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Those “47 traitors” weren’t so traitorous after all

Those “47 traitors” weren’t so traitorous after all

How a letter from Tom Cotton turned the tables in the Iran deal

In October, the New York Times reported President Obama intended to fly solo on Iranian negotiations. “But the White House has made one significant decision: If agreement is reached, President Obama will do everything in his power to avoid letting Congress vote on it,” they reported.

Fast forward to Monday, when freshman Senator Tom Cotton kicked a hornet’s nest.

Joined by 46 Republican Senators, Senator Cotton wrote an open letter to Leaders of the Islamic Republic of Iran. The letter was an exposition of the Constitutionally guaranteed Congressional role in international agreements. Most notably, a reminder that international agreements arranged by the President are non-binding until they’ve received Congressional approval.

President Obama responded, accusing participating Senate Republicans of allying themselves with Iranian hardliners, “I think it’s somewhat ironic to see some members for Congress wanting to make common cause with the hard-liners in Iran. It’s an unusual coalition,” Obama said Monday ahead of a meeting with European Council President Donald Tusk.” Vice President Joe Biden weighed in calling the letter “beneath the dignity of [the Senate,] an institution I revere.” And then the Democratic dog pile began.

Iran too, responded. Foreign Minister, Dr. Javad Zarif called the letter a propaganda ploy and proceeded with a self-righteous lecture on international law:

I should bring one important point to the attention of the authors and that is, the world is not the United States, and the conduct of inter-state relations is governed by international law, and not by US domestic law. The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfill the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.

Zarif’s statement isn’t exactly incorrect, but it in no way negates the fact that for any agreement involving the United States to be a binding agreement on the international stage, it must first pass Congressional scrutiny… which is exactly what Senator Cotton and his 46 compadres pointed out. Conversely, any agreement reached without Congressional consent is not legally binding.

With Iran’s response made public, media outlets decided it best to take up the roll as Iran’s mouthpiece. The New York Daily News called the Senators traitors and their actions a betrayal. “Sen. Tom Cotton of Arkansas and his band trespassed on presidential turf!” they cried. Executive overreach is always acceptable (as long as said Executive bears the golden (D)), but heaven help the Congress that dares to touch the iron throne!

“Traitor” is a well-loved, long-cherished bit of slander in American politics. Though, calling someone like Senator Cotton, a decorated Iraq War veteran who went on to serve two tours in Afghanistan (where he was awarded the Bronze Star Medal, among other accolades), is probably not the best way to employ the traitorous claim.

“Tehran Tom”? Also not advisable. But that’s what this Democratic member of the Congress did:

Having firmly allied themselves with Iran, Congressional Democrats and their trusty media lapdogs led the public shaming parade, and #47Traitors began its Twitter ascension.

And then today happened.

Today, the Department of State admitted that no legally binding agreement with Iran was in the works:

State Department spokeswoman, Jen Psaki confirmed Kerry’s remarks by saying, “historically, the United States has pursued important national security through non-binding arrangements” as she attempted to explain how Iranian negotiations were being handled.

Though Yahoo News had this whole binding/non-binding business pegged last week when Armin Rosen reported (emphasis added):

This week, lawmakers in both parties continued to debate a possible nuclear deal with Iran, with some leading Senators proposing several legislative options to scuttle or alter any agreement.

But opponents of the deal may be faced with a more fundamental issue since any agreement won’t be legally binding, according to legal scholars.

…The Senate could pass additional sanctions that would come into effect if Iran ever cheated on the agreement, or it could hold a nonbinding “sense of the Senate” vote forcing lawmakers to put their stance on the deal on record. And as former US ambassador to Iraq James Jeffrey recently argued, the Senate could even preemptively authorize military force to be used in the event that Iran was ever caught developing a nuclear weapons capability.

But the body doesn’t have an actual veto over an agreement, despite the premise of Corker’s bill. Its power in halting or even complicating an agreement is fairly limited. And that’s because of one of the more curious yet least commented-upon aspects of the Obama administration’s negotiating position: the P5+1 (the five permanent members of the UN Security Council and Germany) and Iran are not negotiating a legally binding agreement. In fact, the agreement being discussed right now is specifically structured to sidestep the issue of its US domestic legal status.

The trouble is that Congress has passed numerous sanctions bills relating to Iran. And while Obama has the right to grant sanctions waivers under certain circumstances, he doesn’t have the power to just take them off the books by decree.

“An executive agreement never overrides inconsistent legislation and is incapable of overriding any of the sanctions legislation,” says David Rivkin, a constitutional litigator with Baker Hostetler, LLP who served in the White House Counsel’s Office in the Reagan and George H. W. Bush Administrations. “A treaty that has been submitted for Senate’s advise and consent and if it’s self-executing could do that.”

An agreement would have the same vague status under US domestic law as an executive order. The US wouldn’t be legally compelled to actually do anything. And a ccording to Thomas Moore, a former nonproliferation advisor for the Senate Foreign Relations Committee, none of the obligations that an agreement would place on Iran would be legally binding, either

Which begs the question…

And to think, all of that wailing and gnashing of teeth from Democrats wasted over a non-binding agreement, one that would have absolutely no legal sway over Iran.

It’s almost like those ’47 traitors’ weren’t so traitorous after all…

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I think they were “wailing” (crying) not “whaling” (hunting whales on the ocean). Of course they could be wailing because they were being whaled on (figuratively) by Cotton’s open letter.

To be precise, the agreement cannot be binding on future Administrations. Obama can choose to be bound by it for the duration of his tenure in office – another 680 long days.

Clinton did the same thing with Kyoto. When the Senate voted unanimously (99-0) to advise him not to sign the Accord, he realized there was no chance of ratification, but announced he would abide by the protocols voluntarily anyway.

Of course, it is unclear to what extent he actually did abide by them; Clinton was all about the show and not the substance.

    Anchovy in reply to Estragon. | March 11, 2015 at 3:42 pm

    Clinton probably thought Kyoto was a Japanese female. A young Japanese female.

    Neo in reply to Estragon. | March 11, 2015 at 5:49 pm

    The story of the unratified agreement goes like this …

    The negotiations involve five countries with Iran and will likely lead to Security Council resolutions. Once those resolutions are passed, the US has a legal obligation as a Security Council member to abide by them.

    … this ought to get those who have always hated the UN new company.

I SWEAR I closed that darned italic tag! Should just be “on future Administrations”

Sorry if I didn’t. Preview was right!

It is important to realize that under the diplomatic accords SIGNED BY THE USA – a treaty goes into effect as soon as it is signed.

It remains in effect EVEN AFTER REJECTED BY THE SENATE – until it is subsequently Rejected by another President.

    You are simply wrong. A treaty is not a binding document until the Senate ratifies it. And if any of its’ provisions are contrary to existing law, those implementing them are acting without authorization and may be treated as any other felon committing a crime.

      MattMusson in reply to SDN. | March 12, 2015 at 8:53 am

      Under the Vienna Accords Signed by the US – a treaty goes into effect AS SOON AS IT IS SIGNED BY THE HEAD OF STATE.

      No matter what your high school civics teacher told you about needing ratification by the Senate – International Law says that once Obama signs a treaty – it is in effect.

      Now- International Law is not the supreme law of the land in the USA. So, Obama could not sign away our right to bear arms. But – if he signs a deal with Iran – it becomes International Law immediately.

        MattMusson in reply to MattMusson. | March 12, 2015 at 9:11 am

        “Between 1939 and 1989, for example, the U.S. entered into 11,698 executive and congressional–executive agreements, but only 702 Article II treaties that underwent the supermajority-approval process in the Senate.”

        Please read what John Bolton wrote on the matter. He specifically opines that if Obama makes an agreement which limits Iranian nuclear weapons but does not place those restrictions on the USA – it would not even be considered a treaty and would not be submitted to Congress.

    rancidpoodle in reply to MattMusson. | March 11, 2015 at 4:42 pm

    I’d say that depends upon whether the “diplomatic accords SIGNED BY THE USA” were themselves adopted by the Senate. They’d be nuts to give up that kind of power. I’m sure methods of adoption are layed out and agreed to…

    Ragspierre in reply to MattMusson. | March 11, 2015 at 5:00 pm

    Well, you’re both kinda right and kinda wrong.


    The last century saw a LOT of bad decisions…

Another Voice | March 11, 2015 at 3:13 pm

At this time, no one knows exactly what Hillary has been paid for and is holding in abeyance to invoke as “non-binding” accommodations. Unless, Obama has knowing knowledge and is seeming to throw Hillary under the Bus on her maintaining a private off/line government server.

They are patriots (especially Tom Cotton). And Hillary and Obama can go get stuffed.

And Erza Kline can GF himself.

It states right in the Constitution that all treaties must be passed by a 2/3 majority or 67 votes in the Senate. As usual, Barry and his crowd are trying to ram through something that not even be legal in the United States. Obozo is now trying to enforce the Kyoto agreement, which the Senate declined to pass by a vote of 99-0.

    Anonamom in reply to Stan25. | March 12, 2015 at 11:17 am

    Oh, the Constitution. How quaint! (I think that some of the posters above are suggesting that “international law” trumps our Constitution. Words fail me.)

What is it about the number 47 in politics?

Sammy Finkelman | March 11, 2015 at 5:00 pm

It seems that can be corrected, or was corrected maybe by the blog owner, uinless you made a mistake, and you did close the italics.

On some systems if you don’t close an html tag, the comment won’t be posted.

Sammy Finkelman | March 11, 2015 at 5:05 pm

The Iranian Foreign Minister, Dr. Javad Zarif rested his case on the United Nations Security Council, saying any agreement would be passed by Security Council – that’s whom he’s negotiating with – the 5 permanent members with veto power, plus Germany (which was a member in 2011 and 2012)

Theer are indeed sanctions imposed by the Security Council, and Obama could consent to lift them.

Henry Hawkins | March 11, 2015 at 5:21 pm

Like I keep saying, Obama gives not a shit whether this agreement is binding, nonbinding, whether it works, doesn’t work, he… doesn’t… CARE.

All he wants is A Deal With Iran because he had promised his base he would. It’s the eistence of a deal that matters to him, not whether the deal means any damn thing. We don’t suppose he’s motivated by deep concerns for Israel, do we?

There’s another word for non-binding agreements: Symbolic, as in Looks Pretty Although Useless.

Hm… Sounds like somebody we know.

Two words for all the hyperventelating Dems

Dear Comandante

Leftists are screaming about prosecuting the 47 under the Logan Act. I’d like to see an LI analysis about how far off base they are on that.

Speaking of which, it looks to me that the text of the Logan Act is so poorly and broadly written that any American signing any petition imploring any other country to do anything whatsoever qualifies as having broken this law and committed a felony.

Note that this includes anti-Israel activists, a lot of American Greenpeace members, and a bunch of the “climate change” folks, among many other “globally conscious” lefties who set out to change the world.

So those advocating blowing the dust of the Logan Act and actually prosecuting someone under it (for the first time in literally forever) might want to be careful what they wish for.

How many billions in sanctions money has Obama given to Iran for a non-binding agreement.

Obama is helping the Iranian hardliners buy time through non-binding agreements. If you want to develop nuclear weapons, you can develop — or perhaps upgrade — your nuclear weapons. We’ll see if the other nuclear powers in the area agree.

As for treason…

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. …

The Congress shall have power to declare the Punishment of Treason

The Iranian hardliners receive no Aid nor should they feel any Comfort from a Congress that opposes the administration’s unilateral tolerance of their nuclear ambitions.

Congress also has the power to define the Rule of Naturalization. Beware Planned Parenthood et al, your industry may yet be aborted. Probably not, as too many Americans cling to their fairytale, sincerely held faith, and pro-choice religion or moral philosophy. America can ill-afford fighting a civil war to overturn the natural right of aborting a wholly innocent human life.

Humphrey's Executor | March 11, 2015 at 8:12 pm

Just to be negotiating with the Security Council is a huge victory for Iran. A purely symbolic agreement will be icing in the cake for them. We on the other hand gain nothing, absolutely nothing.

When Chamberlain caved at Munich for nothing in return, he may have at least sincerely thought he was doing the right thing.

I hope Senator Cotton didn’t send his letter to his senate colleagues via a private email account.

Obama doesn’t need to take the Senate’s sanctions off the books. Out of respect for the theories of the unitary executive that have dominated the Bush-Obama years, Congress enabled presidents to create waivers that amount to loopholes large enough to drive the planet Jupiter through, or at least Saturn. Obama doesn’t even need to resort to arcane constitutional arguments; he need only use the waivers, justify them by saying he has an agreement with Iran and sanctions would damage the national security of the United States, and he is on unassailable ground, even though the sanctions remain on the books, lonely and unenforced.

For some reason there are a lot of people in public life and on the Internet who don’t seem able to understand the simplicity of it, even after the media dutifully reported this is exactly what Obama plans to do, weeks ago.