U.S.-Iraq Strategic Framework and Status of Forces Agreement: Congressional Response

U.S.-Iraq Strategic Framework and Status of
Forces Agreement: Congressional Response
July 11, 2008
Matthew C. Weed
Analyst in Foreign Policy Legislation
Foreign Affairs, Defense, and Trade

U.S.-Iraq Strategic Framework and Status of Forces
Agreement: Congressional Response
Summary
On November 26, 2007, President Bush and Iraqi Prime Minister Nouri al
Maliki co-signed the Declaration of Principles for a Long-Term Relationship of
Cooperation and Friendship Between the Republic of Iraq and the United States of
America, which set out a number of issues concerning, among other things, a security
agreement between the United States and Iraq. Since the announcement, the
Administration has announced that there will be two agreements negotiated, a Status
of Forces Agreement (SOFA) providing the legal basis between the two countries for
the continued presence and operation of U.S. armed forces in Iraq once the U.N.
Security Council mandate expires on December 31, 2008, and a Strategic Framework
agreement (together with the SOFA, the “Iraq Agreements” or “Agreements”) to
cover the overall bilateral relationship between the two countries.
Several Members of Congress responded with demands that Congress be
involved in creating the planned Agreements, from negotiation to implementation,
and took action to ensure such involvement. Congress has proposed numerous pieces
of legislation that would increase its role in creating these Agreements, from calling
for executive-branch consultation and reporting to requiring formal congressional
approval. It has also conducted multiple hearings that have concerned the proposed
Agreements, receiving clarification on many important issues from Administration
officials and experts. This has also equipped Congress with information pertinent to
deciding what further action can be taken to involve Congress more in the agreement-
making process. Several options remain available to Congress regarding the Iraq
Agreements.
This report is divided into two main parts: the first describes in detail the actions
taken by Congress thus far in response to the Declaration of Principles and other
information concerning the planned Iraq Agreements, consisting of legislative
initiatives and congressional hearings; the second provides options for further
congressional action concerning Congress’s role in the negotiation, execution, and
implementation of the Iraq Agreements. This report may not be updated.

Contents
In troduction ......................................................1
Action Taken by Congress Regarding the Iraq Agreements.................3
Enacted Legislation............................................3
Funding Prohibition Concerning Legal Status of U.S. Forces in Iraq
(P.L. 110-161)........................................3
Proposed Legislation...........................................4
Congressional Oversight of Iraq Agreements Act of 2007 (S. 2426)..4
Iraq Strategic Agreement Review Act of 2008 (H.R. 4959).........5
Bill Disapproving Any Agreement Based on the Declaration of
Principles Without an Act of Congress (H.R. 5128)...........6
Protect Our Troops and Our Constitution Act of 2008 (H.R. 5626)...6
Sections 1212 and 1220 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (H.R. 5658)..........7
Resolution Reasserting Congressional Prerogatives in Foreign
Policy (H.Res. 1028)...................................9
Resolution Calling for Iraq to Agree to Pay Costs of Continued
U.S. Presence in Provisions of Any Bilateral Agreement with
Iraq (H.Res. 1123).....................................9
Non-legislative Actions: Hearings................................10
The Extension of the United Nations Mandate for Iraq: Is the
Iraqi Parliament Being Ignored?.........................10
The Proposed U.S. Security Commitment to Iraq: What Will Be in It
and Should It Be a Treaty?..............................11
Hearings on the FY2009 Defense Budget......................12
The November 26 Declaration of Principles: Implications for
U.N. Resolutions on Iraq and for Congressional Oversight.....13
Hearings on the FY2009 Foreign Affairs Budget................14
Status of Forces Agreements and U.N. Mandates: What Authorities
and Protections Do They Provide to U.S. Personnel?.........15
Declaration and Principles: Future U.S. Commitments to Iraq......15
International Affairs Budget for Fiscal Year 2009................16
Hearings on the Iraq Report Regarding the U.S. Troop Surge......17
Negotiating a Long-Term Relationship with Iraq................17
The Future of U.S.-Iraqi Relations: The Perspective of the Iraqi
Parliament ..........................................18
Possible Further Congressional Action Concerning the Iraq Agreements......18
No Further Action........................................19
Pass Legislation Already Introduced..........................19
New Legislation to Define Presidential Authority................20
New Legislation to Further Define the Role of Congress..........21

Table 1. Major Provisions of Proposed Legislation Regarding the
Iraq Agreements...............................................4

U.S.-Iraq Strategic Framework and Status of
Forces Agreement: Congressional
Response
Introduction
On November 26, 2007, President Bush and Iraqi Prime Minister Nouri al
Maliki co-signed the Declaration of Principles for a Long-Term Relationship of
Cooperation and Friendship Between the Republic of Iraq and the United States of
America (“Declaration of Principles” or, “Declaration”). It highlights issues for
inclusion in an upcoming agreement between the two countries that would codify this
relationship in “the political, economic, cultural, and security fields.”¹ Future talks
between the two governments would also address the terms of the continued presence
of U.S. forces in Iraq after the termination of the U.N. Security Council resolution
currently authorizing the Multinational Force in Iraq (MNF-I). As it stands, the U.N.
mandate for the MNF-I to remain in Iraq will expire on December 31, 2008.² Since
the announcement, the Administration has announced that there will be two
agreements negotiated, a Status of Forces Agreement (SOFA) providing the legal
basis between the two countries for the continued presence and operation of U.S.
armed forces in Iraq,³ and a Strategic Framework agreement (together with the
SOFA, the “Iraq Agreements” or “Agreements”) to cover the overall bilateral
relationship between the two countries. The Declaration of Principles includes wide-
ranging language that presages the two states entering into a U.S.-Iraq security
agreement, pursuant to which the United States would make “security assurances and
commitments” to Iraq and aid Iraq in defending against external and internal threats.
Upon the announcement of the Declaration’s execution in November,
Lieutenant General Douglas Lute, Assistant to the President for Iraq and Afghanistan,
stated that the planned agreement would cover nearly every aspect of the future U.S.

¹ The Declaration is available at [http://www.whitehouse.gov/news/releases/2007/11/

20071126-11.html], visited June 23, 2008.

² For in-depth discussion of Iraq issues, see CRS Report RL31339, Iraq: Post-Saddam
Governance and Security, by Kenneth Katzman; CRS Report RL34387, Operation Iraqi
Freedom: Strategies, Approaches, Results, and Issues for Congress, by Catherine Dale; CRS
Report RL33793, Iraq: Regional Perspectives and U.S. Policy, by Christopher M.
Blanchard, Kenneth Katzman, Carol Migdalovitz, Alfred B. Prados, and Jeremy M. Sharp;
CRS Report RL32217, Iraq and Al Qaeda, by Kenneth Katzman; and CRS Report RL31833,
Iraq: Reconstruction Assistance, by Curt Tarnoff.
³ Discussion of existing U.S. status of forces agreements and the proposed U.S.-Iraq SOFA
can be found in CRS Report RL34531, Status of Forces Agreement (SOFA): What Is It, and
How Might One Be Utilized in Iraq? by R. Chuck Mason.

military role in Iraq, including the overall mission, force levels, and basing
arrangements. He explained that the parties intended to conclude the agreement by
July 31, 2008, with preliminary negotiations to begin immediately. General Lute
explained that U.S. Ambassador to Iraq Ryan Crocker would lead the delegation
tasked with negotiation of the agreement, supported by other representatives of the
executive branch. In response to a question concerning the possibility of Congress’s
role in the creation of the agreement, General Lute stated that the Administration did
not expect the agreement to rise to the level of a treaty, and that it did not foresee the
need for “formal inputs” from the Congress.⁴
Reacting to the Agreements contemplated in the Declaration, several Members
of Congress have proposed numerous pieces of legislation designed to encourage or
in some cases require the submission of the Iraq Agreements to Congress for formal
approval. Some of these bills would require consultation and reporting from the
President concerning the progress of negotiation of the Agreements. Congress has
also conducted multiple hearings that have either focused on or at least touched on
the Iraq Agreements. In these hearings, Congress has heard testimony from
Administration officials that has addressed the Administration’s plans and important
issues concerning the anticipated Agreements, and has received promises from such
officials to keep Congress informed on the progress of negotiations. This testimony
has equipped Congress with information pertinent to deciding what further action can
be taken to involve Congress more in the process of creating the Iraq Agreements.
Congress’s response to the Iraq Agreements has illuminated the priority
concerns and positions of the various stakeholders involved in the Agreements.
Several Members of Congress assert the necessity of congressional involvement in
the planned Iraq Agreements, from negotiation to implementation, arguing that the
Iraq Agreements, as described in the Declaration of Principles and General Lute’s
statements, by definition require advice and consent of the Senate as a formal treaty
under the Constitution, or congressional approval of the Agreements through normal
legislation. Other Members contend that any agreement with Iraq, given the
importance of U.S. involvement in Iraq to the Congress and the American people,
must be negotiated with meaningful consultation from the Congress, no matter what
legal form the agreement takes. Some statements from Members suggest that a U.S.-
Iraq agreement, negotiated and executed out of the sight of Congress, might bind the
hands of both the next administration and the Congress, and might include a role for
U.S. troops in Iraq that exceeds the scope of the 2002 congressional authorization to
use force in Iraq.⁵ On the other hand, certain Members argue that the President is
within his inherent powers and the congressional authorization to use force as he

⁴ General Lute’s statements are available at [http://www.whitehouse.gov/news/releases/

2007/11/20071126-6.html], visited June 23, 2008.

⁵ For analysis of the law of security agreements and congressional oversight of such
agreements, see CRS Report RL34362, Congressional Oversight and Related Issues
Concerning the Prospective Security Agreement Between the United States and Iraq, by
Michael John Garcia, R. Chuck Mason, and Jennifer K. Elsea. Analysis of congressional
declarations of war and authorizations to use force can be found in CRS Report RL31133,
Declarations of War and Authorizations for the Use of Military Force: Historical
Background and Legal Implications, by Jennifer K. Elsea and Richard F. Grimmett.

moves toward completion of the Iraq Agreements, characterizing demands for greater
congressional involvement as unnecessary and improper.
At congressional hearings, the U.S. Administration and the Iraqi legislature also
have expressed their positions regarding the Iraq Agreements. In answering
Congress’s concerns, the Administration explains its position in such a way as to
reassure Congress of its intentions regarding the content and scope of the Iraq
Agreements, while vigorously defending the President’s asserted constitutional and
legislated right to execute such Agreements without formal congressional approval
or a specified congressional role. At a June 4, 2008, hearing before the House
Subcommittee on International Organizations, Human Rights, and Oversight,
members of the Iraqi Council of Representatives (COR) testified that the COR as a
whole believes no U.S.-Iraq agreement is proper at this time because Iraq does not
enjoy full sovereignty, and that the COR must approve the Iraq Agreements before
they could go into effect, among other statements.
This report is divided into two main parts: the first describes in detail the actions
taken by Congress concerning the planned Iraq Agreements, including legislative
initiatives and congressional hearings; the second provides a range of options for
further congressional action concerning Congress’s role in negotiating, executing,
and implementing the Iraq Agreements.
Action Taken by Congress Regarding the
Iraq Agreements
Congress, in response to the Administration’s announcement of its intention to
negotiate the Iraq Agreements, has enacted legislation, proposed legislation, and held
hearings. The enacted and proposed legislation, designed to ensure a congressional
role in the Iraq Agreements, contain combinations of four main types of provisions
requiring (1) reports to Congress, (2) consultations with Congress, (3) formal
congressional approval, or (4) funding prohibitions. Table 1 below shows the types
of provisions included in each piece of pertinent legislation. Several hearings
focused directly on the Iraq Agreements, their contents and scope, issues of
congressional involvement, constitutional prerogatives of the President in their
execution, and the concerns and views of the Iraqi parliament. Members and
witnesses discussed many of the same issues concerning the Iraq Agreements at
hearings held that regarded the Defense and Foreign Affairs budgets, as well as
hearings on the Administration’s report concerning the result of the U.S. troop surge
in Iraq.
Enacted Legislation
Funding Prohibition Concerning Legal Status of U.S. Forces in Iraq
(P.L. 110-161). Section 612 of the Emergency Supplemental Appropriations Act

for Defense, 2008,⁶ provides that no funds may be made available for implementing
a U.S.-Iraq agreement that subjects U.S. forces to the jurisdiction of Iraqi courts or
punishment under Iraqi law.
Table 1. Major Provisions of Proposed Legislation Regarding
the Iraq Agreements
^A^p^p^r^oval
^A^p^p^r^oval^A^p^p^r^oval^th^rou^g^h
^E^x^ecutive^th^rou^g^h^th^rou^g^h^T^{reaty or}^F^unding
^B^{ill o}^r^P.L.^Repo^rt^ing^C^oⁿ^s^u^l^t^a^t^ioⁿ^T^reaty^L^e^gi^s^l^ati^oⁿ^L^e^gi^s^l^ati^oⁿ^Pro^h^ibit^ioⁿ
^P.L^.^110-¹⁶¹^R^e^quⁱ^r^em^en^t
^S^.²⁴²⁶^R^e^quⁱ^r^em^en^t^S^en^s^e^of^R^e^qu^irem^en^t
^Senate
^H^.^R^.⁴⁹⁵⁹^R^e^quⁱ^r^em^en^t^S^en^s^e^of^R^e^qu^irem^en^t
^Co^ngr^e^s^s
^H^.^R^.⁵¹²⁸^R^e^quⁱ^r^em^en^t^R^equⁱ^rem^eⁿ^t
^H^.^R^.⁵⁶²⁶^S^eⁿ^s^{e of}^R^e^qu^irem^en^t
^Co^ngr^e^s^s
^H^.^R^.⁵⁶⁵⁸^R^e^quⁱ^r^em^en^t^R^equⁱ^rem^eⁿ^t
^H^.^R^e^s^.¹⁰²⁸^S^eⁿ^s^{e of}
^Ho^u^s^e
^H^.^R^e^s^.¹¹²³^N^oⁿ^-^biⁿ^dⁱⁿ^g^a
^P^r^o^v^isioⁿ
^a.^Calls^f^o^rⁱⁿ^clu^s^ioⁿ^o^f^{a p}^r^o^v^isioⁿ^r^e^q^u^irⁱⁿ^g^I^r^aq^to^r^e^im^b^u^r^s^{e all U.S. co}^{sts in}^an^y^U.S.-^I^r^a^q^secu^r^ity
^ag^reem^en^{t con}^tin^uⁱⁿ^g^th^{e U.S. pres}^en^{ce in}^Iraq.
Proposed Legislation
Congressional Oversight of Iraq Agreements Act of 2007 (S. 2426).
On December 6, 2007, Senator Hillary Clinton introduced the Congressional
Oversight of Iraq Agreements Act of 2007. The bill states several findings
concerning the possible contents of a U.S.-Iraq security agreement and the
constitutional role of Congress in approving international agreements. Section 3
contains the substance of the bill, with three main parts:
^!First, section 3(a) requires the “Legal Advisor⁷ to the Secretary of
State” to submit an unclassified report to Congress explaining the
justification, with legal analysis of the constitutional powers asserted

⁶ Division L of P.L. 110-161 (121 Stat. 2455), approved December 26, 2007. Congress has
also passed general funding prohibitions with regard to permanent U.S. bases in Iraq
(without specifically citing the proposed Iraq Agreements) in six separate laws thus far. See
Katzman, CRS Report RL31339, supra note 2, p. 14. Several pieces of currently proposed
legislation contain similar provisions.
⁷ The bill spells the word Advisor with an “o,” while the Department of State spells it
“Adviser,” with an “e.”

by the President, for concluding the anticipated Iraq SOFA and
Strategic Framework as executive agreements.
^!Second, section 3(b) states that it is the sense of the Senate that any
U.S.-Iraq agreement including a SOFA that involves “commitments
or risks affecting the nation as a whole”⁸ and that is not approved as
a treaty by the Senate or through legislation by the Congress does
not have the force of law.
^!Third, section 3(c) bars funding for any such agreement between the
United States and Iraq if such Senate or congressional approval is
not obtained.
The bill was referred to the Senate Foreign Relations Committee on December 6,

2007, and no further action has been taken.

Iraq Strategic Agreement Review Act of 2008 (H.R. 4959).
Representative Rosa L. DeLauro introduced this bill on January 15, 2008. Section
2 of the bill defines the term “long-term security, economic, or political agreement
with the Government of Iraq,” which is used elsewhere in the legislation, as an
agreement that has a term of more than one year, and that includes provisions
concerning (1) U.S. bases in Iraq; (2) defense of Iraq’s government from internal and
external threats; (3) security commitments and assurances to deter foreign aggression
against Iraq; (4) the training or equipping of Iraq’s security forces; (5) economic,
monetary, material and technical commerce and arrangements; or (6) diplomatic and
political understandings. Section 3 contains proposed findings, including certain
constitutional powers of the President and the Congress concerning the armed forces
and international agreements; past examples of security agreements submitted to the
Senate as treaties; and recent Administration comments concerning the Declaration
of Principles and the execution of new U.S.-Iraq agreements as executive agreements.
Sections 4, 5, and 6 of the bill contain the substantive provisions:
^!Section 4 contains a consultation requirement that instructs the
Secretaries of State and Defense as well as other “necessary”
executive officers to commence consultations with certain
“congressional committees and leadership”⁹ related to “any potential
long-term security, economic, or political agreement” with Iraq.
Such consultation would require “full and complete transparency”
and would continue throughout the negotiation period.

⁸ This is language from the State Department’s own Circular 175 regulations concerning
requirements for consultation with Congress concerning international agreements. See 11
Foreign Affairs Manual §723.3(1).
⁹ This includes the Senate Foreign Relations and Armed Services Committees; the House
Foreign Affairs and Armed Services Committees; the Speaker and majority and minority
leaders of the House; the majority and minority leader of the Senate; and any other
committee, Senator, or Member of the House that requests consultations.

^!Section 5 is a non-binding sense-of-Congress provision, which
asserts that any U.S.-Iraq agreement falling within the definition
provided in the bill must receive advice and consent from the Senate
to have the force and effect of law.
^!Section 6 prohibits funding the implementation of any such
agreement with Iraq unless it is submitted to the Senate for advice
and consent as a treaty.
The bill was referred to the House Foreign Affairs and Armed Service Committees
on January 15, 2008, and no further action has been taken.
Bill Disapproving Any Agreement Based on the Declaration of
Principles Without an Act of Congress (H.R. 5128). Representative Barbara
Lee introduced this legislation on January 23, 2008. The bill provides findings
concerning congressional opposition to permanent U.S. bases and the
Administration’s apparent intent to maintain the presence of U.S. forces in Iraq.
Section 3 asserts the sense of Congress that any U.S.-Iraq agreement emerging from
the Declaration of Principles must be approved by an act of the Iraqi legislature. The
two salient provisions for congressional involvement are stated in sections 2 and 4:
^!Section 2 states that any formal agreement emerging from the
Declaration of Principles will not have the effect and force of law
unless it is approved by an Act of Congress.
^!Section 4 prohibits the use of funds appropriated or otherwise
authorized to the Department of Defense or any other agency to
enforce or implement such an agreement without approval through
an Act of Congress.
The bill was referred to the House Foreign Affairs and Armed Service Committees
on January 23, 2008, and no further action has been taken.
Protect Our Troops and Our Constitution Act of 2008 (H.R. 5626).
Representative Bill Delahunt introduced this bill on March 13, 2008. Section 2 of
the bill presents proposed findings that seek to show inconsistencies between the far-
reaching provisions of the Declaration of Principles and early statements by Bush
Administration officials on the one hand, and on the other, later Administration
statements that describe a much more limited scope for the Iraq agreements. Section
2(9) states in conclusion, “The inconsistencies between the various statements and
pledges ... raise significant questions about the Administration’s objectives in seeking
new agreements with Iraq.”
Section 3 denies the use of any funds appropriated or otherwise authorized to
any U.S. agency for the purpose of
^!establishing or maintaining any permanent or long-term U.S.
military base or facility in Iraq; or

^!implementing any agreement consistent with the security
commitments contained in the Declaration of Principles, or any
agreement that provides U.S. forces with “authority to fight,” unless
the Senate has provided advice and consent for such agreement as a
treaty, or Congress has authorized such agreement through
legislation.
Section 4 provides the sense of Congress that
^!long-term U.S.-Iraq relations should be decided by the next U.S.
administration;
^!the next administration should consult fully with Congress, the
government of Iraq, Coalition partners, and Iraq’s neighbors in
determining policy toward Iraq; and
^!the Bush Administration should encourage the government of Iraq
to request the renewal of the U.N. mandate for Iraq beyond
December 31, 2008, in order to ensure the international legal
authority for the U.S. presence in Iraq, and the legal immunity for
U.S. armed forces.
This bill was referred to the House Foreign Affairs and Armed Services Committees
on March 13, 2008, and no further action has been taken.
Sections 1212 and 1220 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (H.R. 5658). Introduced on March 31,

2008, and passed by the House on May 22, 2008, this bill contains certain provisions¹⁰

concerning the Iraq Agreements. Section 1212 requires a report from the President
to the House Foreign Affairs and Armed Services Committees, and the Senate
Foreign Relations and Armed Services Committees, on each U.S.-Iraq agreement
relating to
^!the legal status of U.S. military personnel, civilian personnel, and
contractor personnel;
^!establishment of or access to military bases;
^!rules of engagement for U.S. armed forces; and
^!any security commitment, arrangement, or assurance that obligates
the United States to respond to internal or external threats against
Iraq.

¹⁰ The bill also contains a funding prohibition on permanent or long-term U.S. bases in Iraq
in section 1211, similar to those included in other earlier bills that have been signed into^th
law. See supra note 6. The Senate defense authorization bill, S. 3001 (110 Cong.),
contains an identical funding prohibition for permanent bases in section 2913.

Updates are required whenever further agreements are executed or when an
agreement is substantially revised. Section 1212(b) provides a list of 13 matters to
be included in such reports:
^!limits placed on U.S. combat operations by the government of Iraq,
including coordination requirements;
^!assessment of whether conditions placed on U.S. combat operations
in such agreements are greater than conditions prior to such
agreement;
^!discussion of legal immunities of U.S. personnel;
^!assessment of legal protection of third-country nationals;
^!assessment of authority of U.S. and Coalition forces to detain and
interrogate prisoners;
^!description of any security commitment, arrangement, or assurance
to respond to internal or external threats against Iraq, including
manner of such commitment’s implementation;
^!assessment of any requirements for payments to the government of
Iraq for use of bases;
^!assessment of any requirements for payments for claims of death or
damages caused by U.S. personnel;
^!assessment of any other provisions that would restrict the
performance of U.S. personnel;
^!discussion of how the agreement or modification thereof was
approved by the government of Iraq, and whether the process was
consistent with the Iraq constitution;
^!description of arrangements for resolving disputes arising under the
agreement;
^!discussion of application of the agreement to Coalition partners; and
^!description of termination of the agreement by either party.
Section 1220 of the bill states that no provision of an agreement containing a
security commitment, arrangement, or assurance that obligates the United States to
respond to internal or external threats against Iraq will be in force with respect to the

United States unless it is given Senate advice and consent as a treaty or is specifically
authorized by an act of Congress.¹¹
Resolution Reasserting Congressional Prerogatives in Foreign
Policy (H.Res. 1028). On March 6, 2008, Representative Barbara Lee introduced
H.Res. 1028, which encourages development of a convention of legislative approval
over certain types of international agreements. Preambulary clauses regard the
constitutional roles of the President and the Congress in U.S. foreign policy, the
nature and scope of status of forces agreements, and the Bush Administration’s
actions surrounding the Declaration of Principles and the negotiation of the Iraq
Agreements. The resolution, framed as the sense of the House, states that three types
of international agreements should be approved by an act of Congress:
^!any agreement, other than a treaty, entered into by the executive
branch which purports to bind the United States to use the armed
forces to assist another country, government, or people, either
immediately or upon the occurrence of future events;
^!any international agreement, other than a treaty, that requires the use
of U.S. financial resources; or
^!any agreement, other than a treaty, between Iraq and the United
States that imposes burdens in excess of those customarily included
in status of forces agreements.
The last provision of the resolution explicitly states that, without legislative approval,
a status of forces agreement signed by the Administration and the government of Iraq
would have no legal effect. The bill was referred to the House Foreign Affairs
Committee on March 6, 2008, and no further action has been taken.
Resolution Calling for Iraq to Agree to Pay Costs of Continued U.S.
Presence in Provisions of Any Bilateral Agreement with Iraq (H.Res.

1123). H.Res. 1123, introduced by Representative Dana Rohrabacher on April 17,

2008, concerns the costs of the continued U.S. presence in Iraq. The language
preceding the resolution notes several figures related to past and future costs of
maintaining U.S. forces in Iraq, as well as Iraq’s oil reserves and the rising global
price for oil. The resolution itself calls on the President to refrain from entering any
agreement with Iraq that involves the presence of the U.S. armed forces in Iraq unless
the agreement includes a provision under which the Republic of Iraq agrees to
reimburse the United States for all costs incurred by the United States related to
the presence of United States Armed Forces in Iraq after the effective date of the
agreement, including the costs of pay and allowances for members of the United
States Armed Forces serving in Iraq.

¹¹ S. 3001does not contain provisions similar to sections 1212 and 1220. For a side-by-side
comparison of Iraq policy provisions in the two draft 2009 defense authorization bills, see
CRS Report RL34473, Defense: FY2009 Authorization and Appropriations, by Pat Towell
and Stephen Daggett.

The bill was referred to the House Committee on Foreign Affairs on April 17, 2008,
and no further action has been taken.
Non-legislative Actions: Hearings
Congress has conducted hearings specifically concerning the proposed Iraq
Agreements and has considered the issue in several other hearings as well. Certain
Members have made their concerns known, and various committees and
subcommittees have heard testimony from a number of commentators and
Administration officials. Pertinent hearings are listed chronologically below. For
each hearing, the summary includes information pertinent to Congress’s role in the
agreement-making process for the Strategic Framework and SOFA, as well as
information that may inform further congressional action regarding the Iraq
Agreements. Concerns of Members and opinions of expert witnesses included in
these summaries represent all salient issues identified that concern the Iraq
Agreements and congressional involvement in their creation. These concerns and
opinions are not included as representations of positions held by all or a group of
Members and/or witnesses participating in the hearings, nor as indications of any
consensus reached by Members or experts during the hearings or otherwise. The
summaries also do not purport to include all policy positions of Members concerning
the Iraq Agreements, as many Members did not choose to participate actively.
The Extension of the United Nations Mandate for Iraq: Is the Iraqi¹²
Parliament Being Ignored? The House Subcommittee on International
Organizations, Human Rights, and Oversight held this hearing on December 19,
2007. The hearing dealt primarily with the U.N. Security Council’s adoption of
Resolution 1790 on December 18, 2007, which extended the U.N. mandate
authorizing coalition forces in Iraq for one year from December 31, 2007, until
December 31, 2008. Witnesses testified on the ramifications of this extension on
political relations and disputes between Prime Minister Nouri al Maliki and the Iraqi
Council of Representatives (COR). The hearing also afforded the chance to
introduce issues concerning the Declaration of Principles signed by President Bush
and Prime Minister al Maliki that set the stage for negotiating the Iraq Agreements.
Kenneth Katzman of the Congressional Research Service testified at the hearing,
setting out the main issues for negotiation of these Agreements, based on the
Declaration and the comments of General Lute:
^!in the SOFA, provisions for legal jurisdiction over U.S. personnel
(including security contractors) and facilities where they are based,
as well as administrative issues such as tax liabilities and postal
services;
^!freedom of action for U.S. forces in Iraq, including rules of
engagement and authority to detain prisoners;

¹² U.S. Congress, House Committee on Foreign Affairs, Subcommittee on International
Organizations, Human Rights, and Oversight, The Extension of the United Nations Mandate^th^st
for Iraq: Is the Iraqi Parliament Being Ignored? 110 Cong., 1 sess., December 19, 2007,
H.Hrg. 110-136 (Washington: GPO, 2008).

^!troop strength, duration, and scope of mission;
^!permanent U.S. bases; and
^!political, diplomatic, economic, and cultural issues.
Some committee members expressed concern that statements by General Lute
indicated no requirement for congressional approval of the proposed Agreements.
The Proposed U.S. Security Commitment to Iraq: What Will Be in¹³
It and Should It Be a Treaty? The House Subcommittee on International
Organizations, Human Rights and Oversight and the House Subcommittee on the
Middle East and South Asia held this joint hearing on January 23, 2008. At this
hearing, some Members questioned the contents of the Declaration of Principles, and
the Bush Administration’s decision to negotiate agreements pursuant to the
Declaration without seeking consultation or approval from Congress. Legal scholars
testified concerning possible legal requirements for congressional approval of the
Iraq Agreements and opportunities for Congress to increase its role in the negotiation
and execution of such Agreements. Committee members voiced the following
concerns and assertions, among others:
^!the Bush Administration is violating the State Department’s Circular¹⁴
175 regulations concerning congressional consultation on
important international agreements, as well as constitutional
requirements to involve Congress in the making of such agreements;
^!the new agreements will bind a future president to a certain course
in Iraq, practically if not legally;
^!the decision to negotiate the Iraq Agreements at this time is
politically unwise, as a new president may wish to abrogate or alter
such Agreements, which could result in weakening of the reputation
of the United States as a trustworthy partner in international
agreements;
^!Congress is left with the power of the purse as its only recourse if it
seeks to stop implementation of the Agreements or challenge the
President’s power to make executive agreements, perhaps
precipitating a constitutional crisis; and

¹³ U.S. Congress, House Committee on Foreign Affairs, Subcommittee on International
Organizations, Human Rights, and Oversight, and Subcommittee on the Middle East and
South Asia, The Proposed U.S. Security Agreement to Iraq: What Will Be in It and Will It^th^nd
Be a Treaty? 110 Cong., 2 sess., January 23, 2008, H.Hrg. 110-151 (Washington: GPO,

2008).

¹⁴ See 11 Foreign Affairs Manual §723.4.

^!Congress must make clear to the Iraqi government that without
congressional support, especially on funding, these Agreements with
the Bush Administration will not be implemented.
Although most comments from committee members supported some form of
congressional involvement in the agreement-making process with Iraq, certain
Members made it clear that they believe the President has the authority to enter into
the Iraq Agreements as sole executive agreements and that congressional attempts to
limit that power may be unconstitutional.
The legal scholars who participated provided certain separate opinions with
regard to the need for congressional approval of the Iraq Agreements, including the
following:
^!while a “security assurance,” such as an agreement to consult with
Iraq on its defense in an emergency, could be executed by the
President without congressional approval, a “security commitment”
obligating the United States to defend Iraq would require a treaty
that would need Senate approval;¹⁵
^!an agreement for U.S. bases in Iraq may be executed as an executive
agreement, but only if it does not conflict with earlier legislation
passed by Congress;
^!the Administration should adhere to the State Department’s Circular
175 regulations requiring congressional consultations, as the Iraq
Agreements represent significant new international agreements; and
^!implementation of the Iraq Agreements, even if executed as
executive agreements, would still have to work within the
parameters of congressional authorizations and appropriations.
Hearings on the FY2009 Defense Budget.¹⁶ The House and Senate
Armed Services Committees convened separate hearings concerning the FY2009
budget request of the Department of Defense on February 6, 2008. During the
hearings, several Members took the opportunity to ask Secretary Gates about the
proposed Iraq Agreements. Under questioning, Secretary Gates did not rule out
submitting an agreement with Iraq to the Senate for advice and consent as a treaty,
but stated that the decision would be based on the contents of the agreement. He
explained that it has been practice to execute status of forces agreements as executive
agreements without seeking congressional approval. In his testimony during both

¹⁵ For discussion concerning the difference between “security commitments” and “security
arrangements,” see Garcia, Elsea, and Mason, CRS Report RL34362, supra note 5, p. 17.
¹⁶ U.S. Congress, Senate Armed Services Committee, hearing to receive testimony on the
defense authorization request for Fiscal Year 2009, the Future Years Defense Program, and^th^nd
the Fiscal Year 2009 request for operations in Iraq and Afghanistan, 110 Cong., 2 sess.,
February 6, 2008; U.S. Congress, House Armed Services Committee, hearing on FY2009^th^nd
national defense budget request, 110 Cong., 2 sess., February 6, 2008.

hearings, Secretary Gates made several important statements concerning the Iraq
agreements and the ongoing negotiations, including the following:
^!the Iraq Agreements will not contain a U.S. commitment to defend
Iraq and the SOFA will not contain a “security component”;
^!the Declaration of Principles in itself also does not constitute a U.S.
security commitment to Iraq;
^!the Administration does not want permanent bases in Iraq;
^!the SOFA will contain “rules of the road” on how U.S. forces are
able to operate after expiration of the U.N. Security Council
resolution, including rules on U.S. authority to detain individuals,
and legal immunity for U.S. contractors; nothing in any agreement
being negotiated with Iraq would bind a future administration; and
^!there should be openness and transparency in the negotiation process
so that Congress can make informed decisions concerning the Iraq
Agreements, and the Senate will be afforded a chance to review the
SOFA before it is implemented.
The November 26 Declaration of Principles: Implications for U.N.
Resolutions on Iraq and for Congressional Oversight.¹⁷ This hearing took
place on February 8, 2008, before the House Subcommittee on International
Organizations, Human Rights, and Oversight. Four questions were to be considered:
(1) whether a status of forces agreement can authorize U.S. forces to engage in
combat in or on behalf of another country; (2) whether an agreement containing a
U.S. commitment to defend another country must be submitted for some form of
congressional approval; (3) what consultation with Congress is required on the form
of the Iraq Agreements and the issues to be negotiated; and (4) what procedures must
be followed within the executive to determine the form of the Iraq Agreements and
the organization of negotiations. Building on the sentiments of the subcommittee’s
January 23 hearing, Members made the following statements, among others:
^!the authority for U.S. forces to remain in Iraq past the end of the
U.N. mandate on December 31, 2008, must be approved by both the
Congress and the Iraqi COR; and
^!the Declaration of Principles has been used by the Administration to
send misleading political signals to both Congress and Iraq.
The expert panel provided extensive testimony on the four questions posed by
the subcommittee, including these assertions:

¹⁷ U.S. Congress, House Committee on Foreign Affairs, Subcommittee on International
Organizations, Human Rights, and Oversight, The November 26 Declaration of Principles:^th^nd
Implications for U.N. Resolutions on Iraq and for Congressional Oversight, 110 Cong., 2
sess., February 8, 2008, H.Hrg. 110-152 (Washington: GPO, 2008).

^!a commitment to defend another country cannot be included in a
status of forces agreement as that term is commonly used;
^!the type of security commitment spelled out in the Declaration of
Principles would contain a greater obligation for the United States
than U.S. mutual defense treaties include, as the commitment
involves defending against internal threats and an automatic
requirement to use force in Iraq’s defense;
^!the Declaration itself, however, may not be intended as binding, and
likely represents only a statement of shared interests, not a preview
of the contents of the actual Iraq Agreements;
^!any provisions in the proposed SOFA concerning immunity for
security contractors from Iraq’s legal process might represent an
expansion of recognized presidential prerogatives regarding these
types of agreements, although providing for such immunity may be
within the President’s constitutionally granted powers; and
^!because the conditions of the specific 2002 authorization of the use
of force against Iraq¹⁸ no longer adhere, the proposed Iraq
Agreements represent a new national commitment of the U.S. armed
forces and as such require congressional approval.
Hearings on the FY2009 Foreign Affairs Budget.¹⁹ The Senate Foreign
Relations Committee and House Foreign Affairs Committee held separate hearings
concerning the FY2009 foreign affairs budget on February 13, 2008. During
Secretary of State Condoleezza Rice’s testimony in the two hearings, she was
questioned about the provisions of the proposed Iraq Agreements. She stated the
following on the issue:
^!the Administration is not seeking permanent bases in Iraq;
^!the United States is not taking on an obligation to defend Iraq
against its neighbors, or provide any security guarantees;
^!the agreements do not contain a “commitment to combat forces” or
required U.S. troop levels;

¹⁸ Congress authorized the use of force in Iraq in order to “defend the national security of
the United States against the continuing threat posed by Iraq,” and to “enforce all relevant
United Nations Security Council resolutions regarding Iraq.” Sec. 3(a)(1), (2) of the
Authorization for Use of Military Force Against Iraq Resolution, 2002 (P.L. 107-243; 116
Stat. 1501), approved October 16, 2002.
¹⁹ U.S. Congress, Senate Foreign Relations Committee, hearing on the Fiscal Year 2009
foreign affairs budget, 110^th Cong., 2^nd sess., February 13, 2008; U.S. Congress, House
Foreign Relations Committee, hearing on the Fiscal Year 2009 international relations^th^nd
budget, 110 Cong., 2 sess., February 13, 2008.

^!the SOFA is intended to allow U.S. forces to operate there in a legal
fashion after the U.N. mandate;
^!the Administration will consult with Congress as the negotiations
progress; and
^!the SOFA will not bind the hands of the next president.²⁰
Secretary Rice maintained the Administration’s position that the proposed SOFA,
while tailored to the specific situation in Iraq, still fell under the customary form of
a SOFA and therefore could be concluded without congressional approval.
Status of Forces Agreements and U.N. Mandates: What Authorities
and Protections Do They Provide to U.S. Personnel?²¹ Continuing its series
on the future of the U.S. relationship with Iraq, the House Subcommittee on
International Organizations, Human Rights, and Oversight held this hearing on
February 28, 2008. Focusing on the purpose and scope of SOFAs in general, the
hearing produced statements from committee members that Congress needs to play
a significant role in reviewing and approving the Iraq SOFA, even if it does not
include a commitment to defend Iraq, due to the importance of Iraq to U.S. foreign
policy overall. Professor Michael J. Matheson, one of the experts on the hearing
panel, suggested that Congress should engage in defining the scope of authority for
military operations in Iraq going forward.
Declaration and Principles: Future U.S. Commitments to Iraq.²² This
hearing took place before a joint session of the House Subcommittee on International
Organizations, Human Rights, and Oversight and the Subcommittee on the Middle
East and South Asia on March 4, 2008. The fourth hearing in a series, it was the first
that collected testimony from Administration officials. Ambassador David
Satterfield, who leads the negotiations with Iraq, answered numerous questions from
Members concerning the Iraq Agreements, making the following statements, among
others:
^!the Iraq Agreements will not include a binding commitment to
defend Iraq or any other security commitment that would warrant
Senate advice and consent;

²⁰ Secretary Rice’s statements concerning the Iraq Agreements mirror those made by
Secretary Rice and Secretary of Defense Gates in an op-ed piece that appeared in the
Washington Post on the same day. See Condoleezza Rice and Robert Gates, “What We
Need Next in Iraq,” Washington Post, February 13, 2008, p. A19.
²¹ U.S. Congress, House Committee on Foreign Affairs, Subcommittee on International
Organizations, Human Rights, and Oversight, Status of Forces Agreements and U.N.^th
Mandates: What Authorities and Protections Do They Provide to U.S. Personnel? 110^nd
Cong., 2 sess., February 28, 2008, H.Hrg. 110-153 (Washington: GPO, 2008).
²² U.S. Congress, House Committee on Foreign Affairs, Subcommittee on International
Organizations, Human Rights, and Oversight, and Subcommittee on the Middle East and^th^nd
South Asia, Declaration and Principles: Future U.S. Commitments to Iraq, 110 Cong., 2
sess., March 4, 2008, H.Hrg. 110-162 (Washington: GPO, 2008).

^!the Iraq Agreements will not create permanent U.S. bases in Iraq,
and will not specify numbers of U.S. troops to be stationed there;
^!any arrangement fulfilling the pledges of the Declaration of
Principles between the Administration and Iraq will be made public
and will not remain secret;
^!the Administration does not contemplate the Strategic Framework
as a legally binding agreement;
^!the Administration has made clear to Prime Minister al Maliki and
other Iraqi officials that the Agreements will not include an
obligation to enter into combat if Iraq is attacked;
^!the Iraq Agreements will not contain a commitment for U.S. forces
to remain present in Iraq; and
^!the Administration relies on the congressional authority in the 2002
authorization to invade Iraq as the basis for maintaining U.S. forces
in Iraq past the end of the U.N. mandate.
When asked whether the Administration would present the Iraq Agreements to
Congress for approval, Ambassador Satterfield held to the Administration’s position
that the Agreements did not need congressional approval, but stated that the
Administration would comply with all constitutional requirements. He stated that
background briefings had already taken place between the Administration and
Members of Congress, and that they would continue, but that the Administration
would not publicly disclose its negotiating positions.
International Affairs Budget for Fiscal Year 2009.²³ The House
Appropriations Subcommittee on State, Foreign Operations and Related Programs
held this hearing on March 12, 2008. Secretary Rice appeared before the
subcommittee during this hearing and was asked several questions concerning the
Iraq Agreements. She reiterated her comments from earlier hearings, stating that the
Administration was not seeking permanent bases, and that the SOFA being
negotiated does not set troop levels, and does not make commitments to specific
kinds of operations. Answering a question concerning the submission of the Iraq
SOFA to Congress for approval, Secretary Rice responded that SOFAs are not
submitted to Congress. When pressed on the source of the President’s authority to
continue the U.S. presence in Iraq, Secretary Rice did not cite the 2002 authorization
to invade Iraq or the 2001 authorization to use military force in response to the

²³ U.S. Congress, House Appropriations Committee, Subcommittee on State, Foreign
Operations and Related Programs, hearing on Fiscal Year 2009 budget for international^th^nd
affairs, 110 Cong., 2 sess., March 12, 2008.

September 11 terrorist attacks,²⁴ instead stating, “the President has the authority, we
believe, to continue the operations,” without reference to the basis for that authority.
Hearings on the Iraq Report Regarding the U.S. Troop Surge.²⁵ The
Senate Foreign Relations Committee, on April 8, 2008, and the House Foreign
Affairs Committee, on April 9, 2008, each held a hearing to discuss the results of the
U.S. troop surge in Iraq. Ambassador Ryan Crocker testified before both
committees, making several statements and answering questions concerning the Iraq
Agreements. While much of his testimony was similar to that of other
Administration officials in previous hearings, he did explain the motivation for the
Agreements, stating that the principal leaders of Iraq requested a long-term bilateral
relationship with the United States in August 2007, and that the Agreements
represent to the Iraqis an affirmation of their sovereignty. He also explained that the
Agreements do not contain provisions for permanent U.S. bases in Iraq, and that he
anticipated the United States would explicitly forswear such bases in the Agreements.
As other Administration officials had done, Ambassador Crocker stated the
Administration’s intention was to conclude the SOFA as a sole executive agreement.
He also made comments that indicated the Strategic Framework would not be a
legally enforceable international agreement, but merely a political agreement between
the Administration and the al Maliki government.
Negotiating a Long-Term Relationship with Iraq.²⁶ This hearing was
held before the Senate Foreign Relations Committee on April 10, 2008. Ambassador
David Satterfield appeared before the committee and gave testimony concerning the
two proposed Iraq Agreements that was similar to his earlier testimony on March 4,
outlined above: no permanent U.S. bases, no requirement for troop levels or the
nature of the U.S. mission, no binding commitment to defend Iraq, and no provisions
that will limit the policy options of the next president. He repeated the
Administration’s position that the SOFA would be concluded as an executive
agreement rather than a treaty, but that the Administration intended to consult with
Congress throughout the process. He explained that the Strategic Framework would
not contain legally binding commitments that would trigger Senate advice-and-
consent procedures. When questioned about the authority for the U.S. presence in
Iraq after the expiration of the U.N. mandate on December 31, 2008, Ambassador
Satterfield cited the President’s authorities as commander-in-chief as well as the
2002 authorization to invade Iraq and the 2001 authorization to use force after the
September 11 terrorist attacks.

²⁴ Congress authorized the use of force in response to the September 11, 2001 attacks in the
Authorization for Use of Military Force (P.L. 107-40; 115 Stat. 224), approved September

18, 2001.

²⁵ U.S. Congress, Senate Foreign Relations Committee, Iraq After the Surge: What Next?

110^th Cong., 2^nd sess., April 8, 2008; U.S. Congress, House Foreign Affairs Committee,^th^nd

hearing on the Crocker/Petraeus Iraq Report, 110 Cong., 2 sess., April 9, 2008.
²⁶ U.S. Congress, Senate Foreign Relations Committee, hearing on U.S.-Iraq long-term
security agreement, 110^th Cong., 2^nd sess., April 10, 2008.

The Future of U.S.-Iraqi Relations: The Perspective of the Iraqi
Parliament.²⁷ The House Subcommittee on International Organizations, Human
Rights, and Oversight held this hearing on June 4, 2008. The subcommittee took
testimony from two members of the Iraqi COR, Sheikh Khalaf Al-Ulayyan and
Professor Nadeem Al-Jaberi, concerning the continuing U.S. presence in Iraq and the
two proposed Iraq Agreements. They asserted that as a whole the COR had several
ongoing concerns:
^!the Agreements should not be concluded at this time, because Iraq
does not enjoy full sovereignty and as such cannot enter any
agreement with the United States as an equal party;
^!Iraq should not enter into the Agreements until the new U.S.
president comes into office;
^!any agreement between the al Maliki government and the United
States will not be implemented without approval by the COR;
^!no provision for permanent U.S. bases in the Iraq Agreements will
be acceptable to the Iraqi populace; and
^!the presence of U.S. forces in Iraq is no longer needed, and a
timetable for withdrawal of U.S. forces is desired.
At the hearing, Chairman Delahunt announced a plan to create a formalized
interparliamentary dialogue mechanism between the legislatures of the United States
and Iraq that would “allow us to continue these conversations and better inform
ourselves, because legislative bodies in a democracy are absolutely essential and
particularly in terms of oversight of the executive branches.” Professor Al-Jaberi
indicated that the COR will pursue this idea.
Possible Further Congressional Action Concerning
the Iraq Agreements
Congress has several options for further action to help shape its own
involvement in the negotiation and future execution and implementation of the Iraq
Agreements. Members of Congress could, among other things, choose to take no
further action; continue with hearings on the Iraq Agreements; pass legislation
already introduced; or introduce legislation that seeks to further define both the
authority of the President concerning the U.S. relationship with Iraq and the role of
Congress in the negotiation and implementation of the Iraq Agreements. Many of
these options are not mutually exclusive.

²⁷ U.S. Congress, House Committee on Foreign Affairs, Subcommittee on International
Organizations, Human Rights, and Oversight, The Future of U.S.-Iraqi Relations: The^th^nd
Perspective of the Iraqi Parliament, 110 Cong., 2 sess., June 4, 2008.

No Further Action. A possible course is for Congress to do nothing more at
this point, if it is satisfied with the numerous measures it has taken so far to shed
light on the negotiating process and to send a message to the Administration that
Congress is monitoring the Administration’s actions concerning these Agreements.
Two factors support this approach. First, as illustrated above, the hearings conducted
by various congressional committees and subcommittees have produced a body of
evidence concerning the Agreements, including both the intentions of the Bush
Administration and the general sentiment of the Iraqi Council of Representatives.
Administration officials are on record with sworn testimony regarding bases, security
commitments, troop levels, scope of mission, legal immunity for U.S. forces, and
other issues. Congress has received promises that the Administration will keep
Congress informed during the negotiation process for the Iraq Agreements, and that
the Agreements will be submitted in some form to the Congress before they are
implemented. The hearings may have therefore produced a useful result as an
investigative device to pin down the Administration’s plans regarding the Iraq
Agreements.
Second, it is apparent that the negotiations for the Iraq Agreements have not
progressed smoothly and that consensus between the government of Iraq and the
Bush Administration may not be imminent.²⁸ Given the overall criticism of the
Declaration of Principles and the proposed Iraq Agreements in the hearings held to
date, Congress may be satisfied that the Agreements will not go forward to
conclusion in the near future. It may be the case that Iraqi and U.S. negotiators will
not be able to agree to the terms for a continuing U.S. presence, thus allaying concern
in Congress about the Administration’s intentions for those Agreements.
On the other hand, Congress may wish to capitalize on some of the information
gathered so far by continuing to hold hearings on such an important issue as the
future of the U.S.-Iraq relationship and the ongoing U.S. presence in Iraq. As the
recent comments from the Iraqi government in the news and from the Iraqi legislature
at the hearing on June 4 have illustrated, the political relationship in Iraq between the
al Maliki government and the COR, concerning the Iraq Agreements and other issues,
remains highly dynamic and contentious. It may be useful to take this information
and present it to Administration officials for their comment and explanation.
Pass Legislation Already Introduced. Certain Members of Congress may
wish to push forward with passage of one or more of the proposed pieces of
legislation introduced in response to the Declaration of Principles and the
Administration’s comments and actions concerning the Iraq Agreements. The
operative provisions of the legislation described above fall into four main categories:
executive-branch reporting, consultations with Congress, congressional approval
requirements, and funding prohibitions. Each type of provision has perceived

²⁸ See, e.g., Alissa J. Rubin, “Iraq Hints at Delay in U.S. Security Deal,” New York Times,
July 3, 2008, p. A6; Alissa J. Rubin, “Talks With U.S. on Security Pact Are at an Impasse,
the Iraqi Prime Minister Says,” New York Times, June 14, 2008, p. A5; Testimony of
Kenneth Katzman, in U.S. Congress, The Future of U.S.-Iraqi Relations: The Perspective
of the Iraqi Parliament, supra note 27 (stating that the Iraqi government cannot get the
support of the Iraqi parliament without limiting U.S. military flexibility to the point that the
United States will find it unacceptable).

benefits and drawbacks. While a reporting requirement is useful for enlightening
Congress concerning the Iraq agreements, it does not afford Congress the opportunity
to directly shape the agreement-making process. Requirements for consultation
between the two branches may provide such an opportunity for Congress, but
enforcing such a requirement, and ensuring Congress is truly receiving full
consultation, are not easily achieved.
With regard to passage of legislation containing a requirement that one or more
of the Iraq Agreements be submitted to Congress for approval, it can be expected that
the Administration will argue that the President has the constitutional authority
within Article II, apart from any need for congressional input, to conclude the Iraq
Agreements as sole executive agreements. Any such legislation may face a veto, and
could precipitate a constitutional confrontation concerning the respective powers of
the legislature and the executive in determining the form of international agreements
under U.S. law. As an alternative to requiring congressional approval outright,
provisions prohibiting the use of funds to implement the Iraq Agreements, while
significant, would not present the same constitutional problems, as they fall squarely
within Congress’s appropriations power. Some may question, however, whether it
is in the interest of the Congress to cut off funds for the Iraq Agreements: as such a
measure may be viewed by some to compromise U.S. interests as a whole in Iraq and
create new problems for the success of U.S. foreign policy in the Middle East.
New Legislation to Define Presidential Authority. As recounted above,
Administration officials have at certain points cited the 2002 congressional
authorization of the invasion of Iraq, and the 2001 authorization to use force in
response to the September 11 terrorist attacks, as important sources of the President’s
authority to enter into the Iraq Agreements. The proposed Iraq Agreements could be
viewed as defining the parameters of the continued authorization for deployment of
U.S. forces in Iraq, those forces’ legal status, and their ability to use force. Congress
might consider legislation, therefore, delineating the President’s authority to conclude
the Iraq Agreements by adding specific Iraq-Agreement language to the existing use-
of-force authorizations.²⁹
Amendments to the 2002 authorization of the use of force have already been
introduced; for example, legislation was proposed prior to the signing of the
Declaration of Principles that would set time restrictions on the authorization to use³⁰
force in Iraq. New amendatory language directly regarding the Iraq Agreements
could include certain directives to the President that would redefine the authorization
to use force and therefore shape the contents of any such Agreements. Such
directives could include consultation and reporting requirements similar to legislation
already proposed, but could also contain specific limitations on any provisions

²⁹ For legal analysis concerning the possible repeal of the recent authorizations to use force
and other methods of limiting military authorization in Iraq, 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.
³⁰ See H.R. 645 (110^th Cong.), section 3. Other bills contain provisions repealing the 2002
authorization to use force in Iraq. See, e.g., H.R. 413 (110^th Cong.); H.R. 1292 (110^th
Cong.).

related to security commitments, U.S. troop levels, scope of mission for U.S. forces,
bases, and other important issues.
Similarly, Congress could choose to consider legislation that specifically
authorizes the President to conclude the Agreements with the government of Iraq
based on the terms of the Declaration of Principles, effectively transforming what
would be a sole executive agreement into a congressional-executive agreement.³¹
This option would allow Congress to insert conditions into its approval that could
shape the substance and implementation of the Iraq Agreements. There is precedent
for this type of action: in 1975, the Ford Administration executed an agreement with
Israel and Egypt in support of the Sinai II Agreements between those two countries,
and subsequently notified Congress under the Case-Zablocki Act.³² Congress
demanded a role in the agreement and, after negotiation with the Ford
Administration, passed a joint resolution that contained various conditions on its
approval of the agreement.³³ These provisions defined some of the parameters of the
U.S. involvement in the Sinai II Agreements, including a key provision to remove
U.S. technicians from work on an early warning system between Egypt and Israel
under certain circumstances.
New Legislation to Further Define the Role of Congress. Congress
may wish to codify a specific role for itself in the negotiation or implementation of
the Iraq Agreements, creating a joint congressional-executive decision-making
mechanism. This may include mandating the direct inclusion of Members of
Congress in the negotiation process of the Iraq Agreements, similar to provisions of
the Trade Act of 1974 that include Congress in various aspects of trade-agreement
negotiations.³⁴ It may also entail creating a cross-branch monitoring body tasked
with reviewing the implementation of the Iraq Agreements. An example of this sort
of implementation-review mechanism is the Commission on Security and
Cooperation in Europe, created by Congress to monitor the implementation of the
Final Act of the Conference on Security and Cooperation in Europe (“Helsinki Final³⁵
Act”). Instead of strictly approving or disapproving the President’s actions
concerning the proposed Iraq Agreements, legislative provisions such as these would
position Congress as a partner in the agreement process, either in negotiations or
implementation.

³¹ For an explanation of the different types of international agreements under U.S. law, see
Garcia, Mason, and Elsea, CRS Report RL34362, supra note 5, p. 9.
³² The Case-Zablocki Act requires that all executive agreements be submitted to Congress
within 60 days of their entry into force. The President must report any agreements not
reported within the time frame, explaining the reasons for the delay. The Act also requires
the Secretary of State to submit a list of proposed agreements and extensions or amendments
to existing agreements that have not yet entered into force, which (1) have not been
published in official compilations and (2) the United States has signed or in some other
manner finalized in the preceding calendar year. 1 U.S.C. § 112b.
³³ P.L. 94-110 (H.J.Res. 683; 89 Stat. 572), approved October 13, 1975.
³⁴ See 19 U.S.C. § 2211.
³⁵ P.L. 94-304 (90 Stat. 661), approved June 3, 1976.

Codifying a role for Congress in this manner, however, would raise issues
related to Congress’s constitutional powers in foreign policy. Article I, Section 8 of
the Constitution describes the scope of congressional powers. In addition to the
power to declare war, this section also lists the powers, among others, to raise and
support armies; to provide and maintain a navy; to make rules to regulate such forces;
to provide for organizing, arming, and disciplining the militia, and governing such
militia employed in the service of the United States; and to make rules concerning
captures on land and water. These powers have been noted in some of the proposed
legislation reacting to the proposed Iraq Agreements.³⁶ Some of these powers may
be implicated in the terms and provisions of the Agreements, and therefore might
create conflict between the two branches concerning the proper apportionment of
constitutional power regarding war and foreign policy.

³⁶ See H.Res. 1028 (110^th Cong.) (introductory language, fourth “Whereas” clause).