Republicans: Wrong on Iran Deal & Constitution, Wrong for USA & Israel

It’s hard to be so wrong and silly on such substantive issues as war and peace, nuclear proliferation, improving our relationship with Iran, and our Constitution, but the Republican Party is trying very hard and is succeeding spectacularly.  We should all give Republicans due credit by making it clear how dead-wrong they really are.

Originally published on LinkedIn Pulse July 22, 2015 

By Brian E. Frydenborg (LinkedInFacebookTwitter @bfry1981) July 22nd, 2015

Published by Stupidparty Math v. Myth thanks to Patrick Andendall


Updated July 26th to include a link in concluding paragraph to analyst and writer Fred Kaplan’s excellent piece highlighting the irrationality of Senate Republicans on the Iran deal and to a New York Times article highlighting the fact that Republicans were against the deal even before it was finalized or the details of it were released and available for review.

AMMAN — Treason is not a word that should ever be used lightly.  Expressing a dissenting opinion during wartime, for example, should not be thought of as treasonous, even though some still seem to think that using that word is appropriate.  Challenging your government, its officers, and your fellow citizens when you believe they are incorrect is also something that a sane definition of treason should not include.  In the words of the great journalist Edward R. Murrow, “We must not confuse dissent with disloyalty.”

And yet, how you express these opinions, and who you are and in what capacity you are speaking, can matter in certain circumstances.

With the Obama Administration’s twenty months of negotiations with Iranian President Hassan Rouhani’s negotiators on a nuclear deal (full text here) to prevent or slow Iran’s ability to acquire nuclear weapons production and deployment capabilities ending in (despite some delays) a momentous, historic success, we reached those certain circumstances during the negotiations with a letter signed by forty-seven out of fifty-four Republican senators, nearly half of the one-hundred-strong United States Senate, our senior legislative body.  This extraordinary action can also be viewed as one-sixth the power and authority of our government, being roughly one-half of one-third of one of our three co-equal branches of national government (the other two being the presidency’s Executive Branch and the federal courts of the Judicial Branch).  The short letter of the senators, authored by Sen. Tom Cotton and titled “An Open Letter to the Leaders of the Islamic Republic of Iran,” basically claimed that the president and his officials alone could not conclude a meaningful agreement without their approval and could only reach “a mere executive agreement,” that most of them would likely still be senators when Obama leaves office in January 2017, and then concluded that the “next president could revoke such an executive agreement with the stroke of a pen and the future Congress could modify the terms of the agreement at any time” (with “any time” not actually being true because any president could veto any changes and that veto would be insurmountable without a two-thirds vote against the president in both the House and Senate).  The letter was directly addressed to Iran’s leaders and was clearly designed to sabotage and undermine the Obama Administration’s efforts towards reaching an agreement with Iran on its nuclear program (meaning that both Republican hardliners and Iran’s Islamic hardliners found common cause in opposing the agreement; Republicans, in fact, often find themselves empowering America’s enemies through their actions).  The letter was produced and released on official United States Senate stationary with the official Senate letterhead and was signed by forty-seven sitting senators.  They were not merely conveying their opinions as individuals, but were conveying them as senators and in their official capacity.

The relevant historians find this to be unprecedented, including the official Senate Historian himself who said that “We haven’t found a precedent…That doesn’t mean there isn’t a precedent. After 200 years, it’s hard to find anything that unprecedented.”  In the end, he says, “We really didn’t find anything.”  Secretary of State John Kerry, the Obama Administration’s point manon negotiations with Iran complained of the letter’s unprecedented nature.  The complaints did not stop there…

Now, there are some basic lessons from American history and some principles behind our Constitution that these forty-seven Republican senators, and those who support them, seem to miss.  Actually, we can say this about a whole lot of things when it comes to Republicans and conservatives, who often seem to prefer the disasterthat was the Articles of Confederation (see the thoughts on its “Deficiencies” of Founding father, author of the Constitution, and [fourth] President James Madison) over our Constitution and constantly read the latter as if it was the former (they should read Federalist No. 63, in which Madison discusses the need for both government power and the people’s liberty to be checked).  That could be a whole other article, but the point about the Republican senators’ letter goes back to issues from the very period of the Articles of Confederation that led to its being scrapped in favor of the Constitution (see The Federalist Papers Nos15-22).  The period of 17811789, during which the Articles of Confederation governed the United States, saw tremendous chaos in the realm of the new nation’s foreign affairs.  Though in theory foreign policy was supposed to more-or-less be conducted by the national Congress of the Confederation, in practice the weak and ineffectual national government proved unable to prevent individual states and individual people from meddling in foreign policy, confusing other parties as to who really speaking for the United States and with real authority.  To say this led to misunderstandings and crises would be an understatement.  After the Constitution went into effect in 1789, over time “Americans began to see alternative negotiating as treason.”

Still, with a new government in place and officials navigating in unchartered waters, it would take some time for clear limits to be established and understood.  While the primacy of the Executive Branch in foreign affairs was clear in the Constitution as originally worded, what crossed the line and how this line would be enforced was not as clear.  This gray area was left for Congress, Executive practice, and the Federal Judiciary to decide.  And that is what began happening.  When hostilities on the open seas emerged with Revolutionary France during the undeclared “Quasi-War” (1798-1800), a private citizen named George Logan took it upon himself, without approval from the government, to travel to France in 1798 to negotiate on behalf of the United States.  In response, Congress passed a law known as the Logan Act in 1799 that basically criminalized unauthorized diplomacy.  This law still remains on the books today and has been modified slightly in the modern era, yet there has never been a full prosecution of anyone over this law; over the entire history of the Act, only one Kentucky farmer was charged with violating it in 1803, but his case was never even brought to trial.

In terms of the Senate Republicans’ Iran letter, there seems to be a consensus among serious non-partisans and policy analysts that the letter itself is almost farcically silly and “embarrassing”; it presumes to lecture on U.S. Constitutional mechanisms, then proceeds to mischaracterize one of the key mechanisms in question, claiming that Congress “ratifies” treaties when actually it simply give its advice and /or necessary (but not sufficient) consent to the president, who makes the ultimate decision on ratification if and after the Senate votes to consent (in Iran’s snarky responses to the letter, the fact that the Senators mischaracterized their own Constitution was, embarrassingly, not lost on the Iranians).

However, there is some debate among scholars and analysts as to whether or not the letter is a clear violation of the Logan Act.  Some say it is a clear violation, others feel it is more gray, some say it is pointless to even determine this because prosecution under the Act is both impractical and unlikely.  If you’re thinking that Logan was outside the government and that that means senators can’t be in violation of the Act, before we go any further, it is time to open up the U.S. Constitution that both restricts and empowers the Federal Government.  For forty-seven Republican senators, and anyone who agree with their action of sending a certain letter to Iran’s Supreme leader at this moment in time on the subjects it covered, they may need to blow the dust off of their copy.

Article I is the section of the Constitution that lays out the powers and responsibilities of the U.S. Congress, and it very clearly does not authorize Senators or any other member of Congress to engage in foreign relations or negotiations of their own accord.  However, in Article II, which deals with the powers of the President, the U.S. Senate is given “Advice and Consent” rolesin Section 2 in relation to the President’s and the executive branch’s express powers to be the executors of foreign policy: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Congress legislates, but the president executes the actions of government.  The Constitution was clearly designed to have one principal agent, the president (and any people to whom he chose to delegate authority), act in the arena of foreign relations with the Senate’s “Adviceand Consent.”  Having multiple centers of gravity in the same type of power with respect to foreign relations would have been to invite chaos and disaster and inconsistency (as during the Articles of Confederation era), and this the Constitution clearly avoids having.  The president’s Constitutional powers empower the presidency to make “presidential or sole executive agreements” without a Congressional role, agreements that fall short of the stature of “Treaties” that can be subjected to future change or rejection but are hardly insignificant.  That is not to say the Senate has no role, as clearly the President is supposed to act with senators’ “Advice and Consent,” and best practice and the best results come from when the president and the Senate work together in the process of treaty-making, with the president often delegating senators to negotiate or involving them in negotiations.  However, with the treaty Power falling under Article II, and the president having “Power, by and with the Advice and Consent of the Senate,” and not the other way around, it is clear that the president leads and that senators cannot act independently of the Executive Branch in this realm, save to offer their “Advice” or to withhold their “Consent.”  Advising and Consenting in no way even implies unilateral insertion into an official process or unilaterally officially communicating to active parties in an official negotiation; there is no Constitutional room for senators undermining the Executive Branch’s negotiating positions and negotiations through official non-legislative action directed specifically at negotiations or the parties involved in them; such actions would be clear violations of both the language and spirit of Article II, Section 2, of the Constitution.  And even though they are sitting government officials, the senators were clearly not authorized to conduct this sort of (un)diplomatic action, so it was thus likely a violation of the Logan Act.

Yet even if there was not a violation of the Logan Act, or any law with a specific penalty, there is perhaps, then, an even stronger case to be made that the senators violated the Constitution and encroached on the prerogatives of the Executive Branch and the presidency.  In American jurisprudence, there is a concept known as the “sole organ” doctrine that is confusing and misunderstood and often taken out of context.  But, as constitutional scholar Louis Fisher shows in his lengthy and comprehensive discussion of the Executive Branch’s prerogatives regarding foreign policy, where there is little confusion among the framers of the Constitution and the Judicial Branch’s interpretation is in the consensus that the Executive Branch is the sole executor of foreign policy, and that this includes all communications to and through foreign powers.

And yet, what we have happening here today is exactly what the Constitution was designed to prevent: members of the Senate inserting themselves publicly and without presidential authorization into ongoing negotiations between the Executive Branch of government, acting within its Constitutional authority in its capacity for action, and the government of Iran.  To insert themselves directly into the negotiations with messages that expressly contradict both the intent and the spirit of the elected president’s administration is a clear violation of both the separation and the division of powers as laid out in the constitution.  And the fact that it was done to deliberately undermine the goals of a presidential administration engaged in active negotiations with a foreign power makes it treasonous any way you slice it or dice it.  That it does not fit the prosecutable Constitutional definition of treason as laid out in Article III Section 3 does not mean it does not fit the dictionary definition and spirit of the general concept of treason(it clearly does).  Senators may no more publicly use their office to undermine the president’s authority to engage in negotiations as an executive head of state than the president may issue an executive order that empowers himself or those acting on his authority to violate laws that Congress passes.  The Senate does not consist of one-hundred individual ambassadors-at-large-to-the-world able to act on their own impulses any more than the presidency consists of one legislator-at-large able to legislate at will.  To use Alexander Hamilton’s words in Federalist No. 75, “the Executive…[is] the most fit agent” for “the management of foreign negotiations,” a sentiment echoes by John Jay notes in Federalist No. 64.  That is partly why executive power and legislative power, unlike in Britain and other parliamentary systems, are divided and separated by our Constitution.  For a president to legislate or a senator to execute, is, if you’ll pardon the expression, un-American.

Thus, the Republican senators’ letter is clearly a violation of the Constitution, even if it may be less clear as to whether their letter is a prosecutable offense under the Logan Act.  Yet even worse than the their specific treasonous-in-spirit-act is the fact that their position is so wrong and dangerous for everyone involved: Americans, Iranians, all the peoples of the Middle East (including Israelis), and even the whole world.  

I have discussed the deal’s details before.  But even as Iran’s ability to produce a weapon would increase towards the end of the fifteen-year-agreement, the length of time required to make a weapon in the event of a breakdown in the agreement—termed “breakout time”—even at that juncture would still take longer than it would currently take Iran, before the implantation of this new agreement.  Now, Iran’s breakout time is two-three-months; once the agreement is in place, it would take Iran a year to produce a bomb.  That’s a big difference in my book.

As I have written, and as President Obama himself has noted, those opposing this deal do not have logic on their side at all.  When negotiating a deal, both sides must make concessions; neither side will be totally happy with the results, and the fact that this deal is not a perfect deal from the perspective of the interests of America is simply the reality of negotiating a deal, and does not mean that the deal is a bad one, is not good, or should be rejected.  The idea that Iran would have likely given up more ground—whether, as Republican presidential hopeful Donald Trump claims, Iran would have cowed before the supposedly-awesome might of Trump’s negotiating skills, or whether, as reporter Major Garret obscenely suggested, that Obama should have jeopardized an entire nuclear deal affecting millions by tying it to the fate a few American citizens being detained by Iranian authorities (and I wouldn’t be surprised if they are released in the near future, much like Kennedy quietly and subsequently removed Jupiter nuclear missiles from Turkey as part of a secret caveat helping to end the Cuban Missile Crisis)—is just not grounded in reality, considering especially that Iran already gave a lot of ground.  So don’t let anyone tell you that a significantly better deal for the U.S. at this time could have been reached.  If sanctions were ratcheted up and a significant amount of time went by before resuming negotiations, perhaps Iran would be feeling more pressure, but it would also be much closer to a bomb or might already have one by the time negotiations resumed.  So, that would have been a bad risk to take.  No deal now, and no deal in the future, would have allowed Iran’s already strong nuclear program to continue unhindered, then, and nuclear weapons capability would have been certain in the near future.  No deal, with a nuclear Iran and Middle East with a deteriorating and expanding Sunni-Shiite regional conflict, is not in anyone’s interests, except ISIS and other terrorist groups.  And as Obama himself correctly made clear, “Put simply, no deal means a greater chance of more war in the Middle East.”  The only other realistic alternative to this risky status quo and this agreement, then, is a risky military path, from a single strike up to and including all-out war.  These military options seem to be the ones favored by Saudi Arabia’s new king and Israel’s Benjamin Netanyahu (one of the largest critics of the deal), who would love to have America fight a war against Iran on their behalf.  Yet even just a limited strike could risk a radicalization of the Iranian regime and to galvanize the people behind Iran’s ayatollahs, who aren’t exactly currently loved by many Iranians for leading their country to diplomatic isolation and economic sanctions.  A lot of people would die in those strikes and their responses, likely including many Israelis.  And an all-out war, with Iran’s mountainous terrain and large population, would make the Iraq war, by comparison, look like child’s play.  And I frankly don’t think Americans are willing to wage a war that could take much longer than our recent war in Iraq and result in far more casualties for Americans, especially when this deal presents a viable alternative to war.  Even with a war, it is very difficult to know that we would be able to eradicate Iran’s nuclear capability, and if Iran was in possession of any nuclear weapons during a war it was fighting on its own territory, if its situation were desperate, that would only increase the chances, not lessen, of the use of nuclear weapons in combat for the first time since Nagasaki in 1945.  If America stopped its efforts short of a full regime change and the eradication of Iran’s nuclear program—very tall tasks, indeed—then the result would a humiliating disaster for America that would leave every party in a worse off situation than before fighting began.  So, no, when this deal is stacked up against realistic alternatives—not Trump’s Celebrity Apprentice fantasy negotiations, but negotiations that would have taken place in the real world—there really is not a better alternative or one with less risk.  And this is the only one of the realistic options that does not involve massive bloodshed that severely limits Iran’s nuclear program and keeps it from developing a bomb for at least a decade and then some.

Perhaps most importantly, we have a chance to begin anew our relationship with Iran.  Recognizing this potential, over 100 former American ambassadors praised the deal.  The United Nations Security Council has already unanimously endorsed the deal, and has also voted to lift sanctions on Iran (the latter provoking complains from the U.S. Congress). This deal enjoys broad global support for good reasons.  I’m not going to mince words at all here: this is, clearly, Obama’s greatest achievement in foreign policy (including the killing of bin-Laden, who relevance had decreased significantly in the years before his death) and possibly even of his entire presidency.  TARP and the stimulus packages were either a joint-effort with the departing Bush Administration and/or with Congress; this, on the other hand, was all Obama and his team.  This may very well be the biggest foreign policy development in over forty years, since Nixon went to China in 1972 and began a path that led to engagement between the two countries that has benefitted both nations in many ways and helped to prevent war between us.  No singe act of a U.S. presidential administration has happened from that 1972 trip until this Iran deal that has so much potential to be a game changer and to change the course of world history so greatly.  This is truly a monumental achievement of great substance that makes many millions of people safer than any of the realistic alternatives; Obama, Kerry, Rouhani, and their negotiating teams should be hailed as heroes.

But all the Republicans do is bash this deal, with incredibly myopic points that do not address any of the points I raised about realistic alternatives being far worse.  In fact, their behavior in general on the Iran issue has been highly irrational and deeply unproductive, in additional to being seriously harmful.  They don’t seem to want any deal, let alone one negotiated by the Obama Administration, regardless of its specifics, as they made crystal clear their opposition before the deal was even finalized and before they had even had time to be able reading through it once it was finalized.  The Republican clown-car of potential candidates vying to be their party’s choice to be the leader of the world would, if their words are to be taken seriously, dramatically escalate the likelihood of all-out war and would see current levels of bloodshed all over the Middle East very likely rise should any of them occupy the White House.  From supporting treasonous and un-Constitutional acts to endangering Americans, Israelis, Iranians, Arabs, and the world with awful policies and deeds that illogically undermine the very sound policies of the Obama Administration, the Republican Party is not to be trusted, respected, or voted into power because they are just so wrong.

See related article by same author: There Is No Logical Argument Against the Iran Nuclear Deal

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