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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
I’m pretty sure my post #27 answered this question.
But as I said, this isn’t the relevant question. It’s a moot question, precisely because no one has taken “war” off the table.
But “war” means nothing. Reagan went to “war” with Iran in 1986 when he bombed the Iranian Navy…for a whole day. Then, Bush went to “war” with Iraq in 2003, for 10 years, at the cost of trillions of dollars, and thousands of US lives.
Are these the “same option”? No.
Hence, the question is…how much….are you willing to do about it?
My answer is simple: this isn’t an issue that is so important that I’m willing to commit national suicide over, as we almost did over Iraq, over nothing.
This is getting really boring, really fast. It is dishonest to conflate any number of historical incidents with a strategy or policy discussion. I am not Reagan. I am not Mr. Bush, Jr. You rant & rave. What we were discussing were policy objectives–unless we can make sense of those, the mode by which they are attained means nothing. I have already argued this. You have ignored it, I suspect, because it would shut you up & force you to think & write without the rants.
It is unseemly to keep ranting at people if you are not willing to calm down & discuss things in a reasonable manner. It is an unpleasant spectacle & it gives the lie to your pretense that you know whereof you speak.
If you think Iraq meant ‘almost’ ‘commit[ting] national suicide’, you are deeply mistaken. With that attitude, I do not see you approving any serious war, anything bigger than the wars fought in-between Iraq & Vietnam, none of which awoke that kind of civil strife. What Iraq meant was the emergence of something like the anti-war hysteria of the Vietnam years. How often the left can pull that kind of insanity into public life is a matter of debate.
You have argued for absolutely nothing other than a black and white dichotomy of “go to war or not go to war”.
That’s the problem.
That’s a great way of saying “I’m not going to answer your question”.
A few trillion dollars and 5,000 American dead soldiers, and tens of thousands of wounded…doesn’t sound like “hysteria” to me.
But then again, you said “serious war”, hence, you win the argument. If you can put the word serious in front of something, it automatically renders all comments on the issue moot.
No better example of senatorial intrusion into foreign affairs can be found than in the Fullbright Hearings (1966-1971). I use the word “intrusion” only because the Vietnam War was already underway. And it was approved by the Gulf of Tonkin Resolution of Congress. Can the Senate participate in foreign affairs, before, during or after action is taken by the Executive? According to Fullbright the answer is YES.
Here’s some of John Kerry’s (then a military protester against the war) testimony before the committee:
We are asking here in Washington for some action, action from the Congress of the United States of America which as the power to raise and maintain armies, and which by the Constitution also has the power to declare war.
We have come here, not to the President, because we believe that this body can be responsive to the will of the people, and we believe that the will of the people says that we should be out of Vietnam now….
Guess he’s changed his views now that he’s negotiating with Iran.
This was a long evolution in the political life of Fullbright. The point is that he was outspoken in his view that Congress is a partner in formulation of foreign policy, not just a take it or leave it ratifying body. He saw it a right and duty of the Senate to be informed. Why even have a Senate Foreign Affairs Committee if it is to be passive? His persistence was a factor in ending the war. And he bucked a president of his own party, Johnson, during his opposition to the war.
Wait a minute, when you were talking about almost committing national suicide you meant the blood & treasure spent? I hope you’re joking or have started raving again. Any loss of life is a terrible thing, & money ain’t cheap either, but that’s committing national suicide, almost?
How in God’s heaven could I argue with you when you keep doing these things! Now I don’t even know what you were talking about there. Whether you’re unable or unwilling to focus or take things in a sequence–it makes no difference. It is very near shameless to rant at others if you do not do the work of showing just how much better you are.
So, again, a refusal to answer the question while feigning “outrage”.
1) No one has taken “war” off the table. Hence, your point is moot.
2) No one is arguing that the intent is to stop Iran from getting nukes, hence your point is moot.
3) The only question of relevance then is…how much are you willing to commit to it?
You keep refusing to answer that most fundamental question and instead keep asking me if I “want to go to war”.
Now, as far as Iraq, I think a few trillion dollars and a few thousand US soldier’s lives, over nothing, is about as close to “national suicide” as we’ve come, at least in this half of the last 100 years. Especially considering that the massive waste of money from that absurd adventure, played no small part in the US economic collapse of 2008.
So if there’s anything we should have learned, is that…how much…you’re willing to sacrifice matters a heck of a lot more than the intent of some nebulous, and frankly, idiotic, policy.
Of course, that’s not going to concern anyone who has already made up their mind that war, at any cost, against anyone, for the flimsiest of reasons, is the only alternative on the table.
I.e., the Left is pretty much correct when they characterize Republicans as warmongers, because we keep proving them right.
Well, again, you’re changing what you’re saying. Now, it’s ‘about as close to ‘national suicide’ as we’ve come’. It’s a hell of a difference. For some people, a broken bone is closest they’ve come to death, but I’d hope they rant less than you do. You do not seem capable to admit you’re changing your tune–& I am not sure you’re not tone-deaf.
As for the Iraq war being ‘for nothing’, well, when I see evidence of that I might change my mind. But you’re not going to do it–all you’re good for is this bombastic language, which offers no evidence. I think exterminating Saddam Hussein was prudent policy; I disagree with the occupation, for whatever reasons it was or could have been started & continued. I think, after 2008, prudence would have brought the war to a good end, even with the damned occupation, without costing thousands more lives. But I’m not sure I’m right. I cannot compete with your bombast or you’re raving. I do not want to, either. I think only children should do that.
So far as I can tell, the worst America came through was the 70’s. I’m not even sure why we’re discussing this. I’d say the Bush administration was peaches & vanilla cream compare to the Nixon-Ford-Carter administrations. I’d say, America’s reputation in the Carter era was the nadir.
What’s the point of talking about any of these things if you keep changing your tune & adding new opinions, all of them debatable? You can only really debate one at a time. I guess it does serve one purpose: Everyone who does not think the Bush years were the worst in two generations now can say you’re not worth any attention. Everyone who does not think the Carter era was it can say that about me. I don’t think people really care about my opinion, or about yours, so I’m not sure that’s worth anything.
Oh man, I missed a big fun argument!
Obama has taken war with Iran off the table. You repeatedly say that Republicans are threatening war with “anything that moves,” calling such apparent bellicosity “plainly stupid.” I don’t want Obama to threaten anything. I want the Iranians to believe that he’s ready, willing, and able to conduct a military strike. But they don’t think that. Nobody does. Perhaps these rumors are untrue, but Obama apparently threatened to shoot down Israeli jets attacking Iran. This is not an administration that is prepared or serious about non-diplomatic alternatives. The freak-out over Cotton’s “letter” (that was never sent to Iran) re-in forces this point. If you’re really ready to walk away from the bargaining table, you don’t get that upset about what amounts to an op-ed stating obviously correct legal propositions for fear that your opposite numbers will be offended.
I want a strong military and a credible leader who knows how to use it. Obama isn’t that. He is notably weaker than his predecessors in using and projecting U.S. military force. As for whom Obama should have attacked to show his bona fides? Well, Syria after the redline fiasco. Or ISIS now (beyond the pinprick airstrikes) after the litany of horribles they’ve perpetrated. Or had some sort of military response (not a war, but posturing) against Russia after it started invading Eastern Europe and shooting down passenger planes? Instead, Obama literally ruled out any military response, the consequence of which is now that Russia, and pretty much everyone else, now doubts whether the NATO pact is meaningful any longer. Or maybe have pretended to care when the Iranians blew up a huge mock-up of a U.S. aircraft carrier in the midst of these supposedly good faith negotiations? I’m sure I’m leaving something out.
Last, AIG, you’re inflating the significance of the Iraq War in U.S. history. Yes, many soldiers were killed, and we spent a fortune (although not relative to GDP). But, other wars–like all of them before 1990 were both costlier in terms of U.S. lives and cost relative to U.S. GDP–than Iraq was. We lost 50,000 in Vietnam and North Korea EACH. Whatever Vietnam was for, we threw it away, a lot like we’ve thrown away Iraq. North Korea was worth it and then some, but our soldiers are still there and will be for the foreseeable future. Point being, your view on history and the consequence of these small wars to a great power needs re-examining. Fighting small wars is party of holding on to global power. If we stop doing it, we’ll stop being a global power before you know it. Maybe you’re ok with that. I would be too if I didn’t realize that the countries who are likely to succeed to U.S. power–China and Iran, for instance–are awful places, led by authoritarian governments who don’t share our values.