John Kerry’s End-Run Around Congress on Iran

Secretary of State John Kerry disgraced his office yet again during his appearance before the Senate Foreign Relations Committee on March 11^th. He sharply criticized an open letter to Iran’s leadership drafted by Arkansas Senator Tom Cotton and signed by 47 Republicans, which simply made the point that in our democratic republic the president does not get to bind our country irreversibly to an executive agreement he signs unilaterally with another country. “My reaction to the letter was utter disbelief,” Kerry lamented. He declared that “this letter ignores more than two centuries of precedent in the conduct of American foreign policy. It purports to tell the world that if you want to have any confidence in your dealings with America they have to negotiate with 535 members of Congress.” He called such an idea “both untrue and profoundly a bad suggestion.”

In any event, added Kerry, Congress would not be able to change the terms of any nuclear deal entered into by President Obama and the other five negotiating partners with Iran. His explanation was pure Orwellian doubletalk. Kerry asserted that what he was negotiating would not be considered a “legally binding plan,” but would have “a capacity for enforcement.”

At one fell swoop, Kerry displayed contempt, hypocrisy and evasiveness to members of a co-equal branch of our government and to the American people.

Perhaps Secretary of State Kerry forgot what Senator Kerry did shortly after entering the Senate in 1985 and joining the Senate Foreign Relations Committee. He was then a junior senator, just like Senator Cotton is today. However, unlike Senator Cotton, Senator Kerry did not just write an open letter to the leader of a country with which the United States had an adversarial relationship. He went much further – literally.

At the time, a core element of the Reagan administration’s foreign policy was to oppose any dealings with the Communist leaning government in Nicaragua led by President Daniel Ortega Saavedra and to support rebels, known as contras, who were challenging the regime.

Kerry did not like the Reagan policy towards the Nicaraguan regime and opposed providing any aid to the contras. That would have been fine if he had confined himself to his legislative duties. However, Kerry decided to actively interfere with the Reagan administration’s foreign policy. Joined by then Senator Harkin of Iowa, Kerry traveled down to Nicaragua and met with Nicaraguan President Ortega for face-to-face discussions. Said Kerry at the time: “Senator Harkin and I are going to Nicaragua as Vietnam-era veterans who are alarmed that the Reagan administration is repeating the mistakes we made in Vietnam. I am willing….. to take the risk in the effort to put to test the good faith of the Sandinistas.”

Senator Kerry brought back Ortega’s offer of a cease-fire if Congress rejected aid to the rebels.

Kerry described Ortega’s peace proposal as “a wonderful opening.” On the Senate floor he said, “Here, in writing, is a guarantee of the security interest of the United States.”

Shortly after Kerry returned from his trip with his “guarantee” from Ortega in hand, Ortega visited Moscow where his regime was granted a $200 million loan.

White House Deputy Press Secretary Robert Sims said the proposal, which had not been made formally to the U.S. Embassy, contained “nothing new” and did not provide for “a dialogue of reconciliation.” He said its main purpose appeared to be aimed at influencing a Congressional vote against providing aid to the Nicaraguan rebels.

Secretary of State George P. Shultz condemned the trip. “We cannot conduct a successful policy when (congressmen) take trips or write ‘Dear Comandante’ letters with the aim of negotiating” with the Nicaraguan government, Shultz said. “I’m sure it’s a quite a problem for us when Senators run around and start dealing with the Communists themselves.” Schultz called the Ortega offer delivered by Kerry and Harkin a “fraud” that was “designed to distract attention” just before Congress was preparing to vote on aid to the rebels.

Former Secretary of State Henry Kissinger also weighed in. “If the Nicaraguans want to make an offer, they ought to make it in diplomatic channels,” Kissinger said. “We can’t be negotiating with our own congressmen and Nicaragua simultaneously.”

Kerry denied that he had negotiated with Ortega. But that is exactly what he and former Senator Harkin had done, waving Ortega’s peace offer that Ortega made directly to them.

Flash forward 30 years to Secretary of State John Kerry’s hypocritical condemnation of the Republican senators’ open letter to the leaders of Iran. No senator traveled to Iran to meet with its Supreme Leader or president, as Senator Kerry had done when he took it upon himself to meet with Ortega. All the Republican senators did was to write the equivalent of an op-ed piece, framed as an open letter to Iran, informing them of Congress’ constitutional role in connection with any negotiated nuclear arms deal with Iran. President Obama brought this on himself when he cavalierly indicated his intention to veto any legislation that would give Congress the right to review, much less approve, the terms of any deal with Iran before it goes into effect.

While Kerry was crystal clear in his criticism of the Republican senators’ action, his declaration that what he was negotiating would not be considered a “legally binding plan,” but would have “a capacity for enforcement,” is another matter. At first blush, it seems to be internally contradictory. How can something be non-binding yet enforceable? The answer to Kerry’s cryptic statement lies in the United Nations Security Council.

The five permanent members of the Security Council – the United States, the United Kingdom, France, China and the Russian Federation – are negotiating a nuclear deal with Iran. Germany is also represented on what is called the P5+1 negotiating team. If the framework of a deal is finalized with Iran, the United States or one or more of the other members of the Security Council can submit a resolution to the Council that endorses the agreement framework. The resolution could call for incorporation of the deal’s terms into a final agreement and its full implementation, including inspections by the International Atomic Energy Agency. The resolution would likely include a statement that the Security Council reserves the right to impose unspecified consequences if Iran violates any provisions of the agreement. If Iran shows evidence of compliance, the sanctions previously imposed on Iran by the Security Council could be lifted. Such a resolution would be considered legally binding under international law with “a capacity for enforcement” under Chapter VII of the United Nations Charter. It would not be subject to rejection by Congress. In other words, by using the United Nations to endorse and effectively incorporate by reference the terms of the deal, the Obama administration would be presenting Congress and the American people with a fait accompli.

This is not just a theory. Reuters reported exclusively on March 12^th that talks are underway on a UN Security Council resolution “to lift U.N. sanctions on Iran if a nuclear agreement is struck, a step that could make it harder for the U.S. Congress to undo a deal.” This would not automatically affect the separately imposed sanctions by the United States and its allies. However, it would give President Obama more leverage in arguing that such sanctions should be eased as well so as not to be out of sync with such an internationally supported Security Council resolution. Of course, the resolution would have been set in motion by the Obama administration itself in order to neutralize any Congressional opposition to a deal negotiated with Iran.

Iranian Foreign Minister Javad Zarif said earlier this week, in criticizing the Republican senators’ open letter, that if the current negotiations result in a Joint Comprehensive Plan of Action, it “will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.”

The State Department is being cagier. In an exchange with reporters at the March 11th daily State Department press conference, the State Department spokesperson Jen Psaki alluded to the role that the Security Council played with regard to the chemical weapons disposal agreement worked out with the Syrian regime. However, she avoided answering whether the same model might be used to render a deal with Iran legally binding under international law:

PSAKI: Well, I used the example of Syria, right, as an example. This framework was not legally binding and was not subject to congressional approval. It outlined steps for eliminating Syria’s chemical weapons and helped lay the groundwork for successful multilateral efforts to move forward. So I’m just conveying what we’re talking about as it relates to the political understandings and what we’re discussing with the parties.

QUESTION: I guess maybe this a question you could ask the lawyers, because I’m sure it’s not there. But I mean, if it was nonbinding, why did the Syrians comply with it

PSAKI: Well, as you know, we – there was an agreement – there were discussions, and they agreed to certain terms.

QUESTION: Right.

PSAKI: And then it went to the OPCW and then it went to the UN. So —

QUESTION: Actually, in the case of the security – the Syrian agreement, there was a Security Council vote, which I think made it binding.

PSAKI: Well, that – I just said. And then it went to the UN to the Security Council vote…

QUESTION: The Iranians have talked about this, whatever it is, that if anything happens, that it being – the idea that the UN Security Council would at least endorse it if not enshrine it in some kind of a resolution. Is that something that you think would be useful?

PSAKI: I’m just not going to get ahead of how this would be implemented at this point in time.

At the March 12^th press briefing, Ms. Psaki continued to avoid being pinned down on any specific future role for the Security Council, indicating that it was too early to say. However, she was more explicit about the analogy between the handling of the chemical weapons deal with Syria, which included a Security Council resolution, and the handling of a possible nuclear deal with Iran. She said that “this would be the same kind of arrangement as many of our previous international security initiatives, which I think everybody feels were worthwhile in making – so such as the framework negotiated with Russia to destroy Syria’s chemical weapons…”

Reading between the lines, the Obama administration appears ready to skirt any formal Congressional role in reviewing a negotiated deal with Iran. It will make no difference whether the deal includes a sunset clause after which all bets are off. It will also make no difference whether the deal allows Iran, in the meantime, to maintain as many as 6500 operational centrifuges enriching enough fuel to make nuclear bombs, while also allowing Iran to plow ahead unimpeded with its missile delivery systems. Instead, President Obama and Secretary of State Kerry appear prepared to use the UN Security Council to convert a non-binding deal into a binding legal commitment under international law and begin immediately easing pressure on Iran from the UN imposed sanctions. Obama’s executive actions to erode U.S. sanctions will surely follow. In hiding behind the UN, Obama and Kerry will freeze Congress out of the process and jeopardize the security of United States and its allies.

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