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The Guts of the Netanyahu-Obama Flare-Up: The White House Versus Congress

03/05/2015 10:33 am ET | Updated May 05, 2015

Lost in the focus on slights to President Obama by Prime Minister Netanyahu's appearance Tuesday before Congress without first securing his blessings are two critical points:

1. Speech about critical issues of U.S. foreign policy should be unrestrained; and

2. President Obama may be violating Congressional prerogatives in making deals with foreign governments that are unprepared to renounce their allegiance to terrorism.

As to issues of propriety, it would seem anomalous -- a throwback to different times -- that the full exchange of data or views is not to be welcomed when it comes to the most sensitive issue of U.S. foreign policy: stopping Iran's acquisition of a nuclear arsenal. True, the timing of the congressional invitation could have a possible effect on upcoming Israeli national elections, and on U.S. congressional attitudes toward the administration's posture in negotiating an arms deal with Iran. But these niceties of timing and impact on the U.S. negotiating stance pale to insignificance in the face of the threat posed.

Yet President Obama has chided Congress and the Israeli prime minister for interference with Executive Branch prerogatives in conducting U.S. foreign policy. He would make his case to Congress after the deal is struck between U.S. and Iranian negotiators, and then give Congress no veto power, only a chance to exercise its constitutional rights to not lift those sanctions imposed solely at Congress' initiative. But the days of a president making foreign policy with a cloistered coterie of advisers and little involvement by Congress, excluding the presentation of views of other nations with whom we are allied, is long gone.

Congress has a special constitutional interest in this matter. In fulfillment of its prerogatives as the legislative branch it duly passed laws calling on the State Department to assist it in listing foreign governments considered sponsors of terrorism, and it has repeatedly designated Iran as the world's key supporter and sponsor of terrorism, resulting in the death of thousands of Americans as well as huge numbers of foreign nationals. Dealing with any country designated as a state sponsor of terrorism, absent special exemptions, is subject to stringent criminal penalties. This is not to say that the Executive Branch cannot secretly engage in negotiations with states so designated, but it does mean that no deal can be struck with those states that eliminates their subjection to U.S. sanctions unless they are prepared to renounce allegiance to terrorism as an instrument of state policy. Otherwise, it is the Executive Branch that is trampling on the Legislative Branch's legitimate powers.

For example in dealing with Libya, successive U.S. administrations made clear that Libya would first have to renounce terrorism as an instrument of state policy before any agreement could be effectuated that would eliminate U.S. sanctions against Libya imposed after the bombing of PanAm 103 over Lockerbie, Scotland, in December 1988. Yet last year President Obama saw fit through executive fiat to resume diplomatic relations with Cuba before that state was de-designated as a state sponsor of terrorism.

And now he would be prepared to present a deal with Iran where it does not first establish that it deserves to be de-listed as the world's leading state sponsor of terrorism for its acts, among others, in training and encouraging Hamas and Hezbollah, both designated by the U.S. Congress and the U.S. Department of State as terrorist organizations dedicated to the destruction of Israel. This defies not only logic but the law, which dictates the reverse: that the country, with whom we would enter a deal for normalization of relations or some semblance of it by ending U.S. sanctions against it, must renounce -- at least in the final instrument -- its commitment to terrorism. Yet the president and his advisors have said that the deal they are negotiating with Iran will contain no such provision for renunciation of terrorism. That, we are told, is a necessary concession to reality -- namely, that Iran remains inflexible on the issue and that perhaps over time it will mellow its stance. Perhaps, but whether this position defies logic or not, it defies the will of Congress.

Of course U.S. virtue and tolerance by bringing Iran into the family of nations by this agreement may wean Iran in time, as the president seems to suggest, from its terrorist proclivities. But giving up hard U.S. leverage by way of sanctions for a pious hope may make sense where the country in question has indicated some movement away from its commitment to terrorism. However, here we have had none of that. Indeed, we have not even asked (politely or not) that Iran intimate its readiness to renounce terrorism as part of a final deal. Instead we see what we deemed at the United Nations when I served as Counsel to U.S. Ambassadors Jeane Kirkpatrick and General Vernon Walters as an example of PC -- pre-emptive capitulation. Does America's self-dignity, let alone Israel's self- preservation, not require more than responding to state-sponsored terrorism by capitulating on renunciation because we assume the effort is fruitless? This is the question that Netanyahu put to the U.S. Congress without mentioning any specific law, and this was the point that resonated with Congress as it applauded his presentation.

President Obama would not contest that, in a vast area that stretches from Iraq to Lebanon to the Gulf with inroads all around the globe, the Iranian regime has in recent years only ratcheted up its sponsorship of terrorism. Yet Netanyahu's point that if you are the enemy of an enemy you can still be an enemy seems to have fallen on deaf ears. Iran is now seen by the administration as an entity we can work with in maintaining regional order, never mind that we are simply witnessing a power struggle between two thugs -- Iran and ISIS -- as to who is the chief honcho of global radical terrorism. Instead, Iran's stance in Iraq in fighting ISIS appears to have not so much as set off alarms about its influence over Iraq as it has made for receptivity to the idea that it is a suitable partner to an agreement to halt nuclear weapon development.

Whatever else one can say about Netanyahu's appearance -- and the administration has criticized Netanyahu for not presenting "one new idea" -- it has certainly raised the very big idea, long swept under the rug, that if Iran remains committed, despite pauses here and there, to supporting terrorism, its goals of regional hegemony and the destruction of Israel will never be checked, just delayed.

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Allan Gerson is Chairman at AG International Law in Washington D.C. and a former US Counsel to the US Delegation to the United Nations and Deputy Assistant Attorney General for Legal Counsel