In an article for Forbes, Harold Furchtgott-Roth argues that President Obama’s executive agreement with Iran violates and/or modifies the Nuclear Non-Proliferation Treaty of 1969. Thus, it cannot lawfully take effect without true congressional approval (as opposed to the process established by the Corker-Cardin legislation). Furchtgott-Roth’s article appeared about a month ago, but has only recently come to my attention.
It is axiomatic, I should think, that an executive agreement cannot supersede a treaty. As Furchtgott-Roth explains, treaties are the law of the land and have the status of federal statutes. As such, they cannot be overridden by executive action.
The Iran deal is not a treaty, nor is it a statute. It will not even muster the level of congressional support sufficient to enact a statute.
To be sure, Congress through the Corker-Cardin legislation agreed to process by which the Iran deal could take effect with less than majority support. It did so before it had seen the terms of the deal. Thus, says Furchtgott-Roth, it had no reason to believe that the terms would violate the Nuclear Non-Proliferation Treaty. Indeed, the public statements of John Kerry indicated that there would be no clash.
In any event, the Corker-Cardin bill established a process to review an executive order, not a treaty amendment. I doubt that Congress can bind itself in advance (or at all) to a process to create or amend a treaty that differs from the one established by the Constitution.
The question thus becomes whether the Iran deal modifies the Nuclear Non-Proliferation Treaty. Furchtgott-Roth presents a good case that it does:
1. Under Article I of the NPT, “Each nuclear-weapon State Party to the Treaty [US] undertakes … not in any way to assist, encourage, or induce any non-nuclear weapon State [Iran] to … otherwise acquire nuclear weapons or other nuclear explosive devices, or control [ICBMs] over such weapons or explosive devices.”
Yet the entire Iran Deal is a road map for Iran to obtain devices that provide “control over such weapons or explosive devices.” The Iran Deal lifts embargoes on missiles that could be used for nuclear weapons. The deal ends prohibitions on nuclear weapons after a fixed number of years. The deal gives access to Iran to hundreds of billions of dollars immediately, all or part of which can finance the acquisition of nuclear weapons or related components.
Thus the Iran Deal modifies or violates U.S. responsibilities under Article I of the NPT.
2. Under Article II of the NPT:
“Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”
Yet there is nothing in the Iran Deal that limits its ability ultimately to obtain nuclear weapons and various related control devices such as ICBMs. The Iran Deal merely places a timeline on that acquisition. The Iran Deal modifies Article II of the NPT.
3. Under Article III of the NPT:
“Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.”
The Statute of the IAEA. . .states. . .:
[T]he Agency [IAEA] shall have the … responsibilities…To send into the territory of the recipient State or States inspectors, designated by the Agency after consultation with the State or States concerned, who shall have access at all times to all places and data and to any person who by reason of his occupation deals with materials, equipment, or facilities which are required by this Statute to be safeguarded…
Press accounts suggest that the Iran Deal does not provide for IAEA inspection “at all times to all places and data and to any person…” Partly, there is a 24-day notice and review requirement before any inspection. That is inconsistent with the NPT. Neither the Iran Deal nor press accounts indicate that IAEA inspection will be “at all times to all places.”
The Iran Deal modifies Article III of the NPT.
4. Article VIII of the NPT provides in detail a method to modify and amend the NPT. That is not the process used for the Iran Deal. Thus the Iran Deal modifies or violates U.S. responsibilities under Article VIII of the NPT. . . .
Assuming that this analysis is sound, i.e., that Obama’s deal modifies a treaty, the questions become: what can Congress do about it and what is Congress prepared to do?
I doubt that Congress is prepared to abandon the Corker-Cardin procedure. To my knowledge, there has been no sign of willingness to do so in the month since Furchtgott-Roth’s article appeared.
I also believe that if Congress did ditch Corker-Cardin and treated the deal as a treaty amendment (two-thirds vote needed in the Senate; no vote in the House), Obama would thumb his nose at Congress and proceed to implement his deal.
[W]ith majorities in both houses of Congress opposed to the deal, the Associated Press tells us it can still proceed as an executive agreement. Of course it can. And the next president, who will probably be a Republican, can revoke it; and this Congress, or a subsequent one, can pass legislation inconsistent with it. That’s what happens when you don’t have the votes to ratify a treaty.
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This Associated Press story, headlined “Obama can do Iran nuclear deal even if Congress disapproves,” is getting a lot of attention:
The September vote on the Iran nuclear deal is billed as a titanic standoff between President Barack Obama and Congress. Yet even if U.S. lawmakers reject the agreement, it’s not game-over for the White House.
A congressional vote of disapproval would not prevent Obama from acting on his own to start putting the accord in place. …
Obama doesn’t need a congressional OK to give Iran most of the billions of dollars in relief from economic sanctions that it would get under the agreement, as long as Tehran honors its commitments to curb its nuclear program.
“A resolution to disapprove the Iran agreement may have substantial political reverberations, but limited practical impact,” says Robert Satloff of the Washington Institute for Near East Policy. “It would not override President Obama’s authority to enter into the agreement.”
That is correct. The president has the constitutional authority to enter into an executive agreement. Which is where debate over the Iran deal began, with an open letter to Iran’s leaders that was signed by 47 Republican senators and posted on Senator Tom Cotton’s web site. The letter explained that the Iran agreement was not being submitted to the Senate for ratification as a treaty. Therefore, as a mere executive agreement, it could be canceled with a stroke of the pen by America’s next president:
First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. A so-called congressional-executive agreement requires a majority vote in both the House and the Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate). Anything not approved by Congress is a mere executive agreement. …
What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.
Tom Cotton’s letter was viciously attacked by liberals, but what it said was obviously correct. Now, with majorities in both houses of Congress opposed to the deal, the Associated Press tells us it can still proceed as an executive agreement. Of course it can. And the next president, who will probably be a Republican, can revoke it; and this Congress, or a subsequent one, can pass legislation inconsistent with it. That’s what happens when you don’t have the votes to ratify a treaty.
(Yet “progressive” supporters of the “deal” seem not to be bothered — unless an African lion is killed. — DM)
Unfortunately, although President Obama is very vocal about defending the nuclear deal, the lifting of economic sanctions on the Ayatollah, the release of over a hundred of billion dollars to the ruling clerics of Iran, he has not issued any serious criticism against the leaders of the Islamic Republic with regards to the execution spree.
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How the Obama administration is facilitating Iran’s unprecedented killing binge.
President Obama is determined to defend the Islamic Republic as a legitimate government that should receive sanctions relief. He has even overstepped his constitutional authority by signing the nuclear deal (a treaty) in the United Nations Security Council without getting the two-third vote of the Senate. He did not give Congress time to review the nuclear deal as he previously promised.
The Obama administration is advocating for a regime that has been on an execution spree on an unprecedented level, according to Amnesty International’s latest report. Since the beginning of this year, the Islamic Republic has executed approximately 700 people.
People being executed are usually not told about their death sentence until the noose is put around their neck and until they reach the gallows. Family members of the victims often do not know about the execution until weeks after.
As Said Boumedouha, deputy director of Amnesty’s Middle East and North Africa program said, “Iran’s staggering execution toll for the first half of this year paints a sinister picture of the machinery of the state carrying out premeditated, judicially-sanctioned killings on a mass scale.” He added, “The use of the death penalty is always abhorrent, but it raises additional concerns in a country like Iran where trials are blatantly unfair.”
I regularly speak with Iranian people living in various cities in Iran including Esfahan, Tehran, Tabriz, and Khorasan in order to obtain a better understanding on the ground. My family lives there too. The words of every one of them (about the current situation in Iran after the nuclear deal was reached) echoes what Zahra, an English teacher in the province of Esfahan, told me. She said, “Any cash given to the these Sheikhs in the government (the clerics) by the powers because of the nuclear deal, will not be distributed to the people. The money will not be used to improve people’s economic standards. The people on top will steal the money, saving it in their bank accounts, or send it to their Arab allies, Bashar Al Assad, Hezbollah, and the Iraqi government. They [Iranian leaders] are also going to increase domestic suppression if they begin seeing the flow of cash.”
If we look at the history of the Islamic Republic closely, we see that when a “reformist” president (Mohammad Khatami) was in power in Iran, the nation witnessed the same increase in executions and suppression. It was one of the worst periods of oppression and crackdowns on civil liberties. In addition, the number of executions normally rises under the so-called “moderates” and “reformists” rules.
When Iranian people feel that they might finally have a better relationships with the West, the ruling establishments ratchets up their imprisonment, torture, suppression and killings in order to show the people who is in charge and in order to impose fear. By using these tactics, they send a clear message that the Islamists are in charge, not the youth.
This staggering number of executions suggests that, as the ruling clerics of the Islamic Republic were gaining global legitimacy due to the nuclear negotiations and “normalizing” relationships with the Obama administration, they have also increased their mass scale killings of their own citizens. At the same time, several American citizens are still spending time in Iran’s prison.
Unfortunately, although President Obama is very vocal about defending the nuclear deal, the lifting of economic sanctions on the Ayatollah, the release of over a hundred of billion dollars to the ruling clerics of Iran, he has not issued any serious criticism against the leaders of the Islamic Republic with regards to the execution spree.
In the Islamic Republic, one can be executed for actions which might not even be a crime or it might be a misdemeanor in other democratic countries. For example, one can be executed for “enmity against Allah” or “corruption on earth.” In addition, a non-Muslim man can be executed for having sex with a Muslim women, but not vice versa. One can be executed or stoned if he/she is married and has sex with an unmarried person. One can also be executed for cursing or using bad words against the prophet.
As the report by Amnesty International described, “They [death sentences] are imposed either for vaguely worded or overly broad offenses, or acts that should not be criminalized at all, let alone attract the death penalty… Trials in Iran are deeply flawed, detainees are often denied access to lawyers, and there are inadequate procedures for appeal, pardon and commutation.”
Boumedouha observed, “For years, Iranian authorities have used the death penalty to spread a climate of fear in a misguided effort to combat drug trafficking, yet there is not a shred of evidence to show that this is an effective method of tackling crime…”
The more the Iranian leaders are empowered and emboldened financially, economically and politically, the more they tighten the noose on all freedoms (including speech, assembly, press, etc.), as well as basic inalienable human rights.
There are currently thousands of innocent people on death row waiting to be unfairly executed in the Islamic Republic. While President Obama finds it urgent to overstep his constitutional authority to quickly sign the nuclear deal with Iran and push for sanctions relief against the ruling clerics, he needs to pay close attention to how the empowerment of the ruling Islamists in Iran is adversely affecting the lives of millions of innocent people.
(The views expressed in this rant — some of which are off-topic — are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)
This is a partially updated version of Fixing the Creator’s worst mistakes, published on December 29, 2012. It deals mainly with Islam, Iran, the nuke “deal,” illegal immigration and Obama’s usurpation of power.
Islam and other religions
Obama is “our” Imam in Chief and in that capacity continues to preach that Islam is the religion of peace; there is neither Islamic violence nor any Islamic desire for it. Since the Islamic State is violent it is not Islamic.
Coptic Christians beheaded. So what? They weren’t other Muslims.
In Obama’s apparent view, Palestinians want the true peace of Islam. They abhor violence and want nothing more than to live in peace and harmony in Israel with their Jewish friends and neighbors. Their only obstacles are those senselessly thrown in their path by wicked, apartheid Israel at every turn.
That’s a lie.
The nuke “deal” with Iran
Since the Islamic Republic of Iran is also peaceful, it is Islamic and hence deserves nukes (which it claims neither to have nor to want) along with increased funding to support its hegemonic efforts to bring “stability” to the Middle East with the help of its many proxies.
It’s not MY fault.
Here’s lots more ObamaMoney. Have fun with your virgins!
Obama conceals critical details of His Iran “deal” from members of Congress and from the people, while sending His minions forth to obfuscate and lie about it. Even Iran now claims that the Obama administration has been lying about the “deal.”
“Any time, anywhere” inspections to discover the “possible military dimensions” of Iran’s nuclear program are a farce and have been at least since November of 2013. We were recently advised that under one or more side deals between the International Atomic Energy Agency (IAEA) and Iran, the IAEA will neither inspect sites such as the Parchin military facility nor collect samples there; Iran will collect the samples and provide them (or perhaps samples taken elsewhere) to the IAEA.
Why is Obama doing this? Mr. Fleitz, the interviewee in the above video, suggests that Obama sees Iran as having been too long victimized by the West and in need of freedom from Western oppression.
Illegal immigration
Obama’s fundamental transformation of America in His image continues to accelerate. Illegal immigrants are already overwhelming the country and He demands more of them.
to screw America even more
I am the greatest expert on the Declaration of Dependence
All power to the People Obama
Obama has also accelerated Congress’ partially self-imposed rush to impotence. States’ rights have become a sad joke and the United Nations has become even more powerful, wrongheaded and intrusive. Our military is more focused on climate change and “social justice” than on fighting our worst enemy, which cannot even be named.
Obama confers with His chief military adviser
♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥♥
By His Supreme Excellency, Barack Humble Hussein Obama
The first paragraph of the Declaration of Dependence refers to “Laws of Nature and of Nature’s God.” However, according to the second paragraph of the Declaration,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Emphasis added.)
This raises what some may see as an important question: just who is that Creator fella, anyway? Is it Nature, Nature’s God or its earthly manifestation, Government? We need not answer directly due to the partisan overtones of the question. Suffice it to say that fairness and justice dictate that the Government over which I rule — as I had long been destined to do — has an obligation to correct the worst error of judgment and implementation made by that fella, whomever it may be. By correcting that error, I intend no disrespect to it or to anyone else. With few exceptions, everyone makes mistakes and when they are made it is My duty as your President to correct them.
Are all men are created equal?
No they are not, and it is the job of My Government to transform the nation, as I deem appropriate, to make everyone as nearly equal as is feasible consistent with providing the best governance possible. That is a daunting task, but since I won two presidential elections overwhelmingly I have a mandate to do it. I can and shall do it, so help Me — Allah everyone! You have nothing to lose but the chains in which you have long been unfairly bound by unnecessary and unjust freedoms.
Our Black and Brown Brothers and Sisters, whether from My America or from Mexico and elsewhere in Latin America, no less than invaders immigrants from Islamic nations, deserve to come to a truly welcoming America. Travel and resettlement are costly for them and they deserve the very best subsidies I can provide to afford them the leisure they want and hence deserve. That will enable them to evaluate all political candidates and to decide who will best serve My their interests. To that end, My Executive Decree is now being written to require that all promotional materials of a political nature be in Ebonics and Spanish as well as in all languages spoken or written in all Islamic nations unless I decree that it is not necessary for specific candidates whom I favor.
As the nation’s highest constitutional authority and scholar, I am uniquely qualified to interpret and otherwise ignore both the Constitution and the Declaration of Dependence. Both were written and adopted by White Male slaveholders, now despised by all good people.
Clearly, the statement that “all men are created equal” does not mean — as some have mistakenly claimed — equal before the law. Although the most humble of all men, I am so far above the law that I often have difficulty seeing it down below. The same is true in far lesser degree of accredited diplomats and many more. Others, such as those who maliciously oppose My sovereign will, are far beneath the law. No, equality does not mean “equal before the law.” It means equal in every respect except that. At least that’s what it should mean and it is My sworn duty to make it so. There cannot possibility be true equality without vigorous enforcement of My Decrees, to be promulgated now and in the future, mandating equality of both opportunity and result in all things.
Since it is my job to interpret and enforce our laws selectively I must also create those laws. That will be far more efficient.
An Executive Decree is now being drafted for My review, revision and signature. It will set forth the measures that are necessary to achieve our nation’s greatest dream — nay, her manifest destiny — of true equality for all. Very briefly, its directives will include the following:
1. Members of the Congress shall have no higher status or greater legislative authority than the poorest, lowest, most despised and least educated person in My nation — perhaps an illiterate, twelve year old, homeless transsexual drug abuser from Haiti. Hence, My Executive Decree shall declare the Congress in recess until truly representative members have been elected under Federal supervision to replace the elite obstructionists currently there.
In the meantime, I have my phone and veto pen ready.
2. During the congressional recess I shall, as your President, assume with great reluctance all legislative burdens which I have not already assumed. My people shall no longer be subjected to interminable partisan squabbles over such incomprehensible trivia as national debt limits, Federal budgets, tax fairness or anything else. The fruits of peace, love, joy and tranquility shall come to be enjoyed by all throughout My entire land.
3. Due to the peaceful outpourings of racial justice, tranquility, peace, love and joy due to My successful efforts to eliminate the scourge of White racism, there shall no longer be any excuse for privately owned Weapons of Mindless Destruction (WMDs). Hence, all shall be confiscated immediately and disposed of pursuant to Executive Decree.
4. All uniformed personnel of the armed forces shall have the same rank, pay and allowances. Staff Sergeant shall henceforth be the only military rank and all shall henceforth receive pay and allowances commensurate with that rank. The focus of all of My defense efforts will continue to be on social justice and the horrors of Climate Change. Accordingly, military personnel shall be given access to firearms only when called upon to enforce My Climate Change rules.
5. The gross unfairness of wealth maldistribution in the United States is unconscionable and that disgrace to humanity is compounded not only by an incomprehensible Internal Revenue Code but also by lengthy and even more incomprehensible IRS regulations. Accordingly, I shall decree a new and greatly simplified single tax rate of one hundred percent on all property and all earnings from any and all sources, with no deductions or credits. I shall also issue a new Revenue and Property Redistribution Decree granting $25,000 per person per year in cash as well as providing for the fair and just redistribution of all property confiscated in lieu of property tax payments. Since the unreasonably disparaged welfare safety net will no longer be needed it will be abolished.
6. Recognizing that My simplified tax plan may hamper states and other inferior governments in accessing revenues, all states and their subdivisions shall be abolished and the United States shall be divided into ten Federal Districts, to be governed by My appointed District Governors.
Conclusions
My simple, eminently fair and absolutely just decrees will transform My entire nation into a far better place for all of My people.
Islam absolutely must be recognized as the world’s preeminently peaceful religion; Christians, Jews and others must recognize this and accept the true enlightenment provided by the Holy Koran. If a few Jews or Christians are killed by Muslims who are ignorant of true Islamic teachings, that is far, far less hurtful to My people than the ravages of Climate Change. I believe that Pope Francis agrees with Me on this point.
As the monumental successes of My initiatives become clear throughout the world, I am confident that the United Nations will issue similar decrees for all nations, perhaps uniting some in UN protectorates to be governed in the fair and just ways of which the UN has over the years shown itself to be uniquely capable. The UN bows to no legitimate state or even to illegitimate states such as as Israel. Indeed, I am so confident that these wonders will come to pass that I have today notified the Secretary General that, when My work here is done, I shall give My service as his replacement higher priority than even My obligations to My own dear family.
Permit Me to commend those brave young people for their courage and superb intelligence in standing up for the highest, the best and brightest in our nation.
In closing, here’s another of my favorite songs. I hope you will enjoy it too:
(To enforce the anti-BDS provisions of the legislation Obama just signed would be Islamophobic. Or something. — DM)
U.S. President Barack Obama Photo Credit: WhiteHouse.Gov screen capture
This week the United States officially put on notice its trade partners that it will not countenance boycotts or other economic warfare against Israel.
After signing the relevant trade legislation into law, however, the White House signaled to all its trade partners that they are still free to boycott goods made in the disputed territories, despite the clear language of the legislation the president signed.
This week the Trade Promotion Authority bill was passed by Congress and signed into law by President Barack Obama.
The TPA is primarily focused on international trade between the U.S. and Europe. It also included a section which addresses trade between the U.S. and Israel.
That part of the legislation, the U.S.-Israel Trade and Commercial Enhancement Act, bans boycotts and other means of economic warfare against Israel or the “Israeli-controlled territories.” This amendment, introduced by Rep. Peter Roskam (R-Ill-6) with bi-partisan co-sponsorship, was unanimously adopted into the PTA in April.
The passage of the TPA, including the anti-BDS section, should sound a death knell for the BDS (Boycott of, Divestment from and Sanctions against Israel) Movement. It should.
However, as pro-Israel Americans and Israelis learned only a few weeks ago in the Jerusalem passport case (Zivotofsky v. Kerry), there are certain spheres of international decision making over which the president has exclusive, or at least primary and controlling, control. Obama claims that international trade is one of those areas, even though Article 1, Section 8, clause 3, expressly gives Congress the power to regulate foreign commerce.
So even though the TPA is intended to act as a strong deterrent to European and other countries to pass and enforce boycotts of Israeli products, the White House has already signaled that it will not extend its protection to any goods produced in the disputed territories.
The anti boycott of Israel language in the TPA is: “actions by states, nonmember states of the United Nations, international organizations or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.” [emphasis added.]
In a statement which Matt Lee of the Associated Press attributed to State Dept. spokesperson John Kirby, the administration made clear that despite signing the TPA, the position of the White House remains, as it has been, that the U.S. opposes boycotts of the State of Israel, but it also opposes the presence of Jews in the disputed territories of Judea and Samaria and the Golan Heights.
In the statement the administration argues that by “conflating Israel and ‘Israeli-controlled territories’ a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity,” and says that every U.S. administration has opposed “settlement activity.”
It goes on to point out that the “U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.”
The U.S. administration announced that it will not jeopardize the holy grail of the two-state solution by enforcing the U.S. law as written and which its leader signed. In the statement it claims that “both parties have long recognized that settlement activity and efforts to change facts on the ground undermine the goal of a two-state solution to the conflict and only make it harder to negotiate a sustainable and equitable peace deal in good faith.” It is on this basis, ostensibly to promote a peaceful solution to the Arab-Israeli conflict, that this administration
Professor Eugene Kontorovich of the Northwestern University School of Law analyzes several other provisions of the U.S-Israel trade aspect of the TPA which have been largely overlooked. In particular, Kontorovich points out, U.S. courts cannot recognize or enforce the judgment of any foreign court “that doing business in or being based in the West Bank or Golan Heights violates international law or particular European rules.”
In denying the average college student the opportunity to hear, think, question and learn, these minority organizations violated the basic principles of a liberal arts education and what higher learning should presumably be about: challenging assumptions and talking openly about issues that might cause discomfort.
Both micro-sensitivity and political correctness require at best, obfuscating information, and at worst, silencing it.
On college campuses, teachers, students and sometimes even administrators seem to have become ever more eager to block any idea with which they disagree.
Often it appears as if their first impulse is to demonize the individual or organization presenting the offending idea, rather than to address the substance of the argument and open a discussion in the “free marketplace of ideas.”
On the campus of Lake Superior State University, wall postings “deemed offensive, sexist, vulgar, discriminatory or suggestive will not be approved.” The campus code of conduct states that if students fail to comply, they may be disciplined — a rule that was named “Speech Code of the Month” for May by the Foundation for Individual Rights in Education (FIRE).
Lake Superior State University’s campus code of conduct states that wall postings “deemed offensive, sexist, vulgar, discriminatory or suggestive will not be approved.” (Image source: Bobak Ha’Eri/Wikimedia Commons)
Increasingly, individuals and groups, perhaps unknowingly betraying the spirit of classic liberalism, seek to shame or ridicule dissenting opinion into silence. Both in politics and on college campuses, it seems as if aggressive shaming has replaced the art of persuasion as the favored means of argumentation. Substantive, non-politically correct discussion is now at a premium.
In her recently published book The Silencing, life-long liberal and Fox News contributor Kirsten Powers documents the escalating efforts of people claiming to be liberal to silence dissent on issues they regard as contentious. The tactic follows what Powers calls the “authoritarian impulse to silence.”
On issues ranging from campus “speech codes” to feminism, these self-described liberals are unwilling to entertain the notion that a well-intentioned individual from the other side of the aisle might have a different remedy for the problems of the day.
When feminist scholar Christina Hoff Sommers of the American Enterprise Institute gave a lecture on the campus of Oberlin University on the topic of campus sexual assault and due process, protesters labeled her a “rape denialist” and claimed that they felt “unsafe.” Perhaps we should begin calling such protesters “due-process denialists.”
When the subject is religion, these “liberals” maintain a disingenuous double standard. “While the illiberal left seems to hold a special animosity to Christianity,” Powers notes, in a remark that could also apply to Israel, “it is strangely protective of Islam, despite the fact that orthodox Muslims oppose same-sex marriage.” Not only are Muslim attitudes toward gay marriage overlooked or roadsided completely, but if anyone dares to discuss the issue of minorities in the Muslim-majority world, they are labeled “racist,” “Islamophobic,” or other slurs at arm’s reach.
Meanwhile, critics are unrelenting in their animosity toward observant Christians’ views of homosexuality. “If you think about it, we are at the water’s edge of the argument that mainstream Christian teaching is hate speech,” Senator Marco Rubio recently told CBN News. “Because today we’ve reached the point in our society where if you do not support same-sex marriage you are labeled a homophobe and a hater.”
Last year, at Brandeis University, when I sought to bring a human rights display highlighting the oppression of LGBTQ individuals in Yemen, Saudi Arabia and Iran, the initiative was blocked in a flood of administrative bureaucracy. The member of the administration with whom I met was clearly not thrilled by the idea.
Meetings with a gay rights group and the Muslim Students Association (MSA), however, were just as telling. Hoping to solicit partnerships in the initiative, I explained to leaders and members of both organizations that the project was not about Islam, but about how, on a routine basis, certain governments murder people who identify as LGBTQ. Members of the gay rights organization expressed concern about “Islamophobia,” while members of the Muslim Students Association expressed concern about “homophobia.” The initiative was rejected. Both groups evidently prioritized the emotional and intellectual comfort of the campus community over drawing attention to the plight of innocent LGBTQ individuals in the Muslim world.
In denying the average college student the opportunity to hear, think, question and learn, these minority organizations violated the basic principles of a liberal arts education and what higher learning should presumably be about: challenging assumptions and talking openly about issues that might cause discomfort. It is still puzzling why the LGBTQ club and the MSA are not at the forefront of defending other members of their respective groups, regardless of where they may live.
Both micro-sensitivity and political correctness require at best, obfuscating information, and at worst, silencing it. It is incumbent upon those who recognize the dangers of the ever-expanding “speech-denialists” in the “political correctness” movement to put up a fight — figuratively, of course.
So, as we warned earlier this week, the international-law game it is.
It is no secret that Barack Obama does not have much use for the United States Constitution. It is a governing plan for a free, self-determining people. Hence, it is littered with roadblocks against schemes to rule the people against their will. When it comes to our imperious president’s scheme to enable our enemy, Iran, to become a nuclear-weapons power — a scheme that falls somewhere between delusional and despicable, depending on your sense of Obama’s good faith — the salient barrier is that only Congress can make real law.
Most lawmakers think it would be a catastrophe to forge a clear path to the world’s most destructive weapons for the world’s worst regime — a regime that brays “Death to America” as its motto; that has killed thousands of Americans since 1979; that remains the world’s leading state sponsor of jihadist terrorism; that pledges to wipe our ally Israel off the map; and that just three weeks ago, in the midst of negotiations with Obama, conducted a drill in which its armed forces fired ballistic missiles at a replica U.S. aircraft carrier.
This week, 47 perspicuous Republican senators suspected that the subject of congressional power just might have gotten short shrift in Team Obama’s negotiations with the mullahs. So they penned a letter on the subject to the regime in Tehran. The effort was led by Senator Tom Cotton (R., Ark.), who, after Harvard Law School, passed up community organizing for the life of a Bronze Star–awarded combat commander. As one might imagine, Cotton and Obama don’t see this Iran thing quite the same way.
There followed, as night does day, risible howls from top Democrats and their media that these 47 patriots were “traitors” for undermining the president’s empowerment of our enemies. Evidently, writing the letter was not as noble as, say, Ted Kennedy’s canoodling with the Soviets, Nancy Pelosi’s dalliance with Assad, the Democratic party’s Bush-deranged jihad against the war in Iraq, or Senator Barack Obama’s own back-channel outreach to Iran during the 2008 campaign. Gone, like a deleted e-mail, were the good old days when dissent was patriotic.
Yet, as John Yoo observes, the Cotton letter was more akin to mailing Ayatollah Khamenei a copy of the Constitution. The senators explained that our Constitution requires congressional assent for international agreements to be legally binding. Thus, any “executive agreement” on nukes that they manage to strike with the appeaser-in-chief is unenforceable and likely to be revoked when he leaves office in 22 months.
For Obama and other global-governance grandees, this is quaint thinking, elevating outmoded notions like national interest over “sustainable” international “stability” — like the way Hitler stabilized the Sudetenland. These “international community” devotees see the Tea Party as the rogue and the mullahs as rational actors.
So, you see, lasting peace — like they have, for example, in Ukraine — is achieved when the world’s sole superpower exhibits endless restraint and forfeits some sovereignty to the United Nations Security Council, where the enlightened altruists from Moscow, Beijing, and Brussels will figure out what’s best for Senator Cotton’s constituents in Arkansas. This will set a luminous example of refinement that Iran will find irresistible when it grows up ten years from now — the time when Obama, who came to office promising the mullahs would not be permitted to acquire nuclear weapons, would have Iran stamped with the international community seal of approval as a nuclear-weapons state.
Down here on Planet Earth, though, most Americans think this is a bad idea. That, along with an injection of grit from the Arkansas freshman, emboldened the normally supine Senate GOP caucus to read Tehran in on the constitutional fact that the president is powerless to bind the United States unless the people’s representatives cement the arrangement.
Obama, naturally, reacted with his trusty weapon against opposition, demagoguery: hilariously suggesting that while the Alinskyite-in-chief had our country’s best interests at heart, the American war hero and his 46 allies were in league with Iran’s “hardliners.” (Yes, having found Muslim Brotherhood secularists, al-Qaeda moderates, and Hezbollah moderates, rest assured that Obama is courting only the evolved ayatollahs.) When that went about as you’d expect, the administration shifted to a strategy with which it is equally comfortable, lying.
Obama’s minions claimed that, of course, the president understands that any agreement he makes with Iran would merely be his “political commitment,” not “legally binding” on the nation. It’s just that Obama figures it would be nice to have the Security Council “endorse” the deal in a resolution because, well, that would “encourage its full implementation.” Uh-huh.
Inconveniently, the administration’s negotiating counterpart is the chattiest of academics, Iranian foreign minister Mohammad Javad Zarif. Afflicted by the Western-educated Islamist’s incorrigible need to prove he’s the smartest kid in the class — especially a class full of American politicians — Zarif let the cat out of the bag. The senators, he smarmed, “may not fully understand . . . international law.”
According to Zarif, the deal under negotiation “will not be a bilateral agreement between Iran and the U.S., 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.” He hoped it would “enrich the knowledge” of the 47 senators to learn that “according to international law, Congress may not modify the terms of the agreement.” To do so would be “a material breach of U.S. obligations,” rendering America a global outlaw.
This, mind you, from the lead representative of a terrorist regime that is currently, and brazenly, in violation of Security Council resolutions that prohibit its enrichment of uranium.
Clearly, Obama and the mullahs figure they can run the following stunt: We do not need another treaty approved by Congress because the United States has already ratified the U.N. charter and thus agreed to honor Security Council resolutions. We do not need new statutes because the Congress, in enacting Iran-sanctions legislation, explicitly gave the president the power to waive those sanctions. All we need is to have the Security Council issue a resolution that codifies Congress’s existing sanctions laws with Obama’s waiver. Other countries involved in the negotiations — including Germany, Russia, and China, which have increasingly lucrative trade with Iran — will then very publicly rely on the completed deal. The U.N. and its army of transnational-progressive bureaucrats and lawyers will deduce from this reliance a level of global consensus that incorporates the agreement into the hocus-pocus corpus of customary law. Maybe they’ll even get Justice Ginsburg to cite it glowingly in a Supreme Court ruling. Voila, we have a binding agreement — without any congressional input — that the United States is powerless to alter under international law.
Well, it makes for good theater . . . because that is what international law is. It is a game more of lawyers than of thrones. In essence, it is politics masquerading as a system governed by rules rather than power, as if hanging a sign that says “law” on that system makes it so.
At most, international law creates understandings between and among states. Those understandings, however, are only relevant as diplomatic debating points. When, in defiance of international law, Obama decides to overthrow the Qaddafi regime, Clinton decides to bomb Kosovo, or the ayatollahs decide to enrich uranium, the debating points end up not counting for much.
Even when international understandings are validly created by treaty (which requires approval by two-thirds of the Senate), they are not “self-executing,” as the legal lexicon puts it — meaning they are not judicially enforceable and carry no domestic weight. Whether bilateral or multilateral, treaties do not supersede existing federal law unless implemented by new congressional statutes. And they are powerless to amend the Constitution.
The Supreme Court reaffirmed these principles in its 2008 Medellin decision (a case I described here, leading to a ruling Ed Whelan outlined here). The justices held that the president cannot usurp the constitutional authority of other government components under the guise of his power to conduct foreign affairs. Moreover, even a properly ratified treaty can be converted into domestic law only by congressional lawmaking, not by unilateral presidential action.
Obama, therefore, has no power to impose an international agreement by fiat — he has to come to Congress. He can make whatever deal he wants to make with Iran, but the Constitution still gives Congress exclusive authority over foreign commerce. Lawmakers can enact sanctions legislation that does not permit a presidential waiver. Obama would not sign it, but the next president will — especially if the Republicans raise it into a major 2016 campaign issue.
Will the Security Council howl? Sure . . . but so what? It has been said that Senator Cotton should have CC’d the Obama administration on his letter since it, too, seems unfamiliar with the Constitution’s division of authority. A less useless exercise might have been to CC the five other countries involved in the talks (the remaining Security Council members, plus Germany). Even better, as I argued earlier this week, would be a sense-of-the-Senate resolution: Any nation that relies on an executive agreement that is not approved by the United States Congress under the procedures outlined in the Constitution does so at its peril because this agreement is likely to lapse as early as January 20, 2017. International law is a game that two can play, and there is no point in allowing Germany, Russia, and China to pretend that they relied in good faith on Obama’s word being America’s word.
It is otherworldly to find an American administration conspiring against the Constitution and the Congress in cahoots with a terror-sponsoring enemy regime, with which we do not even have formal diplomatic relations, in order to pave the enemy’s way to nuclear weapons, of all things. Nevertheless, Republicans and all Americans who want to preserve our constitutional order, must stop telling themselves that we have hit a bottom beneath which Obama will not go. This week, 47 senators seemed ready, finally, to fight back. It’s a start.
WarSclerotic 
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