Sen. Cotton’s Reckless Iran Letter: Wrong on Facts, Disingenuous in Intent

Posted March 9, 2015

Sen. Cotton’s Reckless Iran Letter: Wrong on Facts, Disingenuous in Intent

March 9, 2015

While U.S. negotiators and their P5+1 colleagues prepare to enter a new round of talks over Iran’s nuclear program in Switzerland next weekend, Sen. Tom Cotton (R-AR) released today the text of an open letter to the Iranian government signed by himself and 46 Republican senators. The pedantic letter begins by noting that Iran’s leadership “may not fully understand our constitutional system” before a discussion of treaty ratification and term limits. “[W]e 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,” Sen. Cotton writes, before concluding that he hopes this message “promotes mutual understanding and clarity as nuclear negotiations progress.” As NSN Executive Director John Bradshaw said this morning, “The letter was organized by a freshman senator from Arkansas with little foreign policy experience and it is an embarrassing, passive aggressive effort to undermine U.S. international policy. It’s also factually inaccurate, thoroughly disingenuous, and contradicts many congressional criticisms of a prospective agreement.”

Sen. Cotton’s letter gets the law wrong. As Jack Goldsmith, a Professor at Harvard Law School and former Assistant Attorney General, wrote this morning, the letter’s “premise is that Iran’s leaders ‘may not fully understand our constitutional system,’ and in particular may not understand the nature of the ‘power to make binding international agreements.’ It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements.” Specifically, Goldsmith notes that the letter incorrectly states that Congress has the final authority to ratify treaties, when in fact, he explains, “Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane. Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.”

Though a technical point, this misunderstanding of the law has serious implications. The Obama Administration has consistently stated that the potential deal would be an international agreement, not a treaty. Sen. Bob Corker (R-TN), who notably did not sign Sen. Cotton’s letter, has argued previously that Congress should have an opportunity to weigh in on a deal because he considers it analogous to bilateral civil nuclear cooperation agreements or arms control treaties. As Kelsey Davenport and Daryl Kimball of the Arms Control Association have written previously on this subject, this analogy is inaccurate because “A nuclear deal with Iran…will not involve the transfer of proliferation sensitive material, technology, or information from the United States.” The letter, oddly, concedes the Administration’s point, acknowledging that a potential nuclear deal would be “an executive agreement.” [Jack Goldsmith via Lawfare, 3/9/15. Kelsey Davenport and Daryl Kimball, 2/11/15]

Sen. Cotton and others have made clear that their goal isn’t to reach a good deal, it is to prevent any deal. It’s impossible to take at face value Sen. Cotton’s comment in the letter that his goal is to achieve “mutual understanding and clarity as nuclear negotiations progress” when he’s gone on record saying that his goal is prevent a nuclear agreement with Iran. “The end of these negotiations isn’t an unintended consequence of congressional action,” he told a conference at the Heritage Foundation in January. “It is very much an intended consequence, a feature, not a bug, so to speak.” Sen. Ted Cruz (R-TX) has also spoken publicly about his prejudice against any agreement. “History may well record it as a mistake and a catastrophe on the order of magnitude of Munich,” he said last week. “When our negotiators return with a promise of peace in our time, we should believe this no more now than we should have believed it then.” Most hawks are reticent to discuss the alternatives to the diplomacy they’re so eager to abandon, but Sen. Ron Johnson (R-WI) discussed this yesterday. “We cannot allow them to have a nuclear weapon,” he said. “If that means military action, that’s what it will end up taking. And if Israel believes it’s threatened and it takes military action, the United States has got to back our strong ally.” It is clear: When the hawks that are steering congressional Iran policy try to derail the talks, they are consciously and intentionally guiding the United States towards another preventive war in the Middle East. [Tom Cotton, 1/13/15. Ted Cruz,3/2/15. Ron Johnson, 3/8/15]

Sen. Cotton and the letter’s signatories are threatening to undo a politically popular deal that still hasn’t been finalized. A poll released last week found that a strong majority of Americans – “including 66 percent of Democrats and 61 percent of Republicans,” the Washington Post noted – support a nuclear deal with Iran. “If — still a big if — Obama successfully negotiates a deal in the spring, that deal will have until January 2017 to marinate before the next president has the opportunity to scuttle the executive agreement,” writes Daniel Drezner, Professor at Tufts University. “If Iran acts in a dodgy fashion, that’s one thing. If, however, they honor the terms as well as they’ve honored the interim deal, then the next president will be trying to sabotage an agreement that tamped down a major stressor in the region. That’s going to be politically difficult….Instances in which a future president legally reverses course on a prior president’s commitments — like, say, the George W. Bush administration’s reversals on the Kyoto Protocol and the International Criminal Court — inevitably trigger severe diplomatic blowback. Given that a deal with Iran is politically popular now, a successful deal will be even more politically popular two years from now. It’s certainly possible that a GOP president in 2017 could scuttle such a deal — but I’m dubious that it would actually happen.” [Daniel Drezner,3/9/15]

If diplomacy fails, as Sen. Cotton hopes, he’s now made Iran’s case that it was the United States’ fault. As Gary Sick, a former National Security Council staffer now at Columbia University, wrote yesterday, “if this agreement is rejected, as the Israeli prime minister and many in Congress are proposing, we go back to the early days of 2013: heavy sanctions, a rapidly increasing Iranian nuclear program and a looming threat of war. That is surely something no responsible statesman or politician would wish to see.” George Perkovich, Director of Studies at the Carnegie Endowment for International Peace, explained recently that, if diplomacy fails, “Iran could then resume the nuclear fuel-cycle activities that the world has found so threatening. If that happened, and if the Iranians could make a compelling case that the United States, not they, sabotaged diplomacy, it’s possible other key countries such as Russia, China, Turkey, and India would stop enforcing sanctions on Iran. In other words, if there is no deal, there will be a contest over who is to blame. If Iran wins that contest among key audiences, by blaming Israel and the U.S. Congress, the situation could become more dire than it has been in many years.” Sen. Cotton’s letter strengthens Ayatollah Khamenei’s argument for unraveling the international sanctions regime. [Gary Sick, 3/8/15. George Perkovich, 3/4/15]