SOFA stands for status of forces agreement, which is a common vehicle used when the U.S. government establishes a military base in a foreign country. It is just such an agreement made between the Bush II administration and the Iraqi government that President Obama has followed almost to the letter in withdrawing troops from Iraq. There are those who believe that George W. Bush engaged in an executive branch power grab in signing the agreement and that Obama, by logical extension, has reinforced that power grab.
The issue at question is whether the agreement signed by President Bush and Prime Minister Nouri al-Maliki rises to the level of a treaty. Webster’s New Universal Unabridged Dictionary says that treaties may be of various kinds, as for regulating trade and for forming alliances, offensive and defensive. It also lists “agreement” as a synonym. The Encylopedia Americana refers to a treaty as a generic term applied to written instruments whereby two or more states regulate specific or general relations among themselves. It also states that treaties may cover a wide spectrum of activities. Therefore, the agreement between the Iraqi and the U.S. leaders appears to have the attributes of a treaty and thus must be ratified by the U.S. Senate.
The agreement between Bush and al-Maliki could be looked at as a defacto legislative act, in which a foreign leader becomes a legislator, along with George W. Bush, in forcing the U.S. Congress to provide funding for the indefinite future.
Bruce Ackerman, a professor of law and political science at Yale University, says that U.S. legislative approval could come in two ways under the U.S. Constitution: a two-thirds vote in the Senate under Article II language, or a simple majority in both houses under Article I.
Ackerman has also alluded to State Department guidelines set down in 1955, which emphasize the need for congressional action when an agreement “involves commitment or risks affecting the nation” and when it requires “the enactment of subsequent legislation by the Congress.”
State Department guidelines also require its legal advisor to provide a memorandum justifying the use of an executive agreement, including an “analysis of the constitutional powers relied upon.”
On Novemeber 17, 2008, Rep. Barbara Lee (D-CA) wrote a letter to then-speaker Nancy Pelosi, in which she requested the opportunity to debate and vote on H.R. 6846, the “Iraq Security Agreement Act of 2008.” Lee stated in the letter that it is “vitally important that the outgoing Bush administration do nothing to impede the ability of the new administration to extricate our nation from the disastrous decision to invade and occupy Iraq. …” H.R. 6846 provided that no provision in the SOFA could have any legal effect unless put in the form of a treaty requiring the advise and consent of the U.S. Senate.
Lee’s legislation also addressed the question of American military operations being subject to “the approval of the Iraqi government,” something only done in the past under treaties ratified by the U.S. Senate. It is notable here that both President Obama and the military commanders in Iraq ceded to the Iraqi government the power to keep U.S. troops in Iraq after the apparent December 31, 2011 deadline.
Besides a treaty ratification process, Article II, Section 8 of the U.S. Constitution gives the Congess the power “To make rules for the Government and regulation of the Land and naval (sic) Forces.” Presumably, Congress could have governed and regulated U.S. troops out of Iraq by ruling that they should be someplace else.
In summary, President Obama relied upon a Bush template in removing U.S. troops from Iraq. If the Iraqi government had granted U.S. troops immunity from Iraqi law, there would have been from 3,000 to 15,000 troops in Iraq after December 31, 2011, according to Pentagon low and high troop retention estimates.
In yet another instance of history repeating itself, the recent agreement reached between the United States and Afghanistan to govern relations between the two nations until 2024 has not yet resulted in a demand by anyone in Congress to have the agreement submitted to the U.S. Senate or both houses of Congress per Professor Bruce Ackerman’s reading of the Constitution. Such a call may be premature because the agreement has been described as not yet fully formed, yet it is hard to see why it is fundamentally different from the agreement between the United States and Iraq.