The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, March 14, 2015, 9:55 AM

Earlier this week, 47 Republican senators sent an open letter to the leaders of Iran. In the guise of a helpful primer on the constitutional provisions regarding both term limits and the ratification of international agreements, the letter’s author---Senator Tom Cotton (R-AR)---and his 46 co-signatories claimed that, absent congressional approval of an Iranian nuclear deal, any such deal could be easily revoked by the next President.

After first noting a basic error in the senators’ letter----the Senate does not itself ratify treaties, but rather, once the President has negotiated a treaty, provides its consent for him or her to ratify it---Jack linked to Iranian Foreign Minister Javad Zarif’s response to the Senate letter. Zarif argued that if the next President follows through on the letter’s threat to abrogate any deal not approved by Congress, he or she “will have simply committed a blatant violation of international law.”

His argument misses a number of key points, Jack argued. First, the Senate letter referred to the next President’s domestic authority to negate any executive agreement, which the next President could certainly exercise regardless of whatever political or diplomatic consequences follow. Moreover, while Zarif’s argument that states can’t wriggle out of treaties by invoking domestic law is supported by Article 27 of the Vienna Convention on Treaties, it ignores an important caveat to that Article. Article 46 of the same document allows a state to renege on treaty duties if the state’s consent to that treaty was given in violation of the state’s domestic law. So, insofar as the President lacks the authority to make an Executive agreement in this scenario---an open question, Jack noted---Congress could indeed use domestic law to escape an Iran nuclear deal.

This entire exchange, however, rests on the assumption that what is currently being negotiated will be a binding agreement under international law. But, Jack and Marty Lederman wrote, that’s probably not what form any forthcoming deal will take. Rather, based on remarks by a number of government officials, the deal will likely contain incentives, but not obligations, for cooperation. The President, Jack and Marty agreed, definitely has the authority to make such a deal. But, Jack later noted, just as non-binding executive agreements are easier for Presidents to make, so are they also easier for Presidents to break.

A non-binding agreement, however, does not necessarily remain non-binding. Jack explained how the Obama administration could, as part of the P5+1, reach a non-binding agreement with Iran that is then recognized by a U.N. Security Council resolution that prohibits U.N. member states from imposing sanctions on Iran so long as it complies with the agreement. This would not only legally bind the United States to adhere to the non-binding agreement, but could also last far beyond President Obama’s presidency. Given the certain political meltdown this would create in the United States, Jack noted that this route to a legally binding deal will probably remain the less-traveled one. Apparently in agreement, the administration, through an NSC spokeswoman, stated that it would not use this mechanism to make a deal legally binding and that Congress would at some point need to vote to roll back sanctions on Iran.

After all these developments, Jack provided this summation of the current state of play: the Iran nuclear deal will almost certainly be a non-binding one that incentivizes Iran’s cooperation through sanctions relief, which President Obama can provide by exercising the broad waiver power written into the Iran sanctions. Sanctions relief will also involve a U.N. Security Council vote, though the administration appears unwilling to use this vote to make the agreement legally binding. Regardless, Congress will likely not get to vote on any deal in the near future.

If, that is, a deal is reached in the first place.

Suzanne Maloney noted that the letter plays into suspicions of U.S. backstabbing harbored by the Ayatollah, who Suzanne calls “the most reliable opponent of a nuclear deal.” In doing so, the letter may lose Republicans some Democratic support for further punitive action against Iran, but may also ultimately win them the collapse of negotiations.

Beyond its implications for a potential Iran nuclear deal, the Senate's letter elicited some small measure of controversy over its propriety, or lack thereof. Some commentators went so far as to claim that the letter-writers could be prosecuted under the Logan Act. Steve Vladeck headed such conversation off, though, by noting three problems with such a prosecution: first, the section of the Logan Act prohibiting correspondence with with any foreign government “without authority of the United States” probably doesn’t apply to senators; second, the First and Fifth Amendments probably protect the senators’ letter; and finally, no one has ever been successfully prosecuted under the Logan Act.

Despite these 47 senators’ efforts, a deal may materialize. Yishai Schwartz explored what will happen when such a deal expires. At a minimum, it appears that Iran will be subject to the requirements of the IAEA’s Additional Protocol. While these requirements are stronger than those Iran is currently subject to, however, these requirements only mandate greater transparency in Iran’s nuclear program; what are really needed, Yishai argues, are greater limitations on the program.

In this week’s especially timely Foreign Policy Essay, Thomas E. Doyle, II, considered why states decide to strive for nuclear weapons. This decision, Doyle posits, is often based on moral values, as opposed to solely strategic interests.

Believe it or not, things happened this week that had nothing to do with Iran on the senators' letter.

Herb Lin responded to a recent New York Times editorial raising the prospect of cyber arms control. This concept, he notes, runs into a couple of problems. The first is that destructive cyber attacks and cyber attacks that exfiltrate data are similar enough that limiting one type of attack would involve limiting the other; because countries place such a high value on gathering intelligence through data-exfiltration, they are unlikely to accept such a limit. Moreover, he posited, a cyber arms race is less about matching an opponent’s capabilities than it is about simply amassing zero-day vulnerabilities. Thus, the cyber arms control discussion should be a domestic one---do we, the United States, think that amassing these zero-days is in our net self-interest?

Whatever the outcome of such a national conversation, in the meantime it is clear that the cyber threat has come to outrank all others, at least according to the DNI’s recent threat assessment report. Susan Landau traced the rapid rise of this threat, and how our newfound understanding of the gravity of the threat changes our necessary responses to it. Fundamentally, she argued, we must focus on information integrity---through, for example, encryption---and resilience, "the continued ability to function despite degraded performance."

Part of the government’s response to the cyber threat---the Cybersecurity Information Sharing Act of 2015---passed out of the Senate Intelligence Committee this week. Paul Rosenzweig brought us the news and wondered if, unlike last year’s version, this bill might ultimately succeed, despite concerns over the need for more privacy protections.

The founder of Wikipedia raised similar privacy concerns in a Times op-ed this week, though he directed his ire at another government entity, the NSA. The Agency’s surveillance program, he argued, violates the Fourth Amendment; moreover, he wrote, “whenever someone overseas views or edits a Wikipedia page, it’s likely that the N.S.A. is tracking that activity.” Herb noted that the underlying argument here---that foreign nationals residing overseas are entitled to the same constitutional rights as U.S. citizens---seems to violate the principle that U.S. citizens are entitled to more protections from their own government than are citizens of other countries.

The Future of Violence: Robots and Germs, Hackers and Drones---—Confronting A New Age of Threat, a new book Ben co-wrote with Gabriella Blum, was released this week. Ben and Gabby shared the news and the book’s central question: “How do you govern a world in which anyone can attack anyone from anywhere?”

Ben also delved into the past of violence, posting an episode of Radiolab that describes the Japanese practice during WWII of launching hydrogen balloons laden with bombs in the hopes that they would land on the U.S. mainland. Some, in fact, did land on U.S. soil---one even exploded at a picnic, killing several people---though the U.S. government kept these incidents secret.

Yishai Schwartz and Jennifer Williams kept us apprised of developments in the Middle East with a new installment of ‘The Middle East Ticker.’

Mira Rapp-Hooper brought us the newest edition of the Asia Maritime Transparency Initiative, which looks at the evolving role of military exercises in East Asia.

A new set of documents obtained during the 2011 raid that killed Osama bin Laden has been released as part of the trial of Abid Nasser. Cody linked us to the documents, as well as a summary of their contents by CNN’s Peter Bergen.

Ben appeared on CSPAN’s “Washington Journal” this week to shed some light on the ongoing ISIS AUMF controversy and later posted video of his appearance. Later that day, Secretary of State John Kerry, Secretary of Defense Ashton Carter, and Chairman of the Joint Chiefs of Staff General Martin Dempsey testified on the AUMF before the Senate Foreign Relations Committee. Cody posted video of the hearing.

I tipped readers off to the 23rd National Security Law Institute that the University of Virginia School of Law will put on this summer.

On this week’s Rational Security podcast, Ben, Shane Harris, and Tamara Cofman Wittes discussed David Petraeus's plea deal, ISIS propaganda, and John Brennan’s plans to reorganize the CIA. John Brennan himself discussed those plans at a CFR event on Friday, and Cody posted video of the event.

Natan Sachs appeared in this week’s Lawfare Podcast, discussing Israeli Prime Minister Benjamin Netanyahu’s speech before Congress with Ben.

And Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast, which featured an interview with Rep. Mike Rogers, former chairman of the House intelligence committee.

 And that was the week that was.