An Interview with Aziz Rana

 

On March 9^th, 2015, Senator Tom Cotton (R-Ark.) penned an “open letter”—signed by 46 other Republican Senators—and sent it to the leaders of Iran to disrupt the Obama Administration’s negotiations on a nuclear deal. The letter sparked a political firestorm.

 

News agencies and political/policy/legal bloggers immediately began weighing in with their thoughts on the letter. Many commentators condemned Senator Cotton’s actions as treasonous or illegal. After doing some research of my own on the legality of the letter, I wasn’t convinced that the commentators had their analysis right.

 

To get some clarification on the issues, I sat down with Professor of Constitutional Law, and National Security Law expert, Aziz Rana. After verifying his office wasn’t bugged by the NSA, we began our discussion on the relevant legal issues at play in this matter.

 

1. Let’s start with the basics, leaving out nuances and wrinkles, why is this letter a “big” deal?

 

My view is that it highlights two issues: (1) how dysfunctional and polarized our political system has become even on matters like diplomacy—traditionally thought of as spaces for coordination between the branches; and, (2) the broader post-World War II problem regarding the rise of near unilateral executive authority when it comes to foreign policy decision making. In a way this confrontation between the Senate and the President dramatizes just how unconstrained executive power is today.

 

But outside of the symbolics of the moment, I’m not sure how significant the letter will be long-term. I don’t think the letter amounts to “treason” or should be thought of in some of the more histrionic ways you see presented in the news.

 

I do think it’s deeply problematic as a matter of policy. It’s motivated by an intense belligerence when it comes to our relationship with Iran and is emblematic of a troubling and hyper-interventionist posture toward the Middle East more generally. I also think it’s grandstanding—political theater—in the worst way.

 

As a constitutional matter, I have some relatively minor concerns with the letter. I think it goes against a basic structural principle that the Senate and Congress should work with the Executive on the shared project of foreign policy and especially diplomacy. If you have Executive led efforts, and Senators are trying to subvert those diplomatic efforts, that contradicts notions of coordination and compromise between the branches. That’s an important constitutional principle that should be protected.

 

But despite these minor concerns, my main constitutional issue is not with the letter. Instead it is with the context of executive unilateralism regardless of which party holds the presidential office. If anything, the public framing of this as a question of whether the Republicans in the Senate are infringing on the President’s legitimate authority speaks to how fundamentally altered and expanded Executive power has become in recent decades.

 

 

2. The Constitution, concerning executive powers at issue here, states in article 2: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Is the Senate simply expressing their “advice and consent” a little early here or have they exceeded their power, going beyond “advice and consent”?

 

Again, I don’t see anything especially troubling, constitutionally, with the letter here. It is, in fact, the case that if Congress doesn’t authorize the agreement through a treaty framework or a Congressional–Executive Agreement then the next President can unilaterally rescind the agreement.

 

Once more, this letter is problematic as a political action and it certainly cuts against principles of coordination. I think it is meant to be “backstabbing” or “undermining” of the process of negotiating a serious agreement with Iran. But I don’t see it as a usurpation of what the appropriate role of Congress is supposed to be.

 

It does underscore the “dualism” of the American approach to international law. In other words, in the U.S. the primary view is that domestic law stands above international law as a matter of domestic legal effect. So it might be the case that the U.S. has certain international legal obligations and could be in violation of those obligations, but is still acting consistent with domestic law.

 

In a sense, what the letter does is highlight that disconnect between what’s lawful internationally and what’s lawful domestically. So the Foreign Minister of Iran is right, if the U.S. decides in two or three years to reject the agreement, the U.S. might be in violation of its international obligations, but it might not be inconsistent with Constitutional presumptions or domestic law.

 

As a consequence, the letter speaks to another real concern many people, especially abroad, have with the basic approach the U.S. takes to international law. The overwhelming American approach appears to be one that allows government actors to move in and out of international legal agreements. In this way, although the U.S. may have been central in the construction of international legal constraints, government actors nonetheless selectively chose when and when not to be bound by those very constraints. You can see this in a lot of different settings—like the use of arguments in American courts about non-self execution—to avoid having domestically enforceable rights of action under treaties we ourselves have signed.

 

The big picture issue is: what do we think about an approach to international law in which the U.S. is, on the one hand, a primary mover of various agreements and is absolutely committed to having other states abide by their agreements, but, on the other hand, sees itself as above ordinary legal checks?

 

 

3. In posts on his blog (originally here, and then again here) concerning a visit Nancy Pelosi made to Syrian President Bashar al-Assad in 2007, Professor Michael Dorf addresses the Logan Act (18 U.S.C. § 953), enacted in 1799, as a possible vehicle to prosecute government officials who attempt to undermine Executive Foreign Policy negotiations. In relevant part, the Act states:

 

“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.”

 

Was this letter a violation of the Logan Act? Can you take us through the analysis?

 

One thing that’s worth remembering about the Logan Act is that it speaks, in part, to a particular problem of the early Republic. We don’t generally think of the U.S. as a weak state, but at the time of the founding, the U.S. was essentially a weak state in the orbit of powerful European states. And, there was real worry about to what extent, even if the U.S. was formally independent, it would actually enjoy substantive independence—that is, would it be able to control the terms of its future economy and politics?

 

In the last couple decades of the 18^th century, even before the Constitution, various local separatists—anti-central authority folks—attempted to find coalitions with foreign powers as a way of promoting their own internal independence. There were a number of secessionist movements, like the Franklin Secession campaign in the 1780s. These kinds of conspiracies were essentially conspiracies in which private citizens as well as important local (and even national) political leaders sought to ally with foreign powers as a way to carve out independent political authority.

 

As a matter of 18^th century history, that was a key worry that motivated the Logan Act. What Cotton and others did is far, far removed from this context. Even though the letter may have been politically inappropriate, references to the Logan Act strike me, among other things, as missing the profound differences between the present moment and that founding-era past.

 

 

4. John Marshall, at the time a member of the House of Representatives and later a Chief Justice of the Supreme Court, said during a speech to the House of Representatives in 1800 that the President is “the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

 

This speech and proposition was later cited in United States v. Curtiss-Wright Export Corporation (299 U.S. 304)(1936) when Justice Sutherland wrote for the court stating:

 

“It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.”

 

(Note: This citation would largely be considered dicta by legal scholars because, at the time, the Supreme Court was addressing an issue factually separate from the one we are exploring today.)

 

How does the “sole organ” doctrine come into play here, if at all?

 

I think the way that language gets used in Curtiss-Wright by Justice Sutherland is really inconsistent with the actual intention of how Marshall is using the term. Marshall is really talking about a situation where President Adams was extraditing someone under the provisions of the Jay treaty.

 

The claim of the Executive being the “sole organ” is an argument about, not that the Executive has inherent unilateral authority in foreign affairs generally or is the sole organ of the state when it comes to foreign affairs writ large, but instead that, once the Senate has been involved, the Executive has the primary responsibility to execute those provisions. And, that’s a non-controversial statement. However, it’s been used in Curtiss-Wright and since essentially out of context to serve a very different 20^th century purpose about expanding Presidential authority writ large.

 

 

5. Some news and blog commentators on this subject have claimed that the United States Government should present a “united front” to the world on matters of foreign policy. Is there any legal basis requiring a “united front” in matters of foreign policy?

 

I’m glad you asked this; I don’t believe this. Foreign policy, just like domestic policy, is a site of significant contention and disagreement. And I think that the disagreement should be part of the general conversations we have about foreign policy under the national security state.

 

The idea of the “united front” is often times a way for the President to make unilateral decisions using arguments about security to quell disagreement. And overwhelmingly it cuts against those that are skeptical of American interventionism and international police power—or in the past were critics of Cold War practices. So, I’m very wary of claims about the necessity of a “united front.”

 

I do, however, think that when it comes to the politics of international agreements and obligations, that there is a principle of coordinated activity—that the branches are supposed to be working together. If there are disagreements between the branches or among significant figures in Congress and the White House, I think the best initial approach should be to find common ground. In particular, this means trying to formalize policies domestically through Congressional–Executive Agreements rather than through unilateral executive ones. And, in fact, you had people that were—even Republicans in Congress—very interested in pursuing this kind of approach.

 

Instead what the 47 Republican Senators did was to choose, very consciously, confrontation as a way of undermining an American negotiation effort rather than emphasizing joint deliberation and shared leadership.

 

 

6. Should we, as a matter of policy, want Congress to take a more active role in determining how the Executive handles foreign policy?

 

Absolutely. There is a tool that has emerged, especially in the post-World War II era, which is the Congressional–Executive Agreement—where you have majority support in both houses as a basis for important international agreements. I think that foreign policy is not a domain where democratic deliberation ends, it has to be an important site of discussion. In a way, the questions about international obligations and agreements are part of a broader debate about to what extent should the President be empowered to make unilateral judgments regarding practices that go to the heart of matters of war and peace. So we’re seeing the same set of issues when it comes to the use of force and the failure to get Congressional authorization. I think Congress should be involved.

 

I should also say, as a matter of policy, this letter cuts against my own personal politics. I think the Republicans’ substantive views are fundamentally inconsistent with American national interests. Iran is a serious regional player. If we continue on a path of isolation, aggressive hostility, and, essentially, trying to flip all of its allies through political and military interventions of various types, we’re not going to get a more stable regional order in the Middle East.

 

Instead what we’re going to get—as has been the case for decades now—is chaos and disorder. Hyper-aggressiveness toward Iran is inconsistent with our national security, inconsistent with taking seriously our international obligations, and inconsistent with the actual prospects for peace and stability let alone democratic self-government in the region.

 

The Obama Administration’s effort, I think, is important and should be commended. It strikes me that the Republicans in the Senate are attempting to undermine a significant initiative through acts of political theater that don’t offer any viable long-term vision for the U.S.’s role in the Middle East—besides hostility and posturing.

 

 

7. What are your views of the deal that has begun to transpire?

 

Despite my real concerns about Executive unilateralism I think this framework is a breakthrough. It also mirrors what some experts have defended for years now. It’s long been clear that the only real path to dealing with the Iranian nuclear crisis is a diplomatic one. Moreover, any diplomatic approach would necessarily have to include what legal scholar Aslı Bâli describes as three core components: (1) space for a limited Iranian uranium enrichment program for civilian purposes; (2) an aggressive International Atomic Energy Agency supervised inspection regime; and, (3) sanctions relief. At the heart of such an approach is a commitment by all parties to strengthening existing international institutions, so as to ensure the civilian character of the Iranian program. So far at least, the Obama Administration and the Iranian government have built their framework around these basic elements.

 

I also think that the framework is an important victory for the value of diplomacy in areas of national security. Especially with the respect to the Middle East, the American stance has too often presumed that military options are the only ones and that doing “something” means acting through force. Hopefully, the framework underscores the profound limitations of seeing militarism as effectively the only tool in the toolkit and of viewing confrontation as the only legitimate orientation toward certain regional actors.