Bruce Ackerman and Oona A. Hathaway: Bush's Final Illusion ... The president's agreement with Iraq bypasses Congress. Again.





[Bruce Ackerman is Sterling Professor of Law and Political Science at Yale, and the author of fifteen books that have had a broad influence in political philosophy, constitutional law, and public policy. Oona Hathaway is a law professor at the University of California-Berkeley. She earned her B.A. at Harvard University and her J.D. at Yale Law School.]

Nouri al-MalikiPresident Bush and Iraqi Prime Minister Nouri al-Maliki have reached an agreement governing American military forces in Iraq. But under the Iraqi Constitution, parliament has to approve the deal, and major political parties are already demanding changes. With the threat of an Iraqi parliamentary veto monopolizing the headlines, it is easy to forget that Bush is proposing to shut Congress entirely out of the process. He is claiming the unilateral right to commit the country to his agreement.

This claim has no constitutional merit, as we've explained previously. It is particularly problematic when Americans will soon be choosing between two presidential candidates who have taken positions that are at odds with the Bush agreement. In claiming unilateral authority, a discredited administration is trying to secure its legacy by striking at the very heart of the democratic process—and, ironically, making the Iraqi government look more democratic than our own.

President Bush defends his action by pointing to "status of forces" agreements that a long line of American presidents have unilaterally negotiated with close to 100 countries around the world. These involve a host of day-to-day matters like delivery of supplies to the troops, which are well within the president's exclusive power as commander in chief. But the present initiative goes far beyond anything in these previous agreements.

For starters, the Bush proposal undermines the constitutional powers of the next president as commander in chief. It subjects American military operations to "the approval of the Iraqi government," giving operational control to "joint mobile operations command centers" supervised by a joint American-Iraqi committee. American commanders in the field will retain their power to act without advance Iraqi approval only in cases of self-defense. While American troops have been placed under foreign control in peacekeeping operations, this has occurred only under treaties approved by the Senate. No American president has ever before claimed the unilateral power to bargain away the military power of his successors.

The proposed agreement also submits thousands of private military contractors to Iraqi courts in the event that they are charged with a crime. This provision points to a serious problem. Many of these contractors are now beyond the jurisdiction of both American and Iraqi courts. Operating within a no-law zone, they can victimize Iraqi civilians with impunity. We should definitely bring this abuse to an end, but Congress should be involved in devising an appropriate solution. These contractors have no direct relationship to the military. They are working for the State Department and other federal agencies. It is up to Congress, not the president, to decide whether the embryonic Iraqi court system is up to the task of holding the contractors to account or whether American laws should instead be given extraterritorial force....

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