Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
More on the Cotton Letter
In regard to Tommy De Seno’s comments on my previous post about Tom Cotton’s letter, we should all recognize that there is a difference between the policy of any agreement with Iran and the constitutional law that governs the agreement. We can have different views about the best way to contain Iran’s nuclear ambitions without having to disagree on the constitutional foundations of sole executive agreements or a senator’s right to voice his or her personal views about the Constitution. For what it’s worth, one fix for the controversy would be for Senator Cotton to offer a resolution on the floor of the Senate opposing any nuclear deal with Iran that does not undergo advice and consent.
Some are criticizing the Cotton letter for attempting to interfere with the president’s “sole organ” authority to conduct the diplomacy of the nation. But I don’t think the president’s sole organ authority, first articulated by John Marshall (as a congressman) and approved by the Supreme Court (in U.S. v. Curtiss-Wright Export Corp in 1936), prohibits senators from making clear their positions on foreign policy matters. Senators can take votes that might oppose an executive branch policy. For example, the Senate passed a resolution opposing the Kyoto Accords, which effectively killed any chances of that treaty, and the American Servicemen’s Protection Act, which essentially defeated any hope for the International Criminal Court’s ratification by the U.S.
I, of course, have defended the sole organ authority of the president, probably more vigorously than any other law professor and few other government officials. But here the senators are not trying to negotiate with Iran or even trying to set out any terms for a deal. I thought the letter tried to avoid any substantive terms of the deal, but only went as far as stating clearly what U.S. constitutional law was (which I expect the Iranians already knew — or for which they paid advisors who could tell them). As a description of our constitutional law on international agreements, the letter was correct. What is the effective difference between sending the Constitution to the mullahs in an envelope, giving a speech reminding President Obama of the law of treaties, or publishing an op-ed criticizing the sole executive agreement? What would be best now would be for Senator Cotton to offer a Senate resolution opposing any sole executive agreement to limit Iran’s nuclear capability.
Some have also argued that this is partisan, and would not happen if the shoe were on the other foot. I can say, from personal experience, that this is not true. When President Bush was negotiating the Treaty of Moscow with Russia, which resulted in deep cuts in nuclear arsenals, some in the State Department floated the idea that the White House should execute it as an executive agreement. Senators Biden and Helms issued a statement that the agreement should undergo the treaty process, as all significant arms control agreements have in the past. John Bolton (at State) and I (at Justice) agreed, and the deal was executed as treaty with the advice and consent of two-thirds of the Senate.
You could also, I suppose, object to senators communicating to foreign leaders at all, or argue that they shouldn’t undermine executive branch policy in foreign affairs. I don’t see that as as much of a problem as others might, because senators have the right under the Speech and Debate Clause to say whatever they like. For instance, I thought it a serious policy problem for Senators Clinton and Obama to attack General Petraeus in hearings during the surge and to predict defeat for our troops, but I don’t doubt that they had the constitutional right to voice those opinions in Senate hearings, on the floor of the Senate, in speeches outside the Senate, or in writings in national newspapers. If those senators have that power, I don’t see why Senator Cotton cannot take the position that an international agreement without the Congress’s approval is short-term only.
Published in Foreign Policy, Law
Curious about the history here. An arms reduction that binds the U.S. to reduce its arsenal seems somewhat different than an agreement whereby Iran agrees to slow its nuclear program and the U.S. in exchange agrees to ease sanctions, which the president has the statutory authority to waive unilaterally (at least in some instances). Are there any comparable agreements limiting foreign nuclear (or other arms) programs that have been passed as treaties? Like something with North Korea or Iraq?
Your other thread really went off the deep end, didn’t it John? I stopped reading it about the time they started impeaching Obama and indicting Cotton.
John,
The Obama Administration’s capacity to generate red herring false accusations is unmatched.
The Logan Act is about literal treaty negotiations with foreign governments by unauthorized parties. It appears that it has never been used in 216 years excepting the one case noted above and that only an indictment with no prosecution.
Meanwhile, the Obama Administration, to borrow a phrase, has a history of repeated injuries and usurpations when it comes to executive overreach that abuses the separation of powers doctrine. The Democrats scream treason over a Republican breach of protocol while a lawless President uses his pen and phone to shred the Constitution and the Secretary of State conducted Foreign Policy out of the trunk of her car.
I would like to take this opportunity to thank Senator Cotton for his breach of protocol. He was well justified given the situation. I suspect given the Administration’s penchant for willful self-delusion this won’t be the only such situation. I think we’d better fasten our seat belts as it’s going to be a bumpy ride for the next 20 months or so. Unless of course after a long series of injuries and usurpations it becomes necessary to consider Impeachment to foreshorten the suffering. It doesn’t seem likely but nothing is off the table.
Regards,
Jim
There are two parts to the Senate’s authority, advice, and consent. A vote is only consent. The senate has the duty to also provide advice. The letter constituted advice from a significant fraction of the senate. They have the authority to do that, in fact I would argue as little as a single senator has the duty when he disagrees with policy to make those disagreements known. The president can ignore “advice” all including George Washington have, but its is still the Senate’s responsibility to provide it. If it blows up an international agreement, then the sentiment for that agreement wasn’t strong enough to bind the nation anyway so that is good for the nation, if bad for a particular circumstance.
It would seem Cotton has a pen and a phone, too. I would also contend that if the Executive Branch entered into an “agreement” with Iran, it would in the wrong if it didn’t tell Iran of the limitations of such an agreement.
Prof Yoo, I am curious about your reaction to Jack Goldsmith’s post at Lawfare suggesting that the Administration could take a “sneaky” path and submit an agreement with the Iranians to the U.N. Security Council which could vote to approve it as a resolution thus making it legally binding on the United States under international law.
There’s no “treaty” with Iran, or any such a thing being planned. Hence it’s not comparable to treaties. The President can issue sanctions by executive order, and usually does.
So the question is if Congress can do anything to the sort of foreign relationships that are being used here: i.e., multilateral sanctions, international monitors etc.
Most of the components of this “deal” don’t even involve US actors.
Hence, the question if Congress has any authority or power here, seems still unanswered. And also, quite irrelevant, since they clearly don’t (otherwise they would have put it up to vote in the Senate)
Hence, all these GOP Senators did, was to tell Iran that they better get nuclear weapons before 2017, because no matter what, they will want to go to war.
And this was Tommy De Seno’s point: the constitutionality or the legality of this letter is quite a pointless issue. The content, the message, the effects…are what matter here.
I found the conservative objections to Cotton’s letter to be on par with Bobby Knight’s quote,” I think that if rape is inevitable, relax and enjoy it.” One of the dumber statements ever made.
Yessir, our elected politicians who that think our president is undermining our country in so many ways, who think they should to stand up to his destruction of the US, should just relax and enjoy it.
I, for one, wish nothing but obstruction of every possible thing the president wants to do. I want every available means used to slow, deter, or defeat his agendas. Obama is the mortal enemy of nearly everything I care about.
Bravo Senator Cotton.
They can think all they want. And so can we. Hence, so what if they think so? No one cares.
Kabuki theater.
These are multi-lateral negotiations that involve other countries besides the US. US sanctions aren’t an issue here, because US sanction will do (and have done) nothing to Iran. Iran doesn’t trade with us.
What does this letter do to our allies and other nations we’re trying to bring to the table on Iran? They see this and think “hey, all the effort we put here, will be for nothing. We will be out on the line come 2017. Can’t rely on the US for anything”.
We got the Chinese and Russians to stop their weapons deals with Iran. What will they say now? Hey, the GOP is hell bend on war no matter what, so what was the point of us not selling weapons to Iran then?
Speaking your mind is quite pointless if all you told the world is that you’re an unreasonable and unpredictable person to deal with, which will go back on your word any time you want.
Of course, any country can withdraw from any “treaty”, or deal, or compromise, anytime it wants. There’s no such thing as a “binding” agreement, because there’s no one to bind you to it. That applies to the US, and it applies to every other country. The only thing “binding” is that you either lose the benefits of the agreement, or incite the other party to retaliate. This isn’t some legal contract that they can sue you for. Hence this has nothing to do with US law or the US constitution.
So what did this do besides tell the other countries we need to bring to the table that the US is an unreliable partner, and tell the Ayatollahs that they better hurry up and get their bomb already.
If you think America somehow has a reputation that is worth keeping, please give us the argument. Who respects what America says through the President, SecState, VP or whoever else? What have six years of a new administration bought?
Whoever did not know that America has divided gov’t & that affects foreign policy in the late years of Mr. Bush, Jr.’s administration, learned it now. Hardly something that can be helped.
It is better for the GOP to say to the world that America is unpredictable & unreliable than to continue the reputation America has. America is the country that got the Libyan tyrant to renounce some kind of WMD hobby & not much later destroyed him. America is the country that destroyed a tyrant in Iraq & soon left the country to anarchy. America is the country that talked pretty tough, exceedingly moralistic talk about what the Syrian tyrant was doing on his way to 100,000 corpses, then let more than that accumulate again.
& Americans of several parties, persuasions, colors, & convictions negotiated the Norks’ way to the bomb. Spare us the serious man at work’s contempt for the children making noise. American foreign policy has little to recommend it.
You cannot avoid the serious question: Will America allow Iran to acquire nuclear arms or not? Will it be war before Iran gets the bomb or not? Without that, the rest of the talk is less than serious. After you have answered that, whatever else you have to say cannot change the answer. The world is coming around to the fact that Mr. Obama, despite everything he says, seems like he will allow Iran to acquire nuclear arms. The only doubt is whether America will allow him to do it.
You think I want war AIG? I am not interested in having my son coming home in a box.
Do you think Neville Chamberlain’s theories of handling nutbags are worthy of emulation. This all is far simpler than you are making it out to be. If the president is doing something, it’s going to be an error based on Marxist ideology. The man hates this country.
So it’s a recent invention of the Supreme Court? It’s therefore safe to say it’s baloney…
I find this kind of talk depressive. I’ve never liked Mr. Obama’s politics, am even suspicious of his professions of good. But it’s depressive to read this kind of talk. It shows an awful, strange, & familiar America–a house divided. It also helps the divisions deepen. I don’t think he’s done much good for America & his foreign policy seems to me an unfolding disaster, & I think maybe Mr. Giuliani had a point–there is a lot to America that liberals seem really not to like. But something has got to change. Conservatives cannot seem to think that these elections & these political changes are also your fault. That you are responsible somehow for keeping the country together. Maybe it’s just this depressive mood talking–I certainly do not want to get you angry.
You ain’t seen nothing yet, to quote BTO. Or was it BHO?
I suspect that if this talk depresses you, you will be really depressed by the time he leaves office.
If you can believe it, I mind less what he does to America than how Americans react to him. I think on the right we talk such harsh talk because we dislike defeat, which is natural, & healthy even, & because we do not see that Mr. Obama’s politics is to an extent our fault. Specifically, in America, the American right let the country down. It will not do to blame Mr. Bush, Jr., who certainly has a lot for which to answer when historians ask what they should tell the people about his service to his country. He had noble ambitions, I daresay, but not enough humility to see that they could not be brought about in his time. I do not hold Mr. Obama is similarly noble, but he is certainly far more ambitious. It will not do to blame the GOP, although it has badly failed conservatives & America. Simply put, you have got to do better. Conservatives have to do their best to take their party away from the people who have given the party an excessively oligarchic reputation. & that means showing America that conservatives are both the natural rulers of the GOP & more democratic than the GOP looks & sometimes acts. It will not do to point out the oligarchic facts about the Dems. That simply is hoping for hope & disappointment & anger to lead to the parties alternating in Washington while the country goes dizzy & blind contemplating the spectacle. Conservatives need to do the work of persuading America however long it takes–the anger should be directed at all the mistakes, but it portends terrible things when conservatives talk this way–it means they have turned their face from America.
I wasn’t aware that a divided America was inherently awful. There’s a reason for separation of powers, Federalism, and open debate in the house and senate – because, historically, the undivided house was a totalitarian one, in the form of an emperor, king, or other self-proclaimed Big Cheese.
If President Barry can’t handle some sass talk from Senators regarding his “deal” to continue to fail to prevent a power that has stated it wants to nuke both Israel and many countries in the West from acquiring nuclear weapons, well, tough tacos.
We’re not talking some trade agreement regarding oil or toggle bolts. We are talking about a very bright light in the sky that would indicate the Iranians have fulfilled their apocalyptic promise.
Perhaps the real audience for the letter is the Rest of the World. As John Yoo said in the flagship podcast, the Iranians likely already know everything that the letter said. But, do the people in other countries who might be worried about a nuclear Iran? This open letter communicates to them that what the feckless Obama says isn’t necessarily the final word.
I do not think all the divisions within America allow for one big division. That is where the house divided comes from–not to say there cannot be different rooms. Americans, federalism or no federalism, think of the themselves as Americans–nobody thinks of himself as a federalist. Above all, if the nation cannot hold together on the fundamentals, how can it have armed forces? To whom or what shall they be loyal, who most of all want & need to be loyal?
I agree with you here without reservations. I am only concerned than not enough is being. Mr. Yoo has wisely suggested the letter should also become a Senate resolution. The GOP needs to be serious about this & has much to win, not least of all some of the trust of the conservatives &, come the next elections, of the electorate, on matters of foreign policy, not just of separation of powers &c.
It is not the politicians that worry me, it is the real people of whom I receive any intelligence. I am for partisanship & have nothing but contempt for Republicans content to lose as they have for so long. I fear, however, that something worse than partisanship is arising, because there is not enough partisanship in politics–just like you are right to suggest there needs to be more federalism & more political fights. Those things can be accepted by the people. The sense that nothing makes sense anymore, you don’t know what’s what, & a kind of hate of people one suspects betray their oaths–that is almost impossible to undo.
I think this is a useful conversation to have, what we expect from conservatism in terms of conduct. What would make me happy is if conservatives were never hateful, never forgot their losses, & plotted to undo liberalism as political faith. I do not mean merely to win some elections or political fights over institutions. I mean do for liberalism what Reagan did for the name of liberalism.
AIG, by your logic, anything that strengthens Iran’s desire to get the bomb is undesirable. So, for instance, threatening military action or even failing to take it off the table as an option, is inadvisable. Hence, under your thinking, the most supine position is the most advantageous for us. Which is, of course, lunacy. Weakness is not strength.
If Obama had maintained a strong presence in Iraq, and demonstrated bona fides to take swift and decisive military action against foreign countries adverse to U.S. interests, we’d be in a much better negotiating position with Iran. Alas, that’s not Obama, and the Iranians know it, so the current deal may be the best one Obama can get. Thus, Obama should recognize that this task should be left to the next guy or gal who becomes president. Which would require that Obama have awareness of his own limitations. And, that, of course, is lunacy as well.
Allow me to tax your patience & repeat what I never tire of saying: Whenever people tell you to be realistic–get real, in the vernacular?–they mean, appease. That is all.
Thank you, John Yoo. These concise recaps of history and law are of very great value to interested nonprofessionals.
You didn’t tax my patience whatsoever, Titus.
1) No one has taken military action off the table. Hence, your point is moot.
2) Seeking better monitoring and inspections on Iran is not weakness. It puts us in a better position to respond militarily, if we have to.
3) Blindly threatening war on anyone and anything that moves on two legs isn’t “strength”. Its plainly stupid.
Some segments of “conservatives” have really confused the notion of “strength” with the notion of acting crazy.
But, as I’ve said before, this is the application of the “Bush doctrine”, not the “Reagan doctrine”. Now, if we learned anything from 2003, it’s that “Bush doctrine” is a failure, and repeating it, is going to lead to equally disastrous outcomes.
1) Which countries are these that we should have taken “swift and decisive military action” against? Please be specific. Names, dates etc. :)
2) If Bush hadn’t overthrown Saddam and replaced him with Iranian proxies in Iraq, we’d be in a better position to negotiate with Iran today. But as it stands, Iran owns Iraq, and has since 2003.
This is the same Obama that overthrow Qaddafi in Libya? The same that has been carrying out tens of thousands of air strikes on terrorists all around the world?
If the next guy/gal is someone who continues to follow Bush’s doctrine of stupidly invading other countries for no conceivable reason, with no conceivable benefit, at the cost of trillions of dollars and thousands of US lives, then I’d very much rather not leave it in their hands.
You are an amazing man. That no one has said, it’s peace at any cost, means it cannot be that. That a president might be less than fully open about negotiations which he has completely shielded from the public means nothing to you.
How about you? Are you willing to say, America should wage war in Iran rather than allow Iran to acquire nuclear arms?
Slightly better than the previous 8 years. But that’s not saying much. The prior 8 years were probably the lowest point in America’s history. So, nowhere to go but up.
It would have been even better if the crazy and reckless actions of the Bush administration had not tarnished America’s reputation to the point of no recovery. But that’s ancient history at this point.
However, it seems that some people are hell bend on repeating the same Bush doctrine.
This is the native pointless question that one arrives at through the Bush doctrine of black and white, good and bad, bomb or don’t bomb.
Asking the question of will America allow Iran to have the bomb, isn’t a serious question, because it doesn’t prescribe…HOW…you’re going to stop Iran, and what is the best way of stopping Iran.
But obviously, that question is also not important to many on the “conservative” side, since the answer to that question is already decided: you want to go to war, no matter what.
We did this in Iraq in 2003. We really really wanted to go to war. To hell with the facts, to hell with the evidence, to hell with anything. We wanted war. We got it. It cost us trillions, thousands of our soldiers, and we got nothing in return. We got worst than nothing.
Now, if you thought 1-2 trillion dollars and 5,000 dead American soldiers was a terrible price to pay for absolutely nothing…wait till you see how much Iran will cost you.
Of course, asking the question of: how MUCH are you willing to sacrifice to stop Iran, is a question which few “true conservatives” will have the guts to truthfully answer.
They’ll tell you something about Israel, something about Iraq, something about Obama being the worst thing since sliced cheese…but they won’t answer the question: how much?
5 trillion?
10 trillion?
10,000 dead US soldiers?
50,000 dead US soldiers?
Cause that’s probably what you’re going to be looking at, realistically, as the cost. So if that’s the cost, what should the first step be? Try to do everything possible to avoid that cost, and keep it only as a last resort? Or go full-scale warmonger as the first move?
You can’t really be serious…expecting “transparency” on negotiations involving many nations on such an issue?
Can you? Cause I’m sure you had a smirk on your face when you wrote that, cause I can’t believe for a second you were being serious.
An absurd question, of course. Because the question isn’t if we’re willing to go to war, as a last resort, or not. The question is, how much are we willing to put into it, and to what end.
…and at what point.
All questions which are more important than whether or not we’re willing to “go to war”.
If “war” means bombing Iran for a few days, then yes. If “war” means going into Iran…Bush style…then absolutely no way in hell.
There is no use in our ranting at each other. We will have to take things one at a time if we are to talk. The distinction for which you are looking, desperately, it seems to me, is this: friend & enemy. Iran is the enemy. Whether America should go to war or not is a question. One question part of that big question is, Should nuclear arms cause America to go to war?
On this matter, you are wrong & even kids could see it. You cannot judge the means without judging the ends. The former depend on the latter. How you do something depends on what you want to do.
That is why I ask you, ranting aside, discourteous talk about Americans not here to state their case aside–do you think this is worth the war? Is it prudent policy for America to go to war if there is no other way of stopping Iran from acquiring nuclear arms?
Again, you’re the one framing things in terms of “war or no war”, which is an absurd way of framing things.
The real question is…always and in every situation…how much are you willing to pay for it.
Every option is always on the table, and the only question of relevance is which are the low-cost options that you should go with first, and which are the high-cost options which should be reserved for last.
I’ve already answered that question. You refuse to.
It is war or no war. That is how you know when you are & when you are not going to war. I dislike your unwillingness to commit to any common sense. You say you have answered, but I do not see that you have. I have asked more than once–this makes it three at least. You cannot plainly state your answer once more? Do you believe that in the world in which we live today America should prevent Iran from acquiring nuclear arms, by war if necessary? I am not talking about next century or next generation. I mean, in the next one or two presidential terms.