When almost half the Senate signs a letter addressed to the government of a foreign nation, it raises some eyebrows.
When that letter suggests that the President of the United States lacks the authority to conduct the negotiations he is currently conducting with said nation, it raises more than eyebrows, and for good reason — it’s an unprecedented outreach in our nation’s diplomatic history.
Still, that’s no excuse for hyperbole. As enjoyable as it is to see Mitch McConnell, Ted Cruz, Tom Cotton, and Rand Paul splashed across the front page of the Daily News above the word “TRAITORS,” we’re looking at neither treason nor rebellion, nor any other attack on America or its government perpetrated by sitting senators.
A technical violation of the law and a dangerous, potentially disastrous diplomatic misstep, now, that’s another matter…
Background: Wait, What Letter?
Let’s start with the facts of the case for anyone who’s been living under a rock this past week or so: 47 sitting United States Senators, all of them Republicans, signed their names to a document dated March 9, 2015 and addressed “An Open Letter to the Leaders of the Islamic Republic of Iran.”
The letter characterized any international agreement not approved by Congress as “a mere executive agreement,” and suggested in reference to “any agreement regarding your [Iran’s] nuclear-weapons program” that “the next president could revoke such an agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.” The full text of the letter is reproduced below:
“An Open Letter to the Leaders of the Islamic Republic of Iran:
It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system. Thus, we are writing to bring to your attention two features of our Constitution-the power to make binding international agreements and the different character of federal offices-which you should seriously consider as negotiations progress.
First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement.
Second, the offices of our Constitution have different characteristics. For example, the president may serve only two 4-year terms, whereas senators may serve an unlimited number of 6-year terms. As applied today, for instance, President Obama will leave office in January 2017, while most of us will remain in office well beyond then-perhaps decades.
What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time. We hope this letter enriches your knowledge of our constitutional system and promotes mutual understanding and clarity as nuclear negotiations progress.”
The signatures follow. The entire Republican caucus in the current US Senate signed the open letter to Iran, with the exceptions of:
- Senator Lamar Alexander, R-TN
- Senator Susan Collins, R-ME
- Senator Bob Corker, R-TN
- Senator Dan Coats, R-IN
- Senator Thad Cochran, R-MS
- Senator Jeff Flake, R-AZ
- Senator Lisa Murkowski, R-AK
So what the heck was this? Mostly, this was an attempt to scuttle the current nuclear development negotiations between Iran and the “P5+1” group of nations (Germany, Russia, China, France, the United Kingdom, and the United States). By suggesting that the Obama administration cannot sign a binding agreement without Congress, the Senators are effectively implying that the administration has no authority to negotiate at all. The letter comes right out and suggests that any agreement Iran reaches in the current negotiations could be “revoke[d]…with the stroke of a pen.”
The goal, fairly transparently, is to discourage any concrete agreement resulting from the current negotiations. Motivations for individual Senators in signing may vary, but it’s reasonably safe to assume that most of the signatories A) favor a war with Iran, which keeps the defense dollars flowing to their home states and their campaign coffers, as well as offering a chest-thumping talking point for elections, and B) would like to deny President Obama any achievement on any front, including international diplomacy, regardless of whether his achievements might benefit anyone or whether his failures might hurt anyone.
We’re Not at War, Iran Is Not an Enemy, and Writing a Letter Isn’t Treason
It’s unprecedented for a group of sitting Senators to formally address the leaders of another nation and suggest that the President of the United States can’t be negotiated with in good faith. But it is definitely not, despite many people’s irresponsible suggestions, treason.
Treason is a very specific crime. The Constitution lays it out:
“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason…”
Writing a letter is certainly not, in and of itself, a levy of war. Nor are we at war with Iran, meaning they are not, by any legal definition, our “enemies.” Even if we were, it would be hard to prove that the letter represents any kind of “aid and comfort” to Iran.
So if you’ve been placing your faith in the front page of The New York Daily News (and please tell me you haven’t been), it’s time for a reality check: none of the Senatorial signatories to the “Open Letter to the Leaders of the Islamic Republic of Iran” have committed anything resembling treason.
On the Other Hand, Writing That Particular Letter Probably Was Illegal
Just because something isn’t treason, of course, doesn’t mean it can’t be a lesser crime.
An obscure-until-this-week law from 1799 called the Logan Act mandates fines and imprisonment for any United States citizen
“…who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…”
The letter signed by the 47 Republican Senators almost certainly violates the Logan Act. That said, the act has almost never been used — the last indictment under the Logan Act was in 1803, and no one has ever been successfully prosecuted under it.
Practically speaking, it’s very hard to prosecute someone under a little-used law. Judges tend to be sympathetic toward the concept of “desuetude,” which argues that a law left unused for sufficiently long lapses its authority. (If you haven’t heard of the concept before, that’s because it doesn’t come up often — by its very nature, it’s only cited as a defense against very obscure laws, like the Logan Act.)
So if you’re hoping to see Tom Cotton and his fellow signatories hauled off for “not more than three years,” per the Logan Act, you probably don’t want to hold your breath. It’s not going to happen, and the Obama administration as a whole is canny enough not to risk loss of face by bringing a case they stand a good chance of losing against sitting Senators — although they’re probably thrilled to see other people floating the suggestion.
But Yeah, 47 Republican Senators Did Try Really Hard to Weaken America’s Influence Overseas
All that said and done, we’re not likely to see a whole lot of legal fallout for the open letter to Iran.
What we are going to see is political fallout, both at home and abroad.
Make no mistake: the Iranian side of the nuclear talks was thrilled to see this letter. It gave them an opportunity to portray the United States as an unreliable, untrustworthy partner — and to demand bigger concessions for even deigning to sit down with such transparently bad-faith negotiators. That’s fairly standard patter between any rival nations, of course, but it can rarely be made with a document from your rival’s legislative branch stating, right there under the official letterhead, that the rival government is, in fact, an unreliable negotiating partner.
Iranian officials have not been shy about beating up the United States and its negotiating position with the letter. Iran’s foreign minister, Mohammad Javad Zarif (who holds two master’s degrees and a doctorate in international relations, and who may not have cared for the condescending tone of the Senatorial letter), acidly reminded the letter’s authors that “The conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” continuing,
“The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfill the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”
Iran’s supreme leader, Ayatollah Khamenei, added in a similar vein,
“All countries, according to the international norms, remain faithful to their commitments even after their governments change, but the American senators are officially announcing that at the end of the term of their current government, their commitments will be considered null and void.”
He cast the entire episode as evidence of America’s decadent and declining culture — again, pretty standard patter for Iranian officials, but rarely supported by actual evidence of a crumbling governmental structure. (Not that we don’t have plenty of that at home; it’s just not often directly relevant to Iran’s interests.)
European critics have been more muted, but it’s important to remember that these are multilateral negotiations, with Russia, China, France, Germany, and the UK at the table as well as Iran and the United States. If the deal falls through, leaving Iran with no agreement in place to curtail its nuclear activities, our negotiating partners will be eager to blame anyone but themselves. Right now, the United States, as the only country involved whose government openly suggested that the negotiations couldn’t be trusted, is making a pretty tasty fall guy.
That’s embarrassing, but for those who consider curtailing Iran’s nuclear ambitions an important goal, it’s also tactically relevant: the United States alone doesn’t really have the economic muscle to cripple Iran with sanctions, and relies on a fairly unified international front to make sanctions a really effective deterrent. If European and Asian nations see an excuse to openly bail on international sanctions, blaming the United States rather than Iran for rising tensions, it takes that tool off the table entirely.
We probably won’t ever see any of these Senators locked up for what they did — and electoral politics in the United States being what they are these days, we probably won’t even see many of them booted out of office. Given the real-world consequences of their action, that’s a shame.