Ali Khamenei and the 47 Senators: A Letter and its Legal Consequences

“Writing letters, however, means to denude oneself before the ghosts,” wrote Franz Kafka in his “Letters to Milena”. The open letter from 47 U.S. senators to Ayatollah Ali Khamenei has stripped them bare, not in front of ghosts, but in front of the international legal and political community.

This letter includes, between the lines, three messages of contempt: contempt for international law, contempt for the U.S. president and contempt for the Iranian government. It shows contempt for the principle of ‘pacta sunt servanda’—the principle that countries are bound by legal agreements—because it treats any potential agreement between the U.S. government and the Iranian government as only a ‘scrap of paper’, to use the expression of Chancellor Bethmann-Hollweg when he described the declaration of Belgium neutrality during the First World War. It shows contempt for the U.S. president by minimizing his influence on American foreign policy and portraying him as an illusionist (if not a snake charmer); and it shows contempt for the Iranian interlocutors by presuming that they need a lessons on the U.S. Constitution (needless to add that Iranian government has more holders of American Ph.D.s than France, Germany, Italy, Japan, Russia and Spain combined).

The Senators’ letter to Iran is likely to create a bad precedent that would harm not only harmony in the Senate but also the separation of powers in a presidential system.

Moreover, the American Constitution does not, strictly speaking, give the Senate a right to ratify treaties. Rather, it grants it the right to make a resolution in which the Senate gives its advice and consent to the President for ratification.

The decision of the Supreme Court of the United States in the case of United States v. Curtiss-Wright Export Corp. (1936) confirms this interpretation. This is a decision that, in the words of Glenn P. Hastedt, “presents a bold statement by the Supreme Court of presidential dominance in foreign policy”. As Justice George Sutharland explained, “the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it [my emphasis].

Certainly, the 47 senators in question have committed what the American constitutional expert Lindell Bates calls an “unauthorized diplomatic intercourse by American citizens with foreign powers,” but this “interference” could not, in my view, constitute an act of treason (as suggested by some U.S. lawyers and citizens who have merely dusted off the Logan Act and used it as the basis for their claim. This 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.”

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This Act, as important as it in American constitutional history, has fallen into disuse not because it was of limited application and linked to a specific historical event (as suggested by some American historians and constitutional experts), but because in recent decades American political practice has opted for (and become used to) practices that contradict the provisions and the spirit of this Act. It is well known, in fact, that for decades American senators and elected representatives, both Republican and Democrat, took the liberty of visiting foreign countries, to show their opposition to certain aspects of the policy of their government. (For example, Senators Patrick Leahy and Richard Shelby met in Cuba with President Raúl Castro in February 2012, and a group of American congressmen, led by Republican Curt Weldon, went to Tripoli to meet Colonel Gaddafi in January 2004). These trips took place without any mention of reactivating the Logan Act.

What’s more, the principle of freedom of expression, which is the cornerstone of American democracy, makes it difficult to resuscitate this Act.

However, I believe that the response to the 47 Senators’ letter to Iran is to be found in the Senate rules and proceedings and in the mandate of the Senate Ethics Committee. According to Article I, Section 5 of the U.S. Constitution, “[e]ach House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” The Senate has developed its own rules of internal discipline that include censure, among other sanctions. Censure consists of a simple reprimand addressed to Senator whose conduct is considered dishonorable to or disrupts the work of the Senate. The Senators’ letter to Iran is likely to create a bad precedent that would harm not only harmony in the Senate but also the separation of powers in a presidential system.

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But to impose this sanction, given the current composition of the Senate, would require that all Democratic senators, independents and five Republicans (among the 7 non-signatories) approve it. Is this possible? The answer is in the question (evidently not!)

Aware of this procedural reality, the White House is considering strengthening its agreement with Iran through a resolution coming from the Security Council. If approved, this endorsement would leave the Republican senators no other choice than to denounce the impartiality of the Security Council”! A “political oxymoron”? Or just a dream? That’s another story.

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