Arkansas US Senator Cotton’s Letter to Iran’s Leaders Clarified

US Senator Tom Cotton (R-AK)

When Arkansas junior Senator Tom Cotton sent his open letter on Monday, March 9th to “The Leaders of the Islamic Republic of Iran” signed by 46 other Republican colleagues, 7 declined, it caused a ruckus.

Cotton’s letter endeavored to  remind Iran’s Ayatollah Khamenei, President Rouhani and Foreign Minister Zarif of the Constitutional authorities.  The Executive Branch’s power in Article II, Sec.2 gives  it the right to negotiate foreign agreements. The Legislative Branch, in this case the Senate, must provide its “advise and consent” to treaties on a two-thirds vote and a three-fifths vote in the instances of Congressional-executive agreements.  Anything not approved by Congress, such as the current Memorandum of Understanding (MOU) between President Obama and Ayatollah Khamenei is deemed an executive agreement which could end with current term of the President in January 2017.  Thus “the next President could revoke the executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

From the President to leading Democratic Senators, the short missive was rebuked as an unwelcome ‘stunt’ interfering with the Executive Branch of government prerogative of engaging in foreign relations.  President Obama considered it “ironic” considering  the signatories of the Cotton letter in league with those notorious hard liners in Tehran.  He alleged they were seeking to upend the MOU. The New York Daily News published a front page  picture of the Cotton letter accusing the signatories of being ‘traitors’.  For the first 48 hours that continued to be the criticism of Sen. Cotton and the GOP leadership in the Senate, with the exception of the 7 who agreed with the White House for different reasons. Senator Corker (R-TN) thought it was unhelpful as he was endeavoring to line up Democratic votes for his Senate Bill 615, The Iran Nuclear Agreement Review Act (INARA) of 2015 co-sponsored by embattled Senator Robert Menendez (D-NJ)_.

Iranian Foreign Minister Zarif while calling the Cotton letter, “a propaganda ploy” argued:

“I wish to enlighten the authors that if the next administration revokes any agreement with the stroke of a pen, as they boast, it will have simply committed a blatant violation of international law,” according to Iran’s Ministry of Foreign Affairs.

The executive agreement was not bilateral but rather multi-lateral with the rest of the Permanent Members of the UN Security Council, plus Germany, subject to a resolution of the Security Council.

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.

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.”

Ayatollah Khamenei considered the Cotton letter reflective of the “US disintegration”. According to the Mehr news agency, the Supreme Ruler said:

Of course I am worried. Every time we reach a stage where the end of the negotiations is in sight, the tone of the other side, specifically the Americans, becomes harsher, coarser and tougher. This is the nature of their tricks and deceptions.

Further, he said the letter was ‘a sign of the decay of political ethics in the American system”, and he described as “laughable long-standing U.S. accusations of Iranian involvement in terrorism.”

Source: Legal Insurrection

 Notwithstanding the roiling criticism of the Cotton letter, comments by Secretary Kerry at a Senate Armed Services Committee Hearing on Wednesday, echoed those of State Department spokesperson Jen Psaki on Tuesday who said, “historically, the United States has pursued important national security through non-binding arrangements.” Kerry said in his testimony that the Obama Administration was “not negotiating a legally binding plan” but one from “executive to executive,” Politico reported. Kerry insisted such a deal would still “have a capacity of enforcement.” Thus, he confirmed that the proposed Memorandum of Understanding  between the P5+1  and Iran was non-binding on the parties hinging on verification of conditions.  Something hitherto unachievable with the Mullahs who have a tendency to hide developments. This despite representations by President Obama that the negotiations in Geneva were making good progress towards that goal. Kerry said it was non-binding because we currently don’t recognize the Islamic Republic of Iran, passed embargoes arising from the 444 day Tehran US Embassy seizure and hostage taking in 1979 and adopted Congressional sanctions against its nuclear program. Further, the State Department considers the Republic a state sponsor of terrorism, something Ayatollah Khamenei categorically disagrees with as witnessed by his comments on the Cotton letter.  But seeing is believing when it comes to the Shia autocrats in Tehran proficient practitioners of taqiyya, otherwise known as lying for Allah. Iran ‘reformist’ President Hassan Rouhani suggested that diplomacy with the Administration was an active form of “jihad” equivalent to the 2,500 mile range cruise missile Iran unveiled this week.

Two legal experts on the matter of executive agreements disagreed with the position of Iranian Foreign Minister Zarif and Secretary Kerry in the context of the Cotton letter. Daniel Wiser writing in the Washington Free Beacon asserted  that Cotton was correct and Zarif wrong. They concurred that future US Presidents could revoke the agreement over a bad deal, meaning, violation of provisions by Iran:

Jeremy Rabkin, a law professor at George Mason University and an expert in international law and Constitutional history, said in an email that “nonbinding” by definition means that the United States “will not violate international law if we don’t adhere to its terms”—contrary to Zarif’s assertion.

“In other words we’re saying it is NOT an international obligation, just a statement of intent,” he said.

“What Kerry seemed to say was not that his Iran deal would be in the same category but that it would not be legally binding in any sense, just a kind of memorandum of understanding,” Rabkin said. “I wonder whether he understood what he was saying. It was more or less conceding that what Cotton’s letter said was the administration’s own view—that the ‘agreement’ with Iran would not be legally binding, so (presumably) not something that could bind Obama’s successor.”

Cotton responded with a Tweet, saying:

Important question: if deal with Iran isn’t legally binding, then what’s to keep Iran from breaking said deal and developing a bomb?

Wiser then cites a National Review article by a second legal expert, John Yoo, a law professor at University of California, Berkeley and a former Justice Department official in the George W. Bush Administration:

The Cotton letter is right, because if President Obama strikes a nuclear deal with Iran using only [an executive agreement], he is only committing to refrain from exercising his executive power—i.e., by not attacking Iran or by lifting sanctions under power delegated by Congress. Not only could the next president terminate the agreement; Obama himself could terminate the deal.  Obama’s executive agreement cannot prevent Congress from imposing mandatory, severe sanctions on Iran without the possibility of presidential waiver (my preferred solution for handling the Iranian nuclear crisis right now). Obama can agree to allow Iran to keep a nuclear-processing capability; Congress can cut Iran out of the world trading and financial system.

But the fracas over Cotton’s letter continued unabated. An unidentified resident of Bogota, N.J.  “C.H.” shot off a petition to the Obama White House website, “We the People,” expressing the view that the 47 signers were in violation of the 1799 Logan Act and may have jeopardized achievement of a nuclear agreement with Iran.  Further “C.H.” contended that the Republican Senators might be subject to possible criminal actions brought under provisions of the hoary law that private individuals are barred from engaging in foreign relations. The petition took off like a rocket with upwards of 165,000 signatures heading for over 200,000 in less than 48 hours. That will allegedly require a response by the President, as witnessed by an earlier petition on support for medical marijuana. 

But “C.H.” is wrong. Members of Congress in either chamber are exempt from that restriction. Moreover, there have been a number of instances where the many of the Democratic Congressional and Administration critics of Cotton and his Republican colleagues have engaged in private foreign relations episodes.  Among those who undertook such actions were Vice President Biden, Secretary Kerry when they were Senators and current House Minority leader Nancy Pelosi, and the late Teddy Kennedy.  In Pelosi’s case, following her assumption of the House Speakership in 2006, she went off to Damascus in 2007 to sit with President Bashar Assad, despite the protestations of the Bush Administration who were trying to isolate the Syrian dictator.  However,  Republicans have done the same thing when it also suited their political purposes.

Finally, there was another groundswell campaign seeking to gain passage of Sen. Corker’s INARA.  Christians United for Israel (CUFI) flooded Capitol Hill with more than 57,000 emails from members across the US in support of passage of INARA because they were worried about Iran’s possession of nuclear capabilities.  The CUFI initiative was triggered by the March 3^rd address by Israeli Prime Minister Netanyahu before a Joint Meeting of Congress  who made it abundantly clear that he believed the Administration’s 10 year phased deal was a “very bad deal.”

Kemberlee Kaye writing in the Legal Insurrection blog about the Cotton letter controversy concluded:

And to think, all of that wailing and gnashing of teeth from Democrats wasted over a non-binding agreement, one that would have absolutely no legal sway over Iran.