As you have undoubtedly read or heard by now, 47 Republican senators have signed an “open letter to the Islamic Republic of Iran” warning that any deal negotiated between Iran and a U.S. coalition of nations regarding Iran’s nuclear program will not be binding on the United States, at least past the inauguration of a new president in 2017.
The White House is disgusted. President Obama’s spokester Josh Earnest called it “just the latest in a strategy, a partisan strategy, to undermine the president’s ability to conduct foreign policy and advance our national interests around the world,” following the other recent insult by House Republicans to organize the Benjamin Netanyahu address to Congress without coordinating the visit with the White House.
Joe Biden called the letter “false” and “dangerous” and “beneath the dignity of an institution I revere,” referring to the U.S. Senate. Louisiana Gov. (and presidential aspirant) Bobby Jindal then fired back at Biden, tweeting: “VP Biden owes Sen. Tom Cotton an apology. He wore the boots in Iraq,” referring to lead author and Sen. Cotton’s service in the Army, although I’m not real sure that is an ironclad argument for agreeing with his recent epistolary project.
My thoughts can be organized around a few adjectives. Cotton’s letter is obnoxious, unhelpful and unprecedented. It is accurate. It is insincere. It is unsubtle. It is partisan and political. It is irresponsible. It is constitutional. And, viewed through the correct satirical prism, it is humorous.
Let’s start with accurate. In the guise of explaining how the U.S. constitutional system works, Cotton of Arkansas makes the point that an agreement signed by Obama but not ratified by Congress is not binding, except on Obama and his appointees. If the next president chooses to do so, it could be abrogated at the stroke of a pen and the U.S. sanctions on Iran could be reimposed.
But Cotton’s letter doesn’t deal with the fact that the sanctions on Iran are multinational. The U.S.-led negotiations that Cotton seeks to scuttle includes the involvement of five of the other most powerful nations in the world, namely Russia, China, France, Britain and Germany. If the next president were to abrogate the deal per Cotton’s warning, there is no guarantee and, in my opinion, not that much chance that the rest of the countries that have helped negotiate the deal would go back to enforcing the sanctions just because the Americans reserved the right to change their mind after every election. The other powers are in this deal because they support the idea of a negotiated settlement to restrain Iran’s nuclear program. Cotton’s letter can only encourge them to doubt the reliability of the U.S. in any such venture.
Let’s move to constitutional, which is practically the same point. A lot people who are unhappy with the letter claim falsely that the letter violates the U.S. Constitution, which puts the president in charge of foreign policy. But It doesn’t — not really.
The only thing Article II (in which the powers of the president are delineated) says is this:
“[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls.”
That’s it. Clearly (although it is not clearly stated anywhere) the president and his appointees would have to conduct negotiations that could lead to treaties, but no treaties are valid without a two-thirds vote of ratification by the Senate. The letter is not signed by a majority of senators, but well more than the one-third that would be necessary to block ratification of any treaty.
And anyway, the current talks with Iran are not designed to produce an actual treaty. You may have noted that in the one and only reference to the supposed power of the president to conduct foreign policy, the one and only power assigned him is to “Treaties.” In fact, in this matter and many others, we are following a somewhat imaginary Constitution, or perhaps we should say the Constitution “as evolved,” such evolution occurring without the benefit of actual language being added or changed and therefore a little harder to insist upon.
On the other hand, while the Constitution doesn’t put any limits on members of the Senate contacting foreign nations to interfere with ongoing executive branch negotiations, there is a federal statute that pretty much bans it for any citizen. It’s called the “Logan Act,” dates from believe-it-or-not 1797, makes it a federal crime if any U.S. citizen — “without authority of the United States” — “carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States.” Some bloggers are wondering whether the signers of the letter have violated this law, but an actual legal scholar writing for Lawfareblog cites several reasons that prosecution won’t get too far. I think he’s probably right.
Let’s move to insincere. The letter begins:
“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution — the power to make binding international agreements and the different character of federal offices — which you should seriously consider as negotiations progress.”
Ha ha ha. Just a little constitutional explainer here. “Bull cookies” (as the Colonel Potter character used to say on “M*A*S*H”) — also “what a crock of beans.” Sen. Cotton leaves out of his letter to the Iranians that he does not favor any negotiations at all. Cotton favors a U.S. policy of “regime change,” which is the cute phrase developed by certain Americans who do not like to state plainly that they believe United States has been vouchsafed with a not-explicitly-Constitutional power to remove any or all foreign governments that do not come up to its standards.
I’ll skip to “unsubtle” here. It is ridiculous and insulting to the intelligence of anyone reading it to think that they would take the letter at face value as a primer on “our constitutional system” because information about Iranian ignorance on said system has “come to our attention.”
In reality, the letter is a threat to the Iranians that if there is a successful conclusion of this negotiation, which is universally understood to be for a 10-year term, they cannot count on anything more than the one year plus a few months remaining in the second Obama term. It is a threat to Iran that if a Republican candidate wins in 2016, the 10-year agreement is not binding. It is a threat that anything along these lines that requires Senate support will be undermined by the overwhelming opposition of at least 47 members of the party that currently controls the Senate and that by themselves could sustain a filibuster.
That makes it unprecedented. I know of no instance in which so many members of Congress attempted to interfere in a presidential negotiation in this way in advance of a deal being negotiated. You could study the events that led the post-World War I Senate to reject President Woodrow Wilson’s effort to get the United States to join the League of Nations. It’s a large, important and amazing tale. But you won’t find evidence of Sen. Henry Cabot Lodge (R-Mass.) telling the delegates to the Versailles Conference not to bother completing the negotiations because the United States wouldn’t be joining.
Before we finish with unprecedented, let’s consider the precedent. Are the 47 Republican signers prepared to set the precedent, knowing that in some future case it will be a Republican president and a Democratic majority in the Senate, of the Senate playing the new role of interfering directly in negotiations and urging another country not to make a deal with the sitting president?
During, for example, the delicate Nixon-era negotiations that led to the opening of U.S. China relations, what if a group of senators had sent an open letter to the people of China undermining the talks and announcing that the only way they would want such relations would be if the Chinese people would overthrow Mao and Communism?
Writing for Politico, Michael Crowley cites a few instances of Congress interfering in the conduct of foreign policy, but nothing on his list resembles this effort to undermine ongoing negotiations.
The Cotton et al letter is not unconstitutional (not to mention that it’s covered by the unquestionable First Amendment right of the senators to express themselves). But it’s reckless and dangerous. It’s a product of Obama Derangement Syndrome. If, in fact, there’s an argument that blowing up the current negotiations will lead to a happier ending, let’s hear how that would happen. It’s a tough case to make, but let’s hear it. But such rational discussion is unnecessary to Syndrome sufferers who know that the deal, which they haven’t seen, will be a bad one because Obama is for it.
Partisan and political
It’s worth noting that seven Republican senators declined to sign the Cotton letter. They are Bob Corker of Tennessee, Thad Cochran of Mississippi, Susan Collins of Maine, Dan Coats of Indiana, Lamar Alexander of Tennessee, Jeff Flake of Arizona and Lisa Murkowski of Alaska. But the fact that 47 Republicans and zero Democrats signed the letter makes it clearly a partisan document. The fact that all of the Republican senators running for president (Ted Cruz of Texas, Lindsey Graham of South Carolina, Rand Paul of Kentucky, Marco Rubio of Florida) signed the letter with others in the field (Jindal, as mentioned, and Scott Walker and Jeb Bush, too) joining in makes it pretty clear that on Planet Republican this line is considered a winner.
Hillary Clinton, on the other hand, called the letter “out of step with the best traditions of American leadership.”
Obnoxious and unhelpful
No, the letter and the situation perhaps don’t qualify as hilarious, so I left that adjective off my list at the top. But in today’s media world, we have the advantage of relentless satirists who can help us laugh at anything.
For example, New Yorker satirist Andy Borowitz likes to cloak his ridicule in a straight news voice, as in this piece, headlined “Iran offers to mediate talks between Republicans and Obama,” which begins:
TEHRAN (The Borowitz Report)—Stating that “their continuing hostilities are a threat to world peace,” Iran has offered to mediate talks between congressional Republicans and President Obama.
Iran’s Supreme Leader, Ali Khamenei, made the offer one day after Iran received what he called a “worrisome letter” from Republican leaders, which suggested to him that “the relationship between Republicans and Obama has deteriorated dangerously.”
Or Jon Stewart’s piece leading off Tuesday night’s “Daily Show,” in which he digs up the old footage suggesting that not only the Republicans, but the Democrats who are complaining about the Republicans, are all hypocrites.