“Any citizen of the United States, wherever he may be , 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 controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
-The Logan Act
“The President shall be Commander in Chief of the Army and Navy of the United States when called into the active service of the United States.”
“He shall have Power by and with the Advice and Consent to the Senate, to make Treaties . . . and he shall nominate . . . appoint Ambassadors, other public Ministers, and Consuls. . .”
-Constitution of the United States of America Article II, Section 2
The letter to the leaders of Iran signed by no less than 47 GOP Senators telling that Government that the President lacked the necessary authority to make any deal stick, and to say that they were mistrustful of that government to the extent that Congress would not approve and prevent such a deal from being in force not only violates a Federal Statutory Law but it may sabotage such a deal. No doubt it makes the work of Secretary of State John Kerry and his negotiating team much more difficult, to say nothing of the President. It undercuts the leverage, if any, our foreign policy makers have with Iran.
Two vital clarifications are in order up front: First, this is NOT a partisan blog post. What Senate Republicans have done, led by clueless Tom Cotton (R) Arkansas is unprecedented in our nation’s history and in the history of the United States Senate. Had Democrats done this, and as yet they have not been stupid enough to do it, but someday might, do in fact undercut the negotiations which both nations want kept strictly secret until or if a deal is reached.
Second, saying you don’t trust the Iranians, Obama and Kerry, disapprove of a general course of policy and think any deal will not go far enough is fine. Having negotiations yourself with a foreign government during such negotiations is near treason if not actually so, unpatriotic and incredibly unwise. The role of the Senate is to advise and consent to formal and legally binding treaties already made by the executive Branch, and to continue Congressional oversight of executive agreements made by Presidents of the United States, NOT those being still negotiated with a foreign government by the Executive Branch. This is NOT anything to do with simply being extremely critical of a President’s foreign policy.
And, the UN Security Council has been active in overseeing these negotiations. Our allies and partners, Britain (UK), France, Germany, Canada, and even Russia no less are very interested parties to any deal and they support those negotiations. So what has been done here undercuts relations with key allies and even some nations we have decidedly cool relations with at present and whom we want to cooperate with us and not fight us.
Both the House and Senate Foreign Relations Committees have clear and needed ex post facto oversight responsibilities. The House and Senate Intelligence Committees are briefed on the progress of the negotiations as they are going on in real time. They even have the opportunity to privately speak to the President or Secretary of State of any misgivings they may have—this already there and exercised. Oh, just since this past January, the chairmen of the committees are Republicans and they certainly must know better. All of this is top secret and no intelligence committee member can reveal this information they get on all subjects
History as example: In the summer of 1940, the America First Committee, the nation’s strong isolationist interest group, Senator Hamilton Fish of New York, and Senator William E Borah of Nebraska, the other key Senate leader of the isolationists, were excoriating President Franklin Delano Roosevelt on the floor of the U.S. Senate in public for his pursing potential help to France as France fell and Italy joined the war against the Allies. The U.S. was a neutral power at this time and not in any way a combatant or belligerent power. As the summer rolled on and British pilots of the RAF gamely went toe-to-toe with the Nazi Luftwaffe, FDR was getting day-to-day intelligence reports from Colonel Lee of the United States Army Air Force and other emissaries that Britain may indeed be able to hold out and deserved more U.S. overt military support. This was in sharp contrast to Joseph P. Kennedy’s defeatism as our Ambassador to Great Britain.
As that summer continued, the United States were in deep and serious negotiations over what later became known as the Destroyers for Bases Deal. The deal was to provide the United States with bases in Canada and the Caribbean to provide us with a better defense if the worst happened and we were actually later attacked by the Axis Powers, primarily Germany. It also provided for giving outright 50 mothballed World War I destroyers to Britain and even providing access for the necessary British crews and upgrades to get the Destroyers to Britain. The deal was announced and explained to the Senate and the American people around Labor Day 1940. Republicans and isolationists in particular were very incensed at what the President had done as it was not the act of a neutral power but a direct provocation for Germany, Italy, and Japan to take any action they wished in response.
A man who had a uniquely American perspective for a foreign leader Winston Churchill said it best: Churchill told his own Parliament that this was “a decidedly un-neutral act” on the part of the United States. He also said . . . these two great organizations of the English-speaking democracies, the British Empire and the United States, will have to be somewhat mixed up together in some of their affairs for mutual and general advantage.”
A second quick example: In the early 1980’s President Ronald Reagan voiced an extremely belligerent tone toward the Soviet Union (now largely Russia) getting horrible criticism loud and vociferous from liberal Democrats and Reagan haters all over the nation. At Reykjavik, Iceland in talks with Soviet President Gorbachov were tough, and very abrasive. Democrats and world leaders voiced concerns this could lead to nuclear war.
By Gorbachov’s own later admission, the commitment of President Reagan to a larger defense budget, (something that deeply angered liberal progressives, this writer included). History however has proven me dead wrong. Even Soviet government records opened for inspection briefly to the world showed that the Russians knew they could not meet our defenses increases, and it speeded their own demise. There is also strong evidence the U.S. intelligence agencies were aware, perhaps more than aware, of the Russians problems and pushed this to get precisely this result.
Our founders were extremely wise in giving the Executive Branch, primary if not sole authority in making foreign policy with other nations (including receiving foreign leaders making the invitation to Netanyahu to address the House and Congress another ill-conceived act of the same ilk.)
Vice President Joseph Biden, himself a nearly thirty-six year-veteran of that former august body the U.S. Senate, and the Senate Foreign Relations Committee, has made the best contemporary comment on this foreign policy disaster for the United States:
“In thirty-six years in the United States Senate, I cannot recall another instance in which Senators wrote directly to advise another country—much less a longtime foreign adversary—that the President does not have the constitutional authority to reach a meaningful understanding with them. This letter sends a highly misleading signal to friend and foe alike and that our Commander-in Chief cannot deliver on America’s commitments—a message that is as false as it is dangerous.”
Neither the FDR isolationist haters or the progressive Reagan haters in the U.S. Senate in the two historical cases I have cited ever sent such a letter or begun their own negotiation as these 47 Senators–all Republican have done. While prosecuting under the Logan Act or going after these Senators in the legal sphere may be possible, it too is extremely unwise. Prosecuting these Senators is like continuing digging that proverbial hole that we ought not to have begun digging in the first place. The place to hold these people accountable is at the ballot box in the next election and to lay such criticism at them to induce the Senators and future Senates senators never to do this again.
Note: This contemplated agreement is an executive agreement rather than a formal treaty binding the United States under international as well as U.S. law. The one thing the Senators did get right is that a future President might undo this agreement if he or she wished. But two years from now or a little less is plenty of time to convince an incoming President who is briefed by the outgoing administration to see the wisdom in continuing it. History provides innumerable examples. Should the President decide to execute such a formal treaty, that treaty indeed would go before the U.S. Senate for a two thirds majority approval. When FDR made the Destroyers for Bases Deal he judged and had to consider how the American people would in the months following the deal react to it. He judged rightly. The majority of Americans saw the bases as a great defense system to keep Germany away from our shores however un-neutral the act providing destroyers to a belligerent was.