WASHINGTON - President Bush's plan to forge a long-term agreement with the Iraqi government that could commit the US military to defending Iraq's security would be the first time such a sweeping mutual defense compact has been enacted without congressional approval, according to legal specialists.
After World War II, for example - when the United States gave security commitments to Japan, South Korea, the Philippines, Australia, New Zealand, and NATO members - Presidents Truman and Eisenhower designated the agreements as treaties requiring Senate ratification. In 1985, when President Ronald Reagan guaranteed that the US military would defend the Marshall Islands and Micronesia if they were attacked, the compacts were put to a vote by both chambers of Congress.
By contrast, Bush and Iraqi Prime Minister Nouri Al-Maliki have already agreed that a coming compact will include the United States providing "security assurances and commitments" to Iraq to deter any foreign invasion or internal terrorism by "outlaw groups." But a top White House official has also said that Bush does not intend to submit the deal to Congress.
"We don't anticipate now that these negotiations will lead to the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress," General Douglas Lute, Bush's deputy national security adviser for Iraq and Afghanistan, said in November when the White House announced the plan.
Lute's disclosure initially attracted little scrutiny. Most of the attention has instead focused on whether the pact could make it more difficult for the United States to withdraw from Iraq after Bush leaves office. Although the next president could scrap the agreement, reneging on the compact would create diplomatic problems by showing that the nation does not live up to its obligations, specialists say.
But there is now also growing alarm about the constitutional issues raised by Bush's plan. Legal specialists and lawmakers of both parties are raising questions about whether it would be unconstitutional for Bush to complete such a sweeping deal on behalf of the United States without the consent of the legislative branch.
"There is literally no question that this is unprecedented," said Oona Hathaway, a Yale Law School professor who has written a forthcoming law journal article about the proposed Iraq agreement. "The country has never entered into this kind of commitment without Congress being involved, period."
At a House hearing on the pact on Wednesday, Representative Dana Rohrabacher, Republican of California and a former Reagan administration official, accused the Bush administration of "arrogance" for not consulting with Congress about the pact. If it includes any guarantees to Iraq, he said, Congress must sign off.
"We are here to fulfill the constitutional role established by the founding fathers," Rohrabacher said, adding, "It is not all in the hands of the president and his appointees. We play a major role."
Bush and Maliki have said they intend to complete the agreement by July 31. The two countries need to reach some kind of an agreement this year in order to create a legal framework for the continued presence of US troops in Iraq after Dec. 31, when a United Nations Security Counsel mandate is due to expire.
But the "long-term relationship of cooperation and friendship" outlined in November goes far beyond an ordinary status-of-forces agreement. It would include promises of debt forgiveness, economic and technical aid, facilitating "especially American investments" in Iraq - and the security commitments, according to Bush and Maliki's joint declaration last November.
Facing mounting criticism over its assertion that Bush can reach such an agreement on his own, the administration has sent mixed signals about whether it intends to follow through on the plan. The
Officially, the administration has not changed the plans it announced in November. Asked to respond to the critics who say that such a pact must be approved by Congress, White House National Security Council spokesman Gordon Johndroe and Secretary of Defense Robert Gates each said that it was premature to talk about the pact because its final text has not yet been negotiated.
"I haven't been involved in any discussions of what kind of form the agreement would take or anything else," Gates said at press conference yesterday. "I do know there's a strong commitment inside the administration to consult very closely with the Congress on this."
But Represent Bill Delahunt, Democrat of Massachusetts, who chaired the hearing on Wednesday, asked four top administration officials - Lute, Undersecretary of Defense for Policy Eric Edelman, and the State Department's top legal and Iraq advisers, John Bellinger and David Satterfield - to appear and explain the administration's intentions. All four declined.
However, Lute may have offered a clue to the administration's legal arguments during the November press conference when he noted that "We have about a hundred agreements similar to the one envisioned for the US and Iraq already in place, and the vast majority of those are below the level of a treaty." Johndroe, the White House spokesman, also mentioned the existence of such agreements in a Globe interview this week.
Legal specialists, however, say that the numerous pacts that were completed without congressional consent are not similar to the agreement Bush and Maliki outlined in November.
Other such "status-of-forces agreements" are far more limited contracts with countries that host US military bases, covering comparatively minor issues such as leasing arrangements and which country will prosecute any US soldiers accused of committing a crime.
By contrast, Senate Foreign Relations Committee Chairman Joe Biden told Bush in a letter released yesterday, "As a matter of constitutional law, and based on over 200 years of practice," Bush could not commit the US military to protecting Iraq's security without congressional consent.
"A commitment that the United States will act to assist Iraq, potentially through the use of our armed forces in the event of an attack on Iraq, could effectively commit the nation to engage in hostilities," Biden wrote. "Such a commitment cannot be made by the executive branch alone under our Constitution."
Biden said yesterday he had received no reply to the letter, which he sent late last month.
Adding to the pressure, Democratic presidential candidate Hillary Clinton has also repeatedly raised the topic in recent days. The New York senator has filed legislation that would block the expenditure of funds to implement any agreement with Iraq that was not submitted to Congress for approval. Her rival, Senator Barack Obama of Illinois, became a cosponsor to the bill on Tuesday.
"We've got to rein in President Bush," Clinton said Monday in a South Carolina debate. "We need legislation in a hurry."