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America needs to prepare for early Iraq pullout—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

The following commentary was published in The Financial Times on August 23, 2009.

America needs to prepare for early Iraq pullout
By Bruce Ackerman ’67 and Oona Hathaway ’97

America’s legal relationship with Iraq is falling apart. Nouri al-Maliki, Iraq’s prime minister, has announced a referendum next January on the agreement that governs US military operations. If voters say No, as most expect, Iraq will withdraw from the accord. Under the terms of the agreement, American troops will then have to leave the country in January 2011, nearly a year earlier than planned.

In putting the agreement at risk, Mr Maliki is doing nothing illegal. On the contrary, he may be offering signs that Iraq’s constitutional democracy – which America and its allies have tried so hard to foster – is beginning to work.

The referendum would follow through on a pledge Mr Maliki made last December. Back then, he followed Iraq’s constitution and submitted the accord to parliament for its consent. The assembly agreed, but only on condition that the Iraqi people were given a chance to reverse course at the polls. In pushing ahead with the referendum, Mr Maliki is taking his promise to parliament – and Iraq’s constitution – seriously.

In contrast, George W. Bush defied the US constitution by insisting that he – and he alone – could commit the US to the Iraqi agreement. He refused to ask Congress to approve it even though the American constitution – like the Iraqi one – requires legislative consent. He even refused to give Congress any information about the agreement’s terms until the deal was done. Leading congressmen were forced to follow the negotiations by reading English translations of Arabic texts published in Iraqi newspapers.

Joseph Biden, who was then chairman of the Senate foreign relations committee, responded by introducing legislation declaring that the bilateral agreement with Iraq “should involve a joint decision by the executive and legislative branches”. Hillary Clinton, then a senator, went further, asserting that it was “outrageous that the Bush administration would seek to circumvent the US Congress on a matter of such vital interest to national security”. Her bill would have denied all funding to any military agreement that Mr Bush negotiated unilaterally.

Mrs Clinton’s bill gained the support of nine co-sponsors, including Barack Obama, also then a senator. Mr Obama continued his opposition during the autumn presidential campaign, insisting that Mr Bush’s agreement “should be subject to Congressional review to ensure it has bipartisan support here at home”. Indeed, Mr Obama and Mr Biden campaigned for a more rapid withdrawal than Mr Bush was contemplating. They set the summer of 2010, not the winter of 2011, as their deadline.

All this has been conveniently forgotten since the administration took office. The new administration found itself in an embarrassing situation. Though Mr Bush acted unconstitutionally in cutting out Congress, his agreement went into effect three weeks before Mr Obama took office and the conditional consent of the Iraqi parliament had given it significant legitimacy in the Middle East. It would have further destabilised Iraqi politics if Mr Obama were to cast doubt on the constitutionality of Mr Bush’s fait accompli. So Mr Obama and his team fell silent and adopted Mr Bush’s December 2011 deadline for withdrawal.

This strategy may have been a prudent response to a tough situation, but it is threatening serious trouble at this stage. With General Ray Odierno focused on the December 2011 withdrawal date, American officials have been lobbying the Maliki government to renege on its commitment to a referendum.

But now that Mr Maliki has taken concrete steps to put it in place, Mr Obama should call a halt to these efforts to undermine the referendum. It was one thing for Mr Obama and his team to forget their protests against Mr Bush’s unilateral actions. It is quite another to encourage Mr Maliki to run roughshod over his own constitution.

At the earliest opportunity, Mr Obama or Mrs Clinton, as secretary of state, should make it clear that they respect Mr Maliki’s decision and that the US military should start work on a contingency plan for expedited withdrawal.

If the Iraqi people vote No in January, America must honour their decision. It is far better to leave early than to continue fighting in defiance of the constitutions of both Iraq and the US.

The writers are professors of law at Yale University.