“I have not yet begun to fight!”
John Paul Jones, commanding the Continental Navy, Battle of Flamborough Head
23 September, 1779
Will this presidential election be the most important in American history?
If we went by the triumphal proclamations of the mainstream media, we would think opponents of the unsigned Joint Comprehensive Plan of Action (JCPOA) – described inaccurately as a “deal” with Iran – were out of options at this point.
Operating on the process set in motion by the Corker-Cardin bill, the House has voted against approving the JCPOA. But the JCPOA’s opponents in the Senate have failed twice to move the JCPOA to a vote. A 42-vote minority has prevented a Senate vote, and Republican Majority Leader Mitch McConnell is unwilling to use the “nuclear option” of overriding the effective filibuster by the minority, and forcing a vote on the JCPOA.
If we accept that Obama met his requirements under Corker-Cardin, when he submitted the JCPOA to Congress for review, then the deadline for Congress to act was 17 September. Since the Senate couldn’t vote by then, the theory is that all objections to the JCPOA are now dead.
But the focus on these voting events amounts to wearing strategic blinders. There are other ways to stymie and undermine the implementation of the JCPOA.
Given that proponents of American security need a big shot of inspiration at this point, we may take note of an anniversary coming up on Wednesday: the Battle of Flamborough Head (1779), the naval engagement in the American War of Independence in which John Paul Jones famously declared, “I have not yet begun to fight!”
Fighting 101
It’s worth reflecting for a moment on the atmosphere of combat. The British commander, Captain Richard Pearson, was maneuvering HMS Serapis to retain gunnery range on Jones’s flagship, the converted merchantman Bonhomme Richard, and avoid Jones’s attempts to close and grapple his more capable opponent. The action was fast, confused, and dangerous, and at one point, according to Lieutenant Richard Dale (one of Jones’s officers), Bonhomme Richard’s bow collided with Serapis’s stern, a situation neither ship could take advantage of.
Pearson then taunted Jones by lobbing this pun: “Has your ship struck?” Besides referring to the collision, “struck” could mean striking the ship’s colors and conceding the engagement.
By Dale’s account, that’s when John Paul Jones responded with his memorable retort. Jockeying continued for hours, with Bonhomme Richard enduring a tremendous pounding and eventually being sunk. But Jones’s other ships, the frigates Alliance and Pallas, entered the local scene later in the battle, and were able to pummel the British ships (Serapis and HMS Countess of Scarborough), and eventually compel the surrender of Captain Pearson and win the engagement for the Continentals.
Jones on Bonhomme Richard was no match for the 44-gun Serapis, the most capable platform on either side of the engagement. But Jones fought with all his assets, and the one-on-one faceoff between Bonhomme Richard and Serapis was instrumental in weakening Serapis for Alliance, once she moved into the encounter. It was Alliance, under the command of Captain Pierre Landais, whose guns ultimately decided the wounded Serapis’s fate.
Tactical situations differ. But we can take these useful lessons from John Paul Jones at the Battle of Flamborough Head:
– You don’t always get to pick your fights, and when your goal really matters, you may have to fight where you aren’t sure you’ll win;
– A fight’s not over until you give up;
– To fight effectively, you have to use all your assets and options, and not perceive defeat too early in the outcome of one passing situation.
Fighting the JCPOA
Two hundred thirty-six years after the Battle of Flamborough Head, America’s leaders have largely become complacent about the security of our current status quo – both political and military-strategic – thinking that there’s room in it to simply give ground and not fight where we aren’t guaranteed victory.
Basically, they don’t know how to fight anymore. They know only how to calculate whether or not they can win pro forma confrontations (e.g., set-piece chamber votes), with no inconvenience or uncertainty.
That’s the mindset that has handed us the failure, in the last 10 days, to even bring the JCPOA to a vote in the Senate. Although it may turn out to be a good thing that the Senate couldn’t vote on a disapproval resolution (more on that below), it could still have been very useful to force a floor vote on an approval resolution for the JCPOA – one that presumably would have been voted down.
If McConnell had fighting on his mind, he would have used the nuclear option to force such a vote.
In fact, signaling that he would force such a vote could have goaded the Senate into making a broader and more effective effort: to spell out, in a resolution, what measures the Senate would want to see as the conditions for approving the JCPOA. (Note: from here on, I will highlight key concepts in bold as a reading aid.)
Some commentators have already suggested the Senate should do exactly that (see below). They’re right. In terms of actually fighting, such a resolution would do two key things. It would seize the initiative – and momentum – in the fight, and it would give JCPOA opponents in the Senate a decisive goal: something positive to collaborate on. (A classic Senate “gang” would be the natural task force for this.) In military parlance, it would mean going on offense.
The central pivot point of an effective fight would be this focus in the Senate on defining conditions for approval. The House would also have to concur on them. But the fight would develop on a larger canvas, using a broad slate of assets.
Goals
The campaign against the JCPOA should have three core goals. The primary goal is one that would emerge out of the effort, and would be hard to see the outlines of at first. But it’s ultimately the most important goal: pounding out the basic boundaries of a better deal.
The Obama administration has failed to do this work. And that’s fatal to the prospects of any effort to keep Iran in check, and impress our current sanctions partners with American determination. That’s why the Senate must not fear to find the outlines of a better deal emerging from its work. It mustn’t flee from their implications; it must harness them.
Mere defensive, reactive maneuvering against Iran won’t get the job done. In default of greater presidential initiative, the Senate can at least come up with some basic conditions that it would define as a better deal. That alone would be heroic service to the nation.
The “better deal” concept would, as suggested above, end up emerging somewhat inductively from the process. It’s bound to be an ugly baby, for sure. It can’t be the outline of what the next president would do; at best, it could put down some general markers of what the world can expect America’s red lines to be. And it won’t be easy to clarify at first.
The second goal, however, would be more so: preventing, or at least slowing down and stymieing, Obama’s pell-mell rush to lift sanctions.
Remember, we’re talking about fighting here. We’re not talking about only taking on efforts that are guaranteed to be victorious. There is no guaranteed way to prevent Obama from waiving sanctions, at least partially, between December 2015, when the IAEA expects to report on Iran’s initial compliance, and January 2017. But that doesn’t mean there’s no way to dog Obama’s steps and make waiving sanctions so costly that he could well rethink his plans.
The third core goal is forcing decision points on Iran, rather than giving way whenever Iran says she won’t accept something. This can be read as forcing Iran to overtly back out of the JCPOA herself – or start backing down on her public demands.
That’s a good thing. The JCPOA is a terrible commitment which America should not follow through on. It has to be fought, and denying the opponent what he wants is what you do when you fight. There’s no way to defeat the momentum of the JCPOA without thwarting or disappointing Iran.
Methods
Several options for fighting the JCPOA have been presented by different proponents. One has been discussed widely: deeming the JCPOA to be a treaty, requiring the advice and consent of the Senate.
I don’t disagree with pursuing this method, if the votes can be gotten for a resolution in the Senate. It would fit in with the approach of outlining Senate conditions for approval of the JCPOA: the Senate could both declare its sense that the JCPOA is a treaty, and describe the changes that would make it acceptable.
I agree with others that no challenge in court would be effective; i.e., asking a federal court to rule that the JCPOA is a treaty. The courts are unlikely to issue a definitive ruling in that regard. They are much more likely to conclude that the Constitution allows the president and Congress to disagree on what constitutes a treaty, if the president hasn’t designated the agreement as such, and it’s not for the courts to take sides.
Significantly, no other method need be abandoned to pursue this one. All of the main methods advanced by politicians and pundits can be pursued at the same time.
The next method, following on to the treaty approach, is the process of “rewriting” the JCPOA to make it acceptable. This could actually be undertaken whether the JCPOA is deemed to be a treaty or not. It’s not contingent on senators agreeing to insist that it’s a treaty. But the approaches dovetail nicely. Orde Kittrie wrote persuasively in August about the extensive history of such modification efforts with previous treaties and agreements. It’s a method for which no wheels need to be reinvented.
The third method is effectively what makes these first two meaningful. It’s the approach of pursuing a legal strategy to attack Obama’s authority to waive the sanctions, which he could begin doing as early as December.
I wrote about this possibility last week, after Eugene Kontorovich blogged about the implications for the JCPOA from a federal judge’s ruling that the House of Representatives has standing to sue the Obama administration over its implementation of Obamacare. Given this ruling, the House might well have standing to sue Obama over the JCPOA, based on his failure to provide all the relevant information about how the plan of action will be implemented.
Kontorovich later put out a superb, detailed concept for a legal challenge to Obama’s waiver authority, based on both a House lawsuit and challenges from the individual states. In my view, as I stated last week, it’s essential for the objective of this to be obtaining an injunction against Obama’s use of the waiver.
We know Obama hasn’t shown much fear of being put on the spot by such injunctions. But getting an injunction would justify the most stringent of measures by Congress, if he defied it. Having it in hand would be a tiebreaker – in the event Congress was willing to wage an actual fight.
On that same head, an important aspect of this litigation approach is that it clarifies the House’s position that the conditions of Corker-Cardin were never satisfied, and therefore, the 60-day review period has yet to even happen. That means Obama can’t assume any authority to waive sanctions that is granted by default in Corker-Cardin. Congress is free to proceed on the basis that no conditions of Corker-Cardin have been satisfied. Filing a lawsuit is the strongest possible assertion of that position, and would, like obtaining an injunction, justify pursuing the most stringent methods to block Obama if he tries to issue waivers.
Kontorovich noted in his initial post on this that in order to keep the House lawsuit option open, Congress must not hold a vote on a disapproval resolution against the JCPOA. Votes can be held on approval resolutions, but if a disapproval resolution is voted on, which is what falls under the provisions of Corker-Cardin, that effectively undoes the argument that Congress was unable to act within 60 days due to the lack of information from the Obama administration.
That’s why it matters that neither chamber of Congress has voted on a disapproval resolution. To date, the House has voted down an approval resolution, but that’s it.
Ted Cruz raised an additional method in an op-ed on 10 September: conveying directly to the CEOs of banks and other affected companies that they face billions in liability judgments if they rely on Obama’s waiver of sanctions – against the intent and desire of Congress – to do business with Iran.
This method, in general, falls in the category of putting pressure on the commercial companies to try to render Obama’s waivers impotent. It’s an excellent approach and should be used to the hilt.
Assuming that Obama will probably try to take some waiver actions quietly, with failures of enforcement on the margins where they are hard to detect, Congress should also be questioning commercial companies intensively on the Hill. Congress is likely to find out more about how the sanctions are being administered by questioning CEOs than by questioning Obama’s Treasury Department.
By bringing pressure with this package of methods, Congress might well shape the Obama waiver problem to be narrower in scope than it would otherwise be, and more of a political liability for the administration. Sanctions partners would see that Obama doesn’t have a free hand, and could actually face blowback.
But Congress could also deal blowback to Obama, by taking one of the most stringent measures available to it: tying budgetary authority to performance on conditions for the JCPOA. The approach would draw its trigger outline from the “rewriting” effort in the Senate.
The only way to do this effectively is to do it determinedly and fearlessly – but I remind you, again, that we’re talking about fighting.
In that context, using the budget to fight with would have to be an assertive, offensive strategy, one that went after Obama’s ability to govern in the manner he prefers. It could not be an incremental, marginal strategy. It would have to hit Obama squarely in the priorities, such as being able to use money for pet projects under the radar, within departmental budgets, and distribute largesse to his core constituencies.
This approach would involve the risks of an actual fight, including, in the worst case, some period of fiscal standoff, with Obama playing hardball with things like military salaries, Social Security, and operating funds for homeland security. He could only do that until the residue of his “bank account” ran dry, but the potential is there for an ugly, if temporary, standoff. This would be the toughest method short of seeking an impeachment.
Crafting this approach is something only a bipartisan “gang” could get done. I do consider it quite possible that Congress wouldn’t have to actually implement it, if momentum could be generated for a serious concept on the Hill. Knowing the approach was being worked on could well be enough to get the Obama administration backpedaling and looking for ways to compromise. And that could be enough to get through the next 16 months.
Credibility
The administration would have to think the threat from Congress was credible. Likewise, if Iran were to be put in a corner and forced to either make good on her threats or back down on them – e.g., the threat to accept nothing less than complete lifting of the sanctions – the mullahs would have to find Congress credible. They’d have to believe that Congress wouldn’t let Obama get away with colluding to put the U.S. under obligation, while excusing Iran from it.
The latter is what the Iranians want to do with their objection to the mere waiving of sanctions. The JCPOA is unsigned, and Iran can keep it that way, if she has things to keep objecting to. The Iranian leaders would like to get the benefits of lifted sanctions, without making any formal commitments themselves. They assume Obama will make a nice patsy for that goal.
But if Congress could slow Obama down and pressure him into some level of compromise, the path to making a patsy of him, and of the United States, may not be so clear.
A key feature of fighting is that exercising initiative forces the opponent to react. By fighting back, Congress would change the dynamics of the situation, creating permutations of developments that there’s no space to preview here. Our vision need not be limited to the topics raised in this survey.
Unity of command and purpose, granted, is something Congress isn’t good at, by nature. And nothing is guaranteed if Congress fights.
But it’s still possible to bring to bear a multi-pronged strategy to hamper Obama, thwart Iran, and impress the rest of the world with America’s continuing determination, even in the face of a leaderless period. The tools and options exist for that.
The transformative effect of taking the initiative to know and act on what we want, rather than just reacting to what an opponent is doing, always makes a difference to the outcome.
We can’t predict exactly what will happen if Congress fights. But we do know what will happen if Congress doesn’t.
