Cotton letter no Logan Act violation, but still wrong

If Iran wants a nuclear weapon, negotiations can't stop it; if Ayatollah Khamenei wants to negotiate, the Cotton letter is no help.


WASHINGTON, March 10, 2015 — The American Security Initiative, an organization created by former senators Saxby Chambliss, R-Ga., Evan Bayh, D-Ind., and Norm Coleman, R-Minn., released a video last week designed to illustrate the dangers of an Iranian nuclear bomb.

The video kicks off the Initiative’s attempt to persuade Congress to pass the Iran Nuclear Agreement Review Act, also known as the Corker-Menendez bill. That act, a bipartisan effort with two Democratic sponsors and four Democratic co-sponsors, would require that any agreement coming from the P5+1 negotiations with Iran be subject to 60 days of congressional review. Congress could approve, disapprove or take no action on the deal.

The “P5+1” includes the United States, Russia, Germany, France, Great Britain and China. The negotiations are set to conclude on March 24.

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The bipartisan effort suddenly became much less bipartisan when Senate Majority Leader Mitch McConnell put the bill on the legislative calendar for this week, putting it to a vote before negotiations are concluded. Menendez immediately withdrew his support for the bill, saying, “I can’t imagine why the majority leader would seek to short-circuit the process unless the goals are political rather than substantive, and I regret to say these actions make clear an intention that isn’t substantive, that is political.”

Sen. Tim Kaine, D-Va., another sponsor of the bill, called McConnell’s decision “contrary to the important interests at stake,” warning that it undermines the diplomatic effort. McConnell attempted to put the bill back on a bipartisan footing, taking it off the calendar to reschedule it for a later date.

Led by Sen. Tom Cotton, R-Ark., 47 Republicans took another tack to affect the nuclear negotiations with Iran. They signed an open letter to the leadership of Iran to explain that any agreement reached with President Obama and not ratified by the Senate as a treaty would not be binding on later presidents.

The senators wrote, “We 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.”

The Republican effort is not just a gratuitous political stunt to spike diplomatic efforts. Obama’s apparent intention to bypass Congress with a deal—a deal that not just Republicans believe could go very badly—has spurred Republicans to find a way to change the basis of negotiations. Their attempt is at least more measured than the Initiative ad, which is almost a 21st century version of the Johnson campaign’s “daisy” ad in 1964.

The Cotton letter has nevertheless been widely assailed by Democrats as a violation of the Logan Act, the law that bans private diplomacy:

“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 foreign government or of any officer or agent thereof, in relation to any disputes or 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.” 18 U.S. Code § 953.

Hillary Clinton blasted the Cotton letter at a meeting with reporters at the U.N. on Tuesday. Other Democrats have suggested that the 47 Republicans should be prosecuted for violating the Logan Act.

The attempt by members of one party to interfere in the diplomacy of a president from the other is not unprecedented. Nancy Pelosi went to Damascus in the spring of 2007 to hold talks with Syrian President Bashar al-Assad, against the wishes of President Bush.

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In 1987, Democratic House Speaker Jim Wright met with Nicaraguan leader Daniel Ortega during talks between Ortega’s government and the Contra rebels, resulting in a direct rebuke from President Reagan. And again in 1987, a Democratic Congress passed the Boland Amendment, which cut aid to the Contras during those sensitive talks, a move Sen. Orrin Hatch called “an unconstitutional encroachment on the presidential prerogatives and power.”

The Republican letter is probably less serious a violation of the Logan Act than Pelosi’s and Wright’s personal diplomacy, and it is unlikely to result in a prosecution. It isn’t unprecedented for Congress to insert itself into diplomacy. But in its open contempt for Obama, the letter is indeed unusual. Regardless of their feelings for him, it will in no way advance the cause of getting a security-enhancing, verifiable agreement with Iran for Congress to throw a public dart at the president.

Aside from that, in a strict sense, the 47 senators are wrong. It is not the Senate’s role to ratify a treaty, but to provide its advice and consent. According to the Senate’s web page, “The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification.” If they are going to teach a constitutional lesson, then they should at least get the lesson right.

The senators are wrong in a broader sense. While a president can indeed discard a predecessor’s executive decisions, those decisions can change the terms of the debate. As a practical matter, they are not easy to walk away from. Consider, for instance, Obama’s promises before he was elected to close down Guantanamo and to get out of Iraq and Afghanistan.

He has done neither. President Bush created the path on which Obama’s later decisions have been contingent. Obama has not been able to turn easily or quickly away from Bush’s decisions; he is not legally bound by them, but they have constrained his options in any event.

A Republican successor to President Obama would find it very difficult to discard an agreement with Iran if—and this is a very large if—Iran were fully compliant. If an agreement is reached—another very large if—it will be in place until at least 2017. If the agreement is believed to have constrained Iran’s nuclear program, it will be nearly impossible for the next president to walk away from it.

If Iran is as dangerously fanatical as the critics of Obama’s diplomacy believe, this may all be irrelevant. It is, for all practical purposes, impossible to prevent Iran from acquiring a nuclear weapon by normal means.

Iran has built enough centrifuges to give it an enrichment effort of 19,000 separative work units (SWU) per year, and Ayatollah Khamenei has announced his intention to raise that to 190,000. (Iranian centrifuges have from 0.75 to 4 SWU capacity per year, depending on the model.) One ton of natural uranium feed can be converted into 120 kilograms of 5 percent enriched uranium for a nuclear power plant with 980 SWU of enrichment effort. It can be enriched into 5.6 kg of weapon-grade uranium with about 1,200 SWU of enrichment effort.

If Iran’s nuclear program were peaceful, its current level of enrichment capacity would be reasonable—and then some—but it has more than enough capacity to pursue a bomb program. That’s a program that couldn’t be stopped with less than military means if Iran were determined to pursue it.

If Iran is determined to obtain a nuclear weapon and use it to attack Israel or blackmail the West, negotiations are a dangerous delusion, but we’re left with the unpalatable alternative of military action. If it prizes the economic benefits of a verifiable agreement, then it is in the interests of the president, Congress, and the American people that such an agreement be reached and that it stand up to scrutiny.

The Cotton letter instead appeals to Iran’s radicals, assuring them that diplomacy with Obama will come to naught at the hands of American hardliners. That may help Republicans spike an agreement, but it won’t eliminate the danger of an Iranian nuclear bomb.


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