The Wall Street Journal reported yesterday (Google link) that Secretary of State John Kerry is still upset about the open letter Sen. Tom Cotton (R – Ark.) wrote last week that was signed by 46 other Republican senators arguing that it was Congress’ role to review treaties.
Mr. Kerry said on Saturday in Egypt that these American lawmakers were “wrong.”
“It is almost inevitable it will raise questions in the minds of the folks with whom we’re negotiating as to whether or not they are negotiating with the executive department and the president, which is what the constitution says, or whether there are 535 members of Congress,” Mr. Kerry told reporters in the Red Sea resort of Sharm el-Sheikh.
“Let me make clear to Iran…that from our point of view, this letter is incorrect in its statements,” he added. “As far as we are concerned, the Congress has no ability to change an executive agreement.”
It strikes me as odd that Kerry is doubling down on his non-binding argument. An executive agreement is not binding, unlike a treaty, and therefore not subject to Congressional review. It’s also odd that he claims, “as far as we are concerned.”
Shouldn’t the Constitution be the standard by which the Republican claims are judged? Finally, there’s Kerry’s famous declaration at the time the Joint Plan of Action was signed in November 2013 that the agreement was not based on trust. So if the agreement is not based on trust and it’s non-binding what “mechanism” will there to be verify that Iran isn’t overtly or covertly pursuing an illicit nuclear program?
More and more I’m convinced that Cotton’s reason for writing the letter was to smoke out the administration on this point.
It wasn’t unknown that the administration was portraying the emerging agreement with Iran as “non-binding.” Armin Rosen of Business Insider, for example, suggested this a week before Kerry and other administration officials admitted it. The problem of course with the administration’s position is, as Rosen wrote last week:
The US wouldn’t have a firm legal obligation to uphold the agreement, so Iran would have a built-in reason to assume American bad faith and push the limits of a future deal. In other words, without a legal guarantee on the US side, compliance with an agreement is potentially diluted Tehran’s side as well — and remember, this is a regime that hid the existence of two secret nuclear facilities and operated 20,000 uranium enrichment centrifuges in defiance of repeated UN Security Council resolutions.
One problem with Kerry’s harping on the Cotton letter is that it reinforces the weakness of the agreement that the United States is negotiating with Iran. The other problem is that despite the administration’s claim that the deal it is negotiating is non-binding, there is an effort to make this deal binding – on the United States.


















