I. Introduction*
The United States is currently finalizing the process of negotiating a set of agreements to define the long-term relationship between the United States and Iraq. This process, which began in the fall of 2007, currently envisions both a status of forces agreement and a long-term security arrangement, which the parties have termed the Strategic Framework Agreement. As of August 2008, near final drafts of both agreements had been reached, although neither had been formally approved by the Iraqi government. While recent negotiations have focused primarily on technical details of the status of forces agreement, such as basing arrangements and immunity for contractors, the Strategic Framework Agreement raises serious constitutional concerns. The Bush administration has consistently maintained that no part of the agreements currently under negotiation requires congressional approval. In this, it is mistaken.
The Administration’s position misunderstands both the nature of commitments in international law and the constitutional requirement of legislative participation in such agreements. The absence of an explicitly binding security commitment to Iraq in the proposed agreement does not, as the Administration claims, resolve the issue. Even absent an explicit security commitment, an implicit security commitment can exist as a matter of international law—and, in fact, will exist—if the President proceeds to put in place the security arrangement that is currently under negotiation. International law does not strictly distinguish between formal agreements and tacit agreements, which are understandings arising from conduct that may be equally binding. Nor are the constitutional requirements of Senate advice and consent limited to agreements that are explicitly binding. Tacit commitments have been an area of long-standing concern to the Senate. Those concerns are directly applicable to the proposed agreement with Iraq, which exhibits every one of the factors giving rise to such a commitment.
This article will examine the background and justifications for the Strategic Framework Agreement currently under negotiation. It will then explain why as a matter of international law the mere designation of an agreement as nonbinding is insufficient. Further, it will examine the Senate’s history of constitutional concern with the creation of tacit commitments by the Executive and will compare this concern to the Founders’ understanding of the role of the legislature in the formation of international agreements. Finally, it will conclude that the proposed Strategic Framework Agreement would create a tacit commitment to the security of Iraq and is constitutionally required to be submitted to the Senate as a treaty.
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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.
