Last month, in one of my fits of sarcasm, I commented on the ongoing Iraqi-U.S. talks on a Status of Forces Agreement:
I bet the Bush administration never thought this would happen — that a newly assertive Iraqi government would want to make a security deal not with America but (wait for it) Iran, and — gasp — that they might actually ask the U.S. to get the hell out.
Today it’s official: the Iraqis want a deadline. “We can’t have a memorandum of understanding with foreign forces unless it has dates and clear horizons determining the departure of foreign forces. We’re unambiguously talking about their departure,” Maliki’s National Security Advisor Mowaffaq al-Rubaie said in Najaf after meeting the top Shia cleric, Grand Ayatollah Ali al-Sistani, who is known to oppose any wide-ranging security deal.
Meanwhile, the debate over SOFA and SFA seems to be picking up in Washington. Two Democractic legislators, Bill Delahunt and Rosa DeLauro, responding to a June 15 Washington Post editorial they call “badly misguided”, point out that come January 1, not only will the UN Security Council mandate for war expire, but so will the domestic authority:
The U.N. mandate provides the last legal thread of domestic U.S. authority for combat because ‘enforcing relevant U.N. resolutions’ was one of the two activities cited by the 2002 vote in Congress authorizing the use of force against Iraq (the other being to dispose of the threat posed by Saddam Hussein). If the U.N. mandate expires on Dec. 31, so does domestic authority for our troops to fight, along with their immunity from Iraqi prosecution.
Already in April, two Yale law professors, Bruce Ackerman and Oona Hathaway, argued in a Post op-ed piece, titled “The War’s Expiration Date”, that unless nothing is done, the war will become illegal on Jan. 1, 2009.
The most recent U.N. resolution expires on Dec. 31, and the administration has announced that it will not seek one for 2009. Instead, it is now negotiating a bilateral agreement with the Iraqi government to replace the U.N. mandate.
Whatever this agreement contains, it will not fill the legal vacuum. That’s because the administration is not planning to submit this new agreement to Congress for its explicit approval. Since the Constitution gives the power to ‘declare war’ to Congress, the president can’t ignore the conditions imposed on him in 2002 without returning for a new grant of authority. He cannot substitute the consent of the Iraqi government for the consent of the U.S. Congress.
What next? I guess toppling Maliki isn’t an option, and re-upping the UNSC resolution probably isn’t either. Bush and Maliki might go for a short-term deal, but with the stakes getting higher, even an interim agreement might not be palatable to the newly confident Iraqis without some sort of a “horizon”.