Sunday, March 22, 2015

Senators Letter to Leaders of Iran

Holy Crap! I Kill You!

It would be ironic if the letter from the forty-seven US Senators, which co-author Senator Tom Cotton admitted was intended to scuttle the negotiations with Iran, had the opposite effect.

How could this happen?

The Iranians look at the hard-line Senators who signed the letter, several of whom are running for President, and conclude:

"Holy Crap" (the Arabic equivalent of course, and using Islamic references), if we ever want an agreement, we better get it now. These crazy Republican guys control Congress and might control the Presidency. Then we will have to give up everything, or they will just bomb the Allah out of us!
Dear Folks:

As I have stated before, even though I find the letter sent by the forty-seven US Senators ill-conceived, with one slight misstatement with respect to US law, the Senators did exhibit a better understanding of US law than some (including the Iranian Foreign Minister) are giving them credit.

It was not entirely clear what type of agreement the US was negotiating with Iran. Yesterday, Secretary Kerry made this clear:

"Secretary of State John Kerry, in an often contentious Senate hearing, told lawmakers Wednesday the U.S. isn't negotiating a “legally binding” agreement with Iran, meaning future presidents could choose not to implement the accord."

Source: Wall Street Journal.

This means that the agreement being negotiated is what legal scholars call a non-binding political agreement. No Congressional involvement is necessary, but such an agreement does not have the force of international law.

The Senate letter incorrectly called this an executive agreement, but what they described clearly is a non-binding political agreement. I also mistakenly have described what is being negotiated as an "executive agreement." But, this was before Secretary Kerry explained yesterday the true nature of the agreement being negotiated. A non-binding political agreement is not subject to international law.
However, were the non-binding agreement then taken to the United Nations and adopted there, it would become subject to international law. This would allow the President to achieve a legally binding agreement without any input from Congress.

Expect some serious negative reactions from Congress. However, supporters of President Obama are likely to say: "So what?" The obstructionist Congress forced the President to take this approach. I will leave it to others to debate this.


Senate Open Letter to Iran

Much ado about nothing and a waste of time: Espionage Act; Logan Act; Sedition; Smith Act; Treason.

While the letter to the Iranian leaders may be criticized in many ways, I see no basis to conclude that it is unlawful.

What did the open letter to Iran contain?

Letter to Leaders of Iran

1. You may not understand the US Constitutional system?

2. We are calling your attention to two features of our Constitution: (a) power to make binding international agreements; and (b) different character of federal offices.

3. The President negotiates international agreements, but Congress must approve them by a three-fifths (60%) vote.

4. Anything not approved by Congress is a "mere executive agreement."

5. A President may serve a maximum of eight years, while Senators may serve unlimited six-year terms.

6. The forty-seven signers will consider any agreement not approved by the Senate as nothing more than an executive agreement.

7. The President following President Obama could revoke this executive agreement.

8. Congress could modify the terms of the agreement.

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