Blog No. 62 The GOP Letter to Iran and the Road Ahead

It sometimes appears that the capacity of Congressional Republicans for self-embarrassment is inexhaustible. Most often it is the Republicans in the House who are the mischief-makers while their colleagues in the Senate, with some notable exceptions (see, Cruz, T.), offer a measure of maturity. In the case of the letter to Iran, however, it was the Senate Republicans who provided the “What were they thinking of?” moment.

The letter to Iran purported to educate and counsel Iran on the dynamics of the American constitutional system. Thus, with respect to the nuclear deal presently under negotiation, the letter asserted that “The next president could revoke such an executive agreement with the stroke of a pen, and future Congresses could modify the terms of the agreement at any time.” If the purpose was to discourage Iran from entering into a deal, it was an apparent and immediate failure. Iran’s Foreign Minister replied swiftly with his own message in a response published by Iran’s Ministry of Foreign Affairs:

[Zarif] emphasized that if the current negotiation with P5+1 result[s] in a Joint Comprehensive Plan of Action, it will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.

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The Foreign Minister also informed the authors that majority of US international agreements in recent decades are in fact what the signatories describe as “mere executive agreements” and not treaties ratified by the Senate.

He reminded them that “their letter in fact undermines the credibility of thousands of such mere executive agreements that have been or will be entered into by the US with various other governments.

Thus far, there has been no response from Senator Tom Cotton, the draftsman of the letter, or any of the co-signers. On the face of it, however, the points raised by Zarif suggest that he may have a more realistic view of the situation than the Senators. Daniel W. Drezner, writing in The Washington Post, emphasized the importance of the fact that agreement with Iran would have the support of all the permanent members of the U.N. Security Council (China, Russia, France and the United Kingdom as well as the United States) plus Germany: “Now I doubt that Tom Cotton et al would weep much if, in undermining an executive agreement, they would tick off, say, Russia or China. But our NATO allies in Europe are another question entirely. Does the next president want one of his/her first actions to be revoking a deal negotiated in part by America’s closest allies?” Drezner also pointed out that a successor president would be reluctant to take an action that would undermine the credibility of executive agreements that he/she might enter into. Even more importantly, other members of the group would be unlikely to co-operate in a re-constituted sanctions regime.

If, as appears likely, the Senate letter will have no impact on the Iran negotiations, it may well have an impact on the ability of the Senate to block an agreement if one is reached, and that effect will be exactly the opposite of what the signers would hope. Prior to publication of the letter, legislation had been introduced, with bi-partisan support, which would require submission of any agreement to the Senate for approval. The letter, however, has endangered the prospect of support from Democratic Senators. It is notable that Senator Bob Corker, Chairman of the Senate Foreign Relations Committee and a principal sponsor of the legislation, along with the ranking Democrat, Senator Bob Menendez, had declined to sign the letter. (The other Republican Senators who declined to sign, and whom we salute for courage and common sense, were Susan Collins, Jeff Flake, Lamar Alexander, Lisa Murkowski, Dan Coats and Thad Cochran.)

Dismayed as we are by the Senators’ letter, we see little merit to the suggestion by some critics on the left that it violated the Logan Act. The Act, adopted in 1799, provides that:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or 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, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

There appears to have been only one indictment (and no convictions) under the Act in its entire history. Accusations of violating the Act have been leveled against members of Congress from time to time but without effect. In 2007, some saw a violation of the Act when then-House Speaker Nancy Pelosi (D-Calif.) appeared to undermine a Bush administration policy of isolating Syria by traveling to Damascus to meet with President Bashar al-Assad, but no action was taken. In an earlier instance, involving a trip to Cuba by Senators John Sparkman and George McGovern, the State Department expressed the view that “Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.” A broader reading of the Act, we suggest, would raise a serious constitutional question. Although the White House has now reportedly received petitions with approximately 170,000 signatures urging a prosecution under the Logan Act, neither the White House nor Democratic Senators have thus far expressed support for such an action

In short, the Senate letter can be described as, in the terms of The Wall Street Journal, “a distraction.” As summarized in The Washington Post:

Republicans had an opportunity to focus attention on weaknesses in the emerging accord with Iran and mobilize bipartisan pressure on the administration to demand better terms. Instead they have engaged in grandstanding tactics that have alienated potential supporters while obscuring critical issues. Their antics are making it easier rather than harder for Mr. Obama to proceed unilaterally.

While an opportunity to focus on the terms of the treaty may have been lost, it can and should be pursued. But to do so effectively will require a determined effort to recover the momentum of a bi-partisan approach.

Having chided the Republicans, it needs to be said that the Obama Administration also bears major responsibility for the current imbroglio. The Administration has failed utterly to keep Congress informed and to seek support for its approach. Indeed, the President’s attitude toward Congress reminds one of the familiar advice for growing mushrooms: cover them with manure and keep them in the dark. While the Administration has argued that it is premature to judge the deal before negotiations are in place, it has also made clear that the President would veto the pending bill giving Congress the right to approve or disapprove the agreement. For our part, we believe that, while Congress should respect the President’s primary authority in the conduct of foreign affairs, it does have important responsibilities of its own.

Thus, we believe that the President’s attempt to exclude Congress entirely from the process has been a serious mistake. While the proposed agreement is not a “treaty” requiring the advice and consent of the Senate, it is of sufficient importance that, in the exercise of sound judgment, he should seek Congressional participation. It is, for example, potentially far more consequential than the matter of a military response to Syria’s use of poison gas—an action for which the President had announced a decision to seek Congressional approval. We support the Corker-Menendez bill and, if the specific procedure it prescribes is unacceptable to the President, we would urge him to offer an alternative.

As to the merits of the proposed agreement, we look forward to further debate once the terms of the agreement are agreed upon and disclosed. We remain skeptical of claims on both sides: we are not at all certain that either the proposed agreement or the renewal and strengthening of sanctions will deter Iran from development of a nuclear weapon. With respect to the proposed agreement, due account must be taken of Iran’s past propensity for cheating, and in that light, we question how much protection the agreement provides. The reported goal is to keep Iran “at least a year” away from amassing enough fuel for a nuclear weapon (a “breakout period”). Theoretically, the United State and other countries, upon learning of a breach by Iran, would be able to take action within that period to prevent its acquisition of a weapon. That may sound reasonable in the abstract, but it overlooks the likelihood of disagreement, both among allies and at home, as to whether Iran has breached the agreement, and if so, how serious the breach is and what sort of preventive measures are both sufficient and feasible. If sanctions have been lifted, it is unlikely that re-imposing them would have much effect over such a short period, and that would leave only the option of a military response which we find highly unattractive for a variety of reasons.

Along with George Will and others, we have concluded that, while military action must remain “on the table” as a negotiating posture, it is probably not a realistic alternative. White House spokesman, Josh Earnest asserted that: “The rush to war, or at least the rush to the military option that many Republicans are advocating is not at all in the best interests of the United States.” We do not believe that Republicans are advocating anything of the sort. Rather, they believe, perhaps unrealistically, that if no agreement is reached, Iran can be “coerced” into abandoning all aspects of its nuclear program that have a military application. This point of view was succinctly expressed in a Wall Street Journal op-ed by Douglas Feith (a senior official of the Bush Administration and one-time advocate for the war on Iraq):

Coercion means America and its friends would use trade and financial restrictions, diplomatic isolation and other methods (short of military strikes) to pressure a resistant Iran into changing its behavior.

When Mr. Obama says the Israeli leader has offered “no viable alternative” to the deal being negotiated, he is denying that a coercive option exists. But Mr. Netanyahu’s point is that we can have one if we try. U.S. officials would need to exert leadership by highlighting Iranian threats, prescribing ways to limit them and soliciting other countries’ support.

The difficulty with Feith’s prescription is that it is pretty much what we have already done and it got us so far and no farther. Can economic pressures be increased? Undoubtedly. But whether they would have the desired result is questionable. Moreover, if the negotiations end without agreement, and that were to result from a last-minute change of demands by the United States, it is quite possible that some or all of the other parties would decline to continue with sanctions.

In sum, we do not know the answers, but we think that thereare questions  deserving of more intense scrutiny and discussion than they appear to have had so far::

• If the actual agreement substantially conforms to the leaked version, does it buy protection sufficient to justify a lifting of sanctions? Is the one-year breakout period long enough? Are the provisions for inspection adequate? Is the ten-year duration of the agreement long enough? Does Iran have any legitimate objections to a longer agreement?
• If the deal is a “bad” one, is no deal really better? If there is no deal, will sanctions realistically prevent Iran from developing a weapon? If a deal is reached but then blocked by Congressional objections, will the other countries of the P5+1 group continue to impose sanctions? If not, how effective will unilateral sanctions by the U.S. be?

We plan to stay tuned.