The Cotton letter . . . and the Vice President’s response

I was thinking of offering a few thoughts on the growing contretemps regarding the letter to “the Leaders of the Islamic Republic of Iran” penned by Senator Cotton and signed by 47 Republican senators. In particular, I was contemplating whether to address here a handful of legal questions that are the subject of blogospheric debate, such as whether the letter violates the Constitution (short answer: probably not — although it is deeply transgressive of constitutional values and traditions); whether it violates the Logan Act (perhaps, but that’s the least of it and, in any event, a prosecution under the Act (which hasn’t occurred at all for over 200 years) would not only be ridiculous but unimaginable, not least because it would itself raise a host of constitutional questions); and whether the President has the constitutional authority to complete the agreement in question without further congressional involvement (almost surely yes; it depends largely on what specific obligations the agreement will impose upon the United States — something that virtually no one in this public debate has any knowledge of, by the way — and on how the agreement comports with historical sole-executive-agreement practice; I’m fairly confident the State Department is ensuring this falls well within that tradition, and is consistent with existing statutory authorities and limits (see 11 Foreign Affairs Manual 723).  [UPDATE: Someone has helpfully brought to my attention that I actually posted on the Logan Act and (a bit) on the constitutional question regarding congressional “diplomacy,” on Michael Dorf’s blog eight years ago. I don’t recall even thinking about the Logan Act way back then, but what I wrote holds up pretty well! In any event, as noted below, those abstract legal questions might be fun to debate on the blogosphere, but are a diversion from what’s truly important here — a rare instance in which members of Congress have communicated with foreign officials in a transparent effort to persuade them to scuttle ongoing executive negotiations.]

But, in all honesty, those questions are largely beside the (much more significant) point, which there’s no real need for me to address, because it would be impossible to improve upon the Vice President’s pitch-perfect response last night:

The White House
Office of the Vice President

March 09, 2015

Statement by the Vice President on the March 9 Letter From Republican Senators to the Islamic Republic of Iran

I served in the United States Senate for thirty-six years.  I believe deeply in its traditions, in its value as an institution, and in its indispensable constitutional role in the conduct of our foreign policy.  The letter sent on March 9th by forty-seven Republican Senators to the Islamic Republic of Iran, expressly designed to undercut a sitting President in the midst of sensitive international negotiations, is beneath the dignity of an institution I revere.

This letter, in the guise of a constitutional lesson, ignores two centuries of precedent and threatens to undermine the ability of any future American President, whether Democrat or Republican, to negotiate with other nations on behalf of the United States. Honorable people can disagree over policy.  But this is no way to make America safer or stronger.

Around the world, America’s influence depends on its ability to honor its commitments.  Some of these are made in international agreements approved by Congress. However, as the authors of this letter must know, the vast majority of our international commitments take effect without Congressional approval.  And that will be the case should the United States, the United Kingdom, France, Russia, China, and Germany reach an understanding with Iran.  There are numerous similar cases.  The recent U.S.-Russia framework to remove chemical weapons from Syria is only one recent example.  Arrangements such as these are often what provide the protections that U.S. troops around the world rely on every day.  They allow for the basing of our forces in places like Afghanistan.  They help us disrupt the proliferation by sea of weapons of mass destruction.  They are essential tools to the conduct of our foreign policy, and they ensure the continuity that enables the United States to maintain our credibility and global leadership even as Presidents and Congresses come and go.

Since the beginning of the Republic, Presidents have addressed sensitive and high-profile matters in negotiations that culminate in commitments, both binding and non-binding, that Congress does not approve.  Under Presidents of both parties, such major shifts in American foreign policy as diplomatic recognition of the People’s Republic of China, the resolution of the Iran hostage crisis, and the conclusion of the Vietnam War were all conducted without Congressional approval.

In thirty-six years in the United States Senate, I cannot recall another instance in which Senators wrote directly to advise another country—much less a longtime foreign adversary— that the President does not have the constitutional authority to reach a meaningful understanding with them.  This letter sends a highly misleading signal to friend and foe alike that that our Commander-in-Chief cannot deliver on America’s commitments—a message that is as false as it is dangerous.

The decision to undercut our President and circumvent our constitutional system offends me as a matter of principle.  As a matter of policy, the letter and its authors have also offered no viable alternative to the diplomatic resolution with Iran that their letter seeks to undermine.

There is no perfect solution to the threat posed by Iran’s nuclear program.  However, a diplomatic solution that puts significant and verifiable constraints on Iran’s nuclear program represents the best, most sustainable chance to ensure that America, Israel, and the world will never be menaced by a nuclear-armed Iran.  This letter is designed to convince Iran’s leaders not to reach such an understanding with the United States.

The author of this letter has been explicit that he is seeking to take any action that will end President Obama’s diplomatic negotiations with Iran.  But to what end?  If talks collapse because of Congressional intervention, the United States will be blamed, leaving us with the worst of all worlds. Iran’s nuclear program, currently frozen, would race forward again.  We would lack the international unity necessary just to enforce existing sanctions, let alone put in place new ones.  Without diplomacy or increased pressure, the need to resort to military force becomes much more likely—at a time when our forces are already engaged in the fight against ISIL.

The President has committed to prevent Iran from obtaining a nuclear weapon.  He has made clear that no deal is preferable to a bad deal that fails to achieve this objective, and he has made clear that all options remain on the table.  The current negotiations offer the best prospect in many years to address the serious threat posed by Iran’s nuclear ambitions.  It would be a dangerous mistake to scuttle a peaceful resolution, especially while diplomacy is still underway.

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).