The Bush Administration is currently negotiating two agreements with the Iraqi government that could shape the U.S. presence in Iraq for years to come. These negotiations are too important to be taking place in haste, with little transparency and no input from the U.S. Congress or the Iraqi Parliament.

It is critical that the Administration act before the end of this year to see that our troops’ legal status in Iraq is maintained. This can be done by temporarily extending with modifications the UN Security Council Resolution under which our troops currently operate or by negotiating a bilateral Status of Forces Agreement (SOFA) with Iraq. But by trying to do too much, the Administration risks putting our troops’ status in doubt, undermining the legitimacy of the Iraqi government and tying the hands of the next president.

SOFAs – in place everywhere U.S. troops are stationed – clarify the legal status of American troops and bases. U.S. troops need one in order to be protected from prosecution by Iraqi courts for actions committed while at war. However, it has been highly controversial in Iraq because U.S. demands for permanent bases, the right to detain Iraqis, the ability to carry out operations without the permission of the Iraqi government, and legal immunity for American troops and contractors are seen to be undermining Iraqi sovereignty.

The Security Framework Agreement (SFA) will outline the long-term economic, political and security relationship between the two countries. It has raised serious concerns in the U.S. Congress because of a preliminary agreement signed in November 2007, which committed the U.S. to protecting Iraq from outside aggression (implicitly from Iran). This security commitment would not only tie the hands of the next president but would also constitute a treaty that would need to be ratified by the Senate.

To address these concerns the Bush Administration should work with the Iraqis on a temporary extension with modifications of the UN Security Council Resolution that currently gives our troops legal status. Moreover, the SOFA and SFA should be negotiated through a transparent process. The agreement is supposed to be approved by the Iraqi Parliament and if either the SOFA or the SFA make security guarantees that commit the United States to protecting Iraq from outside intervention, they should be regarded as treaties and ratified by the U.S. Senate. Ultimately, while the Bush Administration can make progress both agreements in their expansive form would be left up to the next president to negotiate and should be in line with the policies of the administration which will have to live with them.

SOFA Safeguards U.S. troops now; SFA sets the long-term relationship

The U.S. is negotiating two agreements with the government of Iraq – the Security Framework Agreement (SFA) and the Status of Forces Agreement (SOFA). The SFA is meant to cover the long-term ties of the U.S. and Iraq and will describe the type of economic, political and security relationship that the two countries will have. The SOFA, in its simplest form would give American troops in Iraq defined legal status – making clear that their actions are covered by U.S. military law and not Iraqi law. The administration, however, is asking for a great deal more, such as giving the U.S authority to operate independently and detain Iraqis. A basic SOFA is necessary anywhere U.S. troops are stationed and the United States has SOFAs with more than 100 countries, but very few have been signed under such exceptional circumstances. [Washington Post, 6/14/08]

The SOFA is needed to guarantee that American troops are subject to the U.S. military’s Uniform Code of Military Justice, not as a vehicle for controversial long-term Bush Administration policies. The Administration has tried to use a legitimate concern to push through much more ambitious demands, which Iraqi politicians say include 58 permanent bases and five mega-bases, the right to detain Iraqis without consent of the Iraqi Government and the control of Iraqi airspace. Because these proposals go to the core of Iraq’s status as a sovereign state, they have made the proposed SOFA highly controversial inside Iraq. [LA Times, 6/11/08]

The SFA negotiations have been shrouded in secrecy and clouded by contradictory statements, but they appear to include long-term security guarantees that could commit the U.S. to future military action in Iraq. This would tie the hands of a subsequent administration and constitute a legally-binding treaty under international law. The U.S. Constitution clearly indicates that treaties must be ratified before the Senate. In November, President Bush and Prime Minister Nouri Maliki signed a preliminary Declaration of Principles, outlining the broad framework of the SFA. The declaration promised that the United States would give Iraq security assurances and commitments to deter any outside aggressor. [Declaration of Principles, 11/26/07]

The Lack of Transparency Has Raised Concerns in Iraq and the U.S.

The lack of transparency surrounding negotiations on both the SOFA and the SFA is undermining the chances for an agreement in both countries. Senator Bob Casey (D-PA) explained Congressional concerns: “Unfortunately, the Administration is handling these negotiations in the same manner that has characterized its entire approach to Iraq since 2003: with unnecessary secrecy, a disdain for Congressional input and an arrogant insistence that its course of action is the only reasonable option.” In Iraq, Sunni opponents of the agreement denounced the “ring of secrecy” surrounding the talks. [Senator Bob Casey, 6/12/08. AP, 5/30/08]

Administration and Iraqi officials have made a series of contradictory statements about the contents and status of SOFA and SFA agreements. The preliminary Declaration of Principles committed the United States to protecting Iraq which would constitute a treaty, but recently the Iraqi Foreign Minister stated that the language had changed and that the U.S. would “help Iraqi security forces to defend themselves.” “Help,” suggests action. Whereas the standard non-committal language is “agreement to consult.” He claimed that the Administration believed that this would not constitute a security guarantee. Moreover after an initial uproar over U.S. demands for full ability to detain Iraqis and conduct military action, the Administration has supposedly walked back from that position and is agreeing to a “joint commission” to address these issues. [Washington Post, 6/18/06]

The Iraqi Parliament is opposed to the draft SOFA. “In a letter to Congress, some 31 Iraqi lawmakers — representing parties that constitute a majority in parliament — said they will insist on ratifying the agreement as is required by their country's constitution. They also pledged to reject any agreement that ‘is not linked to clear mechanisms’ obligating U.S. troops to leave ‘with a declared timetable and without leaving behind any military bases, soldiers or hired fighters.’” Even Prime Minister Maliki’s allies have objected. “‘The Americans are making demands that would lead to the colonization of Iraq,’ said Sami al-Askari, a senior Shiite politician on parliament's foreign relations committee who is close to Prime Minister Nouri al-Maliki. ‘If we can't reach a fair agreement, many people think we should say, Goodbye, U.S. troops. We don't need you here anymore.’” [AP, 6/05/08. Washington Post, 6/11/08]

Negotiations Have Bogged Down, Weakened Iraqi Government and Emboldened Iran

Critical parts of the SOFA remain unacceptable to the Iraqi government. Prime Minister Maliki has said that ‘The American version of the agreement infringes hugely on the sovereignty of Iraq and this is something that we cannot ever accept.” “The overarching question is how much control Iraq will have over the activities of the American military on Iraqi soil. The Americans have said they will allow civilian contractors to be held accountable under Iraqi law, said Mahmoud Othman, a member of the Political Council for National Security. He said they had also agreed to hand over to the Iraqi people captured by American soldiers and accused of crimes. Such detainees are now held in American facilities. They will also transfer suspects already held in American detention centers to the Iraqis, Mr. Othman said. But that leaves many practical questions unanswered. There are now roughly 21,000 detainees in American custody; if they were transferred to Iraqi custody, where would they go? The Iraqis do not have facilities for them, and it would not be easy for Americans to hand over their detention centers at Camp Cropper and Camp Bucca to the Iraqis. The Iraqis appear to have agreed to allow the Americans to continue to control their airspace because the Iraqis lack the extensive flight control expertise and equipment necessary.” [NY Times, 6/13/08 and 6/16/08]

Muqtada Al Sadr and nationalist politicians are using the SOFA’s unpopularity to their advantage. Al Sadr has rallied thousands of supporters to protest the agreement and has declared that he will be starting a new militia force to fight the occupation. Moreover, a new nationalist coalition with 90 members of parliament that includes the Sadrists and former Iraqi Prime Minister Ibrahim al-Jaafri is currently forming. The group is for a centralized Iraqi government and is strongly opposed to the agreement. [AFP, 6/13/08. NY Times, 6/8/08]

The Iranians are putting pressure on the Maliki Government to oppose any agreement. During a recent visit by Prime Minister Maliki to Tehran, Iranian supreme leader Ayatollah Ali Khamenei made his opposition to an agreement known, stating “‘occupiers who interfere in Iraq's affairs through their military and security might’ are the main cause of Iraq's problems and the ‘main obstacle in the way of the Iraqi nation's progress and prosperity.’” [AP, 6/9/08]

Any Agreement Must Protect our Troops now and Leave long-term strategy to the Next President

An SFA which gives the Iraqis security assurances would potentially bind the next administration or limit its ability to act. The next president will certainly change our Iraq policy and may choose to redeploy American forces. An agreement signed by a lame-duck administration in secret, without the knowledge of the American public or the consent of elected representatives, should not bind the hands of a President who will have been elected in part on the basis of what he pledges to do in Iraq. To that end, the Bush Administration should make its preparatory work public but leave the conclusion and signing of an agreement setting out our long-term partnership with Iraq for the administration which will have to implement that policy.

The Bush Administration needs to ensure that our troops’ legal status is maintained, and that we have the time to negotiate a strategic framework the right way. It can do that by making preparations for the temporary extension with modifications of the UN Security Council Resolution 1790. The Iraqi government is unhappy with the current language of the UNSCR, which classifies Iraq as a threat to international peace. That language should be rewritten, and a new resolution must be seen as a temporary measure while the U.S. and Iraq work toward a better solution. But the Administration’s artificial deadline is doing Iraqis and Americans more harm than good and should be put aside. [NY Times, 6/14/08]

The negotiating process should be brought out of the dark; draft texts should be public and shared with Congress. Senate Armed Services Committee Chairman Sen. Carl Levin (D-MI) and former Chairman Sen. John Warner (R-VA) recently wrote a letter to Secretary Rice stating that “The situation in Iraq is extremely complex and Congress, in exercising its constitutional responsibilities, has legitimate concerns about the authorities, protections and understandings that might be made in the SFA and SOFA… It is essential that the Administration be more transparent with Congress, with greater consultation, about the progress and content of these deliberations.” Serious consultations and access by Congress to draft texts is the only way to overcome the Administration’s serious credibility deficit. [Sens. Levin and Warner, 6/9/08]

Any agreement that makes a long-term security commitment should be brought before the U.S. Congress for its approval. The U.S. Constitution gives Americans, through our elected representatives, the opportunity to pass judgment on international agreements when they entail binding security commitments. If either the SOFA or the SFA make security commitments to Iraq, American democracy requires that the American people, through Congress, have a say. [Constitution of the United States of America]

Iraq’s constitution stipulates and the two governments originally concurred that both agreements should be brought before the Iraqi Parliament. This action would spread responsibility for the agreements with a broader base. The last time Iraq concluded a SOFA (with the British) the results were highly controversial and became one of the causes for the overthrow of the government. [Iraqi Constitution. The Washington Institute, 4/27/04]