In his Geopoliticus thought-piece on the “Tom Cotton Letter,” Ron Granieri, expresses an understandable, widely shared frustration with official Washington’s conversation about foreign policy.  While (to me) the Cotton Letter is less consequential than Granieri credits, I am sympathetic to his main theme regarding comity and happy to concede many of his points.

That being said, I fear my colleague misses the mark in three key respects that may endure long after the Cotton Letter is relegated to the status of a largely forgotten footnote. 

No one would dispute Granieri’s core argument, viz., that dysfunctional political behavior has a perverse effect on American geopolitical interests.  One might suggest, though, that the appearance of government dysfunction has much to do with the Obama Administration’s decision to pursue a non-binding agreement with Iran.  It is that status alone—a non-binding agreement is not a treaty—that allows the President to avoid the Constitutional imperative to seek the Senate’s advice and consent.  

Iran would not be legally bound by the nuclear agreement it is negotiating with the so-called P5+1 group.  This central fact first emerged on Tuesday, when it was casually disclosed by a State Department spokesperson in her response to a question about the Cotton Letter.   It is interesting to speculate whether Senator Cotton knowingly foxed a heretofore-undisclosed (there is some suggestion it was foreshadowed in January, but that is beside the point) fact from a tightlipped Obama Administration.  What is more certain is that, had Cotton’s letter been addressed to the Secretary of State and not “the leaders of the Islamic State of Iran,” few but the wonkiest foreign policy wonks would ever have read it.

It is important to understand what a non-binding agreement represents, viz., a series of political understandings under which Iran would agree to certain limits on its nuclear program in exchange for a commitment from the P5+1 nations (the 5 permanent members of the United Nations Security Council plus Germany) to stop enforcing various sanctions against it.  The language of the roadmap Joint Plan of Action—the November 2013 interim agreement between Iran and the P5+1—is replete with references to “voluntary” measures, and clear in its intent that the final agreement will have political but not legal force.  What also is certain is that whatever emerges from the negotiations will not be a treaty.

Has the United States used this approach in comparable circumstances before?  The answer is yes, which leads to the second respect in which the Executive’s approach is fundamentally flawed.   Two decades ago, the United States and North Korea reached a similarly non-binding agreement known as the “Agreed Framework.”  North Korea agreed to stop engaging in certain nuclear activities and to accept an intensified verification regime in exchange for American economic and humanitarian assistance.  The 1994 Agreed Framework collapsed within a decade, and North Korea tested its first nuclear weapon in 2006.

When the American foreign policy establishment looks back on the failed 1994 Agreed Framework, we hear an echo and a warning about Iran.  It was “the best deal we could have gotten at the time,” according to Ambassador Thomas Hubbard, who added that the 1994 Agreed Framework failed “Because the North Koreans apparently still have not given up their hopes and their wish to produce nuclear weapons.”  Has Iran?  When President Rouhani served as one of Iran’s nuclear negotiators a decade ago, he boasted of how he had used talks to “buy time to advance Iran’s program.”

Perhaps better guidance comes from now Defense Secretary Ashton Carter, who earlier (1993-1996) was Assistant Secretary of Defense for International Security Policy.  He told the PBS television show Frontline in 2003, “It is such a disaster for our security, in many ways, to allow North Korea to go nuclear that we needed to run then, and I think we need to run now, substantial risks to avoid the greater danger of a nuclear North Korea.”  Might the same not be said about Iran? 

Carter suggested the 1994 Agreed Framework was instrumental, not an end in itself:

The Agreed Framework did one thing which was very important to us, which was to freeze North Korea’s plutonium program at Yongbyon right up until just a few months ago. Had that not been frozen, by now North Korea would have several tens of nuclear weapons. So by that standard, it certainly did our security a service.  It didn’t do everything.  It did not address ballistic missiles, which we have a serious problem with respect to North Korea.  It did not address adequately, clearly, a uranium-based nuclear weapons program, because we now know that North Korea embarked on a uranium-based program at the same time.

 

Someone might suggest President Obama is taking that same approach with respect to Iran.  If so, it is critically flawed: so far as we know, the non-binding agreement omits to address Iran’s ballistic missile capability, one far more advanced than North Korea’s circa 1993. 

The Islamic Revolutionary Guards Corps (IRGC)—Iran’s Supreme Leader Ayatollah Khamenei is its commander-in-chief—operates most of Iran’s surface-to-surface missiles.  Intelligence analysts believe the IRGC would have custody over nuclear (as well as chemical, biological, and radiological) weapons, and operational control of an Iranian nuclear-armed missile force.  Three years ago, the International Atomic Energy Agency disclosed documentary evidence of Iranian “studies involving the removal of the conventional high explosive payload from the warhead of the Shahab-3 missile and replacing it with a spherical nuclear payload.”  This is a critical point: despite the 1994 Agreed Framework’s many flaws, North Korea did not at the time have a means of delivering nuclear weapons (it does now), while Iran is generally believed either to have it or to be close to having it.    

Yet the Joint Plan of Action does not ask Iran to refrain from advancing its ballistic missile capability.  It openly flouts a 2010 UN Security Council resolution—carrying the force of international law—demanding Iran cease to “undertake any activity related to ballistic missiles capable of delivering nuclear weapons.”  Why, then, would Iran heed a non-binding agreement?  If the UN Security Council took ownership of the non-binding agreement, it could transform it into a binding one: Iran, like all UN members, must abide by Security Council resolutions.  There is nothing to indicate the P5+1 nations will do so, however, so it is likely to remain a non-binding agreement. 

And an opaque one.  Senator Cotton is unlikely to see the language of whatever agreement results from the current negotiation, just as the Joint Action Plan’s details on inspection and verification were not disclosed.  It is a virtual certainty that the final agreement will not be disclosed.  This leads to the third point, which is put in the form of a question: what authority does the Executive have to make political commitments—defined as non-legally binding agreement between two or more nation-states—in the first place?  Political commitments, as one legal scholar wrote, serve as alternatives for normative commitments where states cannot (or do not want to) create legal obligations.  They are, however, “constitutionally invisible,” in the sense that the vast majority have gone unsubstantiated by Congress. 

Political commitments are well suited for some agreements: the Atlantic Charter with our WWII allies was a political commitment, not a treaty.  However, they are ill suited for others: against significant domestic political resistance, the Bush Administration first tried to position the 2008 Iraq status-of-forces agreement as a political commitment.  Having to deal with the advice and consent of the Senate is a burden, but it was intended to be one by the Founding Fathers.  It is a foundational principle of democratic accountability that undergirds our constitutional system.

So yes, Senator Cotton might have been more artful in his approach.  But to his great credit, he managed to elicit the fact that the Administration is pursuing a non-binding agreement with Iran.  As to the appearance of government dysfunction, the Administration created that itself, the first day it decided on a non-binding agreement to avoid advice and consent by the Senate.  And for thinking that the “gentlemen’s agreement” of a political commitment would long deter the nuclear ambitions of a decidedly un-gentlemanly Iran.   So I excuse Senator Cotton’s transgressions.  For my part, I much prefer American leaders respect the irreversible nature of nuclear weapons programs than gauzy notions of a foreign policy process.