Bush Doesn’t Need Congress For Iraq Security Pact

On Monday, commenting on President Bush’s forthcoming long-term security guarantee to Iraq, top White House war adviser Douglas Lute said, “We don’t anticipate now that these negotiations will lead to the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress.” In other words, Bush can commit the U.S. to protecting the security of Iraq — including, as Lute said, enduring U.S. bases in Iraq and a residual troop presence — without Congressional approval. Can he?

“That reflects historical practice,” says Peggy McGuinness, a former State Department official and current law professor at the University of Missouri.

To boil down an arcane legal debate to a thick constitutional sauce, Article II, Section 2, Clause 2, says that the President can enter into treaties with foreign countries “provided two thirds of the Senators present concur.” But not every foreign agreement is what McGuiness calls a “capital-T Treaty.” Security guarantees, and particularly garrisoning agreements for U.S. troops abroad — a category called a Status of Forces Agreement, or SOFA — are not usually treated by the executive branch as capital-T Treaties. Historically, Congress doesn’t insist that the executive does, and the Supreme Court has never ruled that all such arrangements require Senate advice and consent. As a result of this historical practice, “a SOFA is usually a purely executive agreement,” McGuiness explains.

In practice, the executive branch typically decides for itself which international agreements require Senate advice and consent. For the vast majority that don’t, the State Department accepts that “reportable agreements must be transmitted to Congress within 60 days of entry into force.” That’s because of Congress’s major power over foreign affairs: the power of the purse. “The reason why you report things is because you don’t want Congress to pull the plug on funding it,” McGuiness says.

If President Bush wants to play constitutional hardball, then, he’s within historical practice to commit the United States to the long-term security of Iraq without a word of discussion with Congress.