As usual, my colleagues here at TAI have jumped out in front of me on the latest big news story: the Senate Republicans’ letter to the Iranian leadership. My advantage in being a laggard is that more “stuff” has happened since the news first hit. But before considering what is new, let me splice in a bit of context from what is older, if not exactly old.
Toward the end of my most recent post, “The Arms Control Fallacy”, I pointed out that if the deal being negotiated between the P5 and Iran goes down—and I have predicted on several occasions that it would go down, because the Supreme Leader in Tehran has his reasons both for sending negotiators forth and for repudiating them at the last minute—it would matter enormously which side is seen to be at fault for its failure. The reason is simple: If fault comes to rest on the United States, it will be vastly more difficult to maintain sanctions pressure against Iran than if the Iranian leadership is seen to be the cause of the breakdown. An Administration figure, unnamed but quite senior, made exactly this point as quoted in yesterday’s New York Times: “The problem is if there is not an agreement, the perception of who is at fault is critically important to our ability to maintain pressure, and this type of thing”—a reference to the GOP Senators’ letter—“would likely be used by the Iranians in that scenario.” I could barely have said it any better myself. (Hmmm, maybe this senior official read my essay…nah.)
“The Arms Control Fallacy” concluded, however, by remarking on the persistent irony that seems ever to attend political life. Prime Minister Netanyahu did his cause no favor, because his choice of venue—a speech before a joint session of Congress—had the effect of peeling away Democratic support for new sanctions, to have been voted before the end-of-March deadline, that would certainly have helped pin the blame for failure on the U.S. side.
We have a very similar case with the Senate GOP letter: Senate Democrats who are critical of both the Obama Administration’s lame negotiating record and the forming deal are now less likely than ever to join Senate Republicans in efforts at diplomatic interdiction against the Administration—at least for the time being. So, on the one hand, the letter itself bends perceptions toward U.S. responsibility for prospective failure, but on the other the political effect of the letter bends perceptions even further in the opposite direction. In a left-handed or backdoor sort of way, that’s on balance a good thing if, as I have argued, the deal fails to take and the Administration or its successor concludes that, diplomacy’s best effort having failed, coercion at a time and place of our choosing is the lesser evil in dealing with Iran’s nuclear weapons ambitions.
Could it be that the 47 Republican Senators who signed and sent this letter knew all this, and have been shrewd enough to play through the serial consequences as I have just laid them out? Not a chance. Rather, we are yet again witness to an increasingly malign trend in American politics: Partisanship trumps the responsibilities of governance at every turn. It used to be that this dilapidated condition affected mainly domestic policy; now it enshrouds everything. So it is true, as my TAI colleagues wrote, that the White House going out of its way to announce that it would ignore Congress to implement any deal with Iran is the original sin in this case. This was gratuitous and foolish. But the Republican Senators’ decision to send their letter to Tehran rather than the White House was equally irresponsible.There were, and still are, many ways of making the GOP argument that did not involve the blatant interference of the Legislative Branch into an Executive Branch prerogative.
Again as my TAI colleagues have pointed out, the GOP Senators’ letter seems correct on the law, to a point. But only to a point. The Senate’s role is to advise and consent concerning treaties; it can and must ratify or reject (or table) treaties put before it by the Executive. Its role does not extend, and certainly should not lawfully extend, to participating in an uncoordinated way in a negotiation that has not yet been concluded—and in this case the negotiation has never been intended to result in a treaty. As others have pointed out, what has always been intended is neither a treaty nor an executive agreement but a multilateral international arrangement, similar in nature to President Bush’s Proliferation Security Initiative or President Ford’s Helsinki Final Act, among a great many. In the past the Administration of the day always kept the relevant Senate and House committees apprised of what was going on, and usually got some sort of congressional resolution supporting the agreement after the fact. But this is not the same as the Constitutional advise and consent obligation of the Senate with regard to legally binding treaties.
More important, even if we were talking about a legally binding treaty, there is no provision, Constitutional or otherwise, for Congress to insert itself into a negotiation process that is ongoing. The reason is plain: Often in the highbrow game of chicken that negotiations usually are, the most tender moments come at the 11th hour or beyond. It’s those final concessions, or decisions not to concede, that test which side wants an agreement more. That final hour often determines whether a deal is made, what its chances of two-sided ratification are, and in consequence how a deal, once ratified and implemented, will affect strategic reality at the margins. For Congress to intervene into a negotiating sequence so late in the game, again in a fashion uncoordinated with the Executive Branch, is utterly irresponsible, no matter who is right on the merits concerning substance.
My TAI colleagues spent a good deal of electronic ink talking about Vietnam as an analogous case circa the late winter and early spring of 1975. Back then, almost exactly 40 years ago, Congress tied the Executive’s hands by cutting off funding for the war, not by interfering in the negotiations that led to the Paris Accords themselves. Congress did not in any event focus on or affect the Paris Accords themselves but on side agreements Presidents Nixon and Thieu made and that, in the end, were not honored. The real analogy to the current case is that the Executive Branch cannot remove sanctions against Iran without Congressional approval. So the power of the purse works in both cases, though not in exactly the same fashion.
But the narrative about Vietnam left out the “punch line”, so to speak: the critical decision in the entire episode. The U.S. military had essentially won a very difficult counterinsurgency war that started in February 1965 and (sort of) ended after the 1968 Tet Offensive and the 1972 Christmas bombings: The Viet Cong had been denied victory and the South Vietnamese government was increasingly able both to defend itself internally and to extend its writ into the countryside. But with Congress’s defunding of the war after the 1974 midterm elections, the North Vietnamese Army made preparations to simply roll its tanks down Highway 1 and crush South Vietnamese independence. The U.S. military was in an excellent position to crush this conventional assault, had it been ordered or allowed to do so. But when the decision came to do just that, with first-time Secretary of Defense Donald Rumsfeld in the Oval Office pleading to President Ford to act, Ford, thinking about winning the presidency on his own in November 1976, refused to do so, saying, “They’ll impeach me.”
Ford did the wrong thing. He should have stood up for the validity of his predecessor’s word; not doing so undermined the power of the presidency itself in the conduct of foreign affairs, albeit, as it turned out, only temporarily. Yes, Congress might have impeached him, but if the U.S. military campaign had succeeded, impeachment would certainly have failed.
The point is that the Constitutional balance in matters of war and peace between Congress and the President is not etched in stone. The separation of powers is a template capable of withstanding a certain amount of healthy tension, not a straitjacket. Both sides have choices, and the lodestone of those choices has to be what is best for the national interest of the United States. As Ford made the wrong decision in March 1975, both President Obama and the 47 Senate Republicans who signed and sent that letter have made the wrong decisions in March 2015. And they all made the wrong decisions for the same reason: They put partisan, and personal, politics above the best interest of the nation.