How Kerry Demonstrated His Contempt For Congress
Administration deferred to Iran at the expense of Congress
By now, Sen. Jeff Flake’s (R – Ariz.) announcement that he will oppose the Joint Comprehensive Plan of Action (JCPOA) has been overshadowed by Sen. Robert Menendez’ (D – N.J.) Tuesday announcement of his opposition.
Still, I’d like to revisit Flake’s announcement because he was viewed by the administration, in the words of one report, as a “gettable” Republican. With Flake’s announcement it now appears that President Barack Obama will not be able to claim bipartisan support for the JCPOA.
I don’t know how “gettable,” Flake was. To be sure, at the July 23 Senate Foreign Relations hearing Flake was much less adversarial than most other Republicans on the committee, and that played a role in maintaining the impression that he perhaps looked favorably upon the deal. He also was less adversarial than Menendez.
However, he asked Kerry some very solid questions and Kerry’s responses were awful. How awful? Early in his question and answer session Flake asked Kerry about language in the JCPOA that allowed Iran to opt out if sanctions were re-imposed.
Here is Kerry’s response (or, you can listen to it in the video embedded below. The relevant section begins at about 4:01 into the session.)
“What we have committed to do is quite specific. Iran was fearful that having witnessed the hot desire within the Congress for more sanctions that even if we cut an agreement you folks might just turn around the day after and say ‘too bad, we’re coming back with all the same sanctions.’ … So what they really wanted was a clarity that we’re not going to re-impose the specific nuclear-related sanction provisions as specified in Annex II to the JCPOA contingent on them abiding by the commitments of the agreement. So it’s really simply a clarification to them that we’re not going to come back and just slap them on again, but that absolutely does not mean that we are precluded from sanctioning Iranian actors, sectors, or any actions if circumstances warrant. So all of our other sanctions authorities remain in place, not affected by this agreement. And Iran only says that they would treat the imposition of any new nuclear-related sanctions as the ground to cease performing. But they are clear and we are clear that we have all other kinds of authorities.”
There’s more to the response, and there are many problems with it, including Kerry’s assertion that it is only the re-imposition of nuclear related sanctions that would allow Iran to opt out. (This is inaccurate. In paragraph 37 of the main body of the JCPOA, in a section labeled “Dispute Resolution,” it says: “Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part.” There is nothing in this section that mentions that this applies to nuclear-related sanctions.)
I don’t know how I missed it at the time, but Kerry is saying that the United States saw it necessary to convince a nation that has been defying the United Nations Security Council for more than a decade and its smug, lying scoundrel of a foreign minister, Mohammad Javad Zarif, that the United States would protect Iran from acts of bad faith by Congress! Really? (Earlier this year, Zarif told an audience of American “progressives” that Iran does not imprison journalists or dissidents for their beliefs even as a man he called a “friend,” Jason Rezaian, was – and is – standing trial for espionage for reporting from Iran!)
The American response to Iran’s “fears” should have been, “Don’t cheat on the nuclear deal, engage in terrorism or abuse human rights and they won’t re-impose sanctions on you.” But the administration’s message to Iran was, “we’ll protect you from Congress’ schemes.”
I don’t know how I missed this. Here was the Secretary of State making cause with self-proclaimed enemies of his nation against a branch of his own government. His contempt for Congress in those words was clear. (If you watch the video, hear his inflections and observe his body language it is even clearer.)
It isn’t just in those words; it’s also the way the administration is seeking to bypass the Congressinal role in approving treaties through the combination of an executive agreement and a UN Security Council resolution.
As Walter Russell Mead observed:
Congress grudgingly went along with that, passing the Corker-Menendez law as a way of regularizing the President’s irregular choice. This tilted the playing field toward the President, as opponents would need a two thirds majority in both houses (instead of only a one third majority in the Senate) to block the deal for good.
That the President is blowing off this concession by Congress is a serious matter—more serious perhaps than the White House realizes. He is really requiring Congress to accept a permanent and significant diminution in its power for the sake of an Iran deal that few members view with enthusiasm. The precedent he is setting changes the Constitution, essentially abrogating the treaty power of Congress any time a President[ can get a Security Council resolution to incorporate the terms of an executive agreement.
Kerry’s word’s and the administration’s actions betray a deep contempt for Congress. I don’t know how any lawmaker, after seeing all this, could vote to approve the deal—at least if he or she attached any value to their office.
I don’t mean to gloss over JCPOA’s many failings that have been enumerated here and elsewhere, but the process by which the administration came to this agreement (which, by the way, hasn’t even been signed at this point) shows deep contempt for Congress. Even if the JCPOA were perfect, the unconstitutional behavior of the administration should be grounds for rejecting the deal.
[Photo: Sen. Jeff Flake / YouTube ]
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Comments
They gave it all away, with Congress’ blessing.
The Congress has, sadly, done this to itself. (Former Senator) Obama and (former Senator) Kerry have nothing but contempt – they’ve been there, and know it is weak, and run by tools.
Dangerous, dangerous times we live in……
And made even more dangerous by idiots like Kerry.
Well, I do understand the deep contempt of Congress.
Everything you wrote till here was correct, but this (by both yourself and Mead) is garbage. Mead has the excuse of having written before the Security Council vote, and thus not having read the resolution (though it was exactly the same as the draft, which he could and should have read before commenting), but you don’t.
Corker-Menendez was not a concession of any sort, and did not regularize anything. There is nothing irregular about the president making private agreements with whomever he likes, foreign or domestic, so long as he only agrees to do things that are already within his power. These agreements have no legal status, being backed only by his private word to the other parties. If he breaks the agreement he dishonors only himself, not the USA. If he agrees to something that is not in his power, or that Congress later takes out of his power, tough luck.
Look, this is not a matter of opinion but of facts. There is no dispute that the law as it existed before Corker-Menendez gave the president the power to waive the Iran sanctions whenever he thought it appropriate. Congress gave the president that power when it passed the sanctions. It knew that there would be disagreements in judgment between presidents and congress, and it willingly agreed that in such cases the president’s judgment should prevail.
Well, here we are: the president says he thinks it appropriate to waive the sanctions, a clear majority of congress disagrees, and the law is on his side. Corker-Menendez was an attempt to change that law. It sought to remove this power from the president, so that if he concluded a deal that required the sanctions to be waived he would have to come to congress to do that. But to pass that required a veto-proof majority, and there just wasn’t one. Every effort to gather one failed. Enough Democrats refused to bind the president’s hands in advance, before knowing whether the deal he would make would be unacceptable. So they compromised on a 60/10 day delay.
This was a concession by the president, not by congress. The president could have stood on his powers and refused to allow any bill to pass. He could have concluded this deal and implemented it without consulting congress at all. But he voluntarily agreed to have his powers curtailed, slightly. He agreed that once he concluded a deal with Iran he would submit it to congress, and that his power to waive the sanctions would be suspended to give the deal’s opponents a chance to pass a bill (like the original Corker-Menendez) forbidding him from waiving the sanctions, and to override his veto. None of that was required by the constitution or by any then-existing law.
The UN vote changed nothing. Security Council Resolution 2231 does not require the USA to lift its sanctions. It merely allows us to do so. Read the resolution, and note what it requires, and what it merely emphasizes, welcomes, notes, supports, or encourages, none of which matters in the least. All it does is lift all the specified UN sanctions, once the IAEA certifies that Iran is in compliance. Member countries are then at liberty to lift their own sanctions or to keep them. If congress overrides the president’s veto and disallows this deal, the USA will not be violating 2231, regardless of what Kerry said. You know Kerry’s a liar; why do you suddenly beleive him when it suits you?
2231 also provides that if any party notifies the Security Council that it believes Iran to be out of compliance, 30 days later the sanctions automatically come back unless in the meantime the Council resolves that they shouldn’t. So on 20-Jan-2017, President Walker can make that notification, and on 19-Feb-2017 all the UN sanctions come back, and not just the USA but all the world will be required to go back to obeying those sanctions. Of course Russia and China will ignore this, because they don’t care about “international law” but only about what they can get away with, and they will be able to get away with this.
Again, though, nothing has changed as far as the constitutional arrangment between the president and congress. The UN Treaty is already law, and was so before 0bama was even born. The USA is already bound to obey Security Council resolutions, so presidents have always been able to use that to impose a requirement on the USA that they couldn’t get through the senate. Of course if a veto-proof majority in congress is sufficiently opposed to a UNSC resolution, it can always vote to forbid it anyway. Treaties are just laws, just like statutes that congress has passed, and congress can always override or repeal them.
“There is no dispute that the law as it existed before Corker-Menendez gave the president the power to waive the Iran sanctions whenever he thought it appropriate.”
I don’t carry a copy around with me, but I don’t think there’s any law on the books like that.
What I think you’ll find is that the President MAY waive sanctions on making certain findings regarding the behavior of Iran, findings he has to certify to Congress.
Like the ones he lyingly made to Congress about Cuba a few months back.
Both instances are big, steaming piles of falsehoods told to Congress against the interests of the American people, and fostering the interests of some of the worst people on the planet.
What I think you’ll find is that the President MAY waive sanctions
That’s exactly what I wrote.
on making certain findings regarding the behavior of Iran, findings he has to certify to Congress.
So he’ll make those certifications. Big deal. They don’t have to be true. Presidents make such certifications all the time, and nobody even expects them to be true. Congress has no power, under existing law, to reject them and make him reimpose the sanctions. That requires changing the law, which requires a veto-proof majority.
Both instances are big, steaming piles of falsehoods told to Congress against the interests of the American people, and fostering the interests of some of the worst people on the planet
And your point is? It remains undisputed that, before Corker-Menendez, 0bama had the power to implement the Iran deal without even bothering to consult Congress, and there was nothing Congress could do about it. Corker-Menendez bought us some time to put together a veto-proof majority to change the law. It was a concession by the president to congress, not the other way around.
Sorry, Rags, but Congress really did give the President that power, and foolishly so. It’s actually standard issue for this kind of law under administrations of both parties, not that I’m a fan of it.
I’m sorry if you think the President having to certify a mendacious falsehood as true as a condition for doing X is actually a significant barrier to his doing X. The original post is but a small sample of John Kerry’s long career of making a pretzel of the English language. (I have not bothered to find out how good his French is.) It’s not going to stop them, simple as that. All that’s being discussed is the political cost.
What Milhouse opened with was Congress “gave the president the power to waive the Iran sanctions whenever he thought it appropriate.”
But that is (to my mind, at least) nothing like at least having to certify to a lie.
Perhaps the cynical difference is null, but if I were POTUS, it would be a bar. If I couldn’t certify to the conditions set by Congress having been met in truth, it wouldn’t matter whether I thought it “appropriate” to waive the sanctions.
How far we’ve fallen…
Splitting hairs. Semantics aside, if there were no Presidential discretion in economic sanctions – all of them, ever, not just Iran – they would be vetoed as an intrusion on the executive power to make foreign policy.
List all the times Obama has ever told the truth. Once he was reelected, he had the blank check. Elections matter.
If you were POTUS it wouldn’t be a bar, because unless Iran really were changing you wouldn’t think it appropriate to waive the sanctions in the first place, so you would never be called upon to falsely certify anything.
But for our sins false presidential certifications to congress have become routine. Nobody even pretends any longer that they have to be true. Cf the 16 times (I think) that GWB certified to congress that disaster would ensue were he to move the US embassy to Israel to Jerusalem.
I don’t think it was foolish. It’s just that while congress anticipated the possibility that a president’s judgment might differ from its own, it did not anticipate the possibility that a president might be elected whose is the other side. It assumed that any future president would share its goal of advancing America’s interests, and was therefore willing to give him the flexibility to waive sanctions whenever he thought it would serve that goal, even if the congress of the day might disagree. If it had known that one day there would be a president who wanted to build Iran up as a regional power, at the expense of our own interests, it would have been more careful.
I am not sure it is just contempt they have for Congress. The Administration’s approach seems more to be that Congress is like an annoying yapping little dog that one has to feed and clean up after but is otherwise just a distraction to be ignored.
That’s how presidents have regarded Congress since the Washington administration. And usually with good cause.
All of this contempt from Kerry could have been predicted the day he agreed with the VietCong in 1970. Yet we have U S Senators who voted to confirm John Kerry as SOS.
“The 1970 meeting that John Kerry conducted with North Vietnamese communists violated U.S. law, according to an author and researcher who has studied the issue.”
https://americanpatriotsagainstkerry.wordpress.com/john-kerry-meeting-north-vietnamese-in-paris/
Yes, thank you for pointing that out. John Kerry is a lying traitor who has shown his contempt for Congress since the day he first sat before it spewing lies about US troops in the 1970’s.
But Iran doesn;t want to get rid of sanctions because of its nuclear program, only to have the very same sanctions re-imposed because of its support for terrorism! Or any other reason.
Kerry was engaged in a little bit of double-talk here.
Sanctions should also be allowed for nuclear related reasons, or else you are saying there is nothing you can do to pressure Iran as the ten years the agreement covers draws to a close.
That’s what I was saying – Congress, besides voting on the deal, should also pass a Joint Resolution (which cannot be vetoed, because it would not be a law but only a statewment of opinion) stating it is NOT a treaty, and that the U.S. government will NOT be legally bound by it, and that our interest in Iran’s nuclear weapons program does not end after 10 or 15 years, and if Iran looks like it might move toward a nuclear weapon, sanctions should be imposed even before this agreement expires. And neither does Iran have any immunity from sanctions for any other reason.
(And if Iran wants to stick to the agreement under those cicumstances, maybe OK, and if not, not.)
Anybody who imagines that NOT saying the foregoing conveys any advantage is living in a dream world.
Wrong. Joint resolutions have to be presented and can be vetoed. The president will probably not bother, since it would have no effect, but he can do it.
Everyone agrees it’s not a treaty. The president isn’t even bothering to submit it for ratification, because he openly says it’s not a treaty. So why do you need a resolution saying so?
And a future president, or even Obama.
In and of itself, this is not too much – contracts are often drawn up that way, guarding against bad faith.
The problem here is the terms of the agreement themselves -it is an agreement not to impose any new sanctions
A) for nuclear related reasons, or
B) the same old sanctions for any other reason.
This is not a protection against bad faith. It’s protection against punishing Iran for anything else. (Kerry doesn’t see this happening right now.)
And protection against doing anything to try to force Iran to extend it as the agreement draws to a close.
Either one automatically terminates the agreement. Of course that could also lead to the snapback of sanctions, depending on whether or not the other nations decided it was Iran that terminated the agreement, or the United States.
Kerry would say only A is contained in the agreement and B is Iran’s interpretation but it is not ours.
It doesn’t depend on anything. The sanctions automatically snap back 30 days after the USA notifies the Security Council that it believes Iran is not complying. It doesn’t matter whether anyone else shares this belief. The USA doesn’t have to prove it. To stop the sanctions coming back takes a Security Council resolution, which the USA can veto.
Everything just got a lot easier for Iran and a lot less safe for the rest of the world. Debate the semantics of POTUS / Congress relationships all you want. But, that’s the end result.
Milhouse makes many good points, but reliance upon snap-back sanctions is a flaw. Miss the news today, pal?
Obama has secretly notified China and EU allies that snap-back sanctions could be ignored by their companies. And theirs and Russia’s (already breaking them, btw) are what counts because we don’t do any business with Iran ourselves.
– –
The fix was in the minute we sat down at the table in 2013. No way Obama was ending talks without a deal, no matter what he had to give away. Now the Iranians will do their own inspections, believe it or not.
Hang the traitors, I say (after a fair and impartial trial, of course).
Like the one Ceaucescu got.
I don’t pretend that Russia and China will reimpose sanctions just because international law will require it of them. They only ever obeyed the sanctions because they found they couldn’t get away with flouting them; if they can ignore the snap-back, they will. But that will put them in violation of all those security council resolutions, and a Walker administration might find a way to make that uncomfortable for them.
The real problem is that 0bama still has 518 days, 18 hours, and 53 minutes in office, and a lot of damage will be done between now and then. Perhaps too much for President Walker to fix.
For those with a web page of their own, here’s an 0bama countdown clock you can embed in it:
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