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Bush can't act alone—A Commentary by Bruce Ackerman ’67

The following commentary was published in the Los Angeles Times on November 29, 2007.

Bush can't act alone
By Bruce Ackerman ’67

Despite the show at Annapolis, this week's main diplomatic initiative has concerned Iraq, not Israel. Without any fanfare, the Bush administration and Iraqi Prime Minister Nouri Maliki announced that the United States and Iraq will begin negotiating a long-term agreement that will set the terms of Washington's Iraq policy for "coming generations."

President Bush is again in legacy mode. His White House "czar" on Iraq, Army Lt. Gen. Douglas Lute, explained that the administration intends to reach a final agreement between the two countries by July 31, 2008. In describing the negotiations, he made a remarkable suggestion: Only the Iraqi parliament, not the U.S. Congress, needs to formally approve the agreement.

Lute's suggestion does not even pass the laugh test. American presidents do have unilateral authority to make foreign agreements on minor matters. But the Constitution requires congressional approval before the nation can commit itself to the sweeping political, economic and military relationship contemplated by the "declaration of principles" signed by Bush and Maliki to kick off the negotiations.

U.S. legislative approval can come in two forms: Either two-thirds of the Senate can vote for a treaty under Article II of the Constitution, or a simple majority of both houses can authorize the agreement under Article I. But there is no constitutional provision or precedent authorizing this new form of Bush unilateralism.

To the contrary, presidential practice has been regulated by State Department guidelines set down in 1955. These principles emphasize the need for congressional approval when an agreement "involves commitment or risks affecting the nation" and when it requires "the enactment of subsequent legislation by the Congress."

The new initiative shatters these basic constitutional constraints. The Bush-Maliki declaration not only promises the Iraqi government economic and political support, it contemplates American "security assurances and commitments to the Republic of Iraq to deter foreign aggression." If such guarantees don't require congressional consent, the constitutional separation of powers is at an end.

And the administration's approach here could tie the hands of the victor of the 2008 presidential election. If a Democrat wins and seeks a new course in Iraq, he or she would be obliged to break an international commitment.

This isn't the way we do things in the United States. The Constitution insists that Congress must get into the act before we make sweeping commitments in the name of the nation.

Before negotiations begin, State Department guidelines require its legal advisor to provide a memorandum justifying its use of an executive agreement, including an "analysis of the constitutional powers relied upon." But a search of the State Department website fails to reveal any such analysis.

Now that the hoopla over Annapolis has tapered off, Congress should summon Secretary of State Condoleezza Rice to a hearing and insist that she bring down the curtain on this constitutional farce.

Bruce Ackerman, a professor of law and political science at Yale, is the author of "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."