for determining whether an international agreement should take the form of a treaty or an
executive agreement. Congressional preference is one of several factors considered when
determining the form that an international agreement should take. According to State Department
In determining a question as to the procedure which should be followed for any
particular international agreement, due consideration is given to the following
1. The extent to which the agreement involves commitments or risks affecting the
nation as a whole;
3. Whether the agreement can be given effect without the enactment of subsequent
legislation by the Congress;
7. The proposed duration of the agreement, the need for prompt conclusion of an
agreement, and the desirability of concluding a routine or short-term agreement;
In determining whether any international agreement should be brought into force as
a treaty or as an international agreement other than a treaty, the utmost care is to be
67 Circular 175 initially referred to a 1955 Department of State Circular which established a process for the
coordination and approval of international agreements. These procedures, as modified, are now found in 22 CFR part
181 and 11 Foreign Affairs Manual (F.A.M.) chapter 720.
exercised to avoid any invasion or compromise of the constitutional powers of the 68
President, the Senate, and the Congress as a whole.
In 1978, the Senate passed a resolution expressing its sense that the President seek the advice of
the Senate Committee on Foreign Relations in determining whether an international agreement 69
should be submitted as a treaty. The State Department subsequently modified the Circular 175
procedure to provide for consultation with appropriate congressional leaders and committees 7071
concerning significant international agreements. Consultations are to be held “as appropriate.”
Congressional consultation on the substance and form of international agreements is discussed in 72
more detail later in this report.
The Bush Administration has characterized the proposed security arrangement with Iraq as being
of a kind commonly entered by the United States, and has stated that “[t]he U.S. has security
relationships with over 100 countries around the world, including recent agreements with nations 73
such as Afghanistan and former Soviet bloc countries.” Some U.S. security relationships take
the form of legally binding treaties or executive agreements, whereas others involve non-binding
assurances or pledges. Whereas some security agreements are publicly available, others remain
classified. Though the Bush Administration and Maliki government have issued a Declaration of
Principles setting the parameters for a future security arrangement between the United States and
Iraq, it is not yet clear whether the arrangement will be governed by treaty, executive agreement,
non-binding pledges, or some combination of the three.
The following sections provide a general overview of the categories of security agreements
entered into by the United States of a legally binding nature. Such categories of security
agreements predominantly take the form of a treaty, while others typically take the form of an
Although some categories of security agreements have historically been concluded as treaties and
others as executive agreements, this does not necessarily mean that future arrangements must
follow the same pattern. An arrangement that has typically been entered into as a treaty might 74
instead be concluded as a congressional-executive agreement, and vice versa. Similarly, while
some security arrangements have historically been entered as sole executive agreements,
68 11 F.A.M. § 723.3 (2006).
69 S.Res. 536, S. Rep. 95-1171, 95th Cong. (1977).
70 11 F.A.M. § 724.4(b)-(c) (2006).
71 Id. at § 724.4(c).
72 See infra at 35.
73 Fact Sheet, supra note 3.
74 But see Yoo, supra note 43, at 830 (arguing the military commitments like NATO can only be effectuated by treaty,
and not a congressional-executive agreement).
Congress might effectively limit such agreements in the future via statutory enactment75—e.g.,
limiting the availability of appropriations to carry out commitments made in a sole executive 76
The State Department currently lists the United States as being party to seven collective defense
agreements, under which members are obligated to assist in the defense of a party to the
agreement in the event of an attack upon it: the Inter-American Treaty of Reciprocal Assistance;
the North Atlantic Treaty; the Australia, New Zealand, and United States Security Treaty; the
Southeast Asian Treaty; and bilateral security treaties with Japan, the Philippines, and South 77
Korea. All seven agreements take the form of treaties that were ratified by the United States 78
between 1947 and 1960. It is important to note that each of these agreements, with the exception
of the Inter-American Treaty of Reciprocal Assistance (the first to be ratified by the United
States), includes a provision specifying that the agreement’s requirements are to be carried out in
accordance with the parties’ respective constitutional processes. These provisions were included
to assuage congressional concerns these agreements could be interpreted as sanctioning the
President to engage in military hostilities in defense of treaty parties without further
congressional authorization (i.e., a declaration of war or resolution authorizing the use of military 79
In addition to these defense treaties, the United States has also adopted security commitments 80
with respect to several former territories and possessions, including pursuant to congressional-
executive agreement. Congress has approved compacts changing the status of certain territories to
Freely Associated States (FAS), while also imposing upon the United States the “the obligation to
75 Legislation proposing to limit the usage of sole executive agreements has periodically been introduced, but thus far
no bill has been enacted. See, e.g., S.Res. 85, 91st Cong. (1969) (non-binding resolution passed by the Senate
expressing its sense that national commitments should be entered pursuant to treaty or executive agreement specifically th
authorized by Congress); H.R. 4438, 94 Cong. (1976) (proposing to require the President to transmit any agreement
involving a national commitment to Congress, and allowing the agreement to take effect only if Congress did not pass a
measure disapproving it within 60 days).
76 The Constitution provides that “No money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law.” U.S. CONST., art. I, § 9, cl. 7.
77 State Department, Office of the Legal Adviser, U.S. Collective Defense Arrangements, at http://www.state.gov/s/l/
78 Inter-American Treaty of Reciprocal Assistance, 62 Stat. 1681, entered into force December 3, 1948; North Atlantic
Treaty, 63 Stat. 2241, entered into force August 24, 1949; Security Treaty Between Australia, New Zealand and the
United States of America, 3 U.S.T. 3420, entered into force April 29, 1952; Mutual Defense Treaty Between the United
States of America and the Republic of the Philippines, 3 U.S.T. 3947, entered into force August 27, 1952; Mutual
Defense Treaty Between the United States of America and the Republic of Korea, 5 U.S.T. 2368, entered into force
November 17, 1954; Southeast Asia Collective Defense Treaty, 6 U.S.T. 81, entered into force February 19, 1955;
Treaty of Mutual Cooperation and Security Between the United States of America and Japan, 11 U.S.T. 1632, entered
into force June 23, 1960 (replacing Security Treaty Between the United States of America and Japan, 3 U.S.T. 3329,
entered into force April 28, 1952). In 1954, the United States entered a mutual defense treaty with the Republic of
China (Taiwan), 6 U.S.T. 433, but this agreement was terminated by President Carter in 1979.
79 For background, see S. REP. 797, 90th Cong., at 14-15 (1967) (describing ratification history of North Atlantic
Treaty); LOUIS FISHER, PRESIDENTIAL WAR POWER 105-111 (2004) (describing Senate deliberations on North
80 For example, the Panama Canal treaties provided that the United States and Panama would, in accordance with their
respective constitutional processes, defend the Canal from attack. Treaty Concerning the Permanent Neutrality and
Operation of the Panama Canal, with Annexes and Protocol, 33 U.S.T. 1, entered into force October 1, 1979.
defend the [FAS]...from attack or threats thereof as the United States and its citizens are 81
defended.” Arguably, these security commitments are distinct from other international defense
arrangements, as they concern commitments to newly sovereign entities over whom the United 82
States formerly exercised extensive and long-standing control.
The United States also has established security arrangements with other countries in which the
U.S. pledges to take some action in the event that the other country’s security is threatened. In a
1992 report to Congress listing U.S. security commitments and arrangements, President George
H.W. Bush claimed that unlike “security commitments,” which oblige the United States to act in
the common defense of a country in case of an armed attack, “security arrangements” generally
oblige the United States to consult with a country in the event of a threat to its security. They
may appear in legally binding agreements, such as treaties or executive agreements, or in
political documents, such as policy declarations by the President, Secretary of State or 83
Secretary of Defense.
Most legally binding “security arrangements” listed in the President’s report constituted sole 84
executive agreements, including agreements with Israel, Egypt, Pakistan, and Liberia. Only one
arrangement, committing the United States to the establishment of the Multinational Force and 85
Observers in the Sinai, could clearly be described as a congressional-executive agreement.
Although some scholars and government officials have characterized the terms “security
commitment” and “security arrangement” as having distinct and particular meanings, this practice
is by no means uniform. Indeed, the question of what constitutes a “security commitment” has 86
long been a subject of dialogue and dispute by the executive and legislative branches.
81 Act Approving Compacts of Free Association with the Republic of the Marshall Islands and the Federated States of
Micronesia, P.L. 99-239, § 311 (1986). See also Act approving Compact of Free Association between the United States
and the Government of Palau, P.L. 99-658, § 352 (1986) (recognizing an attack on Palau as a danger to the United
States, and pledging that the United States “would take action to meet the danger to the United States and Palau in
accordance with its constitutional processes”).
82 Some have argued that these agreements are “more akin to the Texas and Hawaii annexation resolutions than to
international defense arrangements,” given the historical status of the FAS. Peter J. Spiro, Treaties, Executive
Agreements, and Constitutional Method, 79 TEX. L. REV. 961, n. 184 (2001).
83 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 248 (quoting A REPORT ON UNITED STATES
SECURITY ARRANGEMENTS AND COMMITMENTS WITH OTHER NATIONS, SUBMITTED TO THE CONGRESS IN ACCORDANCE
WITH SECTION 1457 OF PUBLIC LAW 101-510, THE NATIONAL DEFENSE AUTHORIZATION ACT OF 1991, August 17, 1992).
84 Id. See also Memorandum of Agreement Between the Governments of Israel and the United States Concerning
Assurances, Consultations, and United States Policy on Middle East Peace, 32 U.S.T. 2160, entered into force February
27, 1976; Agreement Between the United States and Egypt Concerning Implementation of the Egyptian-Israeli Peace
Treaty of March 26, 1979, 32 U.S.T. 2148, entered into force March 26, 1979; Agreement of Cooperation Between the
Government of the United States of America and the Government of Pakistan, 10 U.S.T. 317, entered into force May
19, 1959; Agreement of Cooperation Between the Government of the United States of America and the Government of
Liberia, 10 U.S.T. 1598, entered into force July 8, 1959.
85 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 248. See also Multinational Force and
Observers Participation Resolution, P.L. 97-132 (1981).
86 See The Proposed U.S. Security Commitment to Iraq: What Will Be In It and Should It Be a Treaty?: Hearing Before
the Subcomm. on International Organizations, Human Rights, and Oversight & Subcomm. on the Middle East and
South Asia of the House Comm. on Foreign Affairs, January 23, 2008 (statement by Prof. Michael J. Matheson)
(recognizing distinction between “security commitment” and “security arrangement,” while acknowledging that the
The United States is also a party to a significant number of defense agreements that do not
obligate the United States to take action when another country is attacked, but nonetheless
involve military affairs. Categories of such agreements include:
• military basing agreements, permitting the United States to build or use
permanent facilities, station forces, and conduct certain military activities within 87
a host country;
• access and pre-positioning agreements, permitting the stationing of equipment in
a host country and the improvement and use of the country’s military or civilian 88
facilities, without establishing a permanent military presence;
• SOFAs, defining the legal status of U.S. forces within a host country and
typically according them with certain privileges and immunities from the host 89
• burden-sharing agreements, permitting a host country to assume some of the
financial obligations incurred by the stationing of U.S. forces within its 90
• agreements providing for arms transfers, military training, and joint military 91
Historically, almost all agreements have taken a form other than treaty. Sometimes these
arrangements have been concluded as sole executive agreements; while others could be deemed
executive agreements pursuant to treaty (e.g., military stationing agreements concluded with other
NATO parties); while still others have been explicitly or implicitly authorized by statute and may
be considered congressional-executive agreements.
“question of what constitutes a ‘security commitment’...has been the subject of dialogue between the executive branch
and Congress for decades”). See also TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 213-215,
247-250 (discussing legislation considered and enacted by Congress in response to concerns that the Executive had
entered agreements imposing national commitments upon the United States without congressional notification or
87 See, e.g., Agreement Between the United States of America and the Kingdom of Greece Concerning Military
Facilities, 4 U.S.T. 2189, entered into force October 12, 1953.
88 An example of such an agreement is the 2005 memorandum of understanding between the United States and
Norway, discussed in more detail at American Forces Press Service, Rumsfeld Signs Pre-positioning Agreement With
Norway, June 8, 2005, at http://www.defenselink.mil/news/newsarticle.aspx?id=16458.
89 See, e.g., 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, 11 U.S.T. 1652, entered into force June 23, 1960. The
only SOFA agreement to which the United States is a party that was concluded as a treaty is the North Atlantic Treaty
Status of Forces Agreement (NATO SOFA), 4 U.S.T. 1792, entered into force August 23, 1953. All supplementary
agreements to the NATO SOFA have been executive agreements.
90 See, e.g., Memorandum of Agreement Between The Ministry of National Defense Republic of Korea and the United
States Forces in Korea Regarding The Construction of Facilities at 2nd ID USA To Improve Combined Defense
Capabilities, 34 U.S.T. 125, entered into force February 2, 1982.
91 See, e.g., Agreement for Cooperation on Defense and Economy Between the Governments of the United States of
America and of the Republic of Turkey in Accordance with Articles II and III of the North Atlantic Treaty, 32 U.S.T.
3323, entered into force December 18, 1980.
As a matter of historical practice, the types of agreements described above have not directly
authorized the United States to engage in significant military operations in defense of the host
country, though such agreements may supplement separate agreements or U.N. mandates that do.
For example, although U.S. basing agreements with Germany, Japan, and South Korea do not
expressly authorize the United States to use military force to defend those countries in case of
attack, they assist the United States in fulfilling security commitments owed to those countries
under separate defense treaties.
Besides the categories of agreements described above, the United States has, on occasion, entered
into long-term agreements that grant the United States the legal right to intervene militarily within
the territory of another party to defend it against internal or external threats. Unlike collective
defense agreements, these security agreements provide the United States with the right, but not
the duty, to militarily intervene when the security of the other country is threatened. Such
agreements may also be distinguished from the authority to intervene recognized under the
United Nations Charter. Whereas military intervention agreements discussed below provide the
United States with the positive legal right to intervene in a country, the U.N. Charter merely
provides that its provisions do not “impair the inherent right of individual or collective self-
defense if an armed attack occurs against a Member of the United Nations, until the Security 92
Council has taken measures necessary to maintain international peace and security.”
In the early part of the 20th Century, the United States entered into legal agreements with several
Latin American countries under which the United States was granted the right to use military 93
force either to defend those countries from external threat or to preserve domestic tranquility.
All of these agreements were concluded as treaties. In 1903, following the Spanish-American
War, the United States concluded a treaty with the newly independent Republic of Cuba under
which the United States was expressly given “the right to intervene for the preservation of Cuban
independence, the maintenance of a government adequate for the protection of life, property, and 94
individual liberty.” Similarly, in the aftermath of the U.S. invasion and occupation of Haiti in
right to intervene in Haiti when the United States deemed it necessary. In 1904, the United
States ratified a treaty with Panama that provided the United States “the right, at all times and in
its discretion” to employ its armed forces for the safety and protection of the Panama Canal and 96
the shipping occurring therein. In 1907, the United States concluded a treaty with the
92 Charter of the United Nations, 59 Stat. 1031, entered into force October 24, 1945, art. 51 (italics added).
93 See generally CHARLES HENRY HYDE, 1 INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED
STATES 27-36 (1922).
94 Treaty on Relations Between the United States and Cuba, May 22, 1903, 33 Stat. 2248, at art. III. In 1906, acting
pursuant to this authority, the United States intervened in Cuba following serious revolutionary activity in order to
establish a stable government there.
95 Treaty on Administration of Haiti: Finances and Development, entered into force November 15, 1915, T.S. 623 1915
U.S.T. LEXIS 29, at art. XIV (providing that “The high contracting parties shall have authority to take such steps as
may be necessary to insure the complete attainment of any of the objects comprehended in this treaty; and, should the
necessity occur, the United States will lend an efficient aid for the preservation of Haitian Independence and the
maintenance of a government adequate for the protection of life, property and individual liberty.”).
96 Isthmian Canal Convention with the Republic of Panama, entered into force February 26, 1904, 33 Stat. 2234, at art.
XXIII. More generally, the agreement provided that the United States “guarantees and will maintain the independence
of Panama.” Id. at art. I. The agreement also provided the United States with authority to ensure public order in the
Dominican Republic establishing plans for the financial rehabilitation of that country, and
authorizing the United States to use military force necessary to effectuate the carrying out of 97
There have been numerous instances where a country has permitted or invited the United States 98
to use military force within its territory, but authority to intervene has not been given via treaty.
When the Senate initially opted not to approve a treaty authorizing U.S. military and financial
involvement in the Dominican Republic, President Theodore Roosevelt entered a temporary
“modus vivendi” executive agreement adopting similar policies as the unapproved treaty. This
agreement, which elicited significant opposition from many Members of Congress as an
unconstitutional usurpation of the Senate’s treaty power, was terminated following Senate 99
approval of a modified version of the treaty in 1907. Another example of a significant security
agreement taking a form other than treaty occurred in 1941 when, prior to the United States
entering World War II, President Franklin D. Roosevelt concluded sole executive agreements
concerning the stationing of U.S. troops in Iceland and Greenland to protect those territories from 100
Although publicly available agreements expressly granting the United States the legal right to
intervene militarily in another country have generally taken the form of a treaty, this report does
not discuss whether any classified agreements have taken another form.
While many security arrangements take the form of a treaty or executive agreement and are
intended to impose legal obligations upon the parties, others do not. Some security arrangements
are not intended to have legally binding force, though they may nonetheless carry significant
political or moral weight. While executive practice of extending political defense commitments to
foreign countries can be traced back to the Monroe Doctrine, pledges to assist foreign States in
security matters have become more commonplace in the post-World War II era. Such
cities of Panama City and Colon if, in the opinion of the United States, the government of Panama was unable to
maintain order. Id. at art. VII.
97 Treaty Between the United States and Dominican Republic Concerning the Collection and Application of Dominican
Customs Revenues, proclaimed July 25, 1907, 35 Stat. 1880.
98 For example, in 1958, President Dwight Eisenhower deployed U.S. troops to Lebanon at the invitation of its
government to help protect against a threatened insurrection. Congress had passed legislation in 1957 that authorized
such action. See P.L. 85-7 (1957). Specifically, the legislation permitted the President to “undertake, in the general area
of the Middle East, military assistance programs with any nation or group of nations of that area desiring such
assistance.” The enactment further provided that “if the President determines the necessity thereof, the United States is
prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed
aggression from any country controlled by international communism: Provided, that such employment shall be
consonant with the treaty obligations of the United States and with the Constitution of the United States.”
99 For further discussion, see W. STULL HOLT, TREATIES DEFEATED BY THE SENATE 212-229 (1933) (discussing events
leading to the ratification of the 1907 treaty with the Dominican Republic). In his autobiography, Roosevelt suggested
that a treaty was preferable to the executive agreement he entered with the Dominican Republic, because “a treaty..was
the law of the land and not merely...a direction of the Chief Executive which would lapse when that particular
executive left office.” Ackerman & Golove, supra note 44, at 819 (italics omitted) (quoting THEODORE ROOSEVELT, AN
AUTOBIOGRAPHY 510 (1920)).
100 Agreement Between the United States and Denmark Concerning the Defense of Greenland, signed April 9, 1941, 55
Stat. 1245; Agreement Concerning Defense of Iceland By United States Forces, July 1, 1941, 55 Stat . 1547.
commitments may take several forms, including a unilateral pledge or policy statement by the
Executive or a joint declaration between U.S. and foreign officials.
For example, bilateral arrangements authorizing U.S. military intervention, when not concluded 101
as treaties, generally have not taken the form of a legally binding, permanent agreement.
Instead, in non-treaty arrangements authorizing U.S. intervention, the host country generally
appears to retain full discretion as to the degree and duration of U.S. presence within its territory.
In 1962, for instance, U.S. Secretary of State Dean Rusk and Thai Foreign Minister Thanat
Khoman issued a joint declaration in which Secretary Rusk expressed “the firm intention of the
United States to aid Thailand, its ally and historic friend, in resisting Communist aggression and 102
subversion.” The United States thereafter deployed armed forces to Thailand to assist the
government in combating communist forces.
The Executive’s authority to enter such arrangements, and, more broadly, to engage in military
operations in other countries without congressional approval has been the subject of long-103
standing dispute between the Congress and the Executive. In 1969, the Senate passed the
National Commitments Resolution, stating the sense of the Senate that “a national commitment
by the United States results only from affirmative action taken by the executive and legislative
branches of the United States government by means of a treaty [or legislative enactment] ... 104
specifically providing for such commitment.” The Resolution defined a “national commitment”
as including “the use of the armed forces of the United States on foreign territory, or a promise to
assist a foreign country ... by the use of armed forces ... either immediately or upon the happening 105
of certain events.”
According to the committee report accompanying the Resolution, the motivation for the
Resolution was concern over the growing development of “constitutional imbalance” in matters
of foreign relations, with Presidents frequently making significant foreign commitments on behalf
of the United States without congressional action. Among other things, the report criticized a
practice it described as “commitment by accretion,” by which a
sense of binding commitment arises out of a series of executive declarations, no one of
which in itself would be thought of as constituting a binding obligation. Simply repeating
something often enough with regard to our relations with some particular country, we come
101 See supra note 98 (discussing U.S. intervention in Lebanon in 1958).
102 For text of the joint declaration, see DEPT. OF STATE, AMERICAN FOREIGN POLICY: CURRENT DOCUMENTS, 1962, pp.
103 See S.Rept. 91-129 (1969) (Senate Committee on Foreign Relations report in favor of the National Commitments
Resolution, S.Res. 85, criticizing the undertaking of “national commitments” by the Executive, either through
international agreements or unilateral pledges to other countries, without congressional involvement) [hereinafter
“Committee Report”]. The vast majority of U.S. military interventions in other countries have been to protect U.S.
persons, property, or interests. See CRS Report RL32170, Instances of Use of United States Armed Forces Abroad,
1798-2007, by Richard F. Grimmett. The Executive has historically claimed broad authority to deploy armed forces to
protect these interests, even in the absence of clear congressional authorization. See, e.g., Dept. of Justice, Office of
Legal Counsel, 4A U.S. OP. OFF. LEGAL COUNSEL 185, Presidential Power to Use the Armed Forces Abroad Without
Statutory Authorization (1980) (alleging presidential authority to deploy forces to protect, and retaliate for injuries
suffered by, U.S. persons and property).
104 S.Res. 85, 91st Congress, 1st Sess. (1969).
to support that our honor is involved in an engagement no less solemn than a duly ratified 106
The National Commitments Resolution took the form of a sense of the Senate resolution, and
accordingly had no legal effect. Although Congress has occasionally considered legislation that 107
would bar the adoption of significant military commitments without congressional action, no
such measure has been enacted. The executive branch regularly makes unilateral security pledges 108
or enters non-binding arrangements with foreign countries concerning security matters. The
primary means Congress uses to exercise oversight authority over such non-binding arrangements
is its appropriations power, by which it may limit or condition actions the United States may take
in furtherance of the arrangement.
The following sections discuss in greater detail the form, nature, and content of bilateral security
agreements made by the United States with Afghanistan, Germany, Japan, South Korea, and the
The Foreign Assistance Act of 1961 is “an act to promote the foreign policy, security, and general
welfare of the United States by assisting peoples of the world in their efforts toward economic 109
development and internal and external security , and for other purposes.” Part I of the act,
addressing international development, established policy “to make assistance available, upon
request, under this part in scope and on a basis of long-range continuity essential to the creation
of an environment in which the energies of the peoples of the world can be devoted to 110
constructive purposes, free of pressure and erosion by the adversaries of freedom.” Part II of
the act, addressing international peace and security, authorizes “measures in the common defense
against internal and external aggression, including the furnishing of military assistance, upon 111
request, to friendly countries and international organizations.” The act authorizes the President
“to furnish military assistance on such terms and conditions as he may determine, to any friendly
country or international organization, the assisting of which the President finds will strengthen the
security of the United States and promote world peace and which is otherwise eligible to receive 112
such assistance ...” The authorization to provide defense articles and services, noncombatant
106 Committee Report, supra note 103, at 26.
107 See, e.g., H.R. 4483, Executive Agreements Review Act, 94th Cong., 1st Sess. (proposing to establish legislative veto
over executive agreements involving national commitments); S.Res. 24, Treaty Powers Resolution, 95th Cong., 1st Sess.
(proposing that it would not be in order for the Senate to consider any legislation authorizing funds to implement any
international agreement which the Senate has found to constitute a treaty, unless the Senate has given its advice and
consent to treaty ratification).
108 See generally The November 26 Declaration of Principles: Implications for UN Resolutions on Iraq and for
Congressional Oversight: Hearing of the Subcommittee on International Organizations, Human Rights, and Oversight,
February 8, 2008 (statement of Prof. Michael J. Glennon discussing presidential practice of entering non-binding
109 75 Stat. 424.
110 Id. at 425.
111 Id. at 434.
112 Id. at 435.
personnel, and the transfer of funds is codified at 22 U.S.C. § 2311. While this authorization
permits the President to provide military assistance, it limits it to “assigning or detailing members
of the Armed Forces of the United States and other personnel of the Department of Defense to 113
perform duties of a noncombatant nature.”
In 2002, the United States and Afghanistan, by an exchange of notes,114 entered into an agreement 115
regarding economic grants under the Foreign Assistance Act of 1961, as amended, and for the
furnishing of defense articles, defense services and related training, including pursuant to the 116
United States International Military and Education Training Program (IMET), from the United
States to the Afghanistan Interim Administration.
An agreement exists regarding the status of U.S. military and civilian personnel of the U.S.
Department of Defense present in Afghanistan in connection with cooperative efforts in response
to terrorism, humanitarian and civic assistance, military training and exercises, and other 117
activities. Such personnel are to be accorded “a status equivalent to that accorded to the
administrative and technical staff” of the U.S. Embassy under the Vienna Convention on 118
Diplomatic Relations of 1961. Accordingly, U.S. personnel are immune from criminal
prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction 119
except with respect to acts performed outside the course of their duties. In the agreement, the 120
Islamic Transitional Government of Afghanistan explicitly authorized the U.S. government to
exercise criminal jurisdiction over U.S. personnel, and the government of Afghanistan is not
permitted to surrender U.S. personnel to the custody of another state, international tribunal, or any
other entity without consent of the U.S. government. The agreement does not appear to provide
immunity for contract personnel.
The agreement with Afghanistan does not expressly authorize the United States to carry out
military operations within Afghanistan, but it recognizes that such operations are “ongoing.”
Congress authorized the use of military force there (and elsewhere) by joint resolution in 2001,
for targeting “those nations, organizations, or persons [who] planned, authorized, committed, or 121
aided the terrorist attacks that occurred on September 11, 2001....” The U.N. Security Council
implicitly recognized that the use of force was appropriate in response to the September 11, 2001 122
terrorist attacks, and subsequently authorized the deployment of an International Security
113 22 U.S.C. § 2311(a)(2) (italics added).
114 Exchange of notes at Kabul April 6 and 13, 2002. Entered into force April 13, 2002. Not printed in Treaties and
Other International Acts Series (T.I.A.S.).
115 P.L. 87-195, 75 Stat. 424 (September 4 1961).
116 22 U.S.C. § 2347 et seq.
117 T.I.A.S. Exchange of notes September 26 and December 12, 2002 and May 28, 2003. Entered into force May 28,
119 Vienna Convention on Diplomatic Relations of April 18, 1961, T.I.A.S. 7502; 23 U.S.T. 3227.
120 The transitional government has since been replaced by the fully elected Government of the Islamic Republic of
Afghanistan. For information about the political development of Afghanistan since 2001, see CRS Report RS21922,
Afghanistan: Government Formation and Performance, by Kenneth Katzman.
121 P.L. 107-40 (September 18, 2001); 115 Stat. 224.
122 U.N.S.C. Res. 1368 (September 12, 2001) (“Recognizing the inherent right of individual or collective self-defence
in accordance with the [UN] Charter,” and expressing its “readiness to take all necessary steps to respond to the
Assistance Force (ISAF) to Afghanistan.123 Later U.N. Security Council resolutions provide a 124
continuing mandate for the ISAF (NATO peacekeeping force), calling upon it to “work in close
consultation with” Operation Enduring Freedom (OEF—the U.S.-led coalition conducting 125
military operations in Afghanistan) in carrying out the mandate. While there is no explicit U.N.
mandate authorizing the OEF, Security Council resolutions appear to provide ample recognition
of the legitimacy of its operations, most recently by calling upon the Afghan Government, “with
the assistance of the international community, including the International Security Assistance
Force and Operation Enduring Freedom coalition, in accordance with their respective designated
responsibilities as they evolve, to continue to address the threat to the security and stability of 126
Afghanistan posed by the Taliban, Al-Qaida, other extremist groups and criminal activities....”
The United States and Afghanistan entered an acquisition and cross-servicing agreement, with 127
annexes, in 2004. An acquisition and cross-servicing agreement (ACSA) is an agreement
providing logistic support, supplies, and services to foreign militaries on a cash-reimbursement, 128
replacement-in-kind, or exchange of equal value basis. After consultation with the Secretary of
State, the Secretary of Defense is authorized to enter into an ACSA with a government of a NATO
country, a subsidiary body of NATO, or the United Nations Organization or any regional 129
international organization of which the United States is a member. Additionally, the Secretary
of Defense may enter into an ACSA with a country not included in the above categories, if after
consultation with the Secretary of State, a determination is made that it is in the best interests of 130
the national security of the United States. If the country is not a member of NATO, the
Secretary of Defense must submit notice, at least 30 days prior to designation, to the Committee
on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on 131
Armed Services and the Committee on International Relations of the House of Representatives.
On May 23, 2005, President Hamid Karzai and President Bush issued a “joint declaration” 132
outlining a prospective future agreement between the two countries. It envisions a role for U.S.
military troops in Afghanistan to “help organize, train, equip, and sustain Afghan security forces”
until Afghanistan has developed its own capacity, and to “consult with respect to taking
appropriate measures in the event that Afghanistan perceives that its territorial integrity,
independence, or security is threatened or at risk.” The declaration does not mention the status of
U.S. forces in Afghanistan, but a status of forces agreement can be expected to be part of the final
123 U.N.S.C. Res. 1386 (December 20, 2001).
124 The ISAF has its own status of forces agreement with the Afghan government in the form of an annex to a Military
Technical Agreement entitled “Arrangements Regarding the Status of the International Security Assistance Force.” The
agreement provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their respective
national elements for criminal or disciplinary matters, and that such personnel are immune from arrest or detention by
Afghan authorities and may not be turned over to any international tribunal or any other entity or State without the
express consent of the contributing nation.
125 See U.N.S.C. Res. 1776 § 5 (September 19, 2007); U.N.S.C. Res. 1707 § 4 (2007).
126 U.N.S.C. Res. 1746 § 25 (2007).
127 T.I.A.S. Signed at Doha and Kabul January 22 and February 16, 2004. Entered into force February 16, 2004.
128 10 U.S.C. §§ 2341-2350.
129 Id. at § 2342(a)(1).
130 Id. at § 2342(b)(1).
131 Id. at § 2342(b)(2).
In 1951, the United States and Germany entered into an agreement133 related to the assurances 134
required under the Mutual Security Act of 1951. This act is “an act to maintain the security and
promote the foreign policy and provide for the general welfare of the United States by furnishing 135
[material] assistance to friendly nations in the interest of international peace and security.”
Specifically, the agreement references the “statement of purpose contained in Section 2 of the
Mutual Security Act of 1951, and reaffirms that....it [Germany] is firmly committed to join in
promoting international understanding and good will and in maintaining world peace and to take 136
such action as may be mutually agreed upon to eliminate causes of international tension.” The
statement of purpose in Section 2 of the act is
to maintain the security and to promote the foreign policy of the United States by authorizing
military, economic, and technical assistance to friendly countries to strengthen the mutual
security and individual and collective defense of the free world, to develop their resources in
the interest of their security and independence and the national interest of the United States
and to facilitate the effective participation of those countries in the United Nations system for 137
In 1955, the United States and Germany, both parties to the North Atlantic Treaty, entered into an 138
agreement on mutual defense assistance, obligating the United States to provide for “such 139
equipment, materials, services, or other assistance as may be agreed” to Germany. The
agreement reflected the
desire to foster international peace and security through measures which further the ability of
nation dedicated to the purposes and principles of the Charter of the United Nations to
participate effectively in arrangements for collective self-defense in support of those
purposes and principles, and conscious of the determination to give their full cooperation to
United Nations collective security arrangements and measures and efforts to obtain
agreement on universal regulation of armaments under adequate guarantees against violation
or evasion; [and] considering the support which the Government of the United States of 140
America has brought to these principles by enacting the Mutual Security Act of 1954, 141
which authorizes the furnishing of military assistance to certain nations[.]
Germany guarantees that it “will not use such assistance for any act inconsistent with the strictly
defensive character of the North Atlantic Treaty, or, without the prior consent of the [United
133 3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45. Exchange of letters at Bonn December 19 and 28, 1951.
134 P.L. 82-165, 65 Stat. 373 (October 10, 1951).
136 3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45.
137 65 Stat. 373.
138 6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47. Signed at Bonn June 30, 1955. Entered into force December 27,
140 P.L. 83-665, 68 Stat. 832 (August 26, 1954).
141 6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47.
States], for any other purpose.142 The mutual defense assistance agreement is the basis for 143
numerous subsequent agreements between the United States and Germany.
In 1959, the counties entered into an agreement implementing the NATO SOFA of 1953.144 The
agreement provided additional supplemental agreements, beyond those contained in the NATO
SOFA, specific to the relationship between the United States and Germany.
In 1954, the United States and Japan entered into a mutual defense assistance agreement with 145
annexes. The agreement was amended on April 18 and June 23, 2006. The agreement
references the Treaty of Peace signed between the countries in San Francisco, California in 146147148
1951. The Mutual Defense Assistance Act of 1949 and the Mutual Security Act of 1951
are also referenced in the agreement as they provide for the furnishing of defense assistance by 149
the United States. The agreement provides that the United States and Japan “will make
available to the other and to such other governments as the two Governments signatory to the
present Agreement may in each case agree upon, such equipment, materials, services, or other
assistance as the Government furnishing such assistance may authorize” subject to the conditions
and provisions of the Mutual Defense Assistance Act of 1949, the Mutual Security Act of 1951, 150
and appropriation acts which may affect the furnishing of assistance.
The countries, in 1960, entered into the Treaty of Mutual Cooperation and Security Between the 151152
United States of America and Japan. The treaty was amended on December 26, 1990. Article
III of the Treaty provides that the countries, “individually and in cooperation with each other, by
means of continuous and effective self-help and mutual aid will maintain and develop, subject to 153
their constitutional provisions, their capacities to resist armed attack. Article V provides that the
countries recognize “that an armed attack against either party in the territories under the
administration of Japan would be dangerous to its own peace and safety and declares that it would 154
act to meet the common danger in accordance with its constitutional provisions and processes.”
143 See, e.g., Mutual Defense Assistance: Disposition of Military Equipment and Materials. 6 U.S.T. 6005; T.I.A.S.
3444; 240 U.N.T.S. 69. Exchange of notes at Bonn June 30, 1955. Entered into force December 27, 1955. Mutual
Defense Assistance: Purchase of Certain Military Equipment, Materials, and Services. 7 U.S.T. 2787; T.I.A.S. 3660;
278 U.N.T.S. 9. Exchange of notes at Washington October 8, 1956. Entered into force December 12, 1956. Defense:
Training of German Army Personnel. 8 U.S.T. 149; T.I.A.S. 3753; 280 U.N.T.S. 63. Exchange of notes at Bonn
December 12, 1956. Entered into force December 12, 1956.
144 14 U.S.T. 689; T.I.A.S. 5352; 490 U.N.T.S. 30. Signed at Bonn August 3, 1959. Entered into force July 1, 1963.
145 5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169. Signed at Tokyo March 8, 1954. Entered into force May 1, 1954.
146 3 U.S.T. 3169; T.I.A.S. 2490. Signed at San Francisco September, 8, 1951. Entered into force April 28, 1952.
147 63 Stat. 714.
148 65 Stat. 373.
149 5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169.
151 11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186. Signed at Washington January 19, 1960. Entered into force June
152 T.I.A.S. 12335.
153 11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186.
Under Article VI of the Treaty, the United States is granted “the use by its land, air and naval
forces of facilities and areas in Japan” in order to contribute “to the security of Japan and 155
maintenance of international peace and security in the Far East[.]” Article VI provides further
that the use of facilities and the status of U.S. armed forces will be governed under a separate 156
The countries, under Article VI of the Treaty of Mutual Cooperation and Security Between the 157
United States of America and Japan, entered into a SOFA in 1960. The SOFA addresses the use
of facilities by the U.S. armed forces, as well as the status of U.S. forces in Japan. The agreement 158
has been modified at least four times since the original agreement.
In 1948, the United States and South Korea entered into an agreement related to the transfer of 159
authority to the Government of South Korea and the withdrawal of U.S. occupation forces.
Shortly after the initial agreement, the United States and Korea entered into a second agreement 160
concerning interim military and security matters during a transitional period. This executive
agreement was between the President of the Republic of Korea and the Commanding General, 161
U.S. Army Forces in Korea. The agreement calls for the “Commanding General, United States
Army Forces in Korea, pursuant to directives from his government and within his capabilities” to
“organize, train and equip the Security forces of the Republic of Korea” with the obligation to
train and equip ceasing “upon the completion of withdrawal from Korea of forces under his 162
command.” The agreement also requires the Commanding General, U.S. Army Forces in
Korea, to retain authority to exercise over-all operational control of security forces of Korea until
withdrawal, as contemplated by Resolution No. II passed by the United Nations General 163
Assembly on November 14, 1948.
Article III of the Agreement contains provisions related to the status of U.S. forces during the
transition period. The Commanding General, U.S. Army Forces in Korea, “shall retain exclusive
jurisdiction over the personnel of his command, both military and civilian, including their
dependents, whose conduct as individuals shall be in keeping with pertinent laws of the Republic 164
of Korea.” The agreement provides that any individuals under the jurisdiction of the
Commanding General who is apprehended by law enforcement agencies of South Korea shall be
immediately turned over to the custody and control of the Commanding General; individuals not
157 11 U.S.T. 1652; T.I.A.S. 4510; 373 U.N.T.S. 248. Signed at Washington January 19, 1960. Entered into force June
158 Agreements concerning new special measures relating to Article XXIV (related to costs of maintenance of U.S.
forces in Japan and furnishment of of rights of way related to facilities used by U.S. forces in Japan) of the agreement
of January 19, 1960, have been signed in 1991, 1995, 2000, and 2006.
159 Exchange of letters at Seoul August 9 and 11, 1948. Entered into force August 11, 1948.
160 62 Stat. 3817; T.I.A.S. 1918; 9 Bevans 477; 79 U.N.T.S. 57. Signed at Seoul August 24, 1948. Entered into force
August 24, 1948.
162 62 Stat. 3818.
164 Id. at 3819.
under jurisdiction of the Commanding General, but apprehended in acts detrimental to the
security of personnel or property under his jurisdiction, shall be turned over to the custody and 165
control of the government of South Korea.
The countries, in 1950, entered into a mutual defense assistance agreement.166 The mutual defense 167
agreement references the Military Defense Act of 1949, which provides for the furnishing of
military assistance by the United States to South Korea. The mutual defense assistance agreement
provides that each country “will make or continue to make available to the other, and to other
Governments, such equipment, materials, services, or other military assistance” in support of 168
economic recovery that is essential to international peace and security.
The United States and South Korea entered into a mutual security agreement in 1952.169 The 170
mutual security agreement references the Mutual Security Act of 1951, which provides for
military, economic, and technical assistance in order to strengthen the mutual security of the free
world. The mutual security agreement provides that South Korea agrees to promote international
understanding and good will and to take action, that is mutually agreed upon, to eliminate causes 171
of international tensions.
In 1954 the countries entered into a mutual defense treaty.172 As part of the treaty the countries
agree to attempt to settle international disputes peacefully, consult whenever the political
independence or security of either party is threatened by external armed attack, and that either
party would act to meet the common danger in accordance with their respective constitutional 173
processes. Article IV of the treaty grants the United States “the right to dispose....land, air and 174
sea forces in and about the territory” of South Korea. Pursuant to the treaty, specifically Article 175
IV, the countries entered into a SOFA with agreed minutes and an exchange of notes in 1966; it
was subsequently amended January 18, 2001.
In 1947 the United States and the Republic of the Philippines entered into an agreement on 176
military assistance. The agreement was for a term of five years, starting July 4, 1946, and
provided that the United States would furnish military assistance to the Philippines for the
166 1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205. Signed at Seoul January 26, 1950. Entered into force January 26,
167 P.L. 81-329, 63 Stat. 714 (October 6, 1949).
168 1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205.
169 3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105. Exchange of notes at Pusan January 4 and 7, 1952. Entered into
force January 7, 1952.
170 P.L. 82-165, 65 Stat. 373 (October 10, 1951).
171 3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105.
172 5 U.S.T. 2368; T.I.A.S. 3097; 238 U.N.T.S. 199. Signed at Washington October 1, 1953. Entered into force
November 17, 1954.
175 17 U.S.T. 1677; T.I.A.S. 6127; 674 U.N.T.S. 163. Signed at Seoul July 9, 1966. Entered into force February 9,
176 61 Stat. 3283; T.I.A.S. 1662. Signed at Manila March 21, 1947. Entered into force March 21, 1947.
training and development of armed forces. The agreement further created an advisory group to 177
provide advice and assistance to the Philippines as had been authorized by the U.S. Congress. 178
The agreement was extended, and amended, for an additional five years in 1953.
A mutual defense treaty was entered into by the United States and the Philippines in 1951.179 The
treaty publicly declares “their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the 180
illusion that either of them stands alone in the Pacific Area[.]” The Treaty does not address or
provide for a SOFA.
The countries entered into a mutual security agreement in 1952,181 as related to the assurances
required by the Mutual Security Act of 1951. The assurances required under the Mutual Security
Act of 1951 included a commitment to accounting procedures for monies, equipment and 182
materials furnished by the United States to the Philippines.
In 1993, the countries entered into a SOFA.183 The agreement was subsequently extended on
September 19, 1994, April 28, 1995, and November 29, December 1 and 8, 1995. The countries
entered into an agreement regarding the treatment of U.S. armed forces visiting the Philippines in 184
1998. This agreement was amended on April 11 and 12, 2006. The distinction between this
agreement and the SOFA originally entered into in 1993 is that this agreement applies to U.S.
armed forces visiting, not stationed in the Philippines. The countries also entered into an
agreement regarding the treatment of Republic of Philippines personnel visiting the United 185
While it appears that a prospective U.S.-Iraqi security arrangement will impose legal obligations
upon the parties, it is not yet clear whether the agreement(s) will be in the form of a treaty or
executive agreement. Nonetheless, Congress has several tools at its disposal to exercise oversight
regarding the negotiation, conclusion, and implementation of any such agreement.
177 61 Stat. 3284.
178 4 U.S.T. 1682; T.I.A.S. 2834; 2163 U.N.T.S. 77. Exchange of notes at Manila June 26, 1953. Entered into force July
179 3 U.S.T. 3947; T.I.A.S. 2529; 177 U.N.T.S. 133. Signed at Washington August 30, 1951. Entered into force August
181 3 U.S.T. 4644; T.I.A.S. 2617; 179 U.N.T.S. 193. Exchange of notes at Manila January 4 and 7, 1952. Entered into
force January 7, 1952.
183 T.I.A.S. Exchange of notes at Manila April 2, June 11 and 21, 1993. Entered into force June 21, 1993.
184 T.I.A.S. Signed at Manila February 10, 1998. Entered into force June 1, 1999.
185 T.I.A.S. Signed at Manila October 9, 1998. Entered into force June 1, 1999.
One manner in which Congress exercises oversight of international agreements is via notification
requirements. Obviously, in cases where an agreement requires action from one or both Houses of
Congress to take effect, notification is a requisite. Before a treaty may become binding U.S. law,
the President must submit it to the Senate for its advice and consent. Likewise, the Executive
needs to inform Congress when it seeks to conclude an executive agreement that requires
congressional authorization and/or implementing legislation to become U.S. law, so that
appropriate legislation may be enacted.
While constitutional considerations necessitate congressional notification in many circumstances,
it has historically been more difficult for Congress to keep informed regarding international
agreements or pledges made by the Executive that did not require additional legislative action to
take effect—i.e., sole executive agreements and executive agreements made pursuant to a treaty.
Additionally, even in cases where congressional action is necessary for an agreement to take
effect, the Executive has sometimes opted not to inform Congress about an agreement until it has
already been drafted and signed by the parties. In response to these concerns, Congress has
enacted legislation and the State Department has implemented regulations to ensure that Congress
is informed of the conclusion (and in some cases, the negotiation) of legally binding international
The Case-Zablocki Act was enacted in 1972 in response to congressional concern that a number
of secret agreements had been entered by the Executive imposing significant commitments upon 186
the United States. It is the primary statutory mechanism used to ensure that Congress is
informed of international agreements entered by the United States. Pursuant to the act, all
executive agreements are required to be transmitted to Congress within 60 days of their entry into 187
force. If the President deems the immediate public disclosure of an agreement to be prejudicial
to national security, the agreement may instead be transmitted to the House Committee on
Foreign Affairs and the Senate Committee on Foreign Relations. The President is also required to
annually submit a report regarding international agreements that were transmitted after the 188
expiration of the 60-day period, describing the reasons for the delay.
Although the Case-Zablocki Act originally only imposed reporting requirements with respect to
executive agreements that had entered into force, the act was amended in 2004 to ensure that
Congress was regularly notified regarding the status of proposed agreements, as well. The
Secretary of State is required to annually report to Congress a list of executive agreements that
have not yet entered into force, which (1) have not been published in the United States Treaties
and Other International Agreements compilation and (2) the United States has “signed,
proclaimed, or with reference to which any other final formality has been executed, or that has 189
been extended or otherwise modified, during the preceding calendar year.”
186 See H. REP. 92-1301, 92nd Cong. (1972).
187 1 U.S.C. § 112b(a).
188 Id. at §112b(b).
189 Id. at § 112b(d).
The Case-Zablocki Act does not define what sort of arrangements constitute “international
agreements” falling under its purview, though the legislative history suggests that Congress “did
not want to be inundated with trivia...[but wished] to have transmitted all agreements of any 190
significance.” In its implementing regulations, the State Department has established criteria for
determining whether an arrangement constitutes a legally binding “international agreement”
requiring congressional notification. These include
• the identity of the parties, and whether they intended to create a legally binding
• the significance of the agreed-upon arrangement, with “[m]inor or trivial
undertakings, even if couched in legal language and form,” not considered to fall
under the purview of the Case-Zablocki Act;
• the specificity of the arrangement;
• the necessity that the arrangement constitute an agreement by two or more
• the form of the arrangement, to the extent that it helps to determine whether the 191
parties intended to enter a legally binding agreement.
The State Department’s Circular 175 procedure also contemplates that Congress will be notified
of developments in the negotiation of “significant” international agreements. Specifically,
Department regulations provide that
With the advice and assistance of the Assistant Secretary for Legislative Affairs, the
appropriate congressional leaders and committees are advised of the intention to negotiate
significant new international agreements, consulted concerning such agreements, and kept
informed of developments affecting them, including especially whether any legislation is 192
considered necessary or desirable for the implementation of the new treaty or agreement.
As stated earlier, Bush Administration officials have stated that Administration “will work closely
with the appropriate committees of Congress to keep lawmakers informed” about the prospective 193
U.S.-Iraq agreement, and classified briefings on the agreement have also begun.
In addition to the Case-Zablocki Act, Congress has enacted legislation designed to ensure that it
remains informed about existing U.S. security arrangements. Section 1457 of the National
Defense Authorization Act for FY1991 (P.L. 101-510) requires the President to submit an annual
report to specified congressional committees regarding “United States security arrangements
190 H. REP. 92-1301, 92nd Cong. (1972).
191 22 C.F.R. § 181.2(a).
192 11 F.A.M. § 725.1(5).
193 Rice and Gates, supra note 9.
with, and commitments to, other nations.”194 The report, produced in classified and unclassified
form, is to be submitted by February 1 each year to the Committee on Armed Services and the
Committee on Foreign Relations of the Senate, and the Committee on Armed Services and the 195
Committee on Foreign Affairs of the House of Representatives. In addition to legally binding
security arrangements or commitments (e.g., mutual defense treaties and pre-positioning
agreements), the report must describe non-binding commitments, such as expressed U.S. policy
formulated by the executive branch. The report must also include, among other things, “[a]n
assessment of the need to continue, modify, or discontinue each of those arrangements and 196
commitments in view of the changing international security situation.”
Although reports were submitted to the appropriate committees pursuant to this statutory
requirement in 1991 and 1992, CRS has been unable to determine whether any subsequent reports
have been issued. In January 2008, CRS made an inquiry to the document officers and clerks of
several of the designated committees, but they have been unable to find a record of any
subsequent report being received. The Federal Reports Elimination and Sunset Act of 1995
(Sunset Act, P.L. 104-66) terminated most reporting requirements existing prior to its enactment.
The act eliminated or modified several specific reporting requirements, and also generally
terminated any reporting requirement that had been listed in House Doc. 103-7, unless such a
requirement was specifically exempted. However, the reporting requirement contained in § 1457
of the FY1991 National Defense Authorization Act was neither specifically terminated by the
Sunset Act nor listed in House Doc. 103-7. Accordingly, it does not appear that this requirement
has been terminated.
State Department regulations requiring consultation with Congress regarding significant
international agreements may provide a means for congressional oversight as to the negotiation of
a security arrangement with Iraq. One of the stated objectives of the Circular 175 procedure is to
ensure that “timely and appropriate consultation is had with congressional leaders and committees 197
on treaties and other international agreements.” To that end, State Department regulations
contemplate congressional consultation regarding the conduct of negotiations to secure significant 198
international agreements. Although these regulations do not define what constitutes a
“significant” agreement, it seems reasonable to assume that the prospective U.S.-Iraqi security
arrangement would constitute such a compact, as the agreement would (at least as envisioned in
the U.S.-Iraqi Declaration of Principles) commit the United States to provide security assurances
to Iraq, arm and train Iraqi security forces, and confront Al Qaeda and other terrorist entities 199
within Iraqi territory. Such an agreement appears to call for a more significant commitment of
U.S. resources than is required under most international agreements to which the United States is
194 50 U.S.C. § 404c(a).
195 Id. at § 404c(c)-(d).
197 11 F.A.M. § 722(4).
198 Id. at § 725.1(5).
199 Fact Sheet, supra note 3.
Circular 175 procedures may also provide for congressional consultation concerning the form that
a legally binding international agreement should take. When there is question as to whether an
international agreement should be concluded as a treaty or an executive agreement, the matter is
first brought to the attention of the State Department’s Legal Adviser for Treaty Affairs. If the
Assistant Legal Adviser for Treaty Affairs believes the issue to be “a serious one that may warrant 200
formal congressional consultation,” consultations are to be held with appropriate congressional
leaders and committees. State Department regulations specify that “Every practicable effort will
be made to identify such questions at the earliest possible date so that consultations may be 201
completed in sufficient time to avoid last minute consideration.”
Perhaps the clearest example of congressional oversight in the agreement-making context is
through its consideration of treaties and congressional-executive agreements. For a treaty to
become binding U.S. law, it must first be approved by a two-thirds majority in the Senate. The
Senate may, in considering a treaty, condition its consent on certain reservations, declarations and
understandings concerning treaty application. For example, it may make its acceptance contingent
upon the treaty being interpreted as requiring implementing legislation to take effect, or condition
approval on an amended version of the treaty being accepted by other treaty parties. If accepted,
these reservations, declarations, and understandings may limit and/or define U.S. obligations
under the treaty.
As previously discussed, a congressional-executive agreement requires congressional
authorization via a statute passed by both Houses of Congress. Here, too, approval may be
conditional. Congress may opt to authorize only certain types of agreements, or may choose to
approve only some provisions of a particular agreement. In authorizing an agreement, Congress
may impose additional statutory requirements upon the Executive (e.g., reporting requirements).
Congress may also include a statutory deadline for its authorization of an agreement to begin or
Because sole executive agreements do not require congressional authorization to take effect, they
need not be approved by Congress to become binding, at least as a matter of international law.
Nonetheless, as discussed earlier, Congress may limit a sole executive agreement through a
subsequent legislative enactment or through the conditioning of appropriations necessary for the 202
agreement’s commitment to be implemented. Similar measures could also be taken to limit or
condition U.S. adherence to a non-binding security arrangement.
200 11 F.A.M. § 724.4(b)-(c).
201 Id. at § 724.4(b).
202 See supra at 14-15. In the 110th Congress, legislation has been introduced that would prohibit appropriations from
being used to carry out any U.S.-Iraqi security agreement that was not approved by the Senate as a treaty or authorized
by legislation passed by both Houses of Congress. See infra at 40-41.
Congress may exercise oversight of international agreements via legislation implementing the
agreements’ requirements. Certain international treaties or executive agreements are considered
“self-executing,” meaning that they have the force of law without the need for subsequent 203
congressional action. However, many other treaties and agreements are not considered self-
executing, and are understood to require implementing legislation to take effect, as enforcing U.S.
agencies otherwise lack authority to conduct the actions required to ensure compliance with the 204
Treaties and executive agreements have, in part or in whole, been found to be non-self-executing
for at least three reasons: (1) implementing legislation is constitutionally required; (2) the Senate,
in giving consent to a treaty, or Congress, by resolution, requires implementing legislation for the 205
agreement to be given force; or (3) the agreement manifests an intention that it shall not 206
become effective as domestic law without the enactment of implementing legislation.
Until implementing legislation is enacted, existing domestic law concerning a matter covered by
an international agreement that is not self-executing remains unchanged and is controlling law in
the United States. However, when a treaty is ratified or an executive agreement is entered, the
United States acquires obligations under international law and may be in default of those 207
obligations unless implementing legislation is enacted. Perhaps for this reason, Congress
typically appropriates funds necessary to carry out U.S. obligations under international 208
Although it is unclear what form the U.S.-Iraqi security agreement will take, it is possible that at
least some provisions will require implementing legislation. The Department of Defense
Appropriations Act FY2008 (P.L. 110-116), the Consolidated Appropriations Act FY2008 (P.L.
barred funds from being used to establish permanent military bases in Iraq. The Consolidated
203 For purposes of domestic law, a self-executing agreement may be superceded by either a subsequently enacted
statute or a new self-executing agreement. Whitney, 124 U.S. At 194.
204 See generally RESTATEMENT, supra note 44, § 111(4)(a) & cmt. h.
205 For example, in the case of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984), the
Senate gave advice and consent subject to a declaration that the treaty was not self-executing. U.S. Reservations,
Declarations, and Understandings to the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 136 CONG. REC. S17486-01 (daily ed., October 27, 1990).
206 RESTATEMENT, supra note 44, § 111(4)(a) & n. 5-6.
207 See id., § 111, cmt. h.
208 See TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 166-170 (discussing congressional use of
the appropriations power to influence the implementation of international agreements by the United States).
209 In signing the National Defense Authorization Act FY2008 into law, President Bush issued a statement that § 1222
of the act, which barred the funds the act made available from being used to establish any permanent U.S. military
installation in Iraq,
purport[s] to impose requirements that could inhibit the President’s ability to carry out his
constitutional obligations to take care that the laws be faithfully executed, to protect national
security, to supervise the executive branch, and to execute his authority as Commander in Chief.
The executive branch shall construe [this provision] in a manner consistent with the constitutional
authority of the President.
President George W. Bush, Signing Statement for H.R. 4986, the National Defense Authorization Act for Fiscal Year
Appropriations Act also includes a measure intended to prevent the United States from entering
an agreement with Iraq that would make members of the U.S. Armed Forces subject to 210
punishment under Iraqi law.
After an international agreement has taken effect, Congress may still exercise oversight over
executive implementation. It may require the Executive to submit information to Congress or
congressional committees regarding U.S. implementation of its international commitments. It
may enact new legislation that modifies or repudiates U.S. adherence or implementation of an
international agreement. It may limit or prohibit appropriations necessary for the Executive to
implement the provisions of the agreement, or condition such appropriations upon the Executive
implementing the agreement in a particular manner.
Legislation has been introduced in the 110th Congress to ensure congressional participation in the
entering of any agreement emerging from the Declaration of Principles between the United States
and Iraq—including an engrossed amendment to H.R. 2642, the Supplemental Appropriations 211
Act, 2008, which passed the House on May 15, 2008; S. 2426, the Congressional Oversight of
Iraq Agreements Act of 2007, introduced by Senate Majority Leader Harry Reid on behalf of
2008, January 28, 2008, available at http://www.whitehouse.gov/news/releases/2008/01/20080128-10.html. In signing
the Consolidated Appropriations Act FY2008 into law, President Bush issued a more general statement that provisions
of the act would not be construed in a manner “inconsistent with [the Executive’s] Constitutional responsibilities.”
President George W. Bush, Signing Statement for H.R. 2764, the Consolidated Appropriations Act for Fiscal Year
2008, December 26, 2007, available at http://www.whitehouse.gov/news/releases/2007/12/20071226-1.html. Although
a signing statement was issued by the President with respect to the interpretation of specific provisions of the
Department of Defense Appropriations Act FY2008, this statement did not reference § 8113 of the act, which prohibits
funds appropriated under any congressional act from being used to construct permanent military bases in Iraq.
President George W. Bush, Signing Statement for H.R. 3222, the Department of Defense Appropriations Act, 2008,
November 13, 2007, available at http://www.whitehouse.gov/news/releases/2007/11/20071113-8.html. For background
on the legal implications of presidential signing statements, see CRS Report RL33667, Presidential Signing
Statements: Constitutional and Institutional Implications, by T. J. Halstead.
210 Section 612, Division L of the Consolidated Appropriations Act (P.L. 101-161) provides that no funds made
available under that division may be used to enter into “an agreement with the Government of Iraq that would subject
members of the Armed Forces of the United States to the jurisdiction of Iraq criminal courts or punishment under Iraq
law.” While Congress has occasionally barred funds from being used by the Executive to negotiate international
agreements, some have argued that this practice is unconstitutional, given the President’s authority to “make” treaties
and his significant authority in foreign affairs. See, e.g., Charles J. Cooper et al., What the Constitution Means by
Executive Power, 43 U. MIAMI L. REV. 165, 200 (1988) (section written by Sen. Orrin Hatch, arguing that Congress
may not deny funds from being used by the President to receive ambassadors, negotiate treaties, and deliver foreign
policy addresses); J. Gregory Sidak, The President’s Power of the Purse, 1989 DUKE L.J. 1162, 1211 (arguing the
Congress may not use its appropriations power to limit the President’s ability to negotiate international agreements). th
Cf. Earth Island Institute v. Christopher, 6 F.3d 648 (9 Cir. 1993) (statute requiring the Secretary of State to negotiate
with foreign countries to develop treaties protecting sea turtles violated separation of powers by infringing upon
President’s exclusive power to negotiate with foreign governments).
211 On May 22, 2008, the Senate passed an amendment in the nature of a substitute for the House-passed engrossed
amendment to H.R. 2642 (S.Amdt. 4803). The Senate-passed version does not contain provisions relating to the
prospective security agreement with Iraq.
Senator Hillary Clinton on December 6, 2007; H.R. 4959, Iraq Strategic Agreement Review Act
of 2008, introduced by Representative Rosa DeLauro on January 15, 2008; H.R. 5128, introduced
by Representative Barbara Lee on January 23, 2007, and H.R. 5626, the Protect Our Troops and
Our Constitution Act of 2008, introduced by Representative William Delahunt on March 13,
All of these legislative proposals would bar funds from being made available or appropriated to
implement certain types of formal agreements emerging from the U.S.-Iraq Declaration of
Principles. S. 2426 would deny funds to implement any U.S.-Iraq agreement involving
“commitments or risks affecting the nation as a whole,” including a SOFA agreement, unless the
agreement was approved by the Senate as a treaty or by Congress through legislation. H.R. 4959,
in contrast, would condition appropriations to implement any agreement emerging from the
Declaration of Principles upon that agreement being approved as a treaty by the Senate, while
H.R. 5128 would condition appropriations for the implementation of such an agreement upon it
being approved by an act of Congress. H.R. 5626 would bar appropriations from being used to
implement any security agreement emerging from the Declaration of Principles, including any
agreement giving the United States “authority to fight” other than for self-defense purposes,
unless the agreement is approved as a treaty or an Act of Congress enacted after the date of
enactment for H.R. 5626. The House-passed engrossed amendment to H.R. 2642 would condition
appropriations from being used to negotiate, enter into, or implement any agreement with Iraq
containing security assurances for mutual defense (which is defined to include a binding
commitment to defend Iraq, or specifications regarding the nature or duration of the U.S. mission
in Iraq or the number of U.S. troops stationed there), unless the agreement takes the form of a
treaty or is approved by an Act of Congress.
Some of these legislative proposals may raise constitutional questions. For example, H.R. 5128
includes a provision stating that an agreement between the United States and Iraq must be
approved by an act of Congress in order to have legal effect. This provision may raise serious
legal concerns given the Constitution’s specification that treaties approved by the Senate have
status as the “Law of the Land.” H.R. 4959 and S. 2426 include provisions expressing the sense
of Congress that a prospective U.S.-Iraq agreement should take a particular form in order to have
legal effect, but these provisions appear to raise less significant constitutional concerns given
their non-binding nature. The House-passed engrossed amendment to H.R. 2642 may also raise
constitutional concerns to the extent that it would effectively bar the Executive from negotiating 212
(as opposed to implementing) certain types of international agreements.
With respect to consultation, H.R. 4959 includes a provision requiring that specified members of
the executive branch consult with congressional committees and leadership on any potential long-
term security, economic, or political agreement between the United States and Iraq. S. 2426 does
not include a consultation requirement, but instead requires the Legal Adviser to the Secretary of
State to submit a report to Congress justifying any decision by the Executive not to consult with
Congress before concluding a security arrangement with Iraq in the form of a sole executive
agreement. H.R. 5626 includes a provision stating that it is the sense of Congress that the
Administration should consult fully with Congress, the Iraqi government, Coalition partners, and
Iraq’s neighbors in determining U.S. policy towards Iraq.
In a May 22, 2008 statement concerning administration policy, the White House claimed that
212 See supra note 210.
The Administration strongly opposes any [legislation] that would attempt to determine the
legal effect or content of diplomatic agreements with Iraq before they are negotiated. In that
regard, the Administration opposes any attempt to change long-standing legal traditions
governing whether certain types of agreements may be concluded as executive agreements
rather than as ratified treaties. Similarly, the Administration opposes any [legislation] that
would establish a statutory policy that a Status of Forces Agreement (SOFA) between the
U.S. and Iraq must include measures requiring the Iraqi Government to provide financial or
other types of support for U.S. Armed Forces stationed in Iraq. Under the Constitution, the
President has the discretion to initiate and conduct diplomatic negotiations. Congress cannot
by statute establish the policy of the United States with regard to such negotiations in
advance. Indeed, in this case, such a policy would threaten the ability of the United States to
engage in dynamic talks with the Government of Iraq and would risk the timely completion
of the status of forces agreement prior to the anticipated expiration of United Nations 213
Security Council Resolution 1790.
Accordingly, legislation attempting to limit the scope or effect of a U.S.-Iraq security agreement
could be subject to veto.
Michael John Garcia Jennifer K. Elsea
Legislative Attorney Legislative Attorney
firstname.lastname@example.org, 7-3873 email@example.com, 7-5466
R. Chuck Mason
213 Executive Office of the President, Statement of Administration Policy, H.R. 5658 – Duncan Hunter National
Defense Authorization Act for Fiscal Year 2009, May 22, 2008, available at http://www.whitehouse.gov/omb/