Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States
Released: 2012-06-07T00:00:00

The United States is a party to numerous security agreements with other nations. The topics covered, along with the significance of the obligations imposed upon agreement parties, may vary. Some international security agreements entered by the United States, such as those obliging parties to come to the defense of another in the event of an attack, involve substantial commitments and have traditionally been entered as treaties, ratified with the advice and consent of the Senate. Other agreements dealing with more technical matters, such as military basing rights or the application of a host country's laws to U.S. forces stationed within, are entered more routinely and usually take a form other than treaty.

Regardless of the form of a security arrangement, Congress has several tools which enable it to exercise oversight regarding the negotiation, form, conclusion, and implementation of the agreement by the United States. This report begins by providing 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 examines historical precedents, with specific attention paid to past agreements entered with Afghanistan, Iraq, Germany, Japan, South Korea, and the Philippines. Finally, the report discusses the oversight role that Congress exercises with respect to entering and implementing international agreements involving the United States.

I. International Agreements Under U.S. Law

Under U.S. law, 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).

Treaties

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.

Executive Agreements

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, with the number of international agreements entered as executive agreements significantly dwarfing those entered as treaties.

Although some have argued that certain agreements may only be entered as treaties, subject to the advice and consent of the Senate, this view has been rejected by many scholars. 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.

Congressional-Executive Agreements

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.

Executive Agreements Made Pursuant to Treaties

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.

Sole Executive Agreements

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 purported to transfer claims against American assets previously nationalized by the Soviet Union, 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, a reviewing court might be more likely to view the agreement as 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 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 preexisting 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, Section 8 of the Constitution accords Congress the power "To lay and collect Taxes ... to ... pay the Debts and provide for the common Defence," "To declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water," "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," 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, Section 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.

Nonlegal Agreements

Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a legally binding international agreement. In some cases, the United States makes "political commitments" or "gentlemen's agreements" with foreign states. Although these commitments are nonlegal, they may nonetheless carry significant moral and political weight. The executive has long claimed the authority to enter such agreements on behalf of the United States without congressional authorization, asserting that the entering of political commitments by the executive is not subject to the same constitutional constraints as the entering of legally binding international agreements. An example of a nonlegal agreement is the 1975 Helsinki Accords, a Cold War agreement signed by 35 nations, which contains provisions concerning territorial integrity, human rights, scientific and economic cooperation, peaceful settlement of disputes, and the implementation of confidence-building measures.

An international agreement is generally presumed to be legally binding in the absence of an express provision indicating its nonlegal nature. State Department regulations recognize that this presumption may be overcome when there is "clear evidence, in the negotiating history of the agreement or otherwise, that the parties intended the arrangement to be governed by another legal system." Other factors that may be relevant in determining whether an agreement is nonlegal in nature include the form of the agreement and the specificity of its provisions.

Choosing Between a Treaty and Executive Agreement

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 a congressional-executive agreement, so that it may play a greater role in its 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 the enactment of 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.

II. Historical Practice Regarding Security Agreements

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.

Categories of Security Agreements

Although some categories of security agreements have historically been entered as treaties and others as executive agreements, this does not necessarily mean that future arrangements must follow the same pattern. Arguably, an arrangement that has typically been entered into as a treaty might instead take the form of 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 —for example, limiting the availability of appropriations to carry out commitments made in a sole executive agreement.

Collective Defense Agreements/"Security Commitments"

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. Each agreement, 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 that the 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 joint 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 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.

Consultation Requirements/"Security Arrangements"

The United States also has established security arrangements with other countries in which the United States pledges to take some action in the event that the other country's security is threatened. A 1992 report submitted by President George H. W. Bush to Congress listing U.S. security commitments and arrangements, 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 constitute 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.

Other Types of Military Agreements

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; Status of Forces Agreements (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 such agreements have taken a form other than treaty. Sometimes these arrangements have taken the form of sole executive agreements; others could be deemed executive agreements pursuant to treaty (e.g., military stationing agreements concluded with other NATO parties); 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. Arguably, an exception to this practice occurred in 2008, when the United States and Iraq concluded a security agreement, sometimes characterized as a SOFA, which authorized U.S. forces to engage in military operations within Iraq. The agreement is discussed in more detail infra.

Agreements Granting the Legal Right to Military Intervention

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 which granted the United States 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 generally take the form of a treaty, this report does not consider whether any comparable authority is provided pursuant to classified agreements.

Non-Binding Security Arrangements

Some security arrangements are not legally binding; 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, in which the United States proclaimed its opposition to further colonization of the Americas by European powers, U.S. 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 often retains 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 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.

Examples of Bilateral Security Agreements

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, the Philippines, and Iraq.

Afghanistan

Following the terrorist attacks of September 11, 2001, the United States initiated Operation Enduring Freedom to combat Al Qaeda and prevent the Taliban regime in Afghanistan from providing them with safe harbor. Shortly thereafter, the Taliban regime was ousted by U.S. and allied forces, and the United States thereafter concluded a number of security agreements with the new Afghan government. 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. Additionally, the agreement allows for the furnishing of defense articles, defense services, and related training, pursuant to the United States International Military and Education Training Program (IMET), from the U.S. government to the Afghanistan Interim Administration (AIA).

An agreement exists regarding the status of 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 (ITGA) explicitly authorizes 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. Although the agreement was signed by the ITGA, the subsequently elected government of the Islamic Republic of Afghanistan assumed responsibility for ITGA's legal obligations, and the agreement remains in force. 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. Subsequent U.N. Security Council resolutions provide a continuing mandate for ISAF, 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."

In 2004, the United States and Afghanistan entered an acquisition and cross-servicing agreement, with annexes. 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 Foreign Affairs of the House of Representatives.

Since at least 2003, the United States has entered into several accommodation assignment agreements with Afghanistan regarding the use of land and facilities, including for the internment of captured enemy forces. Beginning in late 2001, the United States and its coalition partners utilized the Bagram Airfield for military purposes in the conflict against the Taliban and Al Qaeda. The Bagram Airfield also served as the primary facility used to detain suspected enemy belligerents captured in the conflict until 2010, when a new detention facility was completed in Parwan, Afghanistan. The detention center had reportedly been slated to be turned over to Afghan authority by January 2012, but rapid growth of the prisoner population caused the transfer to be delayed. In March 2012, the United States and the Afghan government concluded an agreement effectuating the transfer of the Parwan detention facility to Afghan control. The memorandum also contemplates U.S. forces maintaining continued control of Parwan detainees during a six-month handover period, at which point all Afghan nationals in U.S. custody shall be transferred to the control of Afghanistan.

A separate memorandum of understanding was also concluded in April 2012 concerning special operations (night raids) on Afghan soil. Under the agreement, the parties affirm that such operations will be "conducted by Afghan Forces with support of U.S. Forces in accordance with Afghan laws." Afghan forces are designated with responsibility for the "temporary holding" of persons captured in the course of such operations. Afghan citizens detained by U.S. forces outside of special operations are to be transferred to Afghan authorities or released.

On May 2, 2012, U.S. President Barack Obama and Afghan President Hamid Karzai signed the Enduring Strategic Partnership Agreement Between the United States of America and the Islamic Republic of Afghanistan (Strategic Partnership Agreement). The Strategic Partnership Agreement is a legally binding agreement under which the parties pledge to work cooperatively in a number of fields, including on promoting shared democratic values, advancing long-term security, reinforcing regional security, social and economic development, and strengthening Afghan institutions and governance. The agreement remains in force until the end of 2024, unless terminated at an earlier date by either party.

In the area of security, the Strategic Partnership Agreement provides that the United States and Afghanistan shall "initiate negotiations on a Bilateral Security Agreement … with the goal of concluding within one year" an agreement to replace the current agreement relating to the status of military and civilian personnel currently in Afghanistan. The Strategic Partnership Agreement also states that Afghanistan "shall provide U.S. forces continued access to and use of Afghan facilities through 2014, and beyond as may be agreed in the Bilateral Security Agreement" and that the United States "reaffirms that it does not see permanent military facilities in Afghanistan, or a presence that is a threat to Afghanistan's neighbors." Additionally, the Agreement determines that the "nature and scope of the future presence and operations of U.S. forces in Afghanistan" shall be addressed in the Bilateral Security Agreement to be negotiated.

Iraq109

In 2007, following the removal of the Saddam Hussein regime from power, the United States and the post-Saddam government of Iraq 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. The Declaration announced the intention of the parties to negotiate a long-term security agreement that would have committed the United States to provide security assurances to Iraq and maintain a long-term military presence in that country. This announcement became a source of congressional interest, in part because of statements by Administration officials that such an agreement would not be submitted to the legislative branch for approval. Congressional concern dissipated when U.S.-Iraq negotiations culminated in the signing of two separate agreements on November 17, 2008, neither of which provided for a long-term security commitment by the United States: (1) the Strategic Framework Agreement for a Relationship of Friendship and Cooperation between the United States and the Republic of Iraq (Strategic Framework Agreement), and (2) the Agreement Between the United States of America and Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (Security Agreement). Indeed, rather than establishing a long-term security commitment by the United States, the Security Agreement concluded by the parties instead called for the withdrawal of U.S. forces from Iraq within three years.

The concluded agreements cover different issues and were intended by the parties to have different legal significance. The Strategic Framework Agreement, which remains in force, is a legally binding agreement under which the parties pledge to work cooperatively in a number of fields, including on diplomatic, security, economic, cultural, and law enforcement matters. In the area of security, the Agreement provides that the United States and Iraq shall "continue to foster close cooperation concerning defense and security arrangements," which are to be undertaken pursuant to the terms of the Security Agreement. The Strategic Framework Agreement also states that "the temporary presence of U.S. forces in Iraq [was] at the request and invitation of the sovereign government of Iraq," and that the United States could not "use Iraqi land, sea, or air as a launching or transit point for attacks against other countries[,] nor seek or request permanent bases or a permanent military presence in Iraq."

The Security Agreement remained in effect for three years, and contained provisions addressing a variety of military matters, including a deadline for the withdrawal of all U.S. forces from Iraq by December 31, 2011. The Agreement also contained numerous provisions resembling those regularly contained in SOFAs concluded by the United States. Specifically, the Agreement contained provisions concerning the parties' right to assert civil and criminal jurisdiction over U.S. forces, as well as provisions which establish rules and procedures applicable to U.S. forces relating to the carrying of weapons, the wearing of uniforms, entry and exit into Iraq, taxes, customs, and claims. The Security Agreement established other rules and requirements traditionally not found in SOFAs concluded by the United States, including provisions addressing combat operations by U.S. forces.

The Security and Strategic Framework Agreements entered into force on January 1, 2009, following an exchange of diplomatic notes between the United States and Iraq. Although the agreements required approval on multiple levels by the Iraqi government, the Bush Administration did not submit the agreements to the Senate for its advice and consent as a treaty or request statutory authorization for the agreements by Congress.

There has been some controversy regarding whether these agreements were properly entered on behalf of the United States by the executive without the participation of Congress. As previously discussed, security agreements authorizing the United States to take military action in defense of another country have typically been ratified as treaties. It could be argued that the Security Agreement, which contemplated the United States engaging in military operations in Iraq and potentially defending the Iraqi government from external or internal security threats, properly required congressional authorization for it to be legally binding under U.S. law. On the other hand, because Congress had authorized the President to engage in military operations in Iraq, both pursuant to the 2002 Authorization to Use Military Force Against Iraq and subsequent appropriations measures in effect for the duration of the Security Agreement, it arguably had impliedly authorized the President to enter short-term agreements with Iraq in order to facilitate these operations.

Germany

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 ... [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.

Japan

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, CA, 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.

In 1960, the countries 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.

Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of America and Japan, the countries 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.

South Korea

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 are 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.

In 1950, the countries 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, in 1966, the countries entered into a SOFA with agreed minutes and an exchange of notes. It was subsequently amended January 18, 2001.

Philippines

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. The distinction between this agreement and the SOFA originally entered 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.

III. Congressional Oversight

Congress has several tools at its disposal to exercise oversight regarding the negotiation, conclusion, and implementation of international security agreements entered by the United States.

Notification

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 must 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 considered.

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—that is, 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.

Notification Pursuant to the Case-Zablocki Act

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 signed agreements which have yet to enter force, as well. The Secretary of State is required to annually report to Congress a list of executive agreements which (1) have not been or are not proposed to be 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.

Notification Pursuant to Circular 175 Procedures

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.

Annual Reporting of Security Arrangements Required by the National Defense Authorization Act of 1991

In addition to the Case-Zablocki Act, Congress has on occasion 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. It 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, it does not appear that any subsequent reports have been issued. The Federal Reports Elimination and Sunset Act of 1995 (Sunset Act, P.L. 104-66 ) terminated many 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 Section 1457 of the FY1991 National Defense Authorization Act was neither specifically terminated by the Sunset Act nor listed in House Doc. 103-7. Moreover, Congress has twice amended Section 1457 after the enactment of the Sunset Act, in 1996 and 1999. Accordingly, it does not appear that this requirement has been terminated.

Consultation

State Department regulations requiring consultation with Congress regarding significant international agreements may provide a means for congressional oversight as to the negotiation of security arrangements. 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.

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 entered 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."

Approval, Rejection, or Conditional Approval of International Agreements

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 the effect of 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.

Implementation of an Agreement That Is Not Self-Executing

Congress may exercise oversight regarding 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.

Continuing Oversight

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.