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Hearing of the Senate Foreign Relations Committee - Negotiating a Long-Term Relationship: Security Assurances


Location: Washington, DC

SEN. BIDEN: The hearing will come to order. I apologize for keeping my colleagues and the witnesses waiting.

Last November the president of the United States and Prime Minister Maliki of Iraq signed a Declaration of Principles, what they referred to as a Declaration of Principles, which set out -- which is referred to these days in Washington jargon, in international jargon, as a framework.

It's interesting; I don't know. The good news for you all is you have to explain this to other diplomats. The bad news for us is we have to explain it to ordinary, very smart Americans who don't understand the jargon, and it's confusing. So part of what I hope you can do is demystify some of what is being discussed here.

So the Declaration of Principles set out a framework for our countries -- that is, Iraq and the United States -- to negotiate by the end of July of this year agreements governing cooperation in political, economic and security spheres.

And among other things, the declaration contemplates, quote, "providing security assurances and commitments by the Republic of Iraq to deter foreign aggression against Iraq," and -- that's the end of the quote -- and supporting Iraq, quote, "in its efforts to combat all terrorist groups, including al Qaeda, Saddamists and all other outlaw groups, regardless of affiliation," which means all those folks fighting in Iraq and killing each other.

So to average Americans and to slow senators like me, that sends up not one red flag but 25 red flags, because I don't know any time we've ever had a status of forces agreement or an agreement not requiring congressional approval. This says, "Not only are we going to talk to you and consult with you when it comes to whether or not you're going to be attacked from outside, but we're going to consult with you, the government, on anything that may happen to you inside," when, in fact, we don't know what the hell the government is -- heck the government is inside.

We just witnessed the "government," quote-unquote, Mr. Maliki, a Shi'a of the Dawa Party, engaging in a -- I'm not making a judgment -- engaging in using force against another Shi'a group that helped put him in office, the Sadr operation, along with SCIRI. You know, so it gets pretty complicated for average Americans and average senators.

So we're going to hear today about these two agreements that the administration has negotiated with Iraq which were anticipated in the November declaration. On Tuesday, Ambassador Crocker told us that these agreements would set forth a vision -- that's his phrase -- of our bilateral relationship with Iraq.

One of the problems is you're about to set forth a vision of an administration that is not shared by many other people. We're likely to have -- we're going to have a new president, and there's an even shot it may be, of the three people competing -- the vision this administration shares for Iraq is clearly not one shared by two of the three. And the third may or may not share the vision; I suspect he might.

But one agreement is a strategic framework that will include the economic, political and security issues outlined in the Declaration of Principles, and that document, I think, might be better titled "What the United States Will Do For Iraq," because it consists mostly of a series of promises that flow in one direction. Promises by the United States to a sectarian government have thus far failed to reach any political compromises necessary to have a stable country.

Now, whether they're binding or not, if I look at this -- and excuse me for speaking not in diplo-speak or in foreign policy terms, like I think normal people look at these things -- here we are. The reason why we're not going to continue the U.N. umbrella that allows us to be where we are now and extend it is Iraqis say, "Hey, look, we're not an occupied country. We're a sovereign country. We want to deal with it ourselves. The reason why we're not just doing a straight status of forces agreement" -- as they said, "You want a status of forces agreement. We want some promises. We want something in return. And what you all seem to be saying to us" -- and I just want to put this in the framework; I may be wrong, speaking of frameworks -- "you all are coming to us and saying, 'Well, we're going to make commitments that are not binding to them.'"

But in Iraq, they think we mean it. It may not be binding. Binding, you'd have to come up and get a treaty. But in Iraq, when we say, "We'll do the following things," the Iraqi people and the parliament we're going to try to sell them on is "We're going to do them," because otherwise we wouldn't be having this discussion. We wouldn't be trying to have a strategic agreement with Iraq at this moment were it not for the Iraqis demanding something more for our continued presence and an agreement relative to our forces in Iraq.

I just want to put this in context, at least as I understand it. The second agreement is what officials call standard status of forces agreement, which will govern the presence of U.S. forces in Iraq, including their entry into the country and the immunities to be granted to our forces under Iraqi law. But unlike most SOFAs, as they're referred to, unlike most status of forces agreements, it would permit U.S. forces, for the purposes of Iraqi law, to engage in combat operations and detain insurgents; put another way, detain people we conclude are bad guys.

Now, no other status of forces agreement that I'm aware of allows us the ability -- and I think we should have; if we're going to be there, we should have this authority, speaking for myself. But it is unusual. I can't think of any agreement, of the 80 or 90 or so we have, where we have an American military commander commanding forces under a status of forces agreement in another country who can say, "By the way, there's some bad guys over there. Let's go get them." I don't think there's anywhere. I'll be happy, Mr. Secretary, to hear -- to be corrected if that's the case.

So, unlike most other of these agreements -- and there may be some -- we're going to ask to be able to continue engaging in combat operations and detain people that the U.N. mandate allows us to do under our control.

In February, Secretaries Rice and Gates made clear that despite the unambiguous reference to security commitments -- that's the phrase, security commitments -- in the declaration, these agreements would not include legally binding security commitments to defend Iraqis if attacked or to defend the government against other militia groups within its country in what, whether we call it a civil war or not, you know, competing interests for control of Iraq.

And I welcome that clarification, but it obscures a critical point. The likelihood the United States will promise some response if Iraq is threatened or attacked -- often called a security assurance or a security agreement -- it will likely create the perception, at least, in Iraq that the United States -- and I would argue in the region -- that the United States will come to Iraq's rescue if it's threatened to be attacked. The next president may not want to do that. The next president may say, "I'm not buying into that deal. That's not my vision. I'm no piece of that vision."

It also ignores the further startling pledge in the declaration to support the Iraqi government in its battle with, quote, "all other outlaw groups." So I assume that means any group that is at odds with the prime minister -- quote, "the government" -- as an outlaw group. And that's a potentially expansive commitment to take sides in an Iraqi civil war.

The key question before this committee, in my view, is whether either agreement should be approved by the Congress either as a treaty approved by two-thirds of the Senate or as a congressional executive agreement approved by both houses. It is a fact that security agreements with several countries have been made without explicit congressional or Senate approval, but not all security arrangements are created equal.

Our present military commitment in Iraq and the context -- you can't discuss this other than the context in which it's in -- the context in which this agreement would be made and concluded are important factors in evaluating, in my view, whether congressional approval is required.

Moreover, past practice is not a reason to bypass Congress, nor can it answer the question of the president's authority, as the Supreme Court reminded us when it struck down dozens of statutes providing for a legislative veto in the landmark case of INS versus Chadha.

This Committee has long been concerned with unilateral efforts of the executive branch to bind the nation. In 1967, the Committee held a series of hearings that led to Senate approval of the National Commitments Resolution, which states that the national commitment by the United States can only result, quote, "from affirmative action taken by the executive and legislative branches of the United States by means of a treaty, statute, or concurrent resolution in both houses of Congress, specifically providing for such commitment," end of quote.

In its report on the resolution, the Committee expressed concern that some foreign engagements, such as our base arrangements in Spain, form a kind of quasi-commitment unspecified as to the exact import. But, like buds in springtime, ready under the right climatic conditions to burst into full bloom. I'm continuing to quote: "In practice, the very fact that our physical presence in Spain constitutes a quasi-commitment for the defense of the Franco regime, possibly even against internal disruptions," end of quote.

In 1970, a special subcommittee of this Committee engaged in a study of security arrangements to commitments abroad. It described the practice of creeping commitments -- that's the phrase, creeping commitments -- and observed that, quote, "overseas bases, the presence of elements of U.S. armed forces, joint planning, joint exercise, or extensive military assistance program represent to host governments a more valid assurance of U.S. commitment than any treaty or executive agreement," end of quote.

The Constitution gives Congress the power to authorize the use of force, the power to raise and support the military, and the power of the purse. And it gives the Senate the power to approve treaties.

The president, as commander in chief and chief diplomat, can direct forces in war, once authorized, and negotiate and sign treaties. This division of power was intentional and, among other things, was designed to prevent one person from making national commitments that could result in taking a country to war.

I've often stated that no foreign policy can be sustained in the United States of America, no matter how enlightened, no matter how brilliant the vision, without the informed -- the informed -- consent of the American people ahead of time -- basically, without them knowing what they're getting into. That old expression of Vandenberg's -- You want me in on the landing, I've got to be in on the take-off. I think it was Vandenberg.

Five years ago, President Bush went to war in Iraq without gaining that consent. He did so by overstating the intelligence and understating the difficulty, cost, duration, and mission. He had a legal basis, but he didn't get the informed consent of the American people, and we're seeing the consequences of that now.

With just nine months left in his term, the president is on a course to commit the nation to a new phase of a long war in Iraq and thereby bind -- at least politically and internationally and perceptively bind his successors to his -- what I consider to be a failed policy.

Once again, he appears poised to do so without the informed consent of the American people by rushing to conclude long-term agreements with the Iraqis without adequate public debate and without the voice of the people's representatives in Congress.

Instead of giving us a strategy to end the war without leaving chaos behind -- this is purely me. I do not associate anyone else. I do not speak for my party in this regard. I'm not speaking for the presidential candidates on the Democratic side, either.

But from my perspective, he's -- instead of giving us a strategy to end the war without leaving chaos behind, the president's made it clear that he intends to pass on the problems to his successor and by these agreements to make it harder -- harder, not easier -- for his successor to change course.

The president may have the power to initiate these talks, but I think it's a mistake for him to do so. The situation in Iraq can hardly be described as normal, and the government in Baghdad is far from established and reliable, even in the eyes of the Iraqi people. There is -- it's a very shaky edifice for building a long-term relationship.

Instead, I believe the president should devote his energies -- notwithstanding what he legally may be able to do, I think he should devote his energies to working with Iraq and its neighbors in a diplomatic surge. I think, to help develop a lasting political settlement that'll provide the foundation for a stable Iraq, and he should defer discussion of such long-term agreements to his successor.

But the president persists in this course. And if he does, the Congress will insist on its role in approving or disapproving of these agreements.

I'll conclude before I yield to the chairman by saying I believe that the president would be well suited, the country would be better off, there would be clear and more precise understanding on the part of both the Iraqis as to what we're promising, and on the part of the American people as to what they're committing to, for him to negotiate a status of forces agreement, period. A status of forces agreement, period.

But that's my view. We're going to get a chance, and I genuinely -- I mean this sincerely -- I'm anxious to hear what the administration has to say on this, and they're going to be followed by a panel of witnesses who have varying degrees of difference -- legal scholars on what is required by the president, what is required by the Congress, and we're anxious to hear it.

With that, let me yield to Chairman Lugar.


SEN. BIDEN: (Off mike.)

Excuse me. I don't think there's been many times when I've taken issue with a position taken by Chairman Lugar, but he points to the need for U.S. leverage in his opening statement.

I would think we're at the maximum point of U.S. leverage we'll ever be -- at this moment. If we don't have leverage now with this government, then we're in real trouble with the decision having to make about we have 140,000 troops there -- more than that now. If that doesn't constitute leverage, I don't know what does -- but anyway.

And again, I'm going to try to -- I'm going to try to pursue this so that I think my constituency can understand what we're talking about here.

Let me begin with the last statement, your concluding point, Mr. Ambassador. You say, "We have enduring national interests in Iraq." What are they?

MR. SATTERFIELD: Senator, we believe strongly that both in and through Iraq, the future of U.S. interests in a stable, secure Middle East, in an Iraq and a broader region which is fully prepared and able to confront the challenge posed by extremism -- whether al Qaeda's terror or Iran's expansionist, hegemonistic ambitions -- is facilitated, is supported through what happens in Iraq.

This is not solely about Iraq or the future of that country -- although that is an important issue. It is more broadly about the price and the advantages of failure and success in making of Iraq a stable state, a state that is able to assist in our and in regional efforts to confront the extremism, the terror and Iranian ambitions of which I spoke. Those are our fundamental interests.

SEN. BIDEN: Now, would you acknowledge it is possible that two of the three presidential candidates don't share that vision? There are those -- I'm not speaking for either candidate -- but it may very well be the next president does not believe that Iran is seeking hegemony in the region and that Iran may very well be worse off with an Iraq in disarray. You would acknowledge that's a possibility, wouldn't you?

MR. SATTERFIELD: Mr. Chairman, I speak on behalf of this administration.

SEN. BIDEN: Right. That's the point I want to make. You speak on behalf of this administration whose views are not shared by two of the three potential next presidents. And we're about to codify -- we're about to lay out for the whole world to see -- this president's vision of our rationale to be in Iraq. I think that, as they say, over makes my point.

You are speaking, as you should, for this president. You've laid out two premises that there is significant disagreement on with the competing party's candidates. One, that the fight against terrorism resides in Iraq -- that is not a view shared by -- they acknowledge terrorism exists, but it is not a view shared by a lot of the witnesses that have appeared before us in the past. Witnesses appeared before us -- very competent women and men of very respected backgrounds -- have said that if we leave Iraq, there's no rationale for al Qaeda to stay -- that the real war against terrorism is on the Pakistan-Afghan border.

I'm not making the case who's right or who's wrong, but I'm making the case at the front end of this. You have a vision that -- representing the president -- that is not a vision at least wholly shared by two of the candidates who may very well -- at least based on polling data -- have an even chance of being the next president.

So what in the heck are we doing? Forget the legalities of this. Just think of the practicalities. Just like big nations can't bluff, big nations can't make implied promises that you have a pretty good idea the next guy coming along may not -- or woman coming along -- may not be committed to. This is folly! This is a serious, serious mistake in terms of the interests of the United States of America! Forget the constitutional requirements; forget the precedent.

Now, let me ask another question, if I may: What, as you point out, you're not going to tie the hands of the next president of the United States of America. Yet, this security arrangement envisions, at a minimum, we will consider protecting the government -- because that's who we're talking about now; we're going to have to deal with a government in Iraq -- the government against threats both internal and external.

What would happen if tomorrow the Maliki government decided that the awakening was a threat -- I predict to my colleagues that may cross his mind -- and decides that he is going to move with Iraqi forces, primarily Shi'a, against an element of the awakening -- the Sunnis -- in a remote part of Anbar province, gets tied down -- just like he did in Basra -- what is the expectation, do you think, of the government of Iraq? That we would use, as we did in Basra, helicopters? We would use intelligence data; we would use communications; we would use, you know, we would coordinate with them? I would suspect that would be the expectation.

And then what happens when the United States doesn't? What happens to those forces of ours who are sitting on the ground? This is a bad idea.

What do you think is the notion here that is contemplated by -- let me back up. Have we had discussions, to the best of your knowledge, with the Maliki government about extending the U.N. mandate for three months?

MR. SATTERFIELD: Mr. Chairman, I led the negotiations in Baghdad last December that produced the extension for one additional year to December 31st of this year --

SEN. BIDEN: That's why I asked the question.

MR. SATTERFIELD: -- of the Security Council resolutions. I participated in the prior two years' negotiations as well. I can assure you that in the course of those three years of discussions, of negotiations, particularly this last one, it became quite clear that the government of Iraq -- and this is beyond Prime Minister Maliki, but that the political structure of Iraq wished to bring to an end by December 31st of this year, and no later, that Chapter 7 mandate, based on reasons of sovereignty assertion as well as a national will and a sense of national preparedness.

In the previous two years, in '05 and '06, we secured an additional extension based upon our judgment, in consultation with the government of Iraq and its political leadership, that that was both a possible goal and a desirable goal. That is not our conclusion -- was not our conclusion last year.

SEN. BIDEN: Yeah, but you haven't --

MR. SATTERFIELD: I do not believe, Mr. Chairman --

SEN. BIDEN: You haven't answered my question, with all due respect.

MR. SATTERFIELD: -- this can be done.

SEN. BIDEN: Has there been a direct request in the last month or so of the Iraqi government to consider a binding status of forces agreement and an extension, an extension of the U.N. mandate for three months? They are not unaware -- I speak with these same principals you speak with. I may have spoken them as many times as you have in my close to dozen trips -- 10 or 12, whatever it is -- to Iraq, whether it's Maliki or whether or not it's the vice presidents representing each of those constituencies there, you know. And all of us have, not just me. We've all spoken to them.

Has anyone said to them -- they know there's an election coming up. They know the debate that's going on. They're watching this as well as -- I mean, the TVs are turned on for this hearing, not because we're important but because they're wondering what's going on.

Has anyone said to them in the last several months, "Consider extending the mandate for three months to allow the next administration to work out its relationship"? You say the following. You say that we want to normalize relationships with the Iraqi government.

There is no Iraqi government that we know is likely to be in place a year from now. They haven't even worked out, under their constitution, the two provisions they're required to work out -- a regions law, which is written into their constitution, which goes into effect the middle of this month, because they postponed it, kicked it down the road 16 months. That expires -- I ask my staff for help -- I think mid-April.

So come a couple of days from now, any of the 18 governates -- they may not -- will have the legal authority to vote within their governate to establish a region defining its own security arrangements, not in contravention of the constitution, the national constitution, and defining a number of other things.

They are able to write a constitution, any one of those governates, just like the constitution in the state of Indiana, the constitution in the state of Minnesota are able to do that. Just like Minnesota has their own state police, they can decide to have their own state police. It's not been done yet. We don't know what the shape of this government is going to look like.

We're having provincial elections that are coming up, which most of the witnesses before us said are probably not going to take place on time; hope they do. So the idea we're normalizing relationships with a government that is far from normal or normalized -- half the cabinet has walked away. There's not a normal government in Iraq.

My time is up. I've gone three minutes beyond it, almost four. I apologize. But if you want to respond, you can. I understand if you don't want to. But just understand my frustration here. The premise is there's a normalized government -- we're going to normalize relations with a government that really doesn't thoroughly exist. It is sovereign, but it does not -- who are we normalizing it with? What is the shape of that government?

And you point out that the enduring national interest that we want to essentially codify, not bindingly, but codify with the Iraqis is one that is not necessarily shared by the next president. I think you're making a big mistake for our national interest in pushing this without telling the Iraqis. And if we don't have leverage now, what are they going to say -- "Go home"? Good -- have us go home. Tell us they don't want us there. Not a lot of Americans are going to say, "Oh, no, no, no, let's stay when you don't want us."

We just heard for two days from two incredibly competent government servants, one military, one civilian, Petraeus and Crocker, that the Iraqis really want us to stay. This sure as heck would be a good test.

I yield to my colleague.


SEN. BIDEN: Taking advantage of being chairman for 30 seconds here, the difference is there is no formalized agreement guaranteeing the present government's security internally. That's the big difference, or at least implying we would do that. And I want to make it clear to the witnesses, I don't doubt for a minute the veracity of everything you say about these not being binding. So understand I'm not in any way questioning your assertions about the intentions of the administration relative to not formally binding the next administration. I just want to make that clear.

I yield to the senator from Wisconsin, Senator Feingold.


SEN. BIDEN: Thank you. I think it's a good suggestion. I would add, if I could, it's not -- the reason why these political points are so sharp, as I think everyone would acknowledge, the underlying policy differences are so real.

Sometimes political points you just score for political points. But the policy differences among the candidates are really significantly different. And that's what agitates this whole issue. So I think it's an interesting suggestion.

The senator from Florida.


SEN. BIDEN: That's correct. I don't know of a treaty we've written that doesn't allow either party to an escape clause saying the treaty's no longer in their national interest and unilaterally withdraw from it -- as President Bush did with the arms control treaty.

SEN. ISAKSON: My only comment would be if either an advise and consent action -- a treaty -- or the agreement are both cancellable at any time by either party, how deep a debate we get into -- is it really relevant or what's the difference?

SEN. BIDEN: If you're asking me, they're relevant in the sense that withdrawal from treaties or withdrawal from executive agreements have political consequences that you saw when we withdrew from the arms control agreement, what that did internationally -- the responses we've received.

And again, it falls into the category, in my view, Senator, that big nations can't make assurances lightly, whether they're legally binding or not, without having consequences when they don't fulfill that obligation. That's the generic point I was making.

And you asked about the treaty -- any treaty like it.

I would like to suggest that, when you're looking, I don't know of any treaty that allows the latitude and protection for civilians and contractors as broadly as is being sought here, 180,000. So civilian, non-government security forces contracted, like Blackwater, and the ability of a stationed force being able to, on its own, initiate military action in the country in which the status of forces agreement exists, I know of no such treaty. I'd be delighted to hear if there was one. I may be mistaken.

SEN. ISAKSON: I'll yield the balance of my time to Mr. Menendez who has been waiting.

SEN. BIDEN: About three minutes which means we have five minutes after the vote. So I think you can probably get in, and I'll go protect you on the floor -- I'm not being facetious -- so that you don't get shut out in terms of voting if you want to begin.


SEN. BIDEN: You're able to have the extra time.

Let me follow up. We're about to have this last vote. And I'll thank you for your presence and let you all go. But there's a certain irony here. The irony is that we're acknowledging that the Iraqis will not give us a status of forces agreement absent other commitments that are not technically binding, but nonetheless commitments stating what the relationship is going to be in the future. And we make the argument -- you always use the phrase, Secretary Long, of multinational forces.

The truth is, when this U.N. resolution expires in January, no other forces are allowed to be in that country unless the Iraqis negotiate independently with them a status of forces agreement. So if you've got eight Czechs or 27 Czechs or 15 whoever, they require, in order for their troops to be protected -- because they can't piggyback on ours; there is no national, there's no international thing that allows them to do that.

And the irony here is you are correct, I believe, that the authorization of use of force from 2002 is the basis upon which we are able to use force in Iraq. But it says, quote, "to defend the national security of the United States against continuing threats posed by Iraq and to enforce all relevant U.N. Security Council resolutions regarding Iraq."

All U.N. Security Council resolutions regarding Iraq will cease and desist as of January 1 of this year. So that's no longer relevant. And the government of Iraq is the very government we're negotiating the status of forces agreement, so, ipso facto, it is not a threat to the United States of America.

So I would respectfully suggest you have no constitutional basis upon which to argue that the resolution of authorizing the use of force in 2002 gives you any constitutional legal jurisdiction, justification, for what you're about to do.

And the last point I'll make is that (if) the agreements referenced are accurate, you need either an international mandate or a sovereign agreement for American forces to be there. Status of forces agreements in every other country do not call for the ability, whether it's Korea or Japan, for the United States and this status of forces agreement to engage in war unilaterally within that country with anyone else.

NATO, which was cited, is a treaty and a different breed of cat. It does not at all relate to this. It is not at all remotely comparable. And so the irony here is we are saying the Iraqis will not give us a status of forces agreement to protect our forces, which you all agree we need, absent a larger agreement, a separate agreement.

And in the status of forces agreement, we're asking for something we've not asked in any other status of forces agreement I'm aware of -- the ability to unilaterally conduct military operations, not in defense of our troops being attacked unilaterally, as well as be able to take prisoners in the country of Iraq, whether Iraqi citizens or otherwise, and hold them without the permission of the Iraqis. They're two things we're asking for in the status of forces agreement.

I would respectfully suggest you don't have a constitutional leg to stand on for this agreement. So I'd also suggest, and I'd be happy -- I'm going to let you -- because I'll submit some of these in writing, and I'd appreciate a written answer as well -- I also suggest you negotiate a status of forces agreement, period, because I'd also suggest that if the answer is "The Iraqis won't give it to us because they want more," that's an awful hard case to explain to the American people why we ain't given everything.

We're giving and going to continue to give 30 to 40 American lives a month, even with the downturn in violence. We're continuing to give 230 to 240 Americans wounded a month, even with the reduced violence. We're continuing to give $3 billion a week.

If that ain't enough, then guess what. If the Iraqi Parliament votes for us to go home, guess what: I predict to you 85 percent of the registered Republicans in America, 95 percent of the Democrats and 90 percent of the independents will say, "Amen. They don't want us? Okay, we're out of there."

I think you need a different game plan, respectfully, because I do think we have to protect our troops. And that's selfish, because some of us have special troops that are going to be there.

And so I will submit some of these in writing, if you will. I thank you, as always, for your candor. You've been straightforward with us. I truly appreciate it. I understand your point. But I think we have a political -- in a broad sense, a political dilemma here as well as a legal and constitutional one. And hopefully we can resolve it. But if you'd like to make any closing comment, I'd be delighted to hear you.

MR. SATTERFIELD: Senator, we certainly understand the points that have been raised here today by you and all of your colleagues. We understand the importance of a full understanding on the part, not just of this body but the American people, of what both of these documents do and don't do. And we certainly understand the sacrifices made --

SEN. BIDEN: Oh, I know you do.

MR. SATTERFIELD: -- by America --

SEN. BIDEN: I wasn't implying you didn't --

MR. SATTERFIELD: -- in that country. They're extraordinary, and they continue to be extraordinary. But what we are seeking to do here is to secure, for the long term, fundamental American interests, interests that we frankly believe will be shared by this and all administrations.

Thank you, sir.

SEN. BIDEN: Well, that's my hope. And I thank you all. I apologize to the next panel. I've got to run and make this vote. And if I can get one of my colleagues to come back, I'd ask them to start so we don't hold you up, if they come back. So I would ask my staff, whoever comes back, Democrat or Republican, if they'd empower the panel and begin.

But I thank you all. We're in recess for the next vote.



SEN. BIDEN: Well, I want to thank you for your very practical way of approaching this. I assure you I'm not a Calvinist. I have great respect for Calvinists -- (laughter) -- but I am not one. But all kidding aside, the points you make, I think, are very valid.

If I can -- I'm going to raise a couple -- I'm going to make a couple of statements. I'd invite you all to comment on what I say and what one another have said, okay? Since one of the real disadvantages for you is I'm the only one here, and this is -- I look forward to this. Don't turn the clock on, Bertie (sp). (Laughter.) Turn the clock off. But maybe you can help me, at least, and the Committee record.

I suffer from, the last 18 years, teaching a course in separation of powers at Widener University Law School. And that old joke, at least when I was in law school, which I wish I'd paid more attention when I was, if you want to learn a subject, teach it.

And you all are much more proficient and knowledgeable in teaching and the subject matter than I am. But let me just walk through a couple of things for you, if I can, to maybe help us get our arms around this.

Professor Donoghue, a number of the points you raised are, I think, technically correct, in the Calvinistic sense. (Laughs.)

Oh, pardon me? (Response off mike.) Oh, I'm sorry. I did say -- I apologize. She was here before, and I apologize. I introduced you as that, too. I'm sorry. You are very kind. You can call me "Bidden," if you'd like. (Laughter.) I truly apologize. And I even wrote down here, Donoghue. I apologize.

But look, there are practical explanations for each of the legal points that you've raised, constitutional points. For example, I can't think of any other time in the 20th century where, other than the Vietnam War, where when the passing of power from one president to another has been almost solely based upon the issue of whether or not the pursuit of that war, and the way it was being pursued, is appropriate. That's what this election is about. It's the economy, stupid, the economy. But guess what? At the end of the day, it's about the war.

So we're about to have a referendum in the United States of America on whether or not, essentially, continuing -- based on my friend John McCain's assertions, whether we continue the policy of this administration relative to the use of force in Iraq, for the rationale offered by this president and offered by John, which relates to the threat of Iran, internal destabilization resulting in regional instability, the hegemony of Iran, the growth of terrorism in the region, et cetera.

These are all propositions that underlie the continuation of the use of this force that are literally being debated by the public.

The point I raised with a couple of my colleagues on the way over to the last vote, just imagine the circumstance, to make a point, if this administration said we want a status of forces agreement that is essentially a continuation -- a letter, if you will, as you suggested -- a letter just of an understanding between us of continuing the status of forces agreement that's essentially contained in CPA 17.

And assume they said no. We're not going to do that. And we're not going to give you any status of forces agreement unless you have these other commitments, whether you argue they're constitutionally binding, legally binding, or not binding. Unless you do that, we're not going to give you authority to stay.

I ask you all just to imagine what the American people would say if the Iraqi government said, "We don't want you here any longer unless you do more of what we want, beyond shedding your blood and draining your treasury." My guess is, just being a plain old politician, that Americans would say, "No problem, Jack; we're coming home," because I don't know that Americans, average Americans, Republicans, Democrats and independents, view Iraq in the context of the region, view Iraq in the context of these larger, arguably rational -- I mean, arguably real conditions of what might happen in the region and in the world if we were to leave. They view it as Iraq.

And so I would suggest that, in answer to your question about this Calvinistic notion of one president not being able to bind another president when, in fact, we're already engaged in something, if we had to every four years know that, you know, we may fundamentally change things, I think you're right. That's a dangerous precedent to formalize, I think, formalize constitutionally or any other way.

But practically, practically, it occasionally occurs. And it's occurred in my lifetime -- this is my 35 years in the Senate -- twice. It didn't occur in Bosnia. There was no fundamental disagreement in the American public about American forces staying in Bosnia. There was no fundamental intellectual and/or political rift about bombing campaign on Kosovo. Well, I was here. I mean, let me put it this way. There's not a single, solitary person that ran for re-election on the Republican ticket saying, "Get out of Bosnia. Do not use force in Kosovo." I can't think of one campaign.

My skittish Democrat friends, since I was the author of that idea here, to use that force, to prove I am a Catholic, not a Calvinist -- all kidding aside, you know, what happened here? Technically, or legally, or constitutionally, I may have been wrong. But the effect here in the political environment -- no one stood up on the floor of the Senate. They just voted no. It did not engender a debate that's so consequential that it's dividing the country.

And so I can't think of anything other than Vietnam, which I ran on Vietnam, 1972, I ran on a platform saying, "I disagree with Nixon; going to end this war almost under any circumstances." My argument in that war was the underlying rationale for the war had no historical basis. And the underlying rationale was if we didn't stay there and protect the south, the dominoes were going to fall; you were going to have Cam Ranh Bay, a Russian port. The Russians and the Chinese were going to be in league and they were going to take over -- (inaudible) -- under San Francisco Bridge.

I went so far in the debate -- in the last debate it was pointed out to me four years ago by a press person who was still around covering me then, I allegedly said -- I don't remember it -- in a debate that "I make the following commitment. I'm so certain the administration's rationale for the war in Vietnam is unfounded that if a Russian fleet ever docks in Cam Ranh Bay and if I'm lucky enough to have been elected, I will offer my resignation from the Senate on the floor of the United States Senate the moment that happens." That's how certain I was the rationale was flawed, regardless of the constitutional justification or the constitutional powers the president had.

Well, that's kind of where we are now in the minds of an awful lot of Democrats, some Republicans, and a lot of Americans. So I just lay that basis -- that premise down as to the reason why this is different. This is a pipe. This is a picture of a pipe. It's different than any other circumstance I can think of in the 35 years I've been a senator, and I would argue, in the 20th century, including Korea.

So, having said that, let's go to the more difficult pieces of this. I think the professor raises a good point, Mike. How -- from a legal standpoint, distinguish Afghanistan and Iraq.

MR. GLENNON: It is an interesting point. I'm not persuaded that it's a convincing point. Look, question: Are there examples of executive agreements that should have been sent up to the Senate as treaties over the course of 200 years that the Senate didn't object to? Answer: Of course.

Second, are there instances in which the president has used force in which he should have gotten advance authorization from Congress, as required by the War Powers clause? Answer: Of course.

That's not really the question, Senator. The question is, given the, in effect, atrophy of congressional power that has occurred as a consequence of these precedents, is it constitutionally impermissible for Congress to reclaim its power?

SEN. BIDEN: Well, there's no question about that, Mike. I understand that. You cannot change the essential fabric of the Constitution by any precedent. You can't do it. I understand that. And I understand, you know, the famous Harvard professor -- his name escapes me right now -- years ago who said in the area of foreign policy, the Constitution issues an invitation for the executive and legislative --

MR. GLENNON: Corwin.

SEN. BIDEN: Who was it?

MR. GLENNON: Corwin.

SEN. BIDEN: Corwin. And Corwin made that -- and so really that's the area we fall in here. But my point is, from a constitutional standpoint, not whether or not it binds us in Iraq, is it correct that there are not fundamentally different -- there are no fundamentally different justifications, from a constitutional standpoint, for the Afghan agreement and the Iraqi contemplated agreement. That's the question.

MR. GLENNON: Senator, I have to say, I haven't looked closely at the Iraqi agreement, but I would apply the same multi-factor test that you yourself alluded to earlier. And the question is, viewing the entire bilateral relationship in context, taking into account every element in the surrounding context, what is the implicit commitment, if any, that is contained in the words and conduct of the United States, viewed in conjunction with the words and conduct of the other side?

So the precedent argument is not terribly useful in this context, but --

SEN. BIDEN: No, I'm just making -- I think it's important for someone like me, who is making a constitutional, a legislative, as well as a political argument, to be honest with my colleagues.

And so the only thing I'm trying to figure out is, I'm prepared to, if it's true, acknowledge that it may not be, from a constitutional perspective, any more than the power of the administration to do what it did in its agreement in Afghanistan, and acknowledge that, but say that, from a political perspective, in the context, the American public are much more prepared to support that, and the next president will be bound by it, as a practical matter, because these are the guys who killed our guys. These are the guys that killed -- these are the guys that launched the attack. They're still living in the mountains between Afghanistan and Pakistan. They're still hanging around.

And so whether or not there is a more compelling legal rational for the next president to honor that, as a practical matter, the next president is going to honor that. There is no disagreement among us. As a matter of fact, all three candidates are saying we have to devote more resources.

You have both Senator Clinton and Senator Obama saying we should be surging forces into Afghanistan. Now, that may still create a constitutional dilemma for us if we're going to be -- you know, if we're going to go by the numbers. I'm not disagreeing with that. I'm just trying to figure out what it is.


MR. MATHESON: Well, of course you have two separate questions here and it's useful to keep them apart analytically.

The first question is whether the executive branch has the authority to commit U.S. forces into hostilities. And that's a question which differs between Iraq and Afghanistan in the sense that I think the joint resolution for Afghanistan is pretty straightforward. We're still fighting, as you say, against those entities that caused 9/11, whereas, it's a much more gray area with respect to Iraq, since it's a debate about whether the threat posed by Iraq really only relates to that posed by Saddam Hussein --

SEN. BIDEN: All right, thanks. That's the answer I was looking for.

MR. MATHESON: But the other side of the question is whether there's some constitutional inhibition on the president to get authority to use force from a foreign government.

And here I think I would -- forgive my good friend and colleague -- take issue with the idea of implied or implicit security commitments, as a legal matter, in the sense that I think the security commitment being an obligation to come to the defense of another country -- that's probably the most significant obligation a state could have. And I think we should always expect that would take an expressed form, rather than an implied form. And I don't think we should agree that that kind of obligation could be created implicitly simply by him being president of the country or there being hostilities occurring or getting authority to use force. So I think I would draw a different line there.

Although as a practical matter, of course, this kind of consequence can have very significant impact. So I would make that distinction legally so that comparing Iran and Afghanistan, I think in both cases, the president could constitutionally get authority to use force. But then as a matter of domestic constitutional issue, you have to inquire as to whether the congressional authorization still stands.

SEN. BIDEN: Thank you.

You wanted to respond, Professor, or make a statement, I thought. Were you seeking to --

MS. WEDGWOOD: Oh, a couple of little things.

One is just on the issue of two wrongs don't make a right, which is Michael Glennon's point.

I still give some credit to that Dames & Moore case that Rehnquist -- Chief Justice Rehnquist handed down on the Algiers Accords when we were transferring cases from federal courts to the Iranian's claims tribunal. And he said the institutional practice over time does matter. It shows each institution's understanding of the practical contours of the Constitution.

So that maybe not one instance, but if you do have a series, say, of preparatory statements by presidents wanting to reassure their allies or their beneficiaries about what the state of play is that look a lot like this, that adds up to something that could be, I think, carving an area -- as I think you yourself perhaps suggested.

The only other point I wanted to throw in was that after today's hearing, after all the conversation at The Washington Post over the last couple of weeks, if there's one thing the Iraqis know it's that not everybody thinks this is binding. So that any worry that we've misled them that having a framework agreement would amount to some kind of double play upon them, they have to be aware that there indeed is a campaign on and that somebody coming into the White House might take quite a different view.

But even that person -- whoever it is -- Barack Obama, Hillary Clinton -- no one is prescribing immediate, instantaneous withdrawal. So we're always going to have some folks there leaving. And in that interim period, it's equally crucial to have the status of forces agreement to protect them during an exit.

MR. GLENNON: Two quick comments, Mr. Chairman.

First, I think Professor Matheson raises a very important point. The question really is, well, what's the effect under international law of an agreement -- implicit or explicit -- that is entered into in violation of your domestic, and indeed, in violation of a rule of fundamental importance of your domestic law? And there is authority in Article 46 of the Vienna Convention on the Law of Treaties to the effect that that is not binding in international law if the violation is manifest. And I would suggest to you that this constitutes precisely that kind of manifest violation that the Vienna Convention had in mind.

Do I agree with Mike that we would not be and should not be bound by an ultra vires agreement of this sort, but it's because of the applicable international law principle.

Second, there's no question -- as Ruth points out -- that custom and practice -- as you know as a professor of separation of powers --

SEN. BIDEN: (Laughs.) (Off mike.)

MR. GLENNON: -- have an impact in setting practical and operational rules of law in allocating authority as between the two political branches of the federal government.

The question, however, is this: Can explicitly Supreme Court holdings be overturned by contrary custom and practice? The applicable case is not Dames & Moor. There are three cases that were decided by the Marshall Court, in which it found that when Congress authorizes the use of force with limits attached, the president is constitutionally required to respect those limits. His commander-in- chief power does not permit him to exceed congressionally imposed limits. I don't think that John Marshall was being draconian or Calvinist in deciding those three cases.

Finally, I think you've really touched on something important in focusing on the transition here. And I didn't hear anybody really mention this this morning, but the truth is that this new framework agreement is only going to be in effect for less than three weeks governing the current administration. If the intent is not to tie the hands of the next administration or remove some options from the table or cause them to buy into, as you said, the vision of this administration -- what's the purpose in extending it beyond that three-week period? Why not let them negotiate it for themselves?

SEN. BIDEN: Well, the argument they're going to make is that they will not negotiate. They will no longer -- from January 1st to January 20th will our troops be protected. They will not have the -- this is the administration's argument -- they will not have the protection of a status of forces agreement and they'll all be in jeopardy of being tried in an Iraqi court or whatever. That would be their argument, I expect.

You were going to say something, Professor?

MR. MATHESON: Well, I just want to address that practical situation, because I think there are some false dichotomies here.

It isn't necessarily the case that you have to have the Security Council extend the Chapter 7 mandate. Apparently, the Iraqis have some kind of political difficulty with that. I'm not sure why they do, because there are lots of countries where there are Chapter 7 operations going on. And in fact, every country -- including the United States -- has obligation under at least two Chapter 7 resolutions right now on terrorism and weapons of mass destruction.

But assuming for the moment that they have this political hang up about the Security Council renewing it, that doesn't at all preclude some kind of status quo extension by simple agreement.

SEN. BIDEN: Exactly. No, that's exactly -- look, this is the attempt of the Iraqis to hold us up. And you know, it's real simple. I mean, there is no -- their sovereignty need not be in any way compromised. They would need only do what you just said. Just say "we will not extend Chapter 7" -- use the same language. Call it -- we've entered into a new agreement with the United States of American and it's consistent with what the following -- boom. And lay it out in a letter.

MR. MATHESON: And if they refuse that kind of a very reasonable accommodation, then my answer is the U.S. representative would be, all right. In that case we're going to have to go back to the Security Council and impose this on you under Chapter 7. You don't give us any feasible option. And I'm sure that that's not the way they would want to go.

SEN. BIDEN: No. Look, I agree. Look, this is -- I must tell you -- and I've kept you a long time -- I have made no -- I've not made any secret of my view of the administration's intentions over the last year-and-a-half.

I know it sounds cynical, Professor Wedgewood, for me to say this, but I said well over a year-and-a-half ago I think the intent of this administration because they don't have a solution -- they're very smart people; they don't know what to do in Iraq -- is to just make sure the dog doesn't die in their doorstep -- just keep this thing from imploding and hand it off to the next president -- Democrat or Republican -- I don't think it's a partisan thing. I think it's a historical perspective thing.

And because you can't -- I mean, I knew and I've known Secretary Rumsfeld and Vice President Cheney, I know he's gone -- Rumsfeld -- for 30 years. These are really smart guys. These guys aren't stupid. These guys know how bad things are going -- were going.

And if you notice, there's been no political suggestion as to how to reconcile the parties' offer by the administration -- none. They haven't offered any political -- they argue political progress is being made, bottom-up by agreements between tribes and among tribes and our military on the ground. There're positive things but it's not like there is an overarching political prescription that this administration is pushing nationally by Iraq or any national.

And so I'm absolutely convinced that this -- and I'm revealing my prejudice so I don't fly under false colors -- I believe in my discussions with the president and he never used the same language -- but I believe that the quote used by Senator Webb quoting a relatively conservative commentator, saying that Bush had said in the Oval Office, don't worry, the next president's not going to have any choice. That's what I think this is about. This is about continuing a policy he doesn't know how to settle into the next administration.

And so we all know this is going to take on an almost -- it's not going to be a -- no court's going to take this issue. Its political question doctrine will be invoked by particularly this court -- I suspect not probably by any court.

So we're down to that invitation Corwin (sp) talked about to struggle for the control of conductive foreign policy. And in this case I hope the administration listened to my Republican colleagues -- not to me, my Republican colleagues. There is very little stomach -- very little stomach to making agreement with a government whose longevity is questionable at best, whose support is, I would argue, very shaky in its own country.

For example you heard the secretary -- the ambassador say that this brings in all the parties -- we'll negotiate with them all -- except the bad ones, basically. Why is Maliki still prime minister? Because 32 Sadrites said, you're prime minister.

How do you negotiate an agreement they're not in on? I don't know -- and still keep your political -- actually have that party -- you know, have this being a consensus in -- I don't know. There's not even a cabinet.

Professor, you want to respond?

MS. WEDGEWOOD: Now I'm steering well out of my legal competence but just into citizenry --

SEN. BIDEN: Yeah, sure.

MS. WEDGEWOOD: But I guess the point I'd make is -- or offer for consideration --


MS. WEDGEWOOD: Is that I don't think this agreement would look terribly different no matter who you negotiated with. It doesn't pledge troth to Maliki as a person. It pledges -- it's an agreement with the government of Iraq.

SEN. BIDEN: Oh, by the way, I think it'd be materially different if in fact Sadr controlled the parliament -- materially different.

There would be no agreement. There would be a commitment that required a timetable to get out.

MS. WEDGEWOOD: Well, it would be --

SEN. BIDEN: And watch what happens between the Sunnis and the Sadrites in Parliament on this. I'll make a prediction to you -- make a prediction. They're going to say, hey, go.

So I don't know. I mean, look that's -- now we're into, you know, into an area which is the reality of where we find ourselves.

But it just seems to me that we're begging for trouble and confusion. And what we're doing -- the irony of all ironies is by going the separate route of bilateral negotiations here for whatever reasons required, demanded by the Saudi -- I mean, by, excuse me -- by the Iraqis or not, nobody's going to talk about a multinational force anymore. This president's going to have an awful hard time saying this is a multilateral action.

So it's kind of in a sense exposing the reality of what's going on in Iraq. In that sense it's a good exercise for the American people to see. It's a sham that we have a multilateral organizational structure condoned by the international community. It's about to be withdrawn.

And, you know, I just think it's a -- I just think it's a gigantic -- beyond the legal consequences -- a gigantic mistake because it will end where it began. And let you close, Professor, but the one thing -- and I know neither -- none of you are as old as I am, but the one thing that I think my generation walked away from our experience in Vietnam with -- that is our experience dealing with that war and that generation of Vietnam -- whether you're for the war, against the war, thought we should have left earlier, thought we should have stayed longer, whatever position you take, there's no foreign policy can be sustained without the informed consent of the American people. And the idea that anybody thinks if we put up to a referenda in America an agreement whereby we would agree to protect this government -- the Maliki government that exists today -- against threats from -- internal threats -- not al Qaeda alone, any threats because there're insurgents, bad guys, et cetera from the perspective of Maliki -- they're going to continue to spend $3 billion a month, a week for that. Whoa -- I don't think there's any consensus for that -- none -- none at all.

But that's -- that's what elections are about. We'll find that out.

Professor, you wanted to make a comment.

MR. GLENNON: I just wanted to say that I suppose it's only fair that we remind ourselves however that we've been focusing today on the question of whether this administration or the next one should negotiate this. But even if it is postponed into the next administration it will still leave a lot of very difficult issues about how to do these agreements.

Do we give immunity to civilian contractors? If so, how do we enforce that responsibly?

SEN. BIDEN: Yep -- exactly.

MR. GLENNON: What will we demand in terms of a right to conduct combat operations? Will it be open ended? What are the implications of that? What do we do about certain other U.N. resolutions which are currently in effect -- the one that prohibits WMD for Iraq -- the one that ensures continuing draws on Iraqi oil revenues for compensation? What do we do about those resolutions?

SEN. BIDEN: Well, I agree. You'd kick the can down the road on all of those but at least it'd be in the context of a full blown debate after the American people have spoken about whether or not the degree and extent of the involvement in Iraq is one that they're willing to continue to support -- I think.


MR. MATHESON: Senator, I think that's really the key point. I -- you know Ambassador Satterfield underscored the procedure that they're following is one that is intended to generate a consensus within Iraq. It would be good if the administration were as concerned about generating a consensus behind a strategy within the United States and a way to do that is to submit this to the Senate for its advice and consent. And if he can get a two-thirds -- the president can get a two-thirds vote in support of that --

SEN. BIDEN: And we have a policy.

MR. MATHESON: -- then you've got a consensus.

SEN. BIDEN: Last word, you, Professor.

MS. WEDGEWOOD: Two quickies -- one is just to note the Defense Science Board did a study a little while ago -- two years ago maybe -- showing the time horizon for all manner of humanitarian missions, Bosnia, Kosovo -- they're all taking longer than we thought. And when you stack them up, you get huge demands on force structure. So there really is a serious conversation to be had about what we can and can't do.

But then as the little law professor in me impishly rises to the surface -- I just did want to note, though, that as far as I can tell the only mention in the declaration of principles that has to do with internal is -- it's in the first part, context of political diplomatic cultural spheres supporting Republic of Iraq in defending its democratic system against internal and external threats. I wouldn't take that to mean that you have to keep president -- the Prime Minister Maliki in power.

SEN. BIDEN: I hope that's true.

I thank you all very much. I apologize. I'm late for a 1:00.

Thank you so much.


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