Bruce Levine's picture

    The Iran Negotiations -- Non-Binding Except When They Are?

    The debate over the appropriate role for Congress in the P5+1 nuclear negotiations with Iran continues as the month-end deadline for a so-called "framework agreement" approaches.  A bipartisan group of senate co-sponsors led by Senator Corker  announced that on or shortly after March 24th they intend to begin deliberations over a bill (S. 615), which would require that any agreement t reached be submitted for review by the Senate, and which would also provide for a Senate vote on whether to approve the agreement.  The president has threatened to veto that bill and continues to insist that the advice and consent of the Congress is not required because any agreement that is negotiated will be "non-binding".  Last night, White House Chief of Staff Denis McDonough warned Senator Corker not to proceed with the vote, and claimed that such a vote would unduly interfere with the ongoing negotiations.  Corker has indicated that the bill will likely come to Senate floor in mid-April at the earliest. [Note this paragraph was edited to correct my erroneous description of the procedural aspects of S. 615. My apologies.]

    At the same time, the president intends to present any agreement to the United Nation's Security Council for the purpose of endorsing the agreement by a vote.  On Friday, Secretary Kerry's spokesperson Jen Psaki became somewhat fuzzy when she was asked to explain how anything done by the United Nations Security Council would not bind the United States, even though much of the international sanctions regimen imposed on Iran over the years were the product of security council resolutions.

    Among other things, the president and his team have failed to adequately explain what it means by a non-binding agreement.  Indeed, if the UNSC votes to lift its sanctions, then as a practical matter any retained American sanctions could be rendered toothless, depending on the content of any such resolution.  

    So, to many, including me, the president could be seen as binding the US through the United Nations Security Council, while resisting congressional oversight under Article II of the Constitution because somehow what is being negotiated is not a treaty.  At a minimum the Administration has failed to explain what is going on.  

    Bruce S. Levine

    New York, New York

    Comments

    The link in my last paragraph above is to Harvard Law Professor Jack Goldsmith's piece this morning in LawfareBlog, is helpful for a number of reasons, in particular because it gives us an update through last night via his discussion of McDonnough's letter sent to Senator on where the parties are on the question of congressional oversight.  Professor Goldsmith is critical of Congress for failing to press this issue in a timely and (I would add at least) responsible matter, but he also is critical of McDonough's response in one key respect.   Professor Goldsmith writes: (my bold): 

    [T]he one issue that McDonough noticeably did not address is whether the Security Council Resolution will in any way impose an international legal obligation that affects a future president’s ability, consistent with international law, to reimpose sanctions under domestic law.  Bernadette Meehan of NSC said Thursday that a Security Council Resolution “wouldn’t … impede the ability of any parties to the deal to reach its own judgments about compliance by other parties or conclude that the deal no longer served their interests and withdraw from it.” But then the following day the State Department’s Jen Psaki danced around a question on this topic.  She implied that she thought the UN Resolution would not bind the United States under international law to remove its sanctions, but she hesitated and said she would need to “talk to our lawyers” before answering definitively.  McDonough did not address the issue either – at least not directly or obviously so.  This is a bit puzzling since the issue is of such concern to many members of Congress.  I expect that McDonough’s silence will be discussed on the Sunday talk shows.


    I was hoping that someone could help to clarify the impact, if any, that a UN resolution might have on what Secretary Kerry has stated will be a non-binding agreement.  It's not even really an oversight issue, i.e. this is getting to what it is that we are negotiating and which may then in the near future bring the oversight issue to the fore.  


    That pesky American Constitution will soon be a thing of the past, as the New World Order  will be ushered forth and replace all others, with its own set of laws for the benefit of the World. 

    Where  3.3 Mass surveillance3.5 Population control3.6 Mind control  will keep everyone safe. 


    Well, I don't think that the Administration would explain things in quite the same way.


    The leaders can't, if they expect to have everything in place before Judgment day.


    I fear for the people, not just in Israel or the middle East but for the entire World 

    What if the grander plan was to create religious strife in the Middle East? 

    What better plan than in 1948 a crisis presents itself, setting up conditions for the final, Grand plan. 

    Who with any foresight could see that what appeared as humanitarian relief  would become a an indirect tool to enslave the World.   

    Destroy Iraq and allow a religious war to ensue. Everyday, more atrocities in the name of religion  

    If the UN were to allow Iran the Bomb and they used it against Israel; wouldn't that further enflame the passions against religion?

    If the  objective was to rid the World of belief in God, would the World join in with the UN in its works to destroy ALL service to God..... because .. 

    Why would those seeking to control and eliminate religion care if nuclear bombs destroyed Israel's 8,252,500.souls and they retaliated killing as many Muslims.

    Who will get blamed..... Religion? 

    It is foretold the UN is going to turn against religion Revelation 17:15-16 and try to destroy it.

    It will try with  the blessing and support from the people of the  Earth and  most people including Presidents haven't a clue that they are nothing more than pawns of the Grand Plan.

    1 Thessalonians 5:3-4

    3 While people are saying, “There is peace and security,” then z sudden destruction will come upon them .............4 But you b are not in darkness, brothers, for that day to surprise you like a thief.


    You are trying to pin lawyers down with words they will always find a way to maneuver around.


    The Goldsmith article is helpful in general and allows me to be more specific about what I was trying to be difficult about in other threads. Goldsmith says:

    I am simply pointing out that what David Brooks recently described as “customary acts of self-restraint” would normally lead Congress to let the President complete the negotiation before weighing in so aggressively.

    Brooks is carrying water for whoever he serves by characterizing the response as a matter of style and disposition. The need for the Executive to get some place with negotiations would be important even if Congress was standing on the sidelines shaking pom-poms for the Administration. That part of the process should not be counted as a cancelation of "oversight."

    Why it is possible to forego Congressional involvement at all is well indicated by Goldsmith:

    The President is able to negotiate a non-binding agreement with Iran in which he can offer relief from U.S. sanctions only because Congress gave the President such extensive waiver authority in its sanctions laws.

    Aside from the debate about who is acting in bad faith or not, this particular rejection of advise and consent is not equivalent to issues of expanding Executive power as applies to such things as the ease of fighting wars by other names or negotiating business deals for favored interests.

    As to the matter of whether the US can pull out of the deal regarding new sanctions or not, the reason sanctions (or their withdrawal) are effective is because enough nations get on board. If we can pull out under some clause of exemption, how is that different from simply not supporting a project that requires so much from our resources in any event?


     

    Thanks Moat, I'm trying to make sure I understand where we might differ.  First, I don't take issue with Brooks' critique of aggressiveness by Congress prior to reaching a deal.  Second, I don't read Goldsmith as stating that the "waiver" authority of the president is sufficient to permanently eliminate the underlying legislation providing for sanctions (and I don't believe the Administration takes that position either).  Third, I've written quite a bit about bad faith and good faith bargaining on this issue elsewhere.  Here, I'm just trying to understand the relationship between a non-binding executive agreement and the superseding impact if any of any related security council resolutions.  I agree this is an international agreement; but I also submit that what that means relative to an ordinary executive agreement is not clear -- at least not to me.  Perhaps, I missed something, and I do find it complicated, but my principal point here is trying to decipher the relationship between Security Council resolutions and the non-binding executive agreement it has been identified to be by the Administration.  

    P.S. Sort of what Goldsmith writes which I quote above (his fourth point) concerning how we need to square the limits of executive authority in light of its non-binding nature for future presidents, and what would appear at least to be the potential binding implications of a security council resolution (edited to add on that same future executive).

     


    I like numbers. I will try answering by them.

    1. We can agree upon the Brooks remark. I wasn't trying to refute it but put it in a kennel. There is stuff the Executive has to do just to have any kind of agreement. The Brooks comment does not represent an advance toward understanding that sort of thing. 
    2. Agreed. Congress can change those laws anytime it cares to get around to it. These sorts of powers are typically granted when the people voting for them see their guy in power calling the shots and snatched back when the opposite is the case. Or did i misrepresent your observation?
    3. I am up to speed with the good vs. bad faith thing. It is probably our closest point of agreement.
    4. I am not asserting you are missing anything obvious. The specific requirements involved with accepting Security Council resolutions are not clear. By pointing to other pragmatic elements of any deal, I did not mean to cancel the importance of that gap.

    Well, I've found this exchange helpful and I appreciate it.  Maybe I'm jumping the gun and the Administration will clarify things sooner than later.  On a positive note, I still think that there remains a possibility that cooler heads will prevail and appropriate oversight can be agreed upon, but I'm hanging my hat on Democrats (other than the injured Menendez I would think) who might help bridge the gap. I don't think Corker or any of the leading Republicans can be counted on to play that role at this point. .   But I digress.  Thanks.


    I have no idea if this will be at all helpful, and I can't vouch for the site or its reliability. But this article at Lawfareblog spells out some of the issues well, I think. The author freely admits that much of it is theory - yet it's one that seems to be reasonable. Basically, he describes how a non-binding agreement could become binding under international law without congressional input.


    Thanks for the link. I am still trying to sort it all out. 


    Barefooted,

    Thanks for linking to this, which is Professor Goldsmith's article that precedes the one I linked to, but in retrospect I think it continues to be useful in terms of understanding what the powers of the UNSC really are under Title VII of its charter (I think :)).  In any event, it's a good book-end, this article, to the Goldsmith piece I linked to, which again: (a) summarizes and updates things through Saturday night, and (b) includes both a link to McDonough's actual letter to Corker sent on Saturday night (which someone better with the computer (hint) might link to in a comment for the purpose of more productive discussion, and because it narrows the issues Goldsmith first raised in the brilliant (I think anyway and you too apparently) first piece.  It sounds like you enjoyed it too, which is pleasing to those of us in touch with our inner nerd. :)

    So I guess that's a long way of saying thank you, because I do think it's important to understand that there are ways that the UNSC -- based on authority Congress ratified 70 years ago -- can interfere with the ordinary course and constitutional authority of Congress and future executives.    

    The Administration has yet to explain what it is doing with such clarity in my opinion, and it should do because of its decision to treat this as a non-binding executive action that really does limit the authority of the Congress.  But the Administration should also explain this because it just isn't a good thing to appear to be bypassing Congress intentionally and without full transparency to the American people.  

    I wish I could be more productive on this issue.  But I feel as if people with justifiable anger about the letter can't, again with justification and with a different long-range but good faith perspective, see past that.  I hope that doesn't offend you or anyone else.

    Best,

    Bruce

     

     

     


    P.S. If you have time today, you may wish to go on state.gov and listen to the daily briefing (usually given by Jen Psaki).  Let me see if I can get a link. 


    At the moment, the State Department website doesn't confirm whether there will be an afternoon press conference.  Here's the link.


    Here's part of what Psaki said on Friday in a press conference that I link to in my original post and link to the video from that conference here (my bolds in text and Iran questions begin at the start basically and then throughout):

    QUESTION: Yeah, a couple of other things. The – you said we would anticipate that if you reach a comprehensive joint plan of action, that there would be an endorsement vote from the UN Security Council. Would you expect that endorsement vote – presumably there would be a resolution to endorse it – would that resolution fall under Chapter 7?

    MS. PSAKI: Don’t anticipate – nthat’s a separate process. o, that’s a different – That would be related to the sanctions. I’m – now, the fact is the details of how and when the sanctions rollback piece, which I think is the component you’re getting at here, would work is not yet determined. So --

    QUESTION: There’s reason I’m asking this.

    MS. PSAKI: Sure.

    QUESTION: So I mean, let’s just do it as Q&A.

    MS. PSAKI: Okay.

    QUESTION: Does the U.S. Government regard Chapter 7 sanctions resolutions passed by the UN Security Council as legally binding on the United States of America?

    MS. PSAKI: In what capacity? Do you mean in terms of requiring the United States to take – can you – sorry, can you keep --

    QUESTION: Well, that’s basically – what I – what has been explained to me, and I was hoping you’d be able to explain it on the record although I don’t – I want to make sure it’s correct – is that it is the position of the U.S. Government that Chapter 7 resolutions are indeed legally binding. So for example, if you pass a Chapter 7 resolution to impose sanctions on country X, that everybody is then obliged to impose sanctions on country X; and similarly, that if there were a resolution to ease certain sanctions on country X, that that would be legally binding on all the nations of the United Nations to ease those sanctions.

    MS. PSAKI: Well, I’m happy to talk to our lawyers about this specific question. I mean, our view and our objective here is that the UN Security – the Security Council would not impose new binding obligations on the United States that would limit our flexibility in any way to respond to future Iranian noncompliance. A right – I know it’s a different question, but I think the question is – what is it requiring us to do, I think is your question.

    QUESTION: Sure. Well, the reason I’m trying to draw it out is that if I understand it correctly, you just said that a resolution of endorsement would not – you would not expect that to be under Chapter 7. Right?

    MS. PSAKI: Correct.

    QUESTION: And my understanding is that you would not regard such a resolution of endorsement as being binding on the United States in any particular way whatsoever.

    MS. PSAKI: Right, yes, mm-hmm.

    QUESTION: And that it’s only if and when you got to a point where the Security Council were to pass a Chapter 7 resolution, that that then would be --

    MS. PSAKI: Related to the unwinding of sanctions.

    QUESTION: Correct – that that would be binding. I’m just trying to --

    MS. PSAKI: Correct.

    QUESTION: Okay.

    MS. PSAKI: I believe that’s my – let me check with our lawyers. I just want to make sure given how detailed in the weeds we are that we’re providing the accurate information.


    She's just deflecting, it's in her job description. The questioner was basically correct in that the P-5+1 "give" in the negotiations is all about the sanctions, some of which fall under Chapter VII. But no Security Council resolution can roll back or lift US sanctions, as they were imposed independent of the UN. An article from last March in NIAC explains what a Presidential waiver of US sanctions would entail. Of course, there's no agreement at all as yet, so it's alot of supposition - it will boil down to the exact (or intentionally ambiguous) language in the final deal.


    Thanks barefooted.  I agree with you that Psaki can only say what she's authorized to say, and still it's also fair to say IMO that she's not authorized to articulate what I think we've tried to do here.  And I think you've summed that up quite well here.  Sorry I've not had a chance to read the NIAC link, but i appreciate the link and will look at it.  Nice work.

    I need to correct an embarrassing error in my essay on what Corker is doing on or after the 24th with his bill; it's not being voted on, rather the process of moving it to a vote (mark-up?) will start then and this Politico article seems to suggest that a vote on the bill won't take place until mid-April at the earliest.  Not sure what the protocol for editing the original is, but in any event I apologize for the error, both to those who understand how the Senate works and those like me who don't.

    In any event, that's a good thing I think, because it gives the parties time to pause and get past the politics and resolve the clarity reservations I've tried to introduce here, and also more time invites a little breathing room at the table as well.  I want to address that in a separate  and final post on this which, hopefully, will tie things up and provide some good faith observations of my own.  But thank you so much for discussing this with me and I wish you well. 

    Note: I'm going to edit the body to correct my error.  If I've done it the wrong way please let me know.

     


    I think that the US position is that UN resolutions are binding on other countries but not on us, and I'm only being about 10% snarky when I write that.


    Duly noted, and snark portion accounted for!


    State Department confirms now there will be a press conference at 12:30 (ET) which you can livestream on state.gov if you're so inclined. 


    This is an interesting article in Politico today concerning Democratic supporters of a greater role for Congress in evaluating any deal that may be reached.  They're critical of the letter, but they're focused on the merits and a more robust role for the Congress.  To me, these are the folks who need to work harder to bridge the oversight gap.  From the article (my bold):

     

    Though several Democratic senators told POLITICO they were offended by the missive authored by Sen. Tom Cotton (R-Ark.), none of them said it would cause them to drop their support for bills to impose new sanctions on Iran or give Congress review power over a nuclear deal.

    That presents another complication for the administration ahead of a rough deadline of March 24 to reach a nuclear agreement with the country.

    .  . . 

    The letter was simply unacceptable, and it brought hyperpartisanship to an issue that we need to maintain our bipartisanship in,” said Sen. Gary Peters (D-Mich.), a supporter of sanctions that would not take effect unless talks fall apart or Iran backs away from the terms of any deal. “That doesn’t change my support for that bill. … I stay firm.”

    A group of 10 Democrats wrote to President Barack Obama this month and vowed not to support the bill that would allow Congress to reject a nuclear deal until after March 24. That followed a similar deadline set by 12 Democrats in a January message to Obama regarding the conditional sanctions bill. Aides in both parties put their vote counts for the bills in the mid-60s, but they’re confident that if either comes to the floor, additional Democrats will back them.


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