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:
Tehran Tom took his case directly to the Iranian government
— Jared Polis (@jaredpolis) March 10, 2015
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:
So then what exactly are you doing? RT @joshrogin: Kerry: "We are not negotiating a legally binding plan" with Iran.
— Tom Cotton (@SenTomCotton) March 11, 2015
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…
Important question: if deal with Iran isn't legally binding, then what's to keep Iran from breaking said deal and developing a bomb?
— Tom Cotton (@SenTomCotton) March 11, 2015
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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