Senators’ letter to Iran was reckless, but probably not illegal

The senator’s letter to Iran probably wasn’t illegal, but it was foolish.

Tom CottonA lot of buzz went on in the past week over a letter that Senator Tom Cotton of Arkansas wrote and 46 Republican senators signed.  Some have called the letter a violation of the Logan Act.   There are essentially three questions to ask:

  1. Did the Senators violate the Logan Act?
  2. Did they violate their oath to the Constitution?
  3. Was their letter a good idea?

CNN’s Jeremy Diamond has provided an excellent analysis of whether the Logan Act was violated.  In a nutshell, senators receive the same protection from the 1st Amendment of the Constitution that the rest of of receive.  As an inherently political act, the letter would receive the highest level of protection from any court.  CNN points out that in the over 200 years the Logan Act has existed there has been a grand total of one indictment and no actual prosecutions.  In short the the Logan Act is a paper tiger, and rightfully so.

The Act itself reads as follows:

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.

One gets the feel that when President John Adams affixed his signature he was thinking in the same way that led him to believe that the title of the head of the new republic should be king and not president.  People every day talk with representatives of foreign governments, to provide them their perspectives.  Indeed successive administrations, including this one, have encouraged those dialogs, because they advance American values.

Some might argue that the senators who signed the letter had in some way violated their oath to uphold the Constitution, as if somehow they did that by conducting foreign policy.  The Constitution itself is mostly quiet about that.  Article II Section 6 does state that it is the job of the president to conclude treaties with other nations, on the advice and consent of other countries.  But it doesn’t say that others in government can’t speak to other governments.

And so we are left with the question as to whether it was a good idea to send any such letter to Ayatollah Khamenei.  Here the senators erred in two ways.  First, the Cotton letter itself advises the Iranians that any deal President Obama makes on nuclear development with the Ayatollah could be overturned with the stroke of a pen of the next president, because it doesn’t have the force of a treaty.  As it happens, most treaties can be abrogated with the same stroke of a pen by a future president, and so their argument that such an agreement should be brought before the Senate is largely moot.

But beyond that and more importantly, the senators have failed to understand it will not be the United states that enforces of any agreement in economic terms, but rather a coalition of countries, largely in Europe, who will decide to either buy Iran’s oil or not.  The fact is that oil is a commodity, and it will be sold at market prices, and Iran doesn’t care where the money comes from, so long as it comes.  Thus whether the next president backs out of an agreement with Iran matters only in as much as the Europeans also back out of the deal.  They will not tolerate intransigence or extremism, either by Iran or the United States, either in advance of an agreement or later.  If they believe that negotiations have been scuttled for other than security reasons, they may either make a separate deal on nuclear development with Iran, or simply let the sanctions they have in place lapse.  If they believe a president has backed out of an agreement other than for cause, the Europeans will not follow suit.

In addition, it would send a horrible message to the rest of the world if the next president did back out of an agreement without strong justification, because it would it would call into question the word of every succeeding U.S. president.  That’s very bad for America.

Therefore we have to ask why the senators sent the letter in the first place.  The only convenient answer is that all politics is local, and that they wanted to show that they were “tough”.  Certainly that is the image that Senator Cotton likes to project, and it certainly plays well with some parts of the population.  But that doesn’t make the letter the smart thing to have done from a diplomatic perspective.  We are at this point with a relatively moderate President Rouhani at the table because of effective economic – not military – measures.  Certainly we have to be wary of future versions of Mahmoud Ahmadinejad, but we should also be aware that much of the distrust between countries can give way to better understanding and an end to hostile behavior only when each nation recognizes that the other is not filled with crazy people.

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