US Troops Leaving Iraqi Cities

[jmm99]

Four articles that approach the Iraq SOFA from different angles.

Posted on Wednesday, November 19, 2008
Why the U.S. blinked on its troop agreement with Iraq

By Nancy A. Youssef | McClatchy Newspapers

WASHINGTON — Although the Pentagon officially has welcomed the new accord on a U.S. troop withdrawal from Iraq, senior military officials are privately criticizing President Bush for giving Iraq more control over U.S. military operations for the next three years than the U.S. had ever contemplated.

Officials said U.S. negotiators had failed to understand how the two countries' political timetables would force the U.S. to make major concessions that relinquish much of the control over U.S. forces in Iraq. They said President Bush gave in to Iraqi demands to avoid leaving the decisions to his successor, Barack Obama.

http://www.mcclatchydc.com/world/story/56182.html

US-Iraq security pact may be in violation, Congress is told
By Jenny Paul
Globe Correspondent / November 20, 2008

WASHINGTON - Passage of the US-Iraq security pact under the terms both countries' leaders have advocated could violate the constitutions of both countries, specialists told a congressional subcommittee yesterday.

They instead pressed for an extension of the United Nations mandate authorizing US troop involvement in Iraq, which expires Dec. 31.

American constitutional law scholar Oona Hathaway said she believes the Constitution requires Congress to also approve the agreement. The Bush administration has labeled the pact a "status of forces agreement," which can be implemented without congressional approval.

But Hathaway said the US-Iraqi pact is more comprehensive than previous agreements because it allows US troops to engage in military operations and specifies timetables for military withdrawal.

"These are unprecedented in a standard status of forces agreement, have never been part of a standard status of forces agreement, and extend in my view far beyond what the president can do without obtaining congressional approval," said Hathaway, a professor at the University of California at Berkeley's School of Law.

http://www.boston.com/news/nation/wa...gress_is_told/

US contractors lose immunity in Iraq security deal
Matthew Lee, Associated Press Writer – Thu Nov 20, 6:22 pm ET

WASHINGTON – Thousands of contractors, both private Americans and non-Iraqi foreigners working in key roles for the United States in Iraq, will lose immunity and be subject to Iraqi law under new security arrangements, Bush administration officials say.

Pentagon and State Department officials notified companies that provide contract employees, like Blackwater Worldwide, Dyncorp International, Triple Canopy and KBR, of the changes on Thursday as the Iraqi parliament continues contentious debate on a security deal that will govern the presence of American forces in Iraq after January.

That so-called Status of Forces, or SOFA, agreement, which gives the Iraqi government only limited jurisdiction over U.S. troops and Defense Department civilians, excludes Defense Department contractors, two officials said.

The officials spoke to reporters on condition of anonymity after giving the same information to representatives of 172 invited contracting companies in two separate meetings earlier Thursday in Washington.

"Contractors and grantees can no longer expect that they will enjoy the wide range of immunity from Iraqi law that has been in effect since 2003," a State Department official said, reading from the text of a statement presented to the contractors.

Iraq will have "the primary right to exercise jurisdiction over" such workers, who are employed in various support roles for the U.S. military, including food service, transportation and sanitation, they said.

The agreement does not mention State Department contractors, who mainly provide security for U.S. diplomats in Iraq, but their immunity is expected to be revoked by the Iraqi government after the agreement takes effect pending Iraqi parliamentary approval, the officials said.

http://news.yahoo.com/s/ap/20081120/...ty_contractors

Iraq parliament engulfed in protests over US pact
In second stormy day in parliament, Iraqi lawmakers go through Iraqi-US security pact
QASSIM ABDUL-ZAHRA
AP News
Nov 20, 2008 06:34 EST

As opposition lawmakers shouted and pounded their desks in protest, Iraq's parliament on Thursday resumed deliberating a proposed security agreement with the United States that would allow American forces to stay there three more years.

The parliament completed a second reading of the proposal, the last step prior to the opening of debate on the security pact ahead of the Nov. 24 vote.

Lawmakers loyal to Shiite leader Muqtada al-Sadr sought to disrupt Thursday's reading as they did the previous day, when they scuffled with security guards after one of them aggressively approached the bench while a lawmaker from the ruling Shiite coalition was reading the text aloud.

On Thursday, the Sadrists attempted to drown out the voice of the lawmaker reading it aloud. Shouting matches later ensued, with Speaker Mahmoud al-Mashhadani barely able to control the chaos in the 275-seat chamber.

But unlike Wednesday, there were no scuffles among lawmakers and orderly proceedings continued.

http://wiredispatch.com/news/?id=460485

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All of this may dissolve into a farce (more of a farce ?); but, something has to be in place by 31 Dec.

[Ken White]

...something has to be in place by 31 Dec.

Serious question.

[jmm99]

Now the serious answer.

Our present legal basis for military action in Iraq is a UN resolution, summarized in the Operational Law Handbook 2007 (p.1-3):

g. UN Security Council Resolution 1511 (2003) authorized “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq.”

That resolution (which put the US in command) has been renewed, as stated in Pres. Bush's War Powers Act Report of 13 Jun 2008:

The U.N. Security Council authorized a Multinational Force (MNF) in Iraq under unified command in U.N. Security Council Resolution 1511 of October 16, 2003, and reaffirmed its authorization in U.N. Security Council Resolution 1546 of June 8, 2004, U.N. Security Council Resolution 1637 of November 8, 2005, U.N. Security Council Resolution 1723 of November 28, 2006, and U.N. Security Council Resolution 1790 of December 18, 2007, set to expire on December 31, 2008.

http://www.fas.org/irp/congress/2008_rpt/warpowers.html

Without renewal of the UN mandate, or ratification of the SOFA, US forces would have to be confined to bases with limited rights of self-defense.

-------------------------------------------
The legal basis for OIF was different. As summarized in the Operational Law Handbook (p. 1-3):

2. OPERATION IRAQI FREEDOM.

a. In the months leading up to the U.S.-led invasion of Iraq in 2003, U.S. diplomats worked feverishly to obtain UN Security Council support for a new Resolution explicitly authorizing the use of military force. When these diplomatic efforts failed, many pundits opined that, as a result, the U.S. lacked a legitimate basis for using force against Iraq.

The Bush Administration countered that authority existed under previous Security Council resolutions. Looking back to November 1990, the Security Council had passed Resolution 678, which:

Authorize[d] Member States co-operating with the government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

b. Significantly, UNSCR 678 authorized the use of force not only to expel Iraqi forces from Kuwait (implementing Resolution 660), but also “to restore international peace and security in the area.” In an attempt to bring this goal of peace and security in the northern Arabian Gulf region to fruition, the Security Council passed UNSCR 687, which formalized the cease-fire between coalition and Iraqi forces.

As a consequence, UNSCR 687 placed certain requirements on the government of Iraq, including:

(1) Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities related thereto; and

(2) Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above.

c. The U.S. position is that UNSCR 687 never terminated the authorization to use force contained in UNSCR 678. It merely suspended it with a cease-fire, conditioned upon Iraq’s acceptance of and compliance with the terms contained in the document and discussed above. While the Government of Iraq accepted the terms, compliance was never achieved.

The Security Council recognized this situation in November 2002 with the adoption of UNSCR 1441, which provided in part that “Iraq has been and remains in material breach of its obligations under relevant resolutions, including Resolution 687 (1991)….”

It was the position of the U.S. Government that, since Iraq remained in material breach of UNSCR 687, the cease-fire contained therein was null and void, and the authorization to use “all necessary means” to return peace and stability to the region (based on UNSCR 678) remained in effect. Under this rationale, a new Security Council resolution again authorizing “all necessary means” was politically advisable, yet legally unnecessary.

However, the U.S. argument is not without its critics.

I am not one of the critics - in short, I argue that Gulf II was simply a legal continuation of Gulf I. Given the military actions and economic sanctions taken between the two "Gulfs", that was also factually true.

But, when we decided to get into "nation building" big time - new constitution, new governmental structure, etc., the justification for our initial military action went by the boards ("Old Iraq", the culprit, ceased to exist).

Hence, the need for UN Res. 1511 and its renewals, which recognize the independent state of Iraq, to justify a continued US military presence.

[Ken White]

lacking some of the minutia. I understand that the SOFA is not a done deal for several reasons and why that is so even though Sistani yesterday told the Sadrists to chill. I am broadly conversant with the difference between and occupier and a 'guest' in a sovereign nation; with the fact that Al Maliki and the Presidents can approve the, in the absence of a SOFA, certainly desirable UN extension -- and with the fact that all that is very nice and we do really want to be all legal and aboveboard -- well, legal, anyway -- here.

I'm also aware that harsh reality sometimes makes the law not only difficult but impossible to follow...

We'll see.

Thank you for taking the time to answer and for the added detail.

[jmm99]

on the sometimes uncertainty of things legal. Posting below some more media stuff - two general background pieces by Reuters; and one WT piece that gave me pause.

I suppose the legal fallback is a renewed UN mandate - last year's was near the last minute (18 Dec 2007). However, this year's situation smells different - e.g., the OP article in this thread suggests that military considerations are more involved here than legal niceties.

As you say, we shall see.

[jmm99]

Reuters has these bullet points guides to the Iraq SOFA and the Iraqi approval process.

FACTBOX-Pact on withdrawal of U.S. forces from Iraq
REUTERS
Reuters North American News Service
Nov 21, 2008 07:15 EST

Nov 21 (Reuters) - The United States and Iraq signed a pact this week which would require U.S. forces to leave Iraq by the end of 2011, more than eight years after the invasion that toppled Saddam Hussein. Demonstrators protested against it on Friday, ahead of a vote in Iraq's parliament expected next week. Here are the main provisions of the pact. .....

http://wiredispatch.com/news/?id=461881

FACTBOX-Iraqi parliament to vote on US troops pact
REUTERS
Reuters North American News Service
Nov 21, 2008 09:53 EST

BAGHDAD, Nov 21 (Reuters) - Iraq's parliament is debating a pact that would allow U.S. forces to remain in the country for three years and is expected to vote on it next week. Its passage is seen as likely but not assured. Here are some facts about the vote: .....

http://wiredispatch.com/news/?id=461997

--------------------------------------
Don't shoot the messenger on this one.

Washington Times
EXCLUSIVE: U.S. to begin using search warrants in Iraq
Status-of-forces agreement might require authorization
Richard Tomkins
Friday, November 21, 2008

EXCLUSIVE:

BAGHDAD | Some U.S. troops in Iraq could begin applying for warrants before detaining terrorist suspects or searching Iraqi homes as soon as Dec. 1 -- a month before they might become required to do so under a new status-of-forces agreement.

Military sources, who asked not to be identified because of the sensitivity of the topic, said at least some units of the 4th Infantry Division in Baghdad would begin obtaining warrants from Iraqi legal authorities next month before making arrests or searching homes for weapons caches and other contraband in noncombat situations.

U.S. military officials would not confirm or deny the report.
.....
"I really don't know how it is going to work out," said Maj. Geoff Greene, executive officer of the 1st Battalion, 68th Armor Regiment, which operates in east Baghdad. "I don't know how to get them yet," he said of the warrants, adding that he expects to "receive guidance soon."
.....
Maj. Rob McMillan, operations officer with 1st Battalion, 68th Armor Regiment, said any early start of the mandated warrant searches would help identify problems in procedures. "This is the Army and we like to practice things," he said.

http://www.washingtontimes.com/news/...rants-in-iraq/

Much more in the article.

[jmm99]

where lives are lost each day, the twists and turns of the Iraqi SOFA would be a humorous farce.

So, we find that the adminisrtration will not release the English version to Congress (and, which is the same thing, to the press). That version is now "sensitive but unclassified", as McClatchy notes here:

Posted on Tuesday, November 25, 2008
U.S. staying silent on its view of Iraq pact until after vote
By Adam Ashton, Jonathan S. Landay and Nancy A. Youssef | McClatchy Newspapers

WASHINGTON — The Bush administration has adopted a much looser interpretation than the Iraqi government of several key provisions of the pending U.S.-Iraq security agreement, U.S. officials said Tuesday — just hours before the Iraqi parliament was to hold its historic vote.

These include a provision that bans the launch of attacks on other countries from Iraq, a requirement to notify the Iraqis in advance of U.S. military operations and the question of Iraqi legal jurisdiction over American troops and military contractors.

Officials in Washington said the administration has withheld the official English translation of the agreement in an effort to suppress a public dispute with the Iraqis until after the Iraqi parliament votes. ....
....
Among the areas of dispute are:

Iraqi legal jurisdiction over U.S. troops or military contractors who kill Iraqis on operations. The agreement calls for Iraq to prosecute U.S. troops according to court procedures that have yet to be worked out. Those negotiations, administration officials have argued, could take three years, by which time the U.S. will have withdrawn from Iraq under the terms of the agreement. In the interim, U.S. troops will remain under the jurisdiction of America's Uniform Code of Military Justice.

A provision that bars the U.S. from launching military operations into neighboring countries from Iraqi territory. Administration officials argue they could circumvent that in some cases, such as pursuing groups that launch strikes on U.S. targets from Syria or Iran, by citing another provision that allows each party to retain the right of self-defense. One official expressed concern that "if Iran gets wind that we think there's a loophole there," Tehran might renew its opposition to the agreement.

A provision that appears to require the U.S. to notify Iraqi officials in advance of any planned military operations and to seek Iraqi approval for them, which some U.S. military officials find especially troubling, although Robert Gates, the secretary of defense, Army Gen. David Petraeus, the head of the U.S. Central Command, and Army Gen. Raymond Odierno, the top U.S. commander in Iraq, all have endorsed it.

"Telling the Iraqis in advance would be an invitation to an ambush," said one U.S. official, who said the Iraqi government and security forces are "thoroughly penetrated by the insurgents, the Iranians, the Sadrists (followers of anti-American Shiite cleric Moqtada al Sadr) and ordinary folks who just sell scraps of intelligence."

http://www.mcclatchydc.com/227/story/56474.html

But, from the same article, you can find not only a translation of the Arabic version, but the official English version,

McClatchy's Baghdad bureau last week produced an unofficial English translation of the agreement based on the Arabic text. McClatchy on Tuesday also obtained an official English version.

which is here:

http://media.mcclatchydc.com/smedia/...filiate.91.pdf

Haven't done a word for word, but this looks like the same version as one could find by Googling into a NY Times webpage, which we reported 6 days ago in the adjacent Iraq SOFA Draft thread (post # 8).

-------------------------------------
Progress on the Iraqi approval process has been deferred until tomorrow, according to this:

Iraq Delays Vote on Security Pact
By ALISSA J. RUBIN
Published: November 26, 2008

BAGHDAD — Iraq’s Parliament has delayed by at least 24 hours a vote on a security agreement with the United States as some Parliamentarians worked to finalize a political reform package to constrain the power of the government of Prime Minister Nuri Kamal al-Maliki that would be voted on at the same time as the agreement....
.....
But the agreement’s final passage through Parliament is now being held up by the negotiations over the political reforms that the political blocs have agreed will accompany the pact. Those discussions mean the final agreement on the security pact may now drag on for days or even weeks, possibly closer to the final end-of-year deadline when the current United Nations resolution governing the foreign military presence expires.
....
The vote on the security agreement had already been postponed from Monday, and intensive negotiations continued Tuesday and Wednesday as the agreement’s proponents tried to corral enough votes for approval by a significant majority of Parliament.

If the pact fails to win approval, the United States military will have no legal basis to continue operations in Iraq after Dec. 31, when the United Nations resolution governing the foreign military presence ends.

http://www.nytimes.com/2008/11/27/wo...ll&oref=slogin

What this boils down to is that the Sunnis want some piece of the pie (or perhaps, a continued US presence to protect them). Since the Sunni VP can veto the agreement even if parliament approves it, some sort of deal seems likely with the Sunnis - if such a deal is even possible.