[Congressional Record Volume 154, Number 130 (Friday, August 1, 2008)]
[Senate]
[Pages S8040-S8041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BIDEN (for himself, Mr. Hagel, Mr. Casey, Mr. Voinovich, 
        and Mr. Webb):
  S. 3433. A bill to ensure that any agreement with Iraq containing a 
security commitment or arrangement is concluded as a treaty or is 
approved by Congress; to the Committee on Foreign Relations.
  Mr. BIDEN. Today I join a bipartisan group of Senators in introducing 
the Iraq Security Agreement Act of 2008. This bill, consistent with the 
Constitution of the United States, prohibits the Bush administration 
from entering into a binding security agreement with Iraq without the 
approval of Congress. It would also prohibit the obligation of any 
funds to implement such an agreement.
  I regret that I am compelled to introduce this legislation. If the 
President had embarked on these negotiations in a more responsible 
manner--by being clear about the objective, by ensuring that the 
agreements would not tie the hands of the next administration, by 
actively consulting with Congress as a partner in the process--this 
bill would be unnecessary. But the Administration has done none of 
these things, and so my colleagues and I want to ensure that Congress, 
and thus the American people, is brought into the process.
  Let me take a step back and summarize how we got to this point. From 
October 2003 until the present day, the American military presence in 
Iraq has been authorized under international law through a series of UN 
Security Council Resolutions. Last November, President Bush and Prime 
Minister Maliki signed a ``Declaration of Principles,'' which set out a 
framework for our countries to negotiate, by yesterday--July 31, 2008--
agreements governing cooperation in the political, economic and 
security spheres. The Declaration indicated that the two countries 
would not seek to renew the United Nations mandate for American troops 
in Iraq past December 31, 2008. Among other things, the Declaration 
contemplates ``providing security assurances and commitments to the 
Republic of Iraq to deter foreign aggression against Iraq'' and 
supporting Iraq ``in its efforts to combat all terrorist groups,'' 
including Al-Qaeda, Saddamists, and ``all other outlaw groups 
regardless of affiliation.'' In other words, all the folks fighting in 
Iraq and killing each other.
  The Declaration may result in two pacts. One would be a ``Strategic 
Framework Agreement'' that will ``set the broad parameters of the 
overall bilateral relationship in every field,'' according to the U.S. 
Ambassador to Iraq, Ryan Crocker. This 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 that has thus far failed to reach the 
political compromises necessary to build a stable country.
  The second agreement is a ``Status of Forces Agreement'' or SOFA, 
governing the presence of U.S. forces in Iraq, including their entry 
into the country and the immunities to be granted to them under Iraqi 
law. The administration claims that this agreement is mostly 
``routine'' because we have SOFAs with over 90 countries around the 
globe. But conditions our soldiers face in Iraq are far from 
``routine,'' despite recent improvements in security. Moreover, this 
SOFA would be much broader than the typical SOFA, from what we know. It 
would provide us with access to bases from which our military would 
operate, provisions that are usually in a separate facilities or 
``basing'' agreement. This SOFA would also deal with contractor 
immunity, would permit U.S. forces to engage in combat operations in 
Iraq, and would provide authority for detaining insurgents. This is not 
a typical SOFA.
  One of these agreements will reportedly contain a ``security 
arrangement''--a pledge by the United States to consult on next steps 
if Iraq is threatened. The Administration suggests that such an 
agreement is unremarkable, and that it does not bind the United States. 
But at a time when we have over 100,000 troops on the ground, an 
expansive program to train and equip Iraqi forces, and multiple U.S. 
military facilities, the pledge is, in reality, little different from a 
binding security commitment. Certainly, the government of Iraq and its 
people will perceive that we are signing up to defend Iraq against 
external threats.
  Yesterday's deadline has apparently not been met. The New York Times 
reports, however, that the Bush administration and Iraqi government are 
close to an agreement. But Congress still remains largely in the dark.
  We have not seen draft language. We do not definitively know which 
portions of the agreement will be binding, and which will not be. We 
are not in a position to evaluate whether the agreement will create 
obligations--either legal or political--that will constrain the next 
administration, whether Democratic or Republican. The President cannot 
make such a sweeping commitment on his own authority. Congress must 
grant approval. The legislation we introduce today requires that 
Congress be made part of the process.
  I have often stated that no foreign policy can be sustained without 
the informed consent of the American people. More than 5 years ago, 
President Bush went to war in Iraq without gaining that consent--by 
overstating the intelligence and understating the difficulty, cost and 
duration of the mission.
  In the final months of his term, President Bush is once again acting 
without the informed consent of the American people, putting us on a 
course to commit the Nation to a new phase of a long war in Iraq, and 
thereby bind his successors to his vision of U.S. policy in Iraq. By 
these agreements, the President will make it harder for his successor 
to change course.
  Let me be clear. I support the concept of a Status of Forces 
Agreement with Iraq. But not at the cost of limiting our operational 
latitude or making security commitments--legal or political--that are 
not approved by Congress.
  Administration officials have indicated that the Iraqi government is 
resisting the inclusion of key provisions that U.S. forces need in 
order to operate in Iraq. Given the difficulty of securing Iraq's 
consent to the broad authorities that the United States now has by 
virtue of the U.N. Security Council Resolutions, I believe the best 
option for the United States at this juncture is to seek an extension 
of the current United Nations Security Counsel resolution for Iraq.
   Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3433

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Iraq Security Agreement Act 
     of 2008''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) On November 26, 2007, President George W. Bush and 
     Prime Minister of Iraq Nouri al-Maliki signed the Declaration 
     of Principles for a Long-Term Relationship of Cooperation and 
     Friendship Between the Republic of Iraq and the United States 
     of America (in this Act referred to as the ``Declaration of 
     Principles''), with the goal of concluding a final agreement 
     or agreements between the United States and Iraq by July 31, 
     2008, ``with respect to the political, cultural, economic, 
     and security spheres.''
       (2) The Declaration of Principles contemplates the United 
     States ``providing security assurances and commitments to the 
     Republic of Iraq to deter foreign aggression.''

[[Page S8041]]

       (3) In 1992, pursuant to section 1457 of the National 
     Defense Authorization Act for Fiscal Year 1991 (50 U.S.C. 
     404c), the executive branch submitted a report to Congress on 
     then-existing security commitments and arrangements.
       (4) The report described in paragraph (3) defined a 
     ``security commitment'' as an ``obligation, binding under 
     international law, of the United States to act in the common 
     defense in the event of an armed attack on that country.'' 
     The report noted that all current security commitments of the 
     United States are ``embodied in treaties which receive the 
     advice and consent of the Senate.''
       (5) The report defined a ``security arrangement'' as a 
     ``pledge by the United States to take some action in the 
     event of a threat to that country's security. Security 
     arrangements typically 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.''
       (6) The United States Ambassador to Iraq, Ryan Crocker, has 
     stated that the agreements to be concluded as anticipated by 
     the Declaration of Principles will ``deal with the status of 
     U.S. and coalition forces in Iraq past 2008'' and ``set the 
     broad parameters of the overall bilateral relationship in 
     every field''.
       (7) On November 26, 2007, Assistant to the President and 
     Deputy National Security Advisor for Iraq and Afghanistan, 
     Lieutenant General Douglas Lute, stated, ``We don't 
     anticipate now that these negotiations [under the Declaration 
     of Principles] will lead to . . . formal inputs from 
     Congress.''

     SEC. 3. SENSE OF CONGRESS.

       It is the sense of Congress that--
       (1) any agreement that sets forth the ``broad parameters of 
     the overall bilateral relationship [as between the United 
     States and the Republic of Iraq] in every field,'' 
     particularly one that includes a security commitment or 
     arrangement provided to the Republic of Iraq by the United 
     States, would result in serious military, political, and 
     economic obligations for the United States, and thus, 
     consistent with past practice, should involve a joint 
     decision by the executive and legislative branches; and
       (2) a short-term extension of the mandate of the Multi-
     National Force in Iraq (currently provided by United Nations 
     Security Council Resolution 1790 (2007)), would, in concert 
     with Iraqi law, provide United States forces with the 
     authorities, privileges, and immunities necessary for those 
     forces to carry out their mission in Iraq.

     SEC. 4. ANNUAL REPORT ON SECURITY AGREEMENTS.

       (a) Reports Required.--Not later than 180 days after date 
     of the enactment of this Act, and every February 1 
     thereafter, the President shall submit to the appropriate 
     congressional committees a report (in both classified and 
     unclassified form) on United States security commitments to, 
     and arrangements with, other countries.
       (b) Content.--Each report submitted under subsection (a) 
     shall include the following:
       (1) The text, and a description, of each security 
     commitment to, or arrangement with, one or more other 
     countries, whether based upon--
       (A) a formal document (including a mutual defense treaty, a 
     status of forces agreement, a pre-positioning arrangement or 
     agreement, an access agreement, or a non-binding declaration 
     or letter); or
       (B) an expressed policy, whether expressed orally or in 
     writing.
       (2) An assessment of the need to continue, modify, or 
     discontinue each of those commitments and arrangements in 
     view of the changing international security situation.

     SEC. 5. CONSULTATION WITH CONGRESS.

       Not later than 30 days after the date of the enactment of 
     this Act, the Secretary of State and the Secretary of Defense 
     shall consult with the appropriate congressional committees 
     about the negotiations pursuant to the Declaration of 
     Principles. After the initial consultation, the Secretary of 
     State and the Secretary of Defense shall keep such committees 
     fully and currently informed regarding the status of the 
     negotiations. Prior to finalizing any agreement that includes 
     a security commitment or security arrangement with Iraq, the 
     Secretary of State should provide the text of the agreement 
     to the appropriate congressional committees.

     SEC. 6. PROHIBITIONS.

       (a) Prohibition on Entry Into Force of Certain 
     Agreements.--No agreement containing a security commitment 
     to, or security arrangement with, the Republic of Iraq, may 
     enter into force except pursuant to Article II, section 2, 
     clause 2 of the Constitution of the United States (relating 
     to the making of treaties) or unless authorized by a law 
     enacted on or after the date of the enactment of this Act 
     pursuant to Article I, section 7, clause 2 of the 
     Constitution (relating to the enactment of laws).
       (b) Prohibition on Use of Funds.--No funds may be obligated 
     or expended to implement an agreement containing a security 
     commitment to, or security arrangement with, the Republic of 
     Iraq, unless it enters into force pursuant to Article II, 
     section 2, clause 2 of the Constitution of the United States 
     or is authorized by a law enacted on or after the date of the 
     enactment of this Act pursuant to Article I, section 7, 
     clause 2 of the Constitution.
       (c) Point of Order.--It shall not be in order for either 
     House of Congress to consider any bill, resolution, 
     amendment, or conference report that provides budget 
     authority for the implementation of an agreement entered into 
     in contravention of subsection (a).

     SEC. 7. APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.

       In this Act, the term ``appropriate congressional 
     committees'' means--
       (1) the Committee on Armed Services of the Senate;
       (2) the Committee on Foreign Relations of the Senate;
       (3) the Committee on Armed Services of the House of 
     Representatives; and
       (4) the Committee on Foreign Affairs of the House of 
     Representatives.
                                 ______