John Kerry Goes Ballistic Over Senate Letter
Posted: 11 Mar 2015 03:27 PM PDT
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:
That is not, of course, what the letter says. The letter says, correctly, that a new president could terminate the agreement.
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?
Which is, of course, what the letter said.
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.
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 letter says no such thing. Kerry is just making this up.
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.
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, 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.