Aid and discomfort to the enemy
And then this happened: over at BloombergView, Josh Rogin reports that forty-seven United States Senators have inserted themselves into the President's Iran negotiations by writing an "open letter" to Iran's leaders:
"It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system … Anything not approved by Congress is a mere executive agreement," the senators wrote. "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."
Ah, gee guys, thanks for clearing that up. You probably should have addressed that to everybody in the world the United States does anything with, seeing as how everybody else in the big wide world was probably wondering if they could trust any of our agreements, compacts and treaties for more than four years. Evidently they can't, because we're craaaaazy.
On the one hand, this seems awfully close to, oh, what's the word? Treason. That's the one. I mean, no, not technically--18 U.S. Code § 2381 officially defines treason as "lev[ying] war against [the United States] or adher[ing] to their enemies, giving them aid and comfort within the United States or elsewhere," leaving us several elements short of forty-seven convictions. We're not actually at war with Iran, for instance, and so they're not officially our enemies even if we, you know, don't especially like the Iranians all that much and consider them at odds with our confused strategic and economic interests in the Middle East. For that matter, I'm not sure that broadly hinting to the Iranians that they shouldn't negotiate with Americans because we're unreliable is even "aiding and comforting"; it might even be discomfitting them. And if talks about limiting Iran's development of nuclear weapons fall through, there's the dim prospect of us waging war on them at some point in the future, so that part's a little backwards in the treason context. But still.
On the other hand, from a broad perspective, this would hardly be the first time in this country that an opposition party has tried to undermine a President's foreign policy, though this is one of the baldest and most brazen efforts I can think of. I'm (still, slowly) listening to the audiobook version of Alan Taylor's The Civil War of 1812: American Citizens, British Subjects, Irish Rebels, & Indian Allies (I hardly have the time to listen to audiobooks at all, and generally only in half-hour clips), and have learned from Taylor that the Federalists spent a fair bit of time and effort trying to nix the Democratic-Republicans' war efforts, going so far as to get chummy with British military officials and prominent citizens and reassuring them that the war would be over soon, telling them that nobody was really in favor of it, etc.. I don't recall Taylor specifically mentioning whether they explained Constitutional law to the Brits, but it would have been on par if some Federalists had actually promised the War would be settled on favorable terms the moment James Madison returned to Virginia. And this in an actual war with people shooting one another and everything, and this perhaps constituting actual comfort to an official enemy, and these are Founding Fathers and their generation we're talking about here.
But still, again.
One might disagree with the President's policy on Iran, but he is the President. We've elected him and given him this thankless task, and we've legally empowered him to act on our behalf. It seems that scuttling his best efforts by telling people he's negotiating with that they shouldn't respect the United States' word or trust us to act in good faith because everything we do is temporary and subject to the vagaries of politics is both sketchy and un-American. I mean, certainly, members of Congress can vote to withhold their advice and consent on anything that's purposes to be some kind of treaty between the United States and Iran and whomever, but who actually benefits from this kind of posturing? Do we really want to send the message we're untrustworthy? Isn't it possible the President could come away with a deal even a Senate Republican could live with? Have the signatories to the open letter thought through what the options are if negotiations fail and are they prepared to live with those?
Also also: if you're going to write a letter explaining the American Constitution to Iranians, wouldn't it behoove you to actually explain the "advice and consent" clause of Article II, Section 2 correctly?
There's an irony in the earlier-linked Rogin piece that broke this news. Rogin writes:
Republicans also have a new argument to make in asserting their role in the diplomatic process: Vice President Joe Biden similarly insisted--in a letter to then-Secretary of State Colin Powell--on congressional approval for the Moscow Treaty on strategic nuclear weapons with Russia in 2002, when he was head of the Senate Foreign Relations Committee.
Which might, if you didn't follow the link in the paragraph through, suggest that this was yet another example of "Well, the other side did it first, and no one cared." Which is a stupid argument in any case, although it happens to not be true at all in this one.
What you find when you chase the link is an example of what a proper Senate letter might look like: in 2002, then-Secretary of State Colin Powell testified before the Senate Committee on Foreign Relations about arms reduction negotiations that were being held with Russia at the time. The CFR responded to the Secretary of State with a letter signed by the Committee chair, Senator Joseph Biden, and the ranking minority committee member, Senator Jesse Helms (the notorious left wing pansy and appeasement fanatic). This letter set out the Committee's position that a binding arms control agreement with the Russians would implicate provisions of existing treaties (specifically START I), and thus "no Constitutional alternative exists to transmittal of the concluded agreement to the Senate for its advice and consent."
And then the CFR really lays down the law and makes a bold stand for Congressional primacy and authority by offering to "work closely with the Executive Branch on this matter, and we respectfully expect close consultation with the Senate Committee on Foreign Relations as negotiations with Russia proceed." Ooh! Burn!
Sigh.
So, yeah, "Vice-President Joe Biden similarly insisted," if by "similarly" you mean the alternate usage of "not similarly at all" that I'm sure appears in the OED somewhere. No one could possibly dispute that Senate CFR Chair Senator Bob Corker (who, by the way, didn't sign the open letter) and ranking member Senator Bob Melendez could send a letter on behalf of the Committee to the Secretary of State--and/or to the President--explaining their reservations and expressing a desire to be consulted on a matter that might ultimately come before them for their advice and consent; that would be routine, a sign our republic was functioning about as well as it might be expected to. However, I don't believe anyone with half a brain or a lick of sense would expect the Committee to bypass the Executive Branch and send a letter straight to the Iranians (which is probably why Senator Corker didn't make a prat of himself by doing so), and one telling the Iranians not to expect anything from the United States. And, good gravy, on top of that: preemptively doing so; then-Senators Biden and Helms wrote to Secretary Powell about the necessity of sending concluded agreements to Congress for advice and consent; their desire to be kept in the loop in the meantime would appear to be nothing more than a perfectly sensible wish not to be sent a concluded agreement with no hope of being consented to.
This was a stupid stunt by Senator Cotton and the forty-six other jerks who went along with it. It was irresponsible, dangerous, and dumb. If it wasn't without precedent going back to the early days of the Republic, it must be remembered that we're talking about precedents that flirted with death-penalty eligible treason back in the day, and precedents that stand in stark contrast to responsible Constitutional participation by the Senate Committee on Foreign Relations in earlier eras.
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