Congressional Oversight and Related Issues Concerning the Prospective Security Agreement Between the United States and Iraq
Released: 2008-05-28T00:00:00

Summary:
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 the United States. Finally, the report describes legislation proposed in the 110th 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 negotiations.

subsections: section_title: Introduction
paragraphs: 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 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 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 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 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 Iraqi security.
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 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 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 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 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 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 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 Administration does
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 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 legislation proposed in the 110 th Congress to ensure congressional participation in the conclusion of a security agreement between the United States and Iraq.
section_title: I. Current Legal Framework Governing U.S. Military Operations In Iraq
paragraphs: 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 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 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 resolutions that addressed the situation in Iraq and Kuwait. 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 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 infrastructure.
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 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 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 exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by their 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 Geneva Conventions.
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 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 Government.
Under Article 26 of the Transitional Administrative Law of Iraq (TAL), "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 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, 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 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 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. 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 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 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 to support U.S. combat operations in Iraq after the U.N. mandate ends.
section_title: II. International Agreements Under U.S. Law
paragraphs: Under the U.S. system, a legally binding international agreement can be entered into pursuant to 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, 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).
subsections: section_title: Treaties
paragraphs: Under U.S. law, a treaty is an agreement negotiated and signed by the executive branch, which enters into force if it is approved by a two-thirds majority in the Senate and is subsequently ratified following Presidential signature. The Senate may, in considering a treaty, condition its consent on certain reservations, declarations and understandings concerning treaty application. If accepted, these reservations, declarations, and understandings may limit and/or define U.S. obligations under the treaty.
section_title: Executive Agreements
paragraphs: The great majority of international agreements that the United States enters into are not treaties 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 jurisprudence and as a matter of historical practice. Starting in the World War II era, reliance on executive agreements has grown significantly. Whereas 27 executive agreements (compared to 60 treaties) were concluded by the United States during the first 50 years of the Republic, between 1939 and 2004 the United States concluded 15,522 executive agreements (compared to 1,035 treaties).
Although some have argued that certain agreements may only be concluded as treaties, subject to the advice and consent of the Senate, this view has generally been rejected by scholarly 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 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 nonjusticiable political question. It does not appear that an executive agreement has ever been held invalid by the courts on the grounds that it was in contravention of the Treaty Clause. Nonetheless, as a matter of historical practice, some types of agreements have been concluded as treaties, while others have been concluded as executive agreements.
subsections: section_title: Congressional-Executive Agreements
paragraphs: In the case of congressional-executive agreements, the "constitutionality...seems well 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, 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-executive agreements.
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 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 agreement into U.S. law. Such authorization may be either explicit or implied by the terms of the congressional enactment.
section_title: Executive Agreements Made Pursuant to Treaties
paragraphs: 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 question. Since the earlier treaty is the "Law of the Land," the power to enter into an 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 Senate as a treaty.
section_title: Sole Executive Agreements
paragraphs: 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 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 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 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 with pre-existing federal law, the earlier law will remain controlling in most circumstances.
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 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 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 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 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 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 the use of appropriated funds.
section_title: Choosing Between a Treaty and Executive Agreement
paragraphs: 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 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 regulations,
In determining a question as to the procedure which should be followed for any particular international agreement, due consideration is given to the following factors:
1. The extent to which the agreement involves commitments or risks affecting the nation as a whole; 2. Whether the agreement is intended to affect state laws; 3. Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress; 4. Past U.S. practice as to similar agreements; 5. The preference of the Congress as to a particular type of agreement; 6. The degree of formality desired for an agreement; 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; and 8. The general international practice as to similar agreements.
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 exercised to avoid any invasion or compromise of the constitutional powers of the 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 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 concerning significant international agreements. Consultations are to be held "as appropriate." Congressional consultation on the substance and form of international agreements is discussed in more detail later in this report.
section_title: III. Historical Practice Regarding Security Agreements
paragraphs: 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 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.
subsections: section_title: Categories of Security Agreements
paragraphs: 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 executive agreement.
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 instead be concluded as a congressional-executive agreement, and vice versa. Similarly, while some security arrangements have historically been entered as sole executive agreements, Congress might effectively limit such agreements in the future via statutory enactment —e.g., limiting the availability of appropriations to carry out commitments made in a sole executive agreement.
subsections: section_title: Collective Defense Agreements/"Security Commitments"
paragraphs: 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 Korea. All seven agreements take the form of treaties that were ratified by the United States 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 force).
In addition to these defense treaties, the United States has also adopted security commitments 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 defend the [FAS]...from attack or threats thereof as the United States and its citizens are defended." Arguably, these security commitments are distinct from other international defense arrangements, as they concern commitments to newly sovereign entities over whom the United States formerly exercised extensive and long-standing control.
section_title: Consultation Requirements/"Security Arrangements"
paragraphs: 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 Secretary of Defense.
Most legally binding "security arrangements" listed in the President's report constituted sole 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 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 long been a subject of dialogue and dispute by the executive and legislative branches.
section_title: Other Types of Military Agreements
paragraphs: 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 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 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 country's jurisdiction; burden-sharing agreements, permitting a host country to assume some of the financial obligations incurred by the stationing of U.S. forces within its territory; and agreements providing for arms transfers, military training, and joint military exercises.
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.
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.
section_title: Agreements Granting the Legal Right to Military Intervention
paragraphs: 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 Council has taken measures necessary to maintain international peace and security."
In the early part of the 20 th 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 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 individual liberty." Similarly, in the aftermath of the U.S. invasion and occupation of Haiti in 1915, a treaty between the two countries was concluded that provided the United States with the 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 the shipping occurring therein. In 1907, the United States concluded a treaty with 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 those plans.
There have been numerous instances where a country has permitted or invited the United States 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 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 attack.
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.
section_title: Non-Binding Security Arrangements
paragraphs: 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 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 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 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-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] ... 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 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 to support that our honor is involved in an engagement no less solemn than a duly ratified treaty.
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 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 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.
section_title: Examples of Bilateral Security Agreements
paragraphs: 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 Philippines.
subsections: section_title: Afghanistan
paragraphs: 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 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 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 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 such assistance ..." The authorization to provide defense articles and services, noncombatant 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 perform duties of a noncombatant nature ." 
In 2002, the United States and Afghanistan, by an exchange of notes, entered into an agreement 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 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 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 Diplomatic Relations of 1961. Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. In the agreement, the 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 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, terrorist attacks, and subsequently authorized the deployment of an International Security Assistance Force (ISAF) to Afghanistan. Later U.N. Security Council resolutions provide a 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 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 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 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, 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 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 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 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" 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 arrangement.
section_title: Germany
paragraphs: In 1951, the United States and Germany entered into an agreement related to the assurances 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 [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 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 collective security.
In 1955, the United States and Germany, both parties to the North Atlantic Treaty, entered into an agreement on mutual defense assistance, obligating the United States to provide for "such 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 nations 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 America has brought to these principles by enacting the Mutual Security Act of 1954, 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 States], for any other purpose. The mutual defense assistance agreement is the basis for numerous subsequent agreements between the United States and Germany.
In 1959, the countries entered into an agreement implementing the NATO SOFA of 1953. The agreement provided additional supplemental agreements, beyond those contained in the NATO SOFA, specific to the relationship between the United States and Germany.
section_title: Japan
paragraphs: In 1954, the United States and Japan entered into a mutual defense assistance agreement with 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 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 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, 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 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 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 act to meet the common danger in accordance with its constitutional provisions and processes." 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 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 agreement.
The countries, under Article VI of the Treaty of Mutual Cooperation and Security Between the 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 has been modified at least four times since the original agreement.
section_title: South Korea
paragraphs: In 1948, the United States and South Korea entered into an agreement related to the transfer of 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 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, 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 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 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 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 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 control of the government of South Korea.
The countries, in 1950, entered into a mutual defense assistance agreement. The mutual defense 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 economic recovery that is essential to international peace and security.
The United States and South Korea entered into a mutual security agreement in 1952. The 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 of international tensions.
In 1954 the countries entered into a mutual defense treaty. 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 processes. Article IV of the treaty grants the United States "the right to dispose....land, air and sea forces in and about the territory" of South Korea. Pursuant to the treaty, specifically Article IV, the countries entered into a SOFA with agreed minutes and an exchange of notes in 1966; it was subsequently amended January 18, 2001.
section_title: Philippines
paragraphs: In 1947 the United States and the Republic of the Philippines entered into an agreement on 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 training and development of armed forces. The agreement further created an advisory group to provide advice and assistance to the Philippines as had been authorized by the U.S. Congress. 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. 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 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, 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 materials furnished by the United States to the Philippines.
In 1993, the countries entered into a SOFA. The agreement was subsequently extended on September 19, 1994; April 28, 1995; and November 29, December 1, and December 8, 1995. The countries entered into an agreement regarding the treatment of U.S. armed forces visiting the Philippines in 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 States.
section_title: IV. Congressional Oversight
paragraphs: 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.
subsections: section_title: Notification
paragraphs: 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 agreements.
subsections: section_title: Notification Pursuant to the Case-Zablocki Act
paragraphs: 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 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 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 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 been extended or otherwise modified, during the preceding calendar year."
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 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 agreement; 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 parties; and the form of the arrangement, to the extent that it helps to determine whether the parties intended to enter a legally binding agreement.
section_title: Notification Pursuant to Circular 175 Procedures
paragraphs: 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 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 U.S.-Iraq agreement, and classified briefings on the agreement have also begun.
section_title: Annual Reporting of Security Arrangements Required by the National Defense Authorization Act of 1991
paragraphs: 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 with, and commitments to, other nations." 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 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 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.
section_title: Consultation
paragraphs: 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 on treaties and other international agreements." To that end, State Department regulations contemplate congressional consultation regarding the conduct of negotiations to secure significant 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 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 a party.
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 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 completed in sufficient time to avoid last minute consideration."
section_title: Approval, Rejection, or Conditional Approval of International Agreements
paragraphs: 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 expire.
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 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.
section_title: Implementation of an Agreement That Is Not Self-Executing
paragraphs: 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 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 international agreement.
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 agreement to be given force; or (3) the agreement manifests an intention that it shall not 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 obligations unless implementing legislation is enacted. Perhaps for this reason, Congress typically appropriates funds necessary to carry out U.S. obligations under international agreements.
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. 110-161 ), and the National Defense Authorization Act FY2008 ( P.L. 110-181 ), for example, barred funds from being used to establish permanent military bases in Iraq. The Consolidated 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 punishment under Iraqi law.
section_title: Continuing Oversight
paragraphs: 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.
section_title: V. Legislative Activity
paragraphs: Legislation has been introduced in the 110 th 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 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 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, 2008.
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 (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
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 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.