Mr. Ledeen gave the following testimony before the House Foreign Affairs Committee on Wednesday, January 23. You may view a webcast of these remarks here. -- The Editors.
Chairman Delahunt, Chairman Ackerman, honorable members. Thank you for this opportunity to testify.
This hearing seeks to determine whether any proposed U.S. security
commitment to Iraq should constitute a treaty. It is an important
question, but there is no cut-and-dry answer: Too much depends upon the
content of the agreement.
On November 26, 2007, President George W. Bush and Iraqi Prime
Minister Nuri al-Maliki released a "Declaration of Principles for a
Long-Term Relationship of Cooperation and Friendship between the
Republic of Iraq and the United States of America." Among the
principles they outlined were:
- Provision of "security assurances and commitments to the Republic
of Iraq to deter foreign aggression against Iraq that violates its
sovereignty and integrity of its territories, waters, or airspace."
- Support for "the Republic of Iraq in its efforts to combat all
terrorist groups…consistent with mechanisms and arrangements to be
established in the bilateral cooperation agreements…" and
- Support for "the Republic of Iraq in training, equipping, and
arming the Iraqi Security Forces to enable them to protect Iraq and all
its peoples, and completing the building of its administrative systems,
in accordance with the request of the Iraqi government."
On December 7, 2007, Maliki formally requested the extension of the
UN Security Council's mandate of the Multi-National Force-Iraq (MNF-I)
to the President of the Security Council. On December 18, 2007, the
Security Council obliged with passage of Resolution 1790 which extended
the MNF-I mandate until December 31, 2008, subject to review by June
Throughout this year, the U.S. and Iraqi government will negotiate
the details of a security agreement to replace the UN's Chapter VII
mandate. The details are crucial to the question at hand, but remain
unclear. The proposed agreement could take many forms and, indeed,
could be a package of multiple agreements, ranging from a Status of
Forces Agreement (SOFA) to economic development packages to basing
agreements, to a formal defense treaty.
SOFAs apportion rights and responsibilities between a host
government and our stationed or deployed forces. Typically, they serve
to vest the United States with criminal jurisdiction over our forces in
a host country. Usually, this entails a commitment to hold our troops
and personnel legally responsible for any criminal conduct under the
Uniform Code of Military Justice or some such arrangement. Unknown in
the case of Iraq would be the status of private security
contractors. Many SOFAs also address exemption from inspections and
customs duties, travel document requirements, and tax exemptions for
the PX. Today, the United States has approximately 100 SOFAs.
Generally, SOFAs constitute agreements rather than treaties. It is a
rare occurrence if a SOFA is sent to the Senate for approval. With
regard to NATO, Japan, and Korea, security guarantees are covered in
separate treaty structures above and beyond the SOFA itself. For
example, in 1953, the United States and the Republic of Korea signed a
Mutual Defense Treaty, which the Senate ratified in 1954. The Pentagon
then negotiated in 1966 a "Facilities and Areas and the Status of
United States Armed Forces in Korea" which came into force on February
9, 1967, with an exchange of letters rather than separate ratification.
To determine whether ratification is necessary, what an agreement is
called is less important than its contents. There is a point that an
agreement can go so far in obligating the United States to defend
another country that the Senate should ratify it. That line is when the
obligation to defend another country becomes legally binding under
international law. If such language is embedded in an Iraq SOFA, then
there is little question that the SOFA should be voted on as a treaty
by the U.S. Senate.
It is possible that the White House will stress that they consider
any pact with security guarantee language to be an agreement rather
than a treaty, and so not legally binding to the extent that a treaty
would be. Should the White House try to adhere to this fine line,
however, the Iraqi government would take note and consider the U.S.
commitment ephemeral and perhaps demand a more formal treaty.
Basing agreements are more nebulous and controversial. The
differentiation within U.S. discourse between permanent and
non-permanent bases is more political than legal. For the United States
to establish or lease a base in another country often requires an
agreement rather than a treaty. Many of these basing agreements or
their renewal agreements involve political and economic
commitments. This has been the case, for example, with the Incirlik Air
Base in Turkey. Ankara frequently requests economic incentives. During
the 2005 renegotiation, the Pentagon sought a "blanket" agreement in
which the U.S. military would have full use for the period of the
agreement, while some Turkish officials demanded that Ankara be able to
approve every flight in order to maintain their leverage over
Congressional discussions of the Armenian Genocide Resolution and other
issues. Rent was the major subject of U.S.-Kyrgyz base renewal talks in
2006, while expansion of facilities to provide better force protection
became the issue dominating discussions to expand Camp Lemonier in
Djibouti. Sharing of maintenance costs for U.S. facilities in Japan is
the contentious issue in U.S.-Japanese negotiations.
Sometimes host countries wish to receive security guarantees in
exchange for hosting a U.S. base or U.S. forces. Again, whether or not
the basing agreement should be subject to Senate ratification depends
upon the strength of the guarantee. Such demands for assurances are not
always stated upfront, and often enter the conversation over years or
during renewal discussions.
It is not the House Foreign Affairs Committee's duty to preempt
negotiations over specific clauses of an agreement not as yet written,
but it will become the Senate's duty to ratify the resulting product
should it include security guarantees binding under international
law. It is ironic that the House Foreign Affairs Committee seems more
intent on defending the Senate's prerogative than the Senate itself.
As our diplomats and military officials negotiate such an agreement,
they will be seeking to underline our commitment to Iraqi stability and
that country's success fighting the extremists and terrorists that
threaten both Iraqi and U.S. security. They will seek to preserve our
military's maneuverability. While some critics of the Bush
administration's Iraq policy suggest that the United States should
confine itself to a limited number of forward operating bases or even
redeploy its forces "over the horizon" into neighboring countries or
Iraqi Kurdistan, such a strategy would hamper our ability to respond
and protect the U.S. forces training Iraqi counterparts and providing
the space for Iraqi politicians to advance reconciliation efforts. The
insurgency spread when U.S. forces were confined to a handful of bases
and forward operation bases (FOBs). Part of General Petraeus and
General Odierno's "surge" strategy involved saturating troops
throughout their areas of operation. The strategy worked. U.S. and
Iraqi negotiators will not be anxious to roll back success by again
concentrating Multinational Forces to a few FOBs, but will rather seek
to maintain the security regime until political reconciliation can
occur. Any language, however, which would commit U.S. forces to defend
Iraq in the face of an external threat would transform the agreement
into a treaty subject to Senate ratification.
In such a case, not only would the eyes of Tehran and Damascus be on
the U.S. Senate, but also observers in Taipei, Jerusalem, and Seoul,
for the U.S. willingness to support and defend our allies regardless of
where we are in the election cycle is at the heart of our credibility
and our relationships not only in Iraq, but the world over.