John Kerry testified before the Senate Foreign Relations Committee this morning on the proposed authorization for the use of military force against ISIS. Along the way, a Democratic member of the committee gave Kerry the opportunity to unleash a prepared tirade against the now-famous open letter that has been signed by 47 Senate Republicans. The letter is here. It is brief and seemingly non-controversial. It is worth reading the letter before turning to Kerry’s incendiary comments about it. You might think he was talking about something entirely different.
Here is the setup by a Democratic senator:
In the last few days, there has been significant division on the message we’re sending to Iran. An unprecedented letter from 47 of our colleagues to the Ayatollah itself that many of us believe has the effect and intent of undermining the president. This is a subject of great debate within the Senate today. What do you believe are the ramifications of this letter? What do you believe is your interpretation of the facts of that letter, that state any agreement by the president expires when another is sworn in?
That is not, of course, what the letter says. The letter says, correctly, that a new president could terminate the agreement.
Secretary of State Kerry: My reaction to the letter was utter disbelief. During my 29 years in the Senate, I have never heard of, nor even heard of it being proposed, anything comparable to this. If I had, I can guarantee that no matter who was president or what the issue was, I would have certainly rejected it. Nobody is questioning anybody’s right to dissent. Any senator can raise any of the questions on the floor. But to write and suggest that they are going to give a constitutional lesson, which, by the way, was absolutely incorrect, is quite stunning.
Kerry’s faux indignation is a given, although I have yet to hear any Democrat explain why the letter doesn’t help, rather than hurt, the president’s negotiating position. The fact that the Senate won’t accept a weak agreement, and the president’s successor may repudiate a weak agreement, helps the president to hold out for a strong agreement, if that is what he really wants. The Democrats’ hysteria suggests that on the contrary, the administration’s objective is to slip past the American people a weak agreement that facilitates Iran’s acquisition of nuclear weapons.
But what about Kerry’s claim that the Cotton letter is “absolutely incorrect” with regard to the Constitution?
This letter ignores more than two centuries of precedence in the conduct of American foreign policy. Formal treaties obviously require the advice and consent of the Senate. That is in the Constitution.
Which is, of course, what the letter said.
But the vast majority of international arrangements and agreements do not. Around the world today, we have all kinds of executive agreements that we deal with.
Yes, and the letter specifically noted that fact. But those agreements do not have the legal force of a treaty, and can be terminated or revoked by the president who entered into them, or any later president. Barack Obama has terminated executive agreements entered into by his predecessors.
…With respect to the talks, we have been clear from the beginning. We are not negotiating a legally binding plan.
So then, why the hysteria about the letter? Will it come as a surprise to the mullahs that the deal they make with Obama will not be legally binding?
The Senators’ letter erroneously asserts that this is a legally binding plan.
The letter says no such thing. Kerry is just making this up.
It is incorrect when it says that Congress can actually modify the terms of an agreement at any time. That is flat wrong. They do not have the right to modify an agreement reached, executive to executive, between leaders of the countries.
Kerry is splitting hairs here. Congress is not the executive and cannot literally modify an executive agreement. (As the letter says, the president can do that.) But Congress can enact legislation that negates one or more terms of an executive agreement. In this case, part of Obama’s deal with Iran will be a lifting of sanctions. But Congress can re-impose sanctions at any future time; the executive agreement is no barrier.
Now Kerry takes up a key point made by the Cotton letter: since the executive agreement will not be a treaty, it can be repudiated at will by any future president, or by Obama himself. Note that Kerry cannot deny that this is true.
Could another president come in with another attitude? No president, if this agreement meets its task and does what it is supposed to do, and in conjunction with China, Russia, France, Germany, Great Britain, all of whom are going to sign or not sign off, I would like to see the next president say this is good, turn around and nullify it on behalf of the United States. That is not going to happen.
Strip away the bluster, and Kerry is admitting that the Senate letter is correct. A future president can walk away from an executive agreement at will. Whether this would happen depends, obviously, on who the president is, and on whether the agreement is perceived as effective in blocking the development of nuclear weapons by Iran. Note that the senators aren’t saying that they don’t want an agreement with Iran, they want an agreement–a treaty, in fact–that would be strong, not weak, and that would prevent, rather than facilitate, the development of nuclear weapons. Such an agreement would probably have to include the destruction of Iran’s nuclear infrastructure.
…[The letter] purports to tell the world that if you want confidence in your dealings with America, you have to negotiate with 535 members of Congress. That is both untrue and profoundly a bad suggestion to make.
The letter, of course, says no such thing. No one is talking about negotiating with 535 members of Congress. But under our Constitution it is a fact, whether Kerry likes it or not, that an agreement has the legal status of a treaty only if it is ratified by the Senate. If Iran is willing to be content with an executive agreement, fine, but the Cotton letter correctly spells out the consequences.
It is revealing that, despite fevered denunciations of the Senate letter by Democrats, the Secretary of State can attack it as “flat wrong” only by flatly misrepresenting what it says.