Congressional Oversight and Related Issues Concerning the Prospective Security Agreement Between the United States and Iraq

Congressional research reportMay 28, 2008

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Congressional Oversight and Related Issues

Concerning the Prospective Security

Agreement Between the United States

and Iraq

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RL34362

CRS Report for Congress

Prepared for Members and Committees of Congress

Congressional Oversight Concerning the Prospective U.S.-Iraq Security Agreement

Summary

On November 26, 2007, U.S. President George W. Bush and Iraqi Prime Minister Nouri Kamel

Al-Maliki signed a Declaration of Principles for a Long-Term Relationship of Cooperation and

Friendship Between the Republic of Iraq and the United States of America. Pursuant to this

Declaration, the parties pledged to “begin as soon as possible, with the aim to achieve, before

July 31, 2008, agreements between the two governments with respect to the political, cultural,

economic, and security spheres.” Among other things, the Declaration proclaims the parties’

intention to enter an agreement that would commit the United States to provide security

assurances to Iraq, arm and train Iraqi security forces, and confront Al Qaeda and other terrorist

entities within Iraqi territory. Officials in the Bush Administration have subsequently stated that

the agreement will not commit the United States to militarily defend Iraq. The nature and form of

such a U.S.-Iraq security agreement has been a source of congressional interest, in part because of

statements by General Douglas Lute, Assistant to the President for Iraq and Afghanistan, who

suggested that any such agreement was unlikely to take the form of a treaty, subject to the advice

and consent of the Senate, or otherwise require congressional approval.

It is not clear whether the security agreement(s) discussed in the Declaration will take the form of

a treaty or some other type of international compact. Regardless of the form the agreement may

take, Congress has several tools by which to exercise oversight regarding the negotiation, form,

conclusion, and implementation of the arrangement by the United States. This report begins by

discussing the current legal framework governing U.S. military operations in Iraq. The report then

provides a general background as to the types of international agreements that are binding upon

the United States, as well as considerations affecting whether they take the form of a treaty or an

executive agreement. Next, the report discusses historical precedents as to the role that security

agreements have taken, with specific attention paid to past agreements entered with Afghanistan,

Germany, Japan, South Korea, and the Philippines. The report then discusses the oversight role

that Congress plays with respect to entering and implementing international agreements involving

the United States. Finally, the report describes legislation proposed in the 110th Congress to

ensure congressional participation in the conclusion of a security agreement between the United

States and Iraq, including the engrossed amendment to H.R. 2642, the Supplemental

Appropriations Act, 2008, which passed the House on May 15, 2008; S. 2426, the Congressional

Oversight of Iraq Agreements Act of 2007; H.R. 4959, Iraq Strategic Agreement Review Act of

2008; H.R. 5128, disapproving of any formal U.S.-Iraq security agreement absent congressional

authorization; and H.R. 5626, the Protect Our Troops and Our Constitution Act of 2008. The

White House has suggested that the President would veto legislation that attempted to define the

legal effect or content of any agreement with Iraq prior to the completion of diplomatic

negotiations.

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Contents

Introduction ................................................................................................................................1

I. Current Legal Framework Governing U.S. Military Operations In Iraq.....................................3

II. International Agreements Under U.S. Law..............................................................................7

Treaties .................................................................................................................................8

Executive Agreements...........................................................................................................8

Congressional-Executive Agreements............................................................................ 10

Executive Agreements Made Pursuant to Treaties.......................................................... 10

Sole Executive Agreements ........................................................................................... 11

Choosing Between a Treaty and Executive Agreement ........................................................ 13

III. Historical Practice Regarding Security Agreements ............................................................. 14

Categories of Security Agreements...................................................................................... 14

Collective Defense Agreements/”Security Commitments” ............................................. 15

Consultation Requirements/”Security Arrangements”.................................................... 16

Other Types of Military Agreements.............................................................................. 17

Agreements Granting the Legal Right to Military Intervention ...................................... 18

Non-Binding Security Arrangements ................................................................................... 19

Examples of Bilateral Security Agreements ......................................................................... 21

Afghanistan .................................................................................................................. 21

Germany....................................................................................................................... 24

Japan ............................................................................................................................ 25

South Korea .................................................................................................................. 26

Philippines .................................................................................................................... 27

IV. Congressional Oversight...................................................................................................... 28

Notification......................................................................................................................... 29

Notification Pursuant to the Case-Zablocki Act ............................................................. 29

Notification Pursuant to Circular 175 Procedures .......................................................... 30

Annual Reporting of Security Arrangements Required by the National Defense

Authorization Act of 1991 .......................................................................................... 30

Consultation........................................................................................................................ 31

Approval, Rejection, or Conditional Approval of International Agreements ........................ 32

Implementation of an Agreement That Is Not Self-Executing .............................................. 33

Continuing Oversight .......................................................................................................... 34

V. Legislative Activity............................................................................................................... 34

Contacts

Author Contact Information ...................................................................................................... 36

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Introduction

On November 26, 2007, U.S. President George W. Bush and Iraqi Prime Minister Nouri Kamel

Al-Maliki signed a Declaration of Principles for a Long-Term Relationship of Cooperation and

Friendship Between the Republic of Iraq and the United States of America.1 Pursuant to this

Declaration, the parties pledged to “begin as soon as possible, with the aim to achieve, before

July 31, 2008, agreements between the two governments with respect to the political, cultural,

economic, and security spheres.”2 Among other things, the Declaration proclaims the parties’

intention to negotiate a security agreement

To support the Iraqi government in training, equipping, and arming the Iraqi Security Forces

so they can provide security and stability to all Iraqis; support the Iraqi government in

contributing to the international fight against terrorism by confronting terrorists such as AlQaeda, its affiliates, other terrorist groups, as well as all other outlaw groups, such as

criminal remnants of the former regime; and to provide security assurances to the Iraqi

Government to deter any external aggression and to ensure the integrity of Iraq’s territory.3

The New York Times reported in January 2008 that the Bush Administration has crafted a draft

proposal for a U.S.-Iraq security agreement which would, if agreed upon by the parties, provide

the United States with broad authority to conduct military operations in Iraq, guarantee U.S.

military forces and contractors immunity from Iraqi law, and provide the United States with the

power to detain Iraqi prisoners.4 The New York Times also reported that the draft proposal does

not call for the establishment of permanent U.S. military bases in Iraq, authorize future troop

levels in the country, or describe the specific security obligations of the United States should Iraq

come under attack.5 During testimony before the Senate Committee on Armed Services on

February 6, 2008, Secretary of Defense Robert M. Gates stated that the prospective security

agreement would not obligate the United States to militarily defend Iraq in the event of a threat to

Iraqi security. 6

The text of this agreement is available at http://www.whitehouse.gov/news/releases/2007/11/20071126-11.html

[hereinafter “Declaration of Principles”]. The Declaration is rooted in an August 26, 2007, communique, signed by

five top political leaders in Iraq, which called for a long-term relationship with the United States. The strategic

arrangement contemplated in the Declaration is intended to ultimately replace the United Nations mandate under which

the United States and allied forces are responsible for contributing to the security of Iraq. For further background on the

implications of the prospective U.S.-Iraq agreement, see The Proposed U.S. Security Commitment to Iraq: What Will

Be In It and Should It Be a Treaty?: Hearing Before the Subcomm. on International Organizations, Human Rights, and

Oversight & Subcomm. on the Middle East and South Asia of the House Comm. on Foreign Affairs, January 23, 2008

(statement by CRS Specialist (name redacted)). For further discussion of U.S. operations in Iraq and issues related to

Iraqi governance and security, see CRS Report RL31339, Iraq: Post-Saddam Governance and Security, by (name re

dacted), CRS Report RL31701, Iraq: U.S. Military Operations, by (name redacted); and CRS Report RL33793,Iraq:

Regional Perspectives and U.S. Policy, by (name redacted) et al.

Declaration of Principles, supra note 1.

White House Office of the Press Secretary, Fact Sheet: U.S.-Iraq Declaration of Principles for Friendship and

Cooperation, November 26, 2007, available at http://www.whitehouse.gov/news/releases/2007/11/20071126-1.html.

Thom Shanker and Steven Lee Myers, U.S. Asking Iraq for Wide Rights in Fighting War, N.Y. TIMES, January 25,

2008, at A1.

Id.

Hearing Before the Sen. Comm. on Armed Services to Receive Testimony on the Defense Authorization Request for

Fiscal Year 2009, the Future Years Defense Program, and the Fiscal Year 2009 Request for Operations in Iraq and

Afghanistan, February 6, 2008 (statement by Defense Sec. Robert M. Gates in response to questioning by Senator

Edward Kennedy regarding a prospective U.S.-Iraq security agreement).

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It is not clear whether the agreement(s) discussed in the Declaration will take the form of a treaty

or some other type of international compact. However, in a November 26, 2007, press briefing

regarding the Declaration, General Douglas Lute, Assistant to the President for Iraq and

Afghanistan, stated that the Administration did not foresee a prospective agreement with Iraq

having “the status of a formal treaty which would then bring us to formal negotiations or formal

inputs from the Congress.”7 According to a February 5, 2008, report by the Congressional

Quarterly, the National Security Council offered to brief Congress on the nature of the

prospective U.S.-Iraq security agreement.8 In a February 13, 2008, op-ed piece for the

Washington Post, Secretary of Defense Gates and Secretary of State Condoleezza Rice claimed

that the Administration “will work closely with the appropriate committees of Congress to keep

lawmakers informed and to provide complete transparency. Classified briefings have already

begun, and we look forward to congressional input.”9 On March 4, 2008, during a joint hearing

before the House Foreign Affairs Subcommittee on the Middle East and South Asia and the

Subcommittee on International Organizations, Human Rights and Oversight, Ambassador David

M. Satterfield, Senior Advisor to the Secretary and Coordinator for Iraq, testified that seven

background briefings by senior administration officials had been held with Members of Congress

concerning the prospective U.S.-Iraq agreement.10

Presently, the Administration intends to negotiate two separate security agreements with Iraq. The

first agreement would constitute a legally binding Status of Forces Agreement (SOFA) to define

the legal status of U.S. forces within Iraq. On April 10, 2008, Ambassador Satterfield testified

during a hearing before the Senate Foreign Relations Committee regarding the similarities and

differences between the proposed Iraq SOFA and the SOFAs that the United States has entered

with other countries:

This agreement is similar to the many [SOFAs]...we have across the world, which address

such matters as jurisdiction over U.S. forces; the movement of vehicles, vessels, and aircraft;

non-taxation of U.S. activities and the ability of U.S. forces to use host-government facilities.

The SOFA is also unique in that it also takes into account the particular circumstances and

requirements for our forces in Iraq, in particular, by providing for consent by the

Government of Iraq to the conduct of military operations. Neither we nor the Iraqis intend

for this to be a permanent provision of the SOFA.11

The second agreement, described as a “strategic framework agreement,” would broadly address

topics outlined in the Declaration of Principles. According to Ambassador Satterfield, the

Administration does

White House Office of the Press Secretary, Press Gaggle by Dana Perino and General Douglas Lute, Assistant to the

President for Iraq and Afghanistan , November 26, 2007, available at http://www.whitehouse.gov/news/releases/2007/

11/20071126-6.html.

Adam Graham-Silverman, White House Backs Off From Asserting Long-Term Security Agreements with Iraq,

CONGRESSIONAL QUARTERLY, February 5, 2008 (quoting anonymous congressional aide).

Condoleezza Rice and Robert Gates, What We Need Next in Iraq, WASH. POST, February 13, 2008, at A19.

Hearing of the Subcommittee on the Middle East and South Asia, and the Subcommittee on International

Organizations, Human Rights, and Oversight of the House Foreign Affairs Committee; Declaration and Principles:

Future U.S. Commitments to Iraq, March 4, 2008 (statement by Ambassador David M. Satterfield in response to

question by Representative William Delahunt) [hereinafter “Satterfield Testimony of March 4”].

Hearing of the Senate Foreign Relations Committee; Negotiating a Long Term Relationship with Iraq, April 10,

2008 (statement by Ambassador David M. Satterfield).

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not at this stage contemplate it as a legally binding agreement.... Should that change in the

course of the discussions, we will, of course, so inform the Congress and we’ll take

appropriate measures in accordance with our constitutional provisions.12

Regardless of the form any agreement may take, Congress has several tools by which to exercise

oversight regarding the negotiation, form, conclusion, and implementation of the arrangement by

the United States. This report begins by discussing the current legal framework governing U.S.

military operations in Iraq. The report then provides a general background as to the types of

international agreements that are binding upon the United States, as well as considerations

affecting whether they take the form of a treaty or an executive agreement. Next, the report

discusses historical precedents that security agreements have taken, with specific attention paid to

past agreements entered with Afghanistan, Germany, Japan, South Korea, and the Philippines.

The report then discusses the oversight role that Congress plays with respect to entering and

implementing international agreements involving the United States. Finally, the report describes

legislation proposed in the 110th Congress to ensure congressional participation in the conclusion

of a security agreement between the United States and Iraq.

I. Current Legal Framework Governing

U.S. Military Operations In Iraq

U.S. military operations in Iraq are congressionally authorized pursuant to H.J.Res. 114 (P.L. 107243), which authorizes the President to use the armed forces of the United States

as he determines to be necessary and appropriate in order to - (1) defend the national security

of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant

United Nations Security Council resolutions regarding Iraq.

It also requires as a predicate for the exercise of that authority that the President determine that

diplomatic efforts and other peaceful means will be inadequate to meet these goals and that the

use of force against Iraq is consistent with the battle against terrorism.13 H.J.Res. 114 appears to

incorporate any future resolutions concerning the continuing situation in Iraq that the Security

Council may adopt, as well as those adopted prior to its enactment.14 The authority also appears

to extend beyond compelling Iraq’s disarmament to implementing the full range of concerns

expressed in those U.N. resolutions, as well as for the broad purpose of defending “the national

security of the United States against the continuing threat posed by Iraq.”

The United States and Great Britain, along with a number of other countries, invaded Iraq in

March of 2003, asserting the authority to enforce compliance with earlier Security Council

Satterfield Testimony of March 4, supra note 10 (statement by Ambassador David M. Satterfield in response to

question by Representative William Delahunt concerning legally binding nature of proposed agreement).

In March 2003, President George W. Bush reported to Congress the determination that was required by P.L. 107-243

regarding his exercise of authority for military operations against Iraq. House Document 108-50. March 19, 2003. A

report in connection with Presidential Determination under Public Law 107-243. Communication from the President of

the United States transmitting a report consistent with Section 3(b) of the Authorization for Use of Military Force

Against Iraq Resolution of 2002.

For an historical overview of Security Council Resolutions addressing the situation in Iraq prior to 2003, see CRS

Report RS21323, The United Nations Security Council—Its Role in the Iraq Crisis: A Brief Overview, by (name redacte

d).

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resolutions that addressed the situation in Iraq and Kuwait.15 Other Security Council members

disagreed with this interpretation of the previous resolutions, denying that these resolutions

contained a continuing authorization to use force against Iraq. Despite the initial lack of

consensus regarding the legality of the invasion, the Security Council adopted subsequent

resolutions recognizing the occupation of Iraq and generally supporting the coalition’s plans for

bringing about a democratic government in Iraq.16

The first of these, Resolution 1511 (October 16, 2003), recognized the Coalition Provisional

Authority (CPA) and underscored the temporary nature of its obligations and authorities under

international law, which it said would cease “when an internationally recognized, representative

government established by the people of Iraq is sworn in and assumes the responsibilities of the

[CPA].” (Para. 1). In paragraph 13, Resolution 1511 authorized

a multinational force under unified command to take all necessary measures to contribute to

the maintenance of security and stability in Iraq, including for the purpose of ensuring

necessary conditions for the implementation of the timetable and programme [for

establishing a permanent government in Iraq] as well as to contribute to the security of the

United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other

institutions of the Iraqi interim administration, and key humanitarian and economic

infrastructure.

The Security Council included in Resolution 1511 a commitment to “review the requirements and

mission of the multinational force ... not later than one year from the date of this resolution.” It

further established that “in any case the mandate of the force shall expire upon the completion of

the [electoral process outlined previously],” at which time the Security Council would be ready

“to consider ... any future need for the continuation of the multinational force, taking into account

the views of an internationally recognized, representative government of Iraq.”

The Security Council resolutions do not provide for the immunity of coalition troops from Iraqi

legal processes. No status of forces agreement (SOFA) was deemed possible prior to the

recognition of a permanent government in Iraq.17 Immunity for coalition soldiers, contract

workers, and other foreign personnel in Iraq in connection with security and reconstruction was

established by order of the CPA, which relied for its authority on the laws and usages of war (as

consistent with relevant Security Council resolutions). CPA Order 17, Status of the Coalition

Provisional Authority, MNF - Iraq, Certain Missions and Personnel in Iraq,18 established that all

personnel of the multinational force (MNF) and the CPA, and all International Consultants, are

immune from Iraqi legal process, which are defined to include “arrest, detention or proceedings in

Iraqi courts or other Iraqi bodies, whether criminal, civil, or administrative.” Such persons are

nevertheless expected to respect applicable Iraqi laws, but are subject to the exclusive jurisdiction

of their “Sending States.” States contributing personnel to the multinational force have the right to

See Sean Murphy, Assessing the Legality of Invading Iraq, 92 GEO. L.J. 173 (2004).

For an overview of the process, see CRS Report RL31339, Iraq: Post-Saddam Governance and Security, by (name re

dacted).

The United States reportedly made an effort to establish a SOFA with the Iraqi Governing Council prior to the

handover of sovereignty and establishment of the Iraqi Interim Government, but Iraqi officials took the view that only a

permanently established government in Iraq would have the authority to enter binding international agreements. See

Robin Wright, U.S. Immunity in Iraq Will Go Beyond June 30, WASH. POST, June 24, 2004, at A01.

Available online at http://www.cpa-iraq.org/regulations/

20040627_CPAORD_17_Status_of_Coalition__Rev__with_Annex_A.pdf.

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exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by their

domestic law over all persons subject to their military law.19

In June 2004, in anticipation of the dissolution of the CPA and handover of sovereignty to the

Interim Government of Iraq, the Security Council adopted Resolution 1546, reaffirming the

authorization for the multinational force in Resolution 1511 while noting that its presence in Iraq

“is at the request of the incoming Interim Government of Iraq.” The terms of the mandate for the

MNF are expressed in paragraph 12, in which the Security Council

Decides further that the mandate for the multinational force shall be reviewed at the request

of the Government of Iraq or twelve months from the date of this resolution, and that this

mandate shall expire upon the completion of the political process set out ... above, and

declares that it will terminate this mandate earlier if requested by the Government of Iraq.

Resolution 1546 incorporated letters from U.S. Secretary of State Colin Powell and Prime

Minister of the Interim Government of Iraq Dr. Ayad Allawi. Secretary Powell wrote:

In order to continue to contribute to security, the MNF must continue to function under a

framework that affords the force and its personnel the status that they need to accomplish

their mission, and in which the contributing states have responsibility for exercising

jurisdiction over their personnel and which will ensure arrangements for, and use of assets

by, the MNF. The existing framework governing these matters is sufficient for these

purposes. In addition, the forces that make up the MNF are and will remain committed at all

times to act consistently with their obligations under the law of armed conflict, including the

Geneva Conventions.

Prior to the handover of sovereignty to the interim government, Ambassador Bremer issued CPA

Order 100 to revise existing CPA orders, chiefly by substituting the MNF-Iraq for the CPA and

otherwise reflecting the new political situation. 20 CPA Order 100 stated, as its purpose,

to ensure that the Iraqi Interim Government and all subsequent Iraqi governments inherit full

responsibility for these laws, regulations, orders, memoranda, instructions and directives so

that their implementation after the transfer of full governing authority may reflect the

expectations of the Iraqi people, as determined by a fully empowered and sovereign Iraqi

Government.21

Under Article 26 of the Transitional Administrative Law of Iraq (TAL),22 “The laws, regulations,

orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under

international law shall remain in force until rescinded or amended by legislation duly enacted and

having the force of law.”

Accordingly, CPA Order 17 (as revised) survived the transfer of authority to the Iraqi Interim

Government, which took no action to amend or rescind it. Iraq’s permanent constitution was

Id. § 4.

CPA Order 100, Transition of Laws, Regulations, Orders, and Directives Issued by the Coalition Provisional

Authority, June 28, 2004, available at http://www.cpa-iraq.org/regulations/

20040628_CPAORD_100_Transition_of_Laws__Regulations__Orders__and_Directives.pdf.

Id. § 1.

Law of Administration for the State of Iraq for the Transitional Period, 8 March 2004, available at http://www.cpairaq.org/government/TAL.html.

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adopted in 2005. Article 130 of the permanent constitution continues the validity of existing laws,

presumably including CPA Orders that were not rescinded by the Transitional Government.

The U.N. Security Council extended the mandate for the multinational forces until December 31,

2006,23 and again until December 31, 2007,24 and finally, until December 31, 2008.25 Iraqi Prime

Minister al-Maliki requested the Security Council extend the MNF mandate “one last time” until

the end of December, 2008, “provided that the extension is subject to a commitment by the

Security Council to end the mandate at an earlier date if the Government of Iraq so requests and

that the mandate is subject to periodic review before June 2008.”26

By its terms, CPA Order 17 remains in force for the duration of the U.N. mandate and terminates

only after the departure of the final element of the MNF from Iraq, or at such time as it is

rescinded or amended by duly enacted legislation having the force of law. 27 Neither it nor CPA

Order 100 establishes a timetable for the departure of all MNF elements from Iraq after the U.N.

mandate ends. Order 17 could be interpreted effectively to expire concomitantly with the U.N.

mandate, because it defines Multinational Force with reference to the U.N. resolutions.28

However, the order appears to have been designed to stay in force for a time after the expiration

of the U.N. mandate, for a long enough period at least to allow the departure of all MNF

personnel. If the U.N. Security Council or the Iraqi government adopts a timetable for the

departure of the MNF, it seems logical that CPA Order 17 would continue in force until the

deadline for departure passes. On the other hand, if the government of Iraq invites the United

States or any other coalition government to maintain troops in Iraq after the U.N. mandate

terminates, it may be expedient for the Iraqi government to continue to recognize CPA Order 17

until a new agreement establishing the role and status of such troops is reached.

It bears emphasis that the foregoing is subject to the sole interpretation of the Iraqi government.

Whether the immunity of coalition troops and other personnel will continue in force after the

U.N. mandate expires depends on whether the Iraqi government deems them to be part of

elements of the MNF that have not yet departed or military forces that have overstayed their

mandate. It is not clear which branch of the Iraqi government would make that determination.

Even more significantly, the Iraqi legislature could decide to repeal, amend, or possibly extend

the order at any time, even before the U.N. mandate expires.

Another question regarding the status and role of U.S. forces in Iraq post-U.N. mandate is

whether the congressional authorization to use military force will also end. H.J.Res. 114 does not

contain explicit time requirements or call for the withdrawal of U.S. troops by any specific date or

set of criteria. Presumably, continued force is authorized under the resolution only so long as Iraq

poses a continuing threat to the United States and the U.S. military presence is not inconsistent

with relevant U.N. resolutions. Because the specific threats posed by Iraq during Saddam

Hussein’s regime that were emphasized in the preamble to H.J.Res 114 no longer exist (with the

U.N.S.C. Res. 1637 November 11, 2005).

U.N.S.C. Res. 1723 (November 28, 2006).

U.N.S.C. Res. 1790 (December 18, 2007).

Letter from Nuri Kamel al-Maliki, Prime Minister of the Republic of Iraq, to the Security Council, attached as Annex

I to U.N.S.C. Res. 1790.

CPA Order 17, supra note 18, § 20.

Id. § 1 (defining MNF to mean “the force authorized under U.N. Security Council Resolutions 1511 and 1546, and

any subsequent relevant U.N. Security Council resolutions”).

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possible exception of the presence of al Qaeda in Iraq), it may be argued that Iraq no longer poses

a danger to the security of the United States, at least, not of the same kind that led Congress to

pass H.J.Res 114 in the first place. Once the U.N. mandate for the multinational forces in Iraq

expires (and assuming that the U.N. Security Council does not adopt new language supporting a

new U.S. military role in Iraq), it is arguable that the U.S. use of military force in Iraq is not

necessary or appropriate to enforce U.N. Security Council resolutions regarding Iraq. A

determination by the U.N. Security Council that the situation in Iraq no longer poses a threat to

international peace and security compelling the exercise of its authority under Chapter VII of the

U.N. Charter could also undermine the argument that Iraq continues to pose a threat to the United

States. Such conclusions do not necessarily support a view that U.S. troops are automatically

required to be withdrawn when the U.N. mandate expires, 29 but suggest that new legislation may

be necessary to support a new role for U.S. troops under a possible agreement with Iraq. The

Administration has expressed its view that no new congressional authorization will be necessary

to support U.S. combat operations in Iraq after the U.N. mandate ends. 30

II. International Agreements Under U.S. Law

Under the U.S. system, a legally binding international agreement can be entered into pursuant to

either a treaty or an executive agreement.31 The Constitution allocates primary responsibility for

entering such agreements to the executive branch, but Congress also plays an essential role. First,

in order for a treaty (but not an executive agreement) to become the “Law of the Land,”32 the

Senate must provide its advice and consent to treaty ratification by a two-thirds majority.

Alternatively, Congress may authorize congressional-executive agreements. Many treaties and

executive agreements are not “self-executing,” meaning that in order for them to take effect

domestically, implementing legislation is required to provide U.S. bodies with the authority

necessary to enforce and comply with the agreements’ provisions. While some executive

agreements do not require congressional approval, adherence to them may nonetheless be

dependent upon Congress appropriating necessary funds or authorizing the activities to be carried

out (where compliance with the agreement would contravene some statutory provision).

For an analysis of Congress’s role in shaping the mission in Iraq, see generally CRS Report RL33837, Congressional

Authority to Limit U.S. Military Operations in Iraq, by (name redacted), (name redacted), and (name redacted).

See Letter from Assistant Secretary of State Jeffrey T. Bergner to Congressman Gary L. Ackerman, Response for

Record from Ambassador Satterfield, March 5, 2008 (citing laws authorizing military force in Iraq and against

terrorists responsible for the September 11, 2001, attacks, the President’s authority as Commander in Chief, and

congressional appropriations of funds to support military operations in Iraq as sources of authority for continued

operations in Iraq); Karen DeYoung, No Need For Lawmakers’ Approval Of Iraq Pact, U.S. Reasserts, WASH. POST,

March 6, 2008, at A18.

Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a legally

binding international agreement. For discussion of criteria used to distinguish between legally binding and non-binding

international commitments, see infra at 35. See also 22 C.F.R. § 181.2(a); State Department Office of the Legal

Adviser, Guidance on Non-Binding Documents, at http://www.state.gov/s/l/treaty/guidance/.

U.S. CONST., art. VI, § 2. In this regard, it is important to distinguish “treaty” in the context of international law, in

which “treaty” and “international agreement” are synonymous terms for all binding agreements, and “treaty” in the

context of domestic American law, in which “treaty” more narrowly refers to a particular subcategory of binding

international agreements. It should be noted, however, that the term “treaty” is not always interpreted under U.S. law to

refer only to those agreements described in Article II, § 2 of the Constitution. See Weinberger v. Rossi, 456 U.S. 25

(1982) (interpreting statute barring discrimination except where permitted by “treaty” to refer to both treaties and

executive agreements); B. Altman & Co. v. United States, 224 U.S. 583 (1912) (construing the term “treaty,” as used in

statute conferring appellate jurisdiction, to also refer to executive agreements).

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Treaties

Under U.S. law, a treaty is an agreement negotiated and signed33 by the executive branch, which

enters into force if it is approved by a two-thirds majority in the Senate and is subsequently

ratified following Presidential signature.34 The Senate may, in considering a treaty, condition its

consent on certain reservations, 35 declarations36 and understandings37 concerning treaty

application. If accepted, these reservations, declarations, and understandings may limit and/or

define U.S. obligations under the treaty.38

Executive Agreements

The great majority of international agreements that the United States enters into are not treaties

but executive agreements39—agreements made by the executive branch that are not submitted to

the Senate for its advice and consent. There are three types of prima facie legal executive

agreements: (1) congressional-executive agreements, in which Congress has previously or

retroactively authorized an international agreement entered into by the Executive; (2) executive

agreements made pursuant to an earlier treaty, in which the agreement is authorized by a ratified

treaty; and (3) sole executive agreements, in which an agreement is made pursuant to the

President’s constitutional authority without further congressional authorization. The Executive’s

authority to promulgate the agreement is different in each case.

Although executive agreements are not specifically discussed in the Constitution, they

nonetheless have been considered valid international compacts under Supreme Court

jurisprudence and as a matter of historical practice.40 Starting in the World War II era, reliance on

Under international law, States that have signed but not ratified treaties have the obligation to refrain from acts that

would defeat the object or purpose of the treaty. Vienna Convention on the Law of Treaties, entered into force January

27, 1980, 1155 U.N.T.S. 331 [hereinafter “Vienna Convention”], art. 18. Although the United States has not ratified the

Vienna Convention, it recognizes it as generally expressing customary international law. See, e.g., Fujitsu Ltd. v.

Federal Exp. Corp., 247 F.3d 423, 433 (2nd Cir. 2001) (“we rely upon the Vienna Convention here as an authoritative

guide to the customary international law of treaties...[b]ecause the United States recognizes the Vienna Convention as a

codification of customary international law...and [it] acknowledges the Vienna Convention as, in large part, the

authoritative guide to current treaty law and practice”) (internal citations omitted).

Oftentimes, a bilateral treaty will only come into effect after the parties exchange instruments of ratification. In the

case of multilateral treaties, ratification typically occurs only after the treaty’s instruments of ratification are submitted

to the appropriate body in accordance with the terms of the agreement.

A “reservation” is “a unilateral statement... made by a State, when signing, ratifying, accepting, approving or

acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in

their application to that State.” Vienna Convention, art. 2(1)(d). In practice, “[r]eservations change U.S. obligations

without necessarily changing the text, and they require the acceptance of the other party.” CONGRESSIONAL RESEARCH

SERVICE, TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, A STUDY

PREPARED FOR THE SENATE COMM. ON FOREIGN RELATIONS 11 (Comm. Print 2001); Vienna Convention, arts. 19-23.

Declarations are “statements expressing the Senate’s position or opinion on matters relating to issues raised by the

treaty rather than to specific provisions.” TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 11.

Understandings are “interpretive statements that clarify or elaborate provisions but do not alter them.” Id.

As a matter of customary international law, States are “obliged to refrain from acts which would defeat the object

and purpose of a treaty,” including entering reservations that are incompatible with a treaty’s purposes. Vienna

Convention, arts. 18-19.

LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 215 (2nd ed. 1996).

E.g., American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (“our cases have recognized that the President has

authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate...this power

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executive agreements has grown significantly. 41 Whereas 27 executive agreements (compared to

60 treaties) were concluded by the United States during the first 50 years of the Republic,

between 1939 and 2004 the United States concluded 15,522 executive agreements (compared to

1,035 treaties). 42

Although some have argued that certain agreements may only be concluded as treaties, subject to

the advice and consent of the Senate,43 this view has generally been rejected by scholarly

opinion.44 Adjudication of the propriety of executive agreements has been rare, in significant part

because plaintiffs often cannot demonstrate that they have suffered a redressable injury giving

them standing to challenge an agreement, 45 or fail to make a justiciable claim. In 2001, the

Eleventh Circuit Court of Appeals held that the issue of whether the North American Free Trade

Agreement (NAFTA) was a treaty requiring approval by two-thirds of the Senate presented a

nonjusticiable political question. 46 It does not appear that an executive agreement has ever been

held invalid by the courts on the grounds that it was in contravention of the Treaty Clause.47

(...continued)

having been exercised since the early years of the Republic”); United States v. Belmont, 301 U.S. 324, 330 (“an

international compact...is not always a treaty which requires the participation of the Senate”).

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 38-40.

WILLIAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW 376 (5th ed. 2007). Between 1789

and 2004, the United States entered 1,834 treaties and 16,704 executive agreements, meaning that roughly 10% of

agreements concluded by the United States have taken the form of treaties. Id.

E.g., Edwin Borchard, Treaties and Executive Agreements: A Reply, 54 YALE L. J. 616 (1945) (arguing that the

congressional-executive agreement is not a constitutionally permissible alternative to a treaty, and that sole executive

agreements are permissible in limited circumstances); Laurence H. Tribe, Taking Text and Structure Seriously:

Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995) (arguing that the

Treaty Clause is the exclusive means for Congress to approve significant international agreements); John C. Yoo, Laws

as Treaties?: the Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757 (2001) (arguing that

treaties are the constitutionally required form for congressional approval of an international agreement concerning

action lying outside of Congress’s constitutional powers, including matters with respect to human rights,

political/military alliances, and arms control, but are not required for agreements concerning action falling within

Congress’s powers under Art. I of the Constitution, such as agreements concerning international commerce).

RESTATEMENT (THIRD) OF FOREIGN RELATIONS, § 303 n.8 (1987) (“At one time it was argued that some agreements

can be made only as treaties, by the procedure designated in the Constitution.... Scholarly opinion has rejected that

view.”); HENKIN, supra note 39, at 217 (“Whatever their theoretical merits, it is now widely accepted that the

Congressional-Executive agreement is available for wide use, even general use, and is a complete alternative to a

treaty...”); Yoo, supra note 43, at 759 (noting that “a broad intellectual consensus exists that congressional-executive

agreements may serve as full substitutes for treaties”). Cf. Bruce Ackerman & David Golove, Is NAFTA

Constitutional?, 108 HARV. L. REV. 799 (1995) (arguing that developments in the World War II era altered historical

understanding of the Constitution’s allocation of power between government branches so as to make congressionalexecutive agreement a complete alternative to a treaty); Myres S. McDougal and Asher Lans, Treaties and

Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (parts I and II),

54 YALE L. J. 181, 534 (1945) (arguing that historical practice supports the interchangeability of congressionalexecutive agreements and treaties).

RESTATEMENT, supra note 44, at § 302, n. 5; HENKIN, supra note 39, at 142-148. See also Greater Tampa Chamber of

Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980) (finding that plaintiffs lacked standing to challenge the

propriety of the form taken by an international agreement between the United States and United Kingdom). Executive

agreements dealing with matters having no direct impact upon private interests in the United States (e.g., agreements

concerning military matters or foreign relations) are rarely the subject of domestic litigation, in part because persons

typically cannot demonstrate that they have suffered an actual, redressable injury and therefore lack standing to

challenge such agreements. RESTATEMENT, supra note 44, at § 303, n. 11.

Made in the USA Foundation v. United States, 242 F.3d 1300 (11th Cir. 2001).

In 1997, a federal district court in Texas ruled petitioner was not extraditable pursuant to a federal statute

implementing an executive agreement, and held that extradition requires an extradition treaty ratified by the President

(continued...)

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Nonetheless, as a matter of historical practice, some types of agreements have been concluded as

treaties, while others have been concluded as executive agreements. 48

Congressional-Executive Agreements

In the case of congressional-executive agreements, the “constitutionality...seems well

established.”49 Unlike treaties, where only the Senate plays a role in authorization, both Houses of

Congress are involved in the authorizing process for congressional-executive agreements.

Congressional authorization takes the form of a statute passed by a majority of both Houses of

Congress. Historically, congressional-executive agreements cover a wide variety of topics,

ranging from postal conventions to bilateral trade to military assistance. 50 NAFTA and the

General Agreement on Tariffs and Trade (GATT) are notable examples of congressionalexecutive agreements.

Congressional-executive agreements also may take different forms. Congress may enact

legislation authorizing the Executive to negotiate and enter agreements with other countries on a

specific matter.51 A congressional-executive agreement may also take the form of a statute passed

following the negotiation of an agreement which incorporates the terms or requirements of the

agreement into U.S. law.52 Such authorization may be either explicit or implied by the terms of

the congressional enactment. 53

Executive Agreements Made Pursuant to Treaties

The legitimacy of agreements made pursuant to treaties is also well established, though

controversy occasionally arises as to whether the agreement was actually imputed by the treaty in

question. 54 Since the earlier treaty is the “Law of the Land,”55 the power to enter into an

(...continued)

and approved by two-thirds of the Senate. In re Surrender of Ntakirutimana, 988 F.Supp. 1038 (S.D.Tex. 1997). The

Fifth Circuit Court of Appeals overturned the district court’s finding and held that a person could be extradited by

statute rather than treaty. Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999).

See Yoo, supra note 43 (discussing the kinds of agreements historically taking the form of treaties in contrast to

those taking the form of executive agreements). See also infra at 17-25 (discussing form that different types of U.S.

security agreements have historically taken).

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 5. See also HENKIN, supra note

39, at 215-18.

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 5. Reciprocal trade agreements which were

once concluded as treaties now typically take the form of congressional-executive agreements. RESTATEMENT, supra

note 44, at § 303, n. 9. See also 19 U.S.C. § 2111 (conditionally authorizing the President to enter trade agreements

with other nations); CRS Report 97-896, Why Certain Trade Agreements Are Approved as Congressional-Executive

Agreements Rather Than as Treaties, by (name redacted).

See, e.g., 16 U.S.C. § 1822(a) (authorizing the Secretary of State to negotiate international fishery agreements); 22

U.S.C. § 6445(c) (authorizing the President to enter binding agreements with other nations pledging to end practices

violating religious freedom).

See, e.g., 19 U.S.C. § 3511 (approving agreements resulting from the Uruguay Round of multilateral trade

negotiations under the auspices of GATT).

See, e.g., 19 U.S.C. § 3471 (authorizing U.S. participation in and appropriations for Commission on Labor

Cooperation, established by a supplemental NAFTA agreement not expressly approved by Congress).

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 5.

U.S. CONST. art. VI, § 2 (“the laws of the United States...[and] all treaties made, or which shall be made, under the

(continued...)

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agreement required or contemplated by the treaty lies fairly clearly within the President’s

executive function. However, the Senate occasionally conditions its approval of a treaty upon a

requirement that any subsequent agreement made pursuant to the treaty also be submitted to the

Senate as a treaty.56

Sole Executive Agreements

Sole executive agreements rely on neither treaty nor congressional authority for their legal basis.

There are a number of provisions in the Constitution that may confer limited authority upon the

President to promulgate such agreements on the basis of his power to conduct foreign affairs.57

The Litvinov Assignment, under which the Soviet Union assigned to the United States its claims

against American nationals, is an example of a sole executive agreement.

If the President enters into an executive agreement pursuant to and dealing with an area where he

has clear, exclusive constitutional authority—such as an agreement to recognize a particular State

for diplomatic purposes—the agreement is legally permissible regardless of Congress’s opinion

on the matter.58 If, however, the President enters into an agreement and his constitutional

authority over the subject matter is unclear, or if Congress also has constitutional authority over

the subject matter, a reviewing court may consider Congress’s position in determining whether

the agreement is enforceable as U.S. law.59 If Congress has given implicit approval to the

President to enter into the agreement, or is silent on the matter, it is more likely that the

agreement will be deemed valid. When Congress opposes the agreement and the President’s

constitutional authority to enter the agreement is ambiguous, it is unclear if or under what

circumstances a court would recognize such an agreement as controlling.

Because sole executive agreements do not rely on treaty or congressional authority to support

their legality, they do not require congressional approval to become binding, at least as a matter of

international law. Courts have recognized, however, that if a sole executive agreement conflicts

with pre-existing federal law, the earlier law will remain controlling in most circumstances. 60

(...continued)

authority of the United States, shall be the supreme Law of the Land”).

See RESTATEMENT, supra note 44, § 303 cmt. d.

U.S. CONST. art. II, § 1 (“The executive power shall be vested in a President of the United States of America...”), § 2

(“The President shall be commander in chief of the Army and Navy of the United States...”), § 3 (“he shall receive

ambassadors and other public ministers...”). Courts have recognized foreign affairs as an area of very strong executive

authority. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

See RESTATEMENT, supra note 44, § 303 (4).

See Dames & Moore v. Regan, 453 U.S. 654 (1981) (establishing that Congress’s implicit approval of executive

action, such as historical practice of yielding authority in a particular area, may legitimize an agreement); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“When the President acts pursuant to an express or implied

authorization of Congress, his powers are at their maximum.... Congressional inertia, indifference or quiescence may...

invite, measures of independent Presidential responsibility.... When the President takes measures incompatible with the

expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional powers of Congress over the matter.”) (Jackson, J., concurring).

Executive agreements have been held to be inferior to conflicting federal law when the agreement concerns matters

expressly within the constitutional authority of Congress. See, e.g., United States v. Guy W. Capps, Inc., 204 F.2d 655

(4th Cir. 1953) (finding that executive agreement contravening provisions of import statute was unenforceable);

RESTATEMENT, supra note 44, § 115, n.5. However, an executive agreement might trump pre-existing federal law if it

concerns an enumerated or inherent executive power under the Constitution, or if Congress has historically acquiesced

to the President entering agreements in the relevant area. See id.; United States v. Pink, 315 U.S. 203, 230 (1942)

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Even if a sole executive agreement does not conflict with prior federal law, Congress may still act

to limit the agreement’s effect through a subsequent legislative enactment, so long as it has

constitutional authority to regulate the matter covered by the agreement.61 In the security context,

Congress has clear constitutional authority to enact measures that would limit the effect of sole

executive agreements involving military commitments. Article I, § 8 of the Constitution accords

Congress the power “To lay and collect Taxes ... to ... pay the Debts and provide for the common

Defence,” “To raise and support Armies,” “To provide and maintain a Navy,” “To make Rules for

the Government and Regulation of the land and naval Forces,” and “To declare War, grant letters

of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” as well as “To

provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and

repel Invasions” and “To provide for organizing, arming, and disciplining, the Militia, and for

governing such Part of them as may be employed in the Service of the United States.”62 Further,

Congress is empowered “To make all Laws which shall be necessary and proper for carrying into

Execution the foregoing Powers ...” as well as “all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer thereof.”63

In addition to the constitutional provisions that provide Congress with authority to legislate on

matters concerning military affairs,64 Congress also has virtual plenary power over

appropriations—authority not qualified with reference to Congress’s enumerated powers under

Article I, § 8. The Appropriations Clause provides that “[n]o money can be paid out of the

Treasury unless it has been appropriated by an act of Congress.”65 Accordingly, adherence to

pledges made in sole executive agreements may be dependent upon the availability of

appropriations authorized by Congress. Congress may specify the terms and conditions under

which appropriations may be used, so long as it does not impose unconstitutional conditions upon

the use of appropriated funds.66

(...continued)

(“[a]ll Constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity

and obligation as if they proceeded from the legislature”) (quoting THE FEDERALIST NO. 64 (John Jay)); Dames &

Moore, 453 U.S. at 654 (upholding sole executive agreement concerning the handling of Iranian assets in the United

States, despite the existence of a potentially conflicting statute, given Congress’s historical acquiescence to these types

of agreements).

The “last in time” rule establishes that a more recent statute trumps an earlier, inconsistent international agreement,

while a more recent self-executing agreement may trump an earlier, inconsistent statute. Whitney v. Robertson, 124

U.S. 190 (1888).

U.S. CONST. art. I, § 8.

Id.

For additional discussion, see CRS Report RL33837, Congressional Authority to Limit U.S. Military Operations in

Iraq, by (name redacted), (name redacted), and (name redacted),

supra note 29.

U.S. CONST. art. I, § 9. Congress may specify the terms and conditions under which appropriations may be used, so

long as it does not impose unconstitutional conditions on the use of appropriated funds.

See United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an appropriations proviso that effectively

nullified some effects of a presidential pardon and that appeared to prescribe a rule of decision in court cases); United

States v. Lovett, 328 U.S. 303 (1946)(invalidating as a bill of attainder an appropriations provision denying money to

pay salaries of named officials). For further discussion of Congress’s ability to use its appropriations power to limit the

deployment or use of U.S. military forces, see CRS Report RL33837, Congressional Authority to Limit U.S. Military

Operations in Iraq, by (name redacted), (name redacted), and (name redacted),

supra note 29, at 29-35, 41-49.

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Choosing Between a Treaty and Executive Agreement

A recurring concern for the executive and legislative branches is whether an international

commitment should be entered into as a treaty or an executive agreement. The Senate may prefer

that significant international commitments be entered as treaties, and fear that reliance on

executive agreements will lead to an erosion of the treaty power. The House may want an

international compact to take the form of congressional-executive agreement, so that it may play

a greater role in the consideration. In cases where congressional action is necessary for an

agreement to be implemented, the Executive may prefer to submit an international compact as a

congressional-executive agreement, so that approval of the agreement and necessary

implementing legislation may be accomplished in a single step. The Executive’s preference as to

whether an international compact takes the form of a treaty or executive agreement may also be

influenced by the agreement’s prospects for approval by a two-thirds majority of the Senate or a

simple majority of both Houses.

State Department regulations prescribing the process for coordination and approval of

international agreements (commonly known as the “Circular 175 procedure”67) include criteria

for determining whether an international agreement should take the form of a treaty or an

executive agreement. Congressional preference is one of several factors considered when

determining the form that an international agreement should take. According to State Department

regulations,

In determining a question as to the procedure which should be followed for any

particular international agreement, due consideration is given to the following

factors:

1. The extent to which the agreement involves commitments or risks affecting the

nation as a whole;

2. Whether the agreement is intended to affect state laws;

3. Whether the agreement can be given effect without the enactment of subsequent

legislation by the Congress;

4. Past U.S. practice as to similar agreements;

5. The preference of the Congress as to a particular type of agreement;

6. The degree of formality desired for an agreement;

7. The proposed duration of the agreement, the need for prompt conclusion of an

agreement, and the desirability of concluding a routine or short-term agreement;

and

8. The general international practice as to similar agreements.

In determining whether any international agreement should be brought into force as

a treaty or as an international agreement other than a treaty, the utmost care is to be

Circular 175 initially referred to a 1955 Department of State Circular which established a process for the

coordination and approval of international agreements. These procedures, as modified, are now found in 22 CFR part

181 and 11 Foreign Affairs Manual (F.A.M.) chapter 720.

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exercised to avoid any invasion or compromise of the constitutional powers of the

President, the Senate, and the Congress as a whole.68

In 1978, the Senate passed a resolution expressing its sense that the President seek the advice of

the Senate Committee on Foreign Relations in determining whether an international agreement

should be submitted as a treaty.69 The State Department subsequently modified the Circular 175

procedure to provide for consultation with appropriate congressional leaders and committees

concerning significant international agreements.70 Consultations are to be held “as appropriate.”71

Congressional consultation on the substance and form of international agreements is discussed in

more detail later in this report.72

III. Historical Practice Regarding Security

Agreements

The Bush Administration has characterized the proposed security arrangement with Iraq as being

of a kind commonly entered by the United States, and has stated that “[t]he U.S. has security

relationships with over 100 countries around the world, including recent agreements with nations

such as Afghanistan and former Soviet bloc countries.”73 Some U.S. security relationships take

the form of legally binding treaties or executive agreements, whereas others involve non-binding

assurances or pledges. Whereas some security agreements are publicly available, others remain

classified. Though the Bush Administration and Maliki government have issued a Declaration of

Principles setting the parameters for a future security arrangement between the United States and

Iraq, it is not yet clear whether the arrangement will be governed by treaty, executive agreement,

non-binding pledges, or some combination of the three.

Categories of Security Agreements

The following sections provide a general overview of the categories of security agreements

entered into by the United States of a legally binding nature. Such categories of security

agreements predominantly take the form of a treaty, while others typically take the form of an

executive agreement.

Although some categories of security agreements have historically been concluded as treaties and

others as executive agreements, this does not necessarily mean that future arrangements must

follow the same pattern. An arrangement that has typically been entered into as a treaty might

instead be concluded as a congressional-executive agreement, and vice versa.74 Similarly, while

some security arrangements have historically been entered as sole executive agreements,

11 F.A.M. § 723.3 (2006).

S.Res. 536, S. Rep. 95-1171, 95th Cong. (1977).

11 F.A.M. § 724.4(b)-(c) (2006).

Id. at § 724.4(c).

See infra at 35.

Fact Sheet, supra note 3.

But see Yoo, supra note 43, at 830 (arguing the military commitments like NATO can only be effectuated by treaty,

and not a congressional-executive agreement).

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Congress might effectively limit such agreements in the future via statutory enactment75—e.g.,

limiting the availability of appropriations to carry out commitments made in a sole executive

agreement.76

Collective Defense Agreements/”Security Commitments”

The State Department currently lists the United States as being party to seven collective defense

agreements, under which members are obligated to assist in the defense of a party to the

agreement in the event of an attack upon it: the Inter-American Treaty of Reciprocal Assistance;

the North Atlantic Treaty; the Australia, New Zealand, and United States Security Treaty; the

Southeast Asian Treaty; and bilateral security treaties with Japan, the Philippines, and South

Korea.77 All seven agreements take the form of treaties that were ratified by the United States

between 1947 and 1960.78 It is important to note that each of these agreements, with the exception

of the Inter-American Treaty of Reciprocal Assistance (the first to be ratified by the United

States), includes a provision specifying that the agreement’s requirements are to be carried out in

accordance with the parties’ respective constitutional processes. These provisions were included

to assuage congressional concerns these agreements could be interpreted as sanctioning the

President to engage in military hostilities in defense of treaty parties without further

congressional authorization (i.e., a declaration of war or resolution authorizing the use of military

force). 79

In addition to these defense treaties, the United States has also adopted security commitments

with respect to several former territories and possessions,80 including pursuant to congressionalexecutive agreement. Congress has approved compacts changing the status of certain territories to

Freely Associated States (FAS), while also imposing upon the United States the “the obligation to

Legislation proposing to limit the usage of sole executive agreements has periodically been introduced, but thus far

no bill has been enacted. See, e.g., S.Res. 85, 91st Cong. (1969) (non-binding resolution passed by the Senate

expressing its sense that national commitments should be entered pursuant to treaty or executive agreement specifically

authorized by Congress); H.R. 4438, 94th Cong. (1976) (proposing to require the President to transmit any agreement

involving a national commitment to Congress, and allowing the agreement to take effect only if Congress did not pass a

measure disapproving it within 60 days).

The Constitution provides that “No money shall be drawn from the Treasury, but in Consequence of Appropriations

made by Law.” U.S. CONST., art. I, § 9, cl. 7.

State Department, Office of the Legal Adviser, U.S. Collective Defense Arrangements, at http://www.state.gov/s/l/

treaty/collectivedefense/.

Inter-American Treaty of Reciprocal Assistance, 62 Stat. 1681, entered into force December 3, 1948; North Atlantic

Treaty, 63 Stat. 2241, entered into force August 24, 1949; Security Treaty Between Australia, New Zealand and the

United States of America, 3 U.S.T. 3420, entered into force April 29, 1952; Mutual Defense Treaty Between the United

States of America and the Republic of the Philippines, 3 U.S.T. 3947, entered into force August 27, 1952; Mutual

Defense Treaty Between the United States of America and the Republic of Korea, 5 U.S.T. 2368, entered into force

November 17, 1954; Southeast Asia Collective Defense Treaty, 6 U.S.T. 81, entered into force February 19, 1955;

Treaty of Mutual Cooperation and Security Between the United States of America and Japan, 11 U.S.T. 1632, entered

into force June 23, 1960 (replacing Security Treaty Between the United States of America and Japan, 3 U.S.T. 3329,

entered into force April 28, 1952). In 1954, the United States entered a mutual defense treaty with the Republic of

China (Taiwan), 6 U.S.T. 433, but this agreement was terminated by President Carter in 1979.

For background, see S. REP. 797, 90th Cong., at 14-15 (1967) (describing ratification history of North Atlantic

Treaty); LOUIS FISHER, PRESIDENTIAL WAR POWER 105-111 (2004) (describing Senate deliberations on North

Atlantic Treaty).

For example, the Panama Canal treaties provided that the United States and Panama would, in accordance with their

respective constitutional processes, defend the Canal from attack. Treaty Concerning the Permanent Neutrality and

Operation of the Panama Canal, with Annexes and Protocol, 33 U.S.T. 1, entered into force October 1, 1979.

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defend the [FAS]...from attack or threats thereof as the United States and its citizens are

defended.”81 Arguably, these security commitments are distinct from other international defense

arrangements, as they concern commitments to newly sovereign entities over whom the United

States formerly exercised extensive and long-standing control. 82

Consultation Requirements/”Security Arrangements”

The United States also has established security arrangements with other countries in which the

U.S. pledges to take some action in the event that the other country’s security is threatened. In a

1992 report to Congress listing U.S. security commitments and arrangements, President George

H.W. Bush claimed that unlike “security commitments,” which oblige the United States to act in

the common defense of a country in case of an armed attack, “security arrangements” generally

oblige the United States to consult with a country in the event of a threat to its security. They

may appear in legally binding agreements, such as treaties or executive agreements, or in

political documents, such as policy declarations by the President, Secretary of State or

Secretary of Defense.83

Most legally binding “security arrangements” listed in the President’s report constituted sole

executive agreements, including agreements with Israel, Egypt, Pakistan, and Liberia.84 Only one

arrangement, committing the United States to the establishment of the Multinational Force and

Observers in the Sinai, could clearly be described as a congressional-executive agreement.85

Although some scholars and government officials have characterized the terms “security

commitment” and “security arrangement” as having distinct and particular meanings, this practice

is by no means uniform. Indeed, the question of what constitutes a “security commitment” has

long been a subject of dialogue and dispute by the executive and legislative branches. 86

Act Approving Compacts of Free Association with the Republic of the Marshall Islands and the Federated States of

Micronesia, P.L. 99-239, § 311 (1986). See also Act approving Compact of Free Association between the United States

and the Government of Palau, P.L. 99-658, § 352 (1986) (recognizing an attack on Palau as a danger to the United

States, and pledging that the United States “would take action to meet the danger to the United States and Palau in

accordance with its constitutional processes”).

Some have argued that these agreements are “more akin to the Texas and Hawaii annexation resolutions than to

international defense arrangements,” given the historical status of the FAS. Peter J. Spiro, Treaties, Executive

Agreements, and Constitutional Method, 79 TEX. L. REV. 961, n. 184 (2001).

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 248 (quoting A REPORT ON UNITED STATES

SECURITY ARRANGEMENTS AND COMMITMENTS WITH OTHER NATIONS, SUBMITTED TO THE CONGRESS IN ACCORDANCE

WITH SECTION 1457 OF PUBLIC LAW 101-510, THE NATIONAL DEFENSE AUTHORIZATION ACT OF 1991, August 17, 1992).

Id. See also Memorandum of Agreement Between the Governments of Israel and the United States Concerning

Assurances, Consultations, and United States Policy on Middle East Peace, 32 U.S.T. 2160, entered into force February

27, 1976; Agreement Between the United States and Egypt Concerning Implementation of the Egyptian-Israeli Peace

Treaty of March 26, 1979, 32 U.S.T. 2148, entered into force March 26, 1979; Agreement of Cooperation Between the

Government of the United States of America and the Government of Pakistan, 10 U.S.T. 317, entered into force May

19, 1959; Agreement of Cooperation Between the Government of the United States of America and the Government of

Liberia, 10 U.S.T. 1598, entered into force July 8, 1959.

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 248. See also Multinational Force and

Observers Participation Resolution, P.L. 97-132 (1981).

See The Proposed U.S. Security Commitment to Iraq: What Will Be In It and Should It Be a Treaty?: Hearing Before

the Subcomm. on International Organizations, Human Rights, and Oversight & Subcomm. on the Middle East and

South Asia of the House Comm. on Foreign Affairs, January 23, 2008 (statement by Prof. Michael J. Matheson)

(recognizing distinction between “security commitment” and “security arrangement,” while acknowledging that the

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Other Types of Military Agreements

The United States is also a party to a significant number of defense agreements that do not

obligate the United States to take action when another country is attacked, but nonetheless

involve military affairs. Categories of such agreements include:

•

military basing agreements, permitting the United States to build or use

permanent facilities, station forces, and conduct certain military activities within

a host country;87

•

access and pre-positioning agreements, permitting the stationing of equipment in

a host country and the improvement and use of the country’s military or civilian

facilities, without establishing a permanent military presence;88

•

SOFAs, defining the legal status of U.S. forces within a host country and

typically according them with certain privileges and immunities from the host

country’s jurisdiction;89

•

burden-sharing agreements, permitting a host country to assume some of the

financial obligations incurred by the stationing of U.S. forces within its

territory;90 and

•

agreements providing for arms transfers, military training, and joint military

exercises.91

Historically, almost all agreements have taken a form other than treaty. Sometimes these

arrangements have been concluded as sole executive agreements; while others could be deemed

executive agreements pursuant to treaty (e.g., military stationing agreements concluded with other

NATO parties); while still others have been explicitly or implicitly authorized by statute and may

be considered congressional-executive agreements.

(...continued)

“question of what constitutes a ‘security commitment’...has been the subject of dialogue between the executive branch

and Congress for decades”). See also TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 213-215,

247-250 (discussing legislation considered and enacted by Congress in response to concerns that the Executive had

entered agreements imposing national commitments upon the United States without congressional notification or

approval).

See, e.g., Agreement Between the United States of America and the Kingdom of Greece Concerning Military

Facilities, 4 U.S.T. 2189, entered into force October 12, 1953.

An example of such an agreement is the 2005 memorandum of understanding between the United States and

Norway, discussed in more detail at American Forces Press Service, Rumsfeld Signs Pre-positioning Agreement With

Norway, June 8, 2005, at http://www.defenselink.mil/news/newsarticle.aspx?id=16458.

See, e.g., Agreement under Article VI of the Treaty of Mutual Cooperation and Security Regarding Facilities and

Areas and the Status of United States Armed Forces in Japan, 11 U.S.T. 1652, entered into force June 23, 1960. The

only SOFA agreement to which the United States is a party that was concluded as a treaty is the North Atlantic Treaty

Status of Forces Agreement (NATO SOFA), 4 U.S.T. 1792, entered into force August 23, 1953. All supplementary

agreements to the NATO SOFA have been executive agreements.

See, e.g., Memorandum of Agreement Between The Ministry of National Defense Republic of Korea and the United

States Forces in Korea Regarding The Construction of Facilities at 2nd ID USA To Improve Combined Defense

Capabilities, 34 U.S.T. 125, entered into force February 2, 1982.

See, e.g., Agreement for Cooperation on Defense and Economy Between the Governments of the United States of

America and of the Republic of Turkey in Accordance with Articles II and III of the North Atlantic Treaty, 32 U.S.T.

3323, entered into force December 18, 1980.

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As a matter of historical practice, the types of agreements described above have not directly

authorized the United States to engage in significant military operations in defense of the host

country, though such agreements may supplement separate agreements or U.N. mandates that do.

For example, although U.S. basing agreements with Germany, Japan, and South Korea do not

expressly authorize the United States to use military force to defend those countries in case of

attack, they assist the United States in fulfilling security commitments owed to those countries

under separate defense treaties.

Agreements Granting the Legal Right to Military Intervention

Besides the categories of agreements described above, the United States has, on occasion, entered

into long-term agreements that grant the United States the legal right to intervene militarily within

the territory of another party to defend it against internal or external threats. Unlike collective

defense agreements, these security agreements provide the United States with the right, but not

the duty, to militarily intervene when the security of the other country is threatened. Such

agreements may also be distinguished from the authority to intervene recognized under the

United Nations Charter. Whereas military intervention agreements discussed below provide the

United States with the positive legal right to intervene in a country, the U.N. Charter merely

provides that its provisions do not “impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations, until the Security

Council has taken measures necessary to maintain international peace and security.”92

In the early part of the 20th Century, the United States entered into legal agreements with several

Latin American countries under which the United States was granted the right to use military

force either to defend those countries from external threat or to preserve domestic tranquility.93

All of these agreements were concluded as treaties. In 1903, following the Spanish-American

War, the United States concluded a treaty with the newly independent Republic of Cuba under

which the United States was expressly given “the right to intervene for the preservation of Cuban

independence, the maintenance of a government adequate for the protection of life, property, and

individual liberty.”94 Similarly, in the aftermath of the U.S. invasion and occupation of Haiti in

1915, a treaty between the two countries was concluded that provided the United States with the

right to intervene in Haiti when the United States deemed it necessary.95 In 1904, the United

States ratified a treaty with Panama that provided the United States “the right, at all times and in

its discretion” to employ its armed forces for the safety and protection of the Panama Canal and

the shipping occurring therein.96 In 1907, the United States concluded a treaty with the

Charter of the United Nations, 59 Stat. 1031, entered into force October 24, 1945, art. 51 (italics added).

See generally CHARLES HENRY HYDE, 1 INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED

STATES 27-36 (1922).

Treaty on Relations Between the United States and Cuba, May 22, 1903, 33 Stat. 2248, at art. III. In 1906, acting

pursuant to this authority, the United States intervened in Cuba following serious revolutionary activity in order to

establish a stable government there.

Treaty on Administration of Haiti: Finances and Development, entered into force November 15, 1915, T.S. 623 1915

U.S.T. LEXIS 29, at art. XIV (providing that “The high contracting parties shall have authority to take such steps as

may be necessary to insure the complete attainment of any of the objects comprehended in this treaty; and, should the

necessity occur, the United States will lend an efficient aid for the preservation of Haitian Independence and the

maintenance of a government adequate for the protection of life, property and individual liberty.”).

Isthmian Canal Convention with the Republic of Panama, entered into force February 26, 1904, 33 Stat. 2234, at art.

XXIII. More generally, the agreement provided that the United States “guarantees and will maintain the independence

of Panama.” Id. at art. I. The agreement also provided the United States with authority to ensure public order in the

(continued...)

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Dominican Republic establishing plans for the financial rehabilitation of that country, and

authorizing the United States to use military force necessary to effectuate the carrying out of

those plans.97

There have been numerous instances where a country has permitted or invited the United States

to use military force within its territory,98 but authority to intervene has not been given via treaty.

When the Senate initially opted not to approve a treaty authorizing U.S. military and financial

involvement in the Dominican Republic, President Theodore Roosevelt entered a temporary

“modus vivendi” executive agreement adopting similar policies as the unapproved treaty. This

agreement, which elicited significant opposition from many Members of Congress as an

unconstitutional usurpation of the Senate’s treaty power, was terminated following Senate

approval of a modified version of the treaty in 1907.99 Another example of a significant security

agreement taking a form other than treaty occurred in 1941 when, prior to the United States

entering World War II, President Franklin D. Roosevelt concluded sole executive agreements

concerning the stationing of U.S. troops in Iceland and Greenland to protect those territories from

attack.100

Although publicly available agreements expressly granting the United States the legal right to

intervene militarily in another country have generally taken the form of a treaty, this report does

not discuss whether any classified agreements have taken another form.

Non-Binding Security Arrangements

While many security arrangements take the form of a treaty or executive agreement and are

intended to impose legal obligations upon the parties, others do not. Some security arrangements

are not intended to have legally binding force, though they may nonetheless carry significant

political or moral weight. While executive practice of extending political defense commitments to

foreign countries can be traced back to the Monroe Doctrine, pledges to assist foreign States in

security matters have become more commonplace in the post-World War II era. Such

(...continued)

cities of Panama City and Colon if, in the opinion of the United States, the government of Panama was unable to

maintain order. Id. at art. VII.

Treaty Between the United States and Dominican Republic Concerning the Collection and Application of Dominican

Customs Revenues, proclaimed July 25, 1907, 35 Stat. 1880.

For example, in 1958, President Dwight Eisenhower deployed U.S. troops to Lebanon at the invitation of its

government to help protect against a threatened insurrection. Congress had passed legislation in 1957 that authorized

such action. See P.L. 85-7 (1957). Specifically, the legislation permitted the President to “undertake, in the general area

of the Middle East, military assistance programs with any nation or group of nations of that area desiring such

assistance.” The enactment further provided that “if the President determines the necessity thereof, the United States is

prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed

aggression from any country controlled by international communism: Provided, that such employment shall be

consonant with the treaty obligations of the United States and with the Constitution of the United States.”

For further discussion, see W. STULL HOLT, TREATIES DEFEATED BY THE SENATE 212-229 (1933) (discussing events

leading to the ratification of the 1907 treaty with the Dominican Republic). In his autobiography, Roosevelt suggested

that a treaty was preferable to the executive agreement he entered with the Dominican Republic, because “a treaty..was

the law of the land and not merely...a direction of the Chief Executive which would lapse when that particular

executive left office.” Ackerman & Golove, supra note 44, at 819 (italics omitted) (quoting THEODORE ROOSEVELT, AN

AUTOBIOGRAPHY 510 (1920)).

100

Agreement Between the United States and Denmark Concerning the Defense of Greenland, signed April 9, 1941, 55

Stat. 1245; Agreement Concerning Defense of Iceland By United States Forces, July 1, 1941, 55 Stat . 1547.

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commitments may take several forms, including a unilateral pledge or policy statement by the

Executive or a joint declaration between U.S. and foreign officials.

For example, bilateral arrangements authorizing U.S. military intervention, when not concluded

as treaties, generally have not taken the form of a legally binding, permanent agreement.101

Instead, in non-treaty arrangements authorizing U.S. intervention, the host country generally

appears to retain full discretion as to the degree and duration of U.S. presence within its territory.

In 1962, for instance, U.S. Secretary of State Dean Rusk and Thai Foreign Minister Thanat

Khoman issued a joint declaration in which Secretary Rusk expressed “the firm intention of the

United States to aid Thailand, its ally and historic friend, in resisting Communist aggression and

subversion.”102 The United States thereafter deployed armed forces to Thailand to assist the

government in combating communist forces.

The Executive’s authority to enter such arrangements, and, more broadly, to engage in military

operations in other countries without congressional approval has been the subject of longstanding dispute between the Congress and the Executive. 103 In 1969, the Senate passed the

National Commitments Resolution, stating the sense of the Senate that “a national commitment

by the United States results only from affirmative action taken by the executive and legislative

branches of the United States government by means of a treaty [or legislative enactment] ...

specifically providing for such commitment.”104 The Resolution defined a “national commitment”

as including “the use of the armed forces of the United States on foreign territory, or a promise to

assist a foreign country ... by the use of armed forces ... either immediately or upon the happening

of certain events.”105

According to the committee report accompanying the Resolution, the motivation for the

Resolution was concern over the growing development of “constitutional imbalance” in matters

of foreign relations, with Presidents frequently making significant foreign commitments on behalf

of the United States without congressional action. Among other things, the report criticized a

practice it described as “commitment by accretion,” by which a

sense of binding commitment arises out of a series of executive declarations, no one of

which in itself would be thought of as constituting a binding obligation. Simply repeating

something often enough with regard to our relations with some particular country, we come

101

See supra note 98 (discussing U.S. intervention in Lebanon in 1958).

102

For text of the joint declaration, see DEPT. OF STATE, AMERICAN FOREIGN POLICY: CURRENT DOCUMENTS, 1962, pp.

1091-1093.

103

See S.Rept. 91-129 (1969) (Senate Committee on Foreign Relations report in favor of the National Commitments

Resolution, S.Res. 85, criticizing the undertaking of “national commitments” by the Executive, either through

international agreements or unilateral pledges to other countries, without congressional involvement) [hereinafter

“Committee Report”]. The vast majority of U.S. military interventions in other countries have been to protect U.S.

persons, property, or interests. See CRS Report RL32170, Instances of Use of United States Armed Forces Abroad,

1798-2007, by (name redacted). The Executive has historically claimed broad authority to deploy armed forces to

protect these interests, even in the absence of clear congressional authorization. See, e.g., Dept. of Justice, Office of

Legal Counsel, 4A U.S. OP. OFF. LEGAL COUNSEL 185, Presidential Power to Use the Armed Forces Abroad Without

Statutory Authorization (1980) (alleging presidential authority to deploy forces to protect, and retaliate for injuries

suffered by, U.S. persons and property).

104

S.Res. 85, 91st Congress, 1st Sess. (1969).

105

Id.

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to support that our honor is involved in an engagement no less solemn than a duly ratified

treaty.106

The National Commitments Resolution took the form of a sense of the Senate resolution, and

accordingly had no legal effect. Although Congress has occasionally considered legislation that

would bar the adoption of significant military commitments without congressional action, 107 no

such measure has been enacted. The executive branch regularly makes unilateral security pledges

or enters non-binding arrangements with foreign countries concerning security matters.108 The

primary means Congress uses to exercise oversight authority over such non-binding arrangements

is its appropriations power, by which it may limit or condition actions the United States may take

in furtherance of the arrangement.

Examples of Bilateral Security Agreements

The following sections discuss in greater detail the form, nature, and content of bilateral security

agreements made by the United States with Afghanistan, Germany, Japan, South Korea, and the

Philippines.

Afghanistan

The Foreign Assistance Act of 1961 is “an act to promote the foreign policy, security, and general

welfare of the United States by assisting peoples of the world in their efforts toward economic

development and internal and external security , and for other purposes.”109 Part I of the act,

addressing international development, established policy “to make assistance available, upon

request, under this part in scope and on a basis of long-range continuity essential to the creation

of an environment in which the energies of the peoples of the world can be devoted to

constructive purposes, free of pressure and erosion by the adversaries of freedom.”110 Part II of

the act, addressing international peace and security, authorizes “measures in the common defense

against internal and external aggression, including the furnishing of military assistance, upon

request, to friendly countries and international organizations.”111 The act authorizes the President

“to furnish military assistance on such terms and conditions as he may determine, to any friendly

country or international organization, the assisting of which the President finds will strengthen the

security of the United States and promote world peace and which is otherwise eligible to receive

such assistance ...”112 The authorization to provide defense articles and services, noncombatant

106

Committee Report, supra note 103, at 26.

See, e.g., H.R. 4483, Executive Agreements Review Act, 94th Cong., 1st Sess. (proposing to establish legislative veto

over executive agreements involving national commitments); S.Res. 24, Treaty Powers Resolution, 95th Cong., 1st Sess.

(proposing that it would not be in order for the Senate to consider any legislation authorizing funds to implement any

international agreement which the Senate has found to constitute a treaty, unless the Senate has given its advice and

consent to treaty ratification).

108

See generally The November 26 Declaration of Principles: Implications for UN Resolutions on Iraq and for

Congressional Oversight: Hearing of the Subcommittee on International Organizations, Human Rights, and Oversight,

February 8, 2008 (statement of Prof. Michael J. Glennon discussing presidential practice of entering non-binding

security arrangements).

109

75 Stat. 424.

110

Id. at 425.

111

Id. at 434.

112

Id. at 435.

107

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personnel, and the transfer of funds is codified at 22 U.S.C. § 2311. While this authorization

permits the President to provide military assistance, it limits it to “assigning or detailing members

of the Armed Forces of the United States and other personnel of the Department of Defense to

perform duties of a noncombatant nature.” 113

In 2002, the United States and Afghanistan, by an exchange of notes, 114 entered into an agreement

regarding economic grants under the Foreign Assistance Act of 1961,115 as amended, and for the

furnishing of defense articles, defense services and related training, including pursuant to the

United States International Military and Education Training Program (IMET),116 from the United

States to the Afghanistan Interim Administration.

An agreement exists regarding the status of U.S. military and civilian personnel of the U.S.

Department of Defense present in Afghanistan in connection with cooperative efforts in response

to terrorism, humanitarian and civic assistance, military training and exercises, and other

activities. 117 Such personnel are to be accorded “a status equivalent to that accorded to the

administrative and technical staff” of the U.S. Embassy under the Vienna Convention on

Diplomatic Relations of 1961.118 Accordingly, U.S. personnel are immune from criminal

prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction

except with respect to acts performed outside the course of their duties. 119 In the agreement, the

Islamic Transitional Government of Afghanistan120 explicitly authorized the U.S. government to

exercise criminal jurisdiction over U.S. personnel, and the government of Afghanistan is not

permitted to surrender U.S. personnel to the custody of another state, international tribunal, or any

other entity without consent of the U.S. government. The agreement does not appear to provide

immunity for contract personnel.

The agreement with Afghanistan does not expressly authorize the United States to carry out

military operations within Afghanistan, but it recognizes that such operations are “ongoing.”

Congress authorized the use of military force there (and elsewhere) by joint resolution in 2001,

for targeting “those nations, organizations, or persons [who] planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11, 2001....”121 The U.N. Security Council

implicitly recognized that the use of force was appropriate in response to the September 11, 2001,

terrorist attacks,122 and subsequently authorized the deployment of an International Security

113

22 U.S.C. § 2311(a)(2) (italics added).

Exchange of notes at Kabul April 6 and 13, 2002. Entered into force April 13, 2002. Not printed in Treaties and

Other International Acts Series (T.I.A.S.).

115

P.L. 87-195, 75 Stat. 424 (September 4 1961).

116

22 U.S.C. § 2347 et seq.

114

117

T.I.A.S. Exchange of notes September 26 and December 12, 2002, and May 28, 2003. Entered into force May 28,

2003.

118

Id.

119

Vienna Convention on Diplomatic Relations of April 18, 1961, T.I.A.S. 7502; 23 U.S.T. 3227.

120

The transitional government has since been replaced by the fully elected Government of the Islamic Republic of

Afghanistan. For information about the political development of Afghanistan since 2001, see CRS Report RS21922,

Afghanistan: Government Formation and Performance, by (name redacted).

121

P.L. 107-40 (September 18, 2001); 115 Stat. 224.

122

U.N.S.C. Res. 1368 (September 12, 2001) (“Recognizing the inherent right of individual or collective self-defence

in accordance with the [UN] Charter,” and expressing its “readiness to take all necessary steps to respond to the

terrorist attacks”).

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Assistance Force (ISAF) to Afghanistan. 123 Later U.N. Security Council resolutions provide a

continuing mandate for the ISAF (NATO peacekeeping force),124 calling upon it to “work in close

consultation with” Operation Enduring Freedom (OEF—the U.S.-led coalition conducting

military operations in Afghanistan) in carrying out the mandate. 125 While there is no explicit U.N.

mandate authorizing the OEF, Security Council resolutions appear to provide ample recognition

of the legitimacy of its operations, most recently by calling upon the Afghan Government, “with

the assistance of the international community, including the International Security Assistance

Force and Operation Enduring Freedom coalition, in accordance with their respective designated

responsibilities as they evolve, to continue to address the threat to the security and stability of

Afghanistan posed by the Taliban, Al-Qaida, other extremist groups and criminal activities....”126

The United States and Afghanistan entered an acquisition and cross-servicing agreement, with

annexes, in 2004.127 An acquisition and cross-servicing agreement (ACSA) is an agreement

providing logistic support, supplies, and services to foreign militaries on a cash-reimbursement,

replacement-in-kind, or exchange of equal value basis.128 After consultation with the Secretary of

State, the Secretary of Defense is authorized to enter into an ACSA with a government of a NATO

country, a subsidiary body of NATO, or the United Nations Organization or any regional

international organization of which the United States is a member. 129 Additionally, the Secretary

of Defense may enter into an ACSA with a country not included in the above categories, if after

consultation with the Secretary of State, a determination is made that it is in the best interests of

the national security of the United States.130 If the country is not a member of NATO, the

Secretary of Defense must submit notice, at least 30 days prior to designation, to the Committee

on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on

Armed Services and the Committee on International Relations of the House of Representatives.131

On May 23, 2005, President Hamid Karzai and President Bush issued a “joint declaration”

outlining a prospective future agreement between the two countries.132 It envisions a role for U.S.

military troops in Afghanistan to “help organize, train, equip, and sustain Afghan security forces”

until Afghanistan has developed its own capacity, and to “consult with respect to taking

appropriate measures in the event that Afghanistan perceives that its territorial integrity,

independence, or security is threatened or at risk.” The declaration does not mention the status of

U.S. forces in Afghanistan, but a status of forces agreement can be expected to be part of the final

arrangement.

123

U.N.S.C. Res. 1386 (December 20, 2001).

The ISAF has its own status of forces agreement with the Afghan government in the form of an annex to a Military

Technical Agreement entitled “Arrangements Regarding the Status of the International Security Assistance Force.” The

agreement provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their respective

national elements for criminal or disciplinary matters, and that such personnel are immune from arrest or detention by

Afghan authorities and may not be turned over to any international tribunal or any other entity or State without the

express consent of the contributing nation.

125

See U.N.S.C. Res. 1776 § 5 (September 19, 2007); U.N.S.C. Res. 1707 § 4 (2007).

126

U.N.S.C. Res. 1746 § 25 (2007).

127

T.I.A.S. Signed at Doha and Kabul January 22 and February 16, 2004. Entered into force February 16, 2004.

128

10 U.S.C. §§ 2341-2350.

129

Id. at § 2342(a)(1).

130

Id. at § 2342(b)(1).

131

Id. at § 2342(b)(2).

132

http://www.mfa.gov.af/Documents/ImportantDoc/US-Afghanistan%20Strategic%20Partnership%20Declaration.pdf.

124

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Germany

In 1951, the United States and Germany entered into an agreement133 related to the assurances

required under the Mutual Security Act of 1951.134 This act is “an act to maintain the security and

promote the foreign policy and provide for the general welfare of the United States by furnishing

[material] assistance to friendly nations in the interest of international peace and security.”135

Specifically, the agreement references the “statement of purpose contained in Section 2 of the

Mutual Security Act of 1951, and reaffirms that....it [Germany] is firmly committed to join in

promoting international understanding and good will and in maintaining world peace and to take

such action as may be mutually agreed upon to eliminate causes of international tension.”136 The

statement of purpose in Section 2 of the act is

to maintain the security and to promote the foreign policy of the United States by authorizing

military, economic, and technical assistance to friendly countries to strengthen the mutual

security and individual and collective defense of the free world, to develop their resources in

the interest of their security and independence and the national interest of the United States

and to facilitate the effective participation of those countries in the United Nations system for

collective security. 137

In 1955, the United States and Germany, both parties to the North Atlantic Treaty, entered into an

agreement on mutual defense assistance,138 obligating the United States to provide for “such

equipment, materials, services, or other assistance as may be agreed” to Germany.139 The

agreement reflected the

desire to foster international peace and security through measures which further the ability of

nations dedicated to the purposes and principles of the Charter of the United Nations to

participate effectively in arrangements for collective self-defense in support of those

purposes and principles, and conscious of the determination to give their full cooperation to

United Nations collective security arrangements and measures and efforts to obtain

agreement on universal regulation of armaments under adequate guarantees against violation

or evasion; [and] considering the support which the Government of the United States of

America has brought to these principles by enacting the Mutual Security Act of 1954,140

which authorizes the furnishing of military assistance to certain nations[.]141

Germany guarantees that it “will not use such assistance for any act inconsistent with the strictly

defensive character of the North Atlantic Treaty, or, without the prior consent of the [United

133

3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45. Exchange of letters at Bonn December 19 and December 28, 1951.

P.L. 82-165, 65 Stat. 373 (October 10, 1951).

135

Id.

136

3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45.

137

65 Stat. 373.

138

6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47. Signed at Bonn June 30, 1955. Entered into force December 27,

1955.

139

Id.

140

P.L. 83-665, 68 Stat. 832 (August 26, 1954).

141

6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47.

134

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States], for any other purpose.142 The mutual defense assistance agreement is the basis for

numerous subsequent agreements between the United States and Germany.143

In 1959, the countries entered into an agreement implementing the NATO SOFA of 1953.144 The

agreement provided additional supplemental agreements, beyond those contained in the NATO

SOFA, specific to the relationship between the United States and Germany.

Japan

In 1954, the United States and Japan entered into a mutual defense assistance agreement with

annexes.145 The agreement was amended on April 18 and June 23, 2006. The agreement

references the Treaty of Peace signed between the countries in San Francisco, California in

1951.146 The Mutual Defense Assistance Act of 1949147 and the Mutual Security Act of 1951148

are also referenced in the agreement as they provide for the furnishing of defense assistance by

the United States.149 The agreement provides that the United States and Japan “will make

available to the other and to such other governments as the two Governments signatory to the

present Agreement may in each case agree upon, such equipment, materials, services, or other

assistance as the Government furnishing such assistance may authorize” subject to the conditions

and provisions of the Mutual Defense Assistance Act of 1949, the Mutual Security Act of 1951,

and appropriation acts which may affect the furnishing of assistance.150

The countries, in 1960, entered into the Treaty of Mutual Cooperation and Security Between the

United States of America and Japan.151 The treaty was amended on December 26, 1990.152 Article

III of the Treaty provides that the countries, “individually and in cooperation with each other, by

means of continuous and effective self-help and mutual aid will maintain and develop, subject to

their constitutional provisions, their capacities to resist armed attack.153 Article V provides that the

countries recognize “that an armed attack against either party in the territories under the

administration of Japan would be dangerous to its own peace and safety and declares that it would

act to meet the common danger in accordance with its constitutional provisions and processes.”154

142

Id.

See, e.g., Mutual Defense Assistance: Disposition of Military Equipment and Materials. 6 U.S.T. 6005; T.I.A.S.

3444; 240 U.N.T.S. 69. Exchange of notes at Bonn June 30, 1955. Entered into force December 27, 1955. Mutual

Defense Assistance: Purchase of Certain Military Equipment, Materials, and Services. 7 U.S.T. 2787; T.I.A.S. 3660;

278 U.N.T.S. 9. Exchange of notes at Washington October 8, 1956. Entered into force December 12, 1956. Defense:

Training of German Army Personnel. 8 U.S.T. 149; T.I.A.S. 3753; 280 U.N.T.S. 63. Exchange of notes at Bonn

December 12, 1956. Entered into force December 12, 1956.

144

14 U.S.T. 689; T.I.A.S. 5352; 490 U.N.T.S. 30. Signed at Bonn August 3, 1959. Entered into force July 1, 1963.

145

5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169. Signed at Tokyo March 8, 1954. Entered into force May 1, 1954.

146

3 U.S.T. 3169; T.I.A.S. 2490. Signed at San Francisco September, 8, 1951. Entered into force April 28, 1952.

147

63 Stat. 714.

148

65 Stat. 373.

149

5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169.

150

Id.

151

11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186. Signed at Washington January 19, 1960. Entered into force June

23, 1960.

152

T.I.A.S. 12335.

153

11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186.

154

Id.

143

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Under Article VI of the Treaty, the United States is granted “the use by its land, air and naval

forces of facilities and areas in Japan” in order to contribute “to the security of Japan and

maintenance of international peace and security in the Far East[.]”155 Article VI provides further

that the use of facilities and the status of U.S. armed forces will be governed under a separate

agreement.156

The countries, under Article VI of the Treaty of Mutual Cooperation and Security Between the

United States of America and Japan, entered into a SOFA in 1960. 157 The SOFA addresses the use

of facilities by the U.S. armed forces, as well as the status of U.S. forces in Japan. The agreement

has been modified at least four times since the original agreement.158

South Korea

In 1948, the United States and South Korea entered into an agreement related to the transfer of

authority to the Government of South Korea and the withdrawal of U.S. occupation forces.159

Shortly after the initial agreement, the United States and Korea entered into a second agreement

concerning interim military and security matters during a transitional period.160 This executive

agreement was between the President of the Republic of Korea and the Commanding General,

U.S. Army Forces in Korea.161 The agreement calls for the “Commanding General, United States

Army Forces in Korea, pursuant to directives from his government and within his capabilities” to

“organize, train and equip the Security forces of the Republic of Korea” with the obligation to

train and equip ceasing “upon the completion of withdrawal from Korea of forces under his

command.”162 The agreement also requires the Commanding General, U.S. Army Forces in

Korea, to retain authority to exercise over-all operational control of security forces of Korea until

withdrawal, as contemplated by Resolution No. II passed by the United Nations General

Assembly on November 14, 1948.163

Article III of the Agreement contains provisions related to the status of U.S. forces during the

transition period. The Commanding General, U.S. Army Forces in Korea, “shall retain exclusive

jurisdiction over the personnel of his command, both military and civilian, including their

dependents, whose conduct as individuals shall be in keeping with pertinent laws of the Republic

of Korea.”164 The agreement provides that any individuals under the jurisdiction of the

Commanding General who is apprehended by law enforcement agencies of South Korea shall be

immediately turned over to the custody and control of the Commanding General; individuals not

155

Id.

157

11 U.S.T. 1652; T.I.A.S. 4510; 373 U.N.T.S. 248. Signed at Washington January 19, 1960. Entered into force June

23, 1960.

158

Agreements concerning new special measures relating to Article XXIV (related to costs of maintenance of U.S.

forces in Japan and furnishment of of rights of way related to facilities used by U.S. forces in Japan) of the agreement

of January 19, 1960, have been signed in 1991, 1995, 2000, and 2006.

159

Exchange of letters at Seoul August 9 and August 11, 1948. Entered into force August 11, 1948.

160

62 Stat. 3817; T.I.A.S. 1918; 9 Bevans 477; 79 U.N.T.S. 57. Signed at Seoul August 24, 1948. Entered into force

August 24, 1948.

161

Id.

162

62 Stat. 3818.

163

Id.

164

Id. at 3819.

156

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under jurisdiction of the Commanding General, but apprehended in acts detrimental to the

security of personnel or property under his jurisdiction, shall be turned over to the custody and

control of the government of South Korea.165

The countries, in 1950, entered into a mutual defense assistance agreement.166 The mutual defense

agreement references the Military Defense Act of 1949, 167 which provides for the furnishing of

military assistance by the United States to South Korea. The mutual defense assistance agreement

provides that each country “will make or continue to make available to the other, and to other

Governments, such equipment, materials, services, or other military assistance” in support of

economic recovery that is essential to international peace and security.168

The United States and South Korea entered into a mutual security agreement in 1952.169 The

mutual security agreement references the Mutual Security Act of 1951,170 which provides for

military, economic, and technical assistance in order to strengthen the mutual security of the free

world. The mutual security agreement provides that South Korea agrees to promote international

understanding and good will and to take action, that is mutually agreed upon, to eliminate causes

of international tensions.171

In 1954 the countries entered into a mutual defense treaty.172 As part of the treaty the countries

agree to attempt to settle international disputes peacefully, consult whenever the political

independence or security of either party is threatened by external armed attack, and that either

party would act to meet the common danger in accordance with their respective constitutional

processes.173 Article IV of the treaty grants the United States “the right to dispose....land, air and

sea forces in and about the territory” of South Korea.174 Pursuant to the treaty, specifically Article

IV, the countries entered into a SOFA with agreed minutes and an exchange of notes175 in 1966; it

was subsequently amended January 18, 2001.

Philippines

In 1947 the United States and the Republic of the Philippines entered into an agreement on

military assistance.176 The agreement was for a term of five years, starting July 4, 1946, and

provided that the United States would furnish military assistance to the Philippines for the

165

Id.

1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205. Signed at Seoul January 26, 1950. Entered into force January 26,

1950.

167

P.L. 81-329, 63 Stat. 714 (October 6, 1949).

168

1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205.

166

169

3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105. Exchange of notes at Pusan January 4 and January 7, 1952.

Entered into force January 7, 1952.

170

P.L. 82-165, 65 Stat. 373 (October 10, 1951).

171

3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105.

172

5 U.S.T. 2368; T.I.A.S. 3097; 238 U.N.T.S. 199. Signed at Washington October 1, 1953. Entered into force

November 17, 1954.

173

Id.

174

Id.

175

17 U.S.T. 1677; T.I.A.S. 6127; 674 U.N.T.S. 163. Signed at Seoul July 9, 1966. Entered into force February 9,

1967.

176

61 Stat. 3283; T.I.A.S. 1662. Signed at Manila March 21, 1947. Entered into force March 21, 1947.

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training and development of armed forces. The agreement further created an advisory group to

provide advice and assistance to the Philippines as had been authorized by the U.S. Congress. 177

The agreement was extended, and amended, for an additional five years in 1953.178

A mutual defense treaty was entered into by the United States and the Philippines in 1951.179 The

treaty publicly declares “their sense of unity and their common determination to defend

themselves against external armed attack, so that no potential aggressor could be under the

illusion that either of them stands alone in the Pacific Area[.]”180 The Treaty does not address or

provide for a SOFA.

The countries entered into a mutual security agreement in 1952,181 as related to the assurances

required by the Mutual Security Act of 1951. The assurances required under the Mutual Security

Act of 1951 included a commitment to accounting procedures for monies, equipment and

materials furnished by the United States to the Philippines. 182

In 1993, the countries entered into a SOFA.183 The agreement was subsequently extended on

September 19, 1994; April 28, 1995; and November 29, December 1, and December 8, 1995. The

countries entered into an agreement regarding the treatment of U.S. armed forces visiting the

Philippines in 1998.184 This agreement was amended on April 11 and 12, 2006. The distinction

between this agreement and the SOFA originally entered into in 1993 is that this agreement

applies to U.S. armed forces visiting, not stationed in the Philippines. The countries also entered

into an agreement regarding the treatment of Republic of Philippines personnel visiting the

United States.185

IV. Congressional Oversight

While it appears that a prospective U.S.-Iraqi security arrangement will impose legal obligations

upon the parties, it is not yet clear whether the agreement(s) will be in the form of a treaty or

executive agreement. Nonetheless, Congress has several tools at its disposal to exercise oversight

regarding the negotiation, conclusion, and implementation of any such agreement.

177

61 Stat. 3284.

178

4 U.S.T. 1682; T.I.A.S. 2834; 2163 U.N.T.S. 77. Exchange of notes at Manila June 26, 1953. Entered into force July

5, 1953.

179

3 U.S.T. 3947; T.I.A.S. 2529; 177 U.N.T.S. 133. Signed at Washington August 30, 1951. Entered into force August

27, 1952.

180

Id.

181

3 U.S.T. 4644; T.I.A.S. 2617; 179 U.N.T.S. 193. Exchange of notes at Manila January 4 and January 7, 1952.

Entered into force January 7, 1952.

182

Id.

183

T.I.A.S. Exchange of notes at Manila April 2, June 11 and June 21, 1993. Entered into force June 21, 1993.

184

T.I.A.S. Signed at Manila February 10, 1998. Entered into force June 1, 1999.

185

T.I.A.S. Signed at Manila October 9, 1998. Entered into force June 1, 1999.

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Notification

One manner in which Congress exercises oversight of international agreements is via notification

requirements. Obviously, in cases where an agreement requires action from one or both Houses of

Congress to take effect, notification is a requisite. Before a treaty may become binding U.S. law,

the President must submit it to the Senate for its advice and consent. Likewise, the Executive

needs to inform Congress when it seeks to conclude an executive agreement that requires

congressional authorization and/or implementing legislation to become U.S. law, so that

appropriate legislation may be enacted.

While constitutional considerations necessitate congressional notification in many circumstances,

it has historically been more difficult for Congress to keep informed regarding international

agreements or pledges made by the Executive that did not require additional legislative action to

take effect—i.e., sole executive agreements and executive agreements made pursuant to a treaty.

Additionally, even in cases where congressional action is necessary for an agreement to take

effect, the Executive has sometimes opted not to inform Congress about an agreement until it has

already been drafted and signed by the parties. In response to these concerns, Congress has

enacted legislation and the State Department has implemented regulations to ensure that Congress

is informed of the conclusion (and in some cases, the negotiation) of legally binding international

agreements.

Notification Pursuant to the Case-Zablocki Act

The Case-Zablocki Act was enacted in 1972 in response to congressional concern that a number

of secret agreements had been entered by the Executive imposing significant commitments upon

the United States.186 It is the primary statutory mechanism used to ensure that Congress is

informed of international agreements entered by the United States. Pursuant to the act, all

executive agreements are required to be transmitted to Congress within 60 days of their entry into

force.187 If the President deems the immediate public disclosure of an agreement to be prejudicial

to national security, the agreement may instead be transmitted to the House Committee on

Foreign Affairs and the Senate Committee on Foreign Relations. The President is also required to

annually submit a report regarding international agreements that were transmitted after the

expiration of the 60-day period, describing the reasons for the delay.188

Although the Case-Zablocki Act originally only imposed reporting requirements with respect to

executive agreements that had entered into force, the act was amended in 2004 to ensure that

Congress was regularly notified regarding the status of proposed agreements, as well. The

Secretary of State is required to annually report to Congress a list of executive agreements that

have not yet entered into force, which (1) have not been published in the United States Treaties

and Other International Agreements compilation and (2) the United States has “signed,

proclaimed, or with reference to which any other final formality has been executed, or that has

been extended or otherwise modified, during the preceding calendar year.”189

186

See H. REP. 92-1301, 92nd Cong. (1972).

1 U.S.C. § 112b(a).

188

Id. at §112b(b).

189

Id. at § 112b(d).

187

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The Case-Zablocki Act does not define what sort of arrangements constitute “international

agreements” falling under its purview, though the legislative history suggests that Congress “did

not want to be inundated with trivia...[but wished] to have transmitted all agreements of any

significance.”190 In its implementing regulations, the State Department has established criteria for

determining whether an arrangement constitutes a legally binding “international agreement”

requiring congressional notification. These include

•

the identity of the parties, and whether they intended to create a legally binding

agreement;

•

the significance of the agreed-upon arrangement, with “[m]inor or trivial

undertakings, even if couched in legal language and form,” not considered to fall

under the purview of the Case-Zablocki Act;

•

the specificity of the arrangement;

•

the necessity that the arrangement constitute an agreement by two or more

parties; and

•

the form of the arrangement, to the extent that it helps to determine whether the

parties intended to enter a legally binding agreement. 191

Notification Pursuant to Circular 175 Procedures

The State Department’s Circular 175 procedure also contemplates that Congress will be notified

of developments in the negotiation of “significant” international agreements. Specifically,

Department regulations provide that

With the advice and assistance of the Assistant Secretary for Legislative Affairs, the

appropriate congressional leaders and committees are advised of the intention to negotiate

significant new international agreements, consulted concerning such agreements, and kept

informed of developments affecting them, including especially whether any legislation is

considered necessary or desirable for the implementation of the new treaty or agreement.192

As stated earlier, Bush Administration officials have stated that Administration “will work closely

with the appropriate committees of Congress to keep lawmakers informed” about the prospective

U.S.-Iraq agreement, and classified briefings on the agreement have also begun.193

Annual Reporting of Security Arrangements Required by the National

Defense Authorization Act of 1991

In addition to the Case-Zablocki Act, Congress has enacted legislation designed to ensure that it

remains informed about existing U.S. security arrangements. Section 1457 of the National

Defense Authorization Act for FY1991 (P.L. 101-510) requires the President to submit an annual

report to specified congressional committees regarding “United States security arrangements

190

H. REP. 92-1301, 92nd Cong. (1972).

22 C.F.R. § 181.2(a).

192

11 F.A.M. § 725.1(5).

193

Rice and Gates, supra note 9.

191

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with, and commitments to, other nations.”194 The report, produced in classified and unclassified

form, is to be submitted by February 1 each year to the Committee on Armed Services and the

Committee on Foreign Relations of the Senate, and the Committee on Armed Services and the

Committee on Foreign Affairs of the House of Representatives.195 In addition to legally binding

security arrangements or commitments (e.g., mutual defense treaties and pre-positioning

agreements), the report must describe non-binding commitments, such as expressed U.S. policy

formulated by the executive branch. The report must also include, among other things, “[a]n

assessment of the need to continue, modify, or discontinue each of those arrangements and

commitments in view of the changing international security situation.”196

Although reports were submitted to the appropriate committees pursuant to this statutory

requirement in 1991 and 1992, CRS has been unable to determine whether any subsequent reports

have been issued. In January 2008, CRS made an inquiry to the document officers and clerks of

several of the designated committees, but they have been unable to find a record of any

subsequent report being received. The Federal Reports Elimination and Sunset Act of 1995

(Sunset Act, P.L. 104-66) terminated most reporting requirements existing prior to its enactment.

The act eliminated or modified several specific reporting requirements, and also generally

terminated any reporting requirement that had been listed in House Doc. 103-7, unless such a

requirement was specifically exempted. However, the reporting requirement contained in § 1457

of the FY1991 National Defense Authorization Act was neither specifically terminated by the

Sunset Act nor listed in House Doc. 103-7. Accordingly, it does not appear that this requirement

has been terminated.

Consultation

State Department regulations requiring consultation with Congress regarding significant

international agreements may provide a means for congressional oversight as to the negotiation of

a security arrangement with Iraq. One of the stated objectives of the Circular 175 procedure is to

ensure that “timely and appropriate consultation is had with congressional leaders and committees

on treaties and other international agreements.”197 To that end, State Department regulations

contemplate congressional consultation regarding the conduct of negotiations to secure significant

international agreements.198 Although these regulations do not define what constitutes a

“significant” agreement, it seems reasonable to assume that the prospective U.S.-Iraqi security

arrangement would constitute such a compact, as the agreement would (at least as envisioned in

the U.S.-Iraqi Declaration of Principles) commit the United States to provide security assurances

to Iraq, arm and train Iraqi security forces, and confront Al Qaeda and other terrorist entities

within Iraqi territory.199 Such an agreement appears to call for a more significant commitment of

U.S. resources than is required under most international agreements to which the United States is

a party.

194

50 U.S.C. § 404c(a).

Id. at § 404c(c)-(d).

196

Id.

197

11 F.A.M. § 722(4).

198

Id. at § 725.1(5).

199

Fact Sheet, supra note 3.

195

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Circular 175 procedures may also provide for congressional consultation concerning the form that

a legally binding international agreement should take. When there is question as to whether an

international agreement should be concluded as a treaty or an executive agreement, the matter is

first brought to the attention of the State Department’s Legal Adviser for Treaty Affairs. If the

Assistant Legal Adviser for Treaty Affairs believes the issue to be “a serious one that may warrant

formal congressional consultation,”200 consultations are to be held with appropriate congressional

leaders and committees. State Department regulations specify that “Every practicable effort will

be made to identify such questions at the earliest possible date so that consultations may be

completed in sufficient time to avoid last minute consideration.”201

Approval, Rejection, or Conditional Approval of

International Agreements

Perhaps the clearest example of congressional oversight in the agreement-making context is

through its consideration of treaties and congressional-executive agreements. For a treaty to

become binding U.S. law, it must first be approved by a two-thirds majority in the Senate. The

Senate may, in considering a treaty, condition its consent on certain reservations, declarations and

understandings concerning treaty application. For example, it may make its acceptance contingent

upon the treaty being interpreted as requiring implementing legislation to take effect, or condition

approval on an amended version of the treaty being accepted by other treaty parties. If accepted,

these reservations, declarations, and understandings may limit and/or define U.S. obligations

under the treaty.

As previously discussed, a congressional-executive agreement requires congressional

authorization via a statute passed by both Houses of Congress. Here, too, approval may be

conditional. Congress may opt to authorize only certain types of agreements, or may choose to

approve only some provisions of a particular agreement. In authorizing an agreement, Congress

may impose additional statutory requirements upon the Executive (e.g., reporting requirements).

Congress may also include a statutory deadline for its authorization of an agreement to begin or

expire.

Because sole executive agreements do not require congressional authorization to take effect, they

need not be approved by Congress to become binding, at least as a matter of international law.

Nonetheless, as discussed earlier, Congress may limit a sole executive agreement through a

subsequent legislative enactment or through the conditioning of appropriations necessary for the

agreement’s commitment to be implemented.202 Similar measures could also be taken to limit or

condition U.S. adherence to a non-binding security arrangement.

200

201

11 F.A.M. § 724.4(b)-(c).

Id. at § 724.4(b).

202

See supra at 14-15. In the 110th Congress, legislation has been introduced that would prohibit appropriations from

being used to carry out any U.S.-Iraqi security agreement that was not approved by the Senate as a treaty or authorized

by legislation passed by both Houses of Congress. See infra at 40-41.

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Implementation of an Agreement That Is Not Self-Executing

Congress may exercise oversight of international agreements via legislation implementing the

agreements’ requirements. Certain international treaties or executive agreements are considered

“self-executing,” meaning that they have the force of law without the need for subsequent

congressional action. 203 However, many other treaties and agreements are not considered selfexecuting, and are understood to require implementing legislation to take effect, as enforcing U.S.

agencies otherwise lack authority to conduct the actions required to ensure compliance with the

international agreement.204

Treaties and executive agreements have, in part or in whole, been found to be non-self-executing

for at least three reasons: (1) implementing legislation is constitutionally required; (2) the Senate,

in giving consent to a treaty, or Congress, by resolution, requires implementing legislation for the

agreement to be given force;205 or (3) the agreement manifests an intention that it shall not

become effective as domestic law without the enactment of implementing legislation.206

Until implementing legislation is enacted, existing domestic law concerning a matter covered by

an international agreement that is not self-executing remains unchanged and is controlling law in

the United States. However, when a treaty is ratified or an executive agreement is entered, the

United States acquires obligations under international law and may be in default of those

obligations unless implementing legislation is enacted. 207 Perhaps for this reason, Congress

typically appropriates funds necessary to carry out U.S. obligations under international

agreements.208

Although it is unclear what form the U.S.-Iraqi security agreement will take, it is possible that at

least some provisions will require implementing legislation. The Department of Defense

Appropriations Act FY2008 (P.L. 110-116), the Consolidated Appropriations Act FY2008 (P.L.

110-161), and the National Defense Authorization Act FY2008 (P.L. 110-181), for example,

barred funds from being used to establish permanent military bases in Iraq.209 The Consolidated

203

For purposes of domestic law, a self-executing agreement may be superceded by either a subsequently enacted

statute or a new self-executing agreement. Whitney, 124 U.S. At 194.

204

See generally RESTATEMENT, supra note 44, § 111(4)(a) & cmt. h.

205

For example, in the case of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984), the

Senate gave advice and consent subject to a declaration that the treaty was not self-executing. U.S. Reservations,

Declarations, and Understandings to the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, 136 CONG. REC. S17486-01 (daily ed., October 27, 1990).

206

RESTATEMENT, supra note 44, § 111(4)(a) & n. 5-6.

207

See id., § 111, cmt. h.

208

See TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 35, at 166-170 (discussing congressional use of

the appropriations power to influence the implementation of international agreements by the United States).

209

In signing the National Defense Authorization Act FY2008 into law, President Bush issued a statement that § 1222

of the act, which barred the funds the act made available from being used to establish any permanent U.S. military

installation in Iraq,

purport[s] to impose requirements that could inhibit the President’s ability to carry out his

constitutional obligations to take care that the laws be faithfully executed, to protect national

security, to supervise the executive branch, and to execute his authority as Commander in Chief.

The executive branch shall construe [this provision] in a manner consistent with the constitutional

authority of the President.

President George W. Bush, Signing Statement for H.R. 4986, the National Defense Authorization Act for Fiscal Year

(continued...)

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Appropriations Act also includes a measure intended to prevent the United States from entering

an agreement with Iraq that would make members of the U.S. Armed Forces subject to

punishment under Iraqi law. 210

Continuing Oversight

After an international agreement has taken effect, Congress may still exercise oversight over

executive implementation. It may require the Executive to submit information to Congress or

congressional committees regarding U.S. implementation of its international commitments. It

may enact new legislation that modifies or repudiates U.S. adherence or implementation of an

international agreement. It may limit or prohibit appropriations necessary for the Executive to

implement the provisions of the agreement, or condition such appropriations upon the Executive

implementing the agreement in a particular manner.

V. Legislative Activity

Legislation has been introduced in the 110th Congress to ensure congressional participation in the

entering of any agreement emerging from the Declaration of Principles between the United States

and Iraq—including an engrossed amendment to H.R. 2642, the Supplemental Appropriations

Act, 2008, which passed the House on May 15, 2008;211 S. 2426, the Congressional Oversight of

Iraq Agreements Act of 2007, introduced by Senate Majority Leader Harry Reid on behalf of

(...continued)

2008, January 28, 2008, available at http://www.whitehouse.gov/news/releases/2008/01/20080128-10.html. In signing

the Consolidated Appropriations Act FY2008 into law, President Bush issued a more general statement that provisions

of the act would not be construed in a manner “inconsistent with [the Executive’s] Constitutional responsibilities.”

President George W. Bush, Signing Statement for H.R. 2764, the Consolidated Appropriations Act for Fiscal Year

2008, December 26, 2007, available at http://www.whitehouse.gov/news/releases/2007/12/20071226-1.html. Although

a signing statement was issued by the President with respect to the interpretation of specific provisions of the

Department of Defense Appropriations Act FY2008, this statement did not reference § 8113 of the act, which prohibits

funds appropriated under any congressional act from being used to construct permanent military bases in Iraq.

President George W. Bush, Signing Statement for H.R. 3222, the Department of Defense Appropriations Act, 2008,

November 13, 2007, available at http://www.whitehouse.gov/news/releases/2007/11/20071113-8.html. For background

on the legal implications of presidential signing statements, see CRS Report RL33667, Presidential Signing

Statements: Constitutional and Institutional Implications, by (name redacted).

210

Section 612, Division L of the Consolidated Appropriations Act (P.L. 101-161) provides that no funds made

available under that division may be used to enter into “an agreement with the Government of Iraq that would subject

members of the Armed Forces of the United States to the jurisdiction of Iraq criminal courts or punishment under Iraq

law.” While Congress has occasionally barred funds from being used by the Executive to negotiate international

agreements, some have argued that this practice is unconstitutional, given the President’s authority to “make” treaties

and his significant authority in foreign affairs. See, e.g., Charles J. Cooper et al., What the Constitution Means by

Executive Power, 43 U. MIAMI L. REV. 165, 200 (1988) (section written by Sen. Orrin Hatch, arguing that Congress

may not deny funds from being used by the President to receive ambassadors, negotiate treaties, and deliver foreign

policy addresses); J. Gregory Sidak, The President’s Power of the Purse, 1989 DUKE L.J. 1162, 1211 (arguing the

Congress may not use its appropriations power to limit the President’s ability to negotiate international agreements).

Cf. Earth Island Institute v. Christopher, 6 F.3d 648 (9th Cir. 1993) (statute requiring the Secretary of State to negotiate

with foreign countries to develop treaties protecting sea turtles violated separation of powers by infringing upon

President’s exclusive power to negotiate with foreign governments).

211

On May 22, 2008, the Senate passed an amendment in the nature of a substitute for the House-passed engrossed

amendment to H.R. 2642 (S.Amdt. 4803). The Senate-passed version does not contain provisions relating to the

prospective security agreement with Iraq.

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Senator Hillary Clinton on December 6, 2007; H.R. 4959, Iraq Strategic Agreement Review Act

of 2008, introduced by Representative Rosa DeLauro on January 15, 2008; H.R. 5128, introduced

by Representative Barbara Lee on January 23, 2007, and H.R. 5626, the Protect Our Troops and

Our Constitution Act of 2008, introduced by Representative William Delahunt on March 13,

2008.

All of these legislative proposals would bar funds from being made available or appropriated to

implement certain types of formal agreements emerging from the U.S.-Iraq Declaration of

Principles. S. 2426 would deny funds to implement any U.S.-Iraq agreement involving

“commitments or risks affecting the nation as a whole,” including a SOFA agreement, unless the

agreement was approved by the Senate as a treaty or by Congress through legislation. H.R. 4959,

in contrast, would condition appropriations to implement any agreement emerging from the

Declaration of Principles upon that agreement being approved as a treaty by the Senate, while

H.R. 5128 would condition appropriations for the implementation of such an agreement upon it

being approved by an act of Congress. H.R. 5626 would bar appropriations from being used to

implement any security agreement emerging from the Declaration of Principles, including any

agreement giving the United States “authority to fight” other than for self-defense purposes,

unless the agreement is approved as a treaty or an Act of Congress enacted after the date of

enactment for H.R. 5626. The House-passed engrossed amendment to H.R. 2642 would condition

appropriations from being used to negotiate, enter into, or implement any agreement with Iraq

containing security assurances for mutual defense (which is defined to include a binding

commitment to defend Iraq, or specifications regarding the nature or duration of the U.S. mission

in Iraq or the number of U.S. troops stationed there), unless the agreement takes the form of a

treaty or is approved by an Act of Congress.

Some of these legislative proposals may raise constitutional questions. For example, H.R. 5128

includes a provision stating that an agreement between the United States and Iraq must be

approved by an act of Congress in order to have legal effect. This provision may raise serious

legal concerns given the Constitution’s specification that treaties approved by the Senate have

status as the “Law of the Land.” H.R. 4959 and S. 2426 include provisions expressing the sense

of Congress that a prospective U.S.-Iraq agreement should take a particular form in order to have

legal effect, but these provisions appear to raise less significant constitutional concerns given

their non-binding nature. The House-passed engrossed amendment to H.R. 2642 may also raise

constitutional concerns to the extent that it would effectively bar the Executive from negotiating

(as opposed to implementing) certain types of international agreements.212

With respect to consultation, H.R. 4959 includes a provision requiring that specified members of

the executive branch consult with congressional committees and leadership on any potential longterm security, economic, or political agreement between the United States and Iraq. S. 2426 does

not include a consultation requirement, but instead requires the Legal Adviser to the Secretary of

State to submit a report to Congress justifying any decision by the Executive not to consult with

Congress before concluding a security arrangement with Iraq in the form of a sole executive

agreement. H.R. 5626 includes a provision stating that it is the sense of Congress that the

Administration should consult fully with Congress, the Iraqi government, Coalition partners, and

Iraq’s neighbors in determining U.S. policy towards Iraq.

212

See supra note 210.

Congressional Research Service

Congressional Oversight Concerning the Prospective U.S.-Iraq Security Agreement

In a May 22, 2008, statement concerning administration policy, the White House claimed that

The Administration strongly opposes any [legislation] that would attempt to determine the

legal effect or content of diplomatic agreements with Iraq before they are negotiated. In that

regard, the Administration opposes any attempt to change long-standing legal traditions

governing whether certain types of agreements may be concluded as executive agreements

rather than as ratified treaties. Similarly, the Administration opposes any [legislation] that

would establish a statutory policy that a Status of Forces Agreement (SOFA) between the

U.S. and Iraq must include measures requiring the Iraqi Government to provide financial or

other types of support for U.S. Armed Forces stationed in Iraq. Under the Constitution, the

President has the discretion to initiate and conduct diplomatic negotiations. Congress cannot

by statute establish the policy of the United States with regard to such negotiations in

advance. Indeed, in this case, such a policy would threaten the ability of the United States to

engage in dynamic talks with the Government of Iraq and would risk the timely completion

of the status of forces agreement prior to the anticipated expiration of United Nations

Security Council Resolution 1790.213

Accordingly, legislation attempting to limit the scope or effect of a U.S.-Iraq security agreement

could be subject to veto.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.g

ov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

213

Executive Office of the President, Statement of Administration Policy, H.R. 5658 – Duncan Hunter National

Defense Authorization Act for Fiscal Year 2009, May 22, 2008, available at http://www.whitehouse.gov/omb/

legislative/sap/110-2/saphr5658-h.pdf.

Congressional Research Service

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