President Donald Trump’s visit to the United Nations General Assembly in New York this week has been … confused. Secretary of State Mike Pompeo advertised that Trump would like to meet with Iranian President Hassan Rouhani, and then Trump claimed (implausibly) to have turned down Rouhani’s request for a meeting, while also (peculiarly) calling him “an absolutely lovely man.” He lauded sovereignty, promising “the United States will not tell you how to live or work or worship” while threatening to sanction countries that choose to work with Iran.
It is tempting to laugh—world leaders certainly did—but Trump is setting diplomatic targets that cannot be met. As a result, his offers of dialogue are empty, and the world knows it. Worse, Trump—or at least the hard-line advisers who have latched on to him—is trying to change how we assess the legitimacy of diplomacy and other national security tools in our domestic politics. If their efforts are not countered, they will make agreements less likely and conflict more likely even after his presidency is long over.
For example, Brian Hook, the State Department’s senior official on Iran, said in a speech on September 19 that the Trump administration is looking to negotiate a formal treaty with Iran, explaining that “it will not be a personal agreement between two governments like the last one,” referring to the Iran deal negotiated by President Barack Obama. Hook was echoing Pompeo, who has called for agreements with both Iran and North Korea to be ratified as treaties.
At first blush, this seems like an admirable commitment—deference to the Senate’s constitutional role in national security issues, and perhaps even a subtle acknowledgment that future U.S. agreements will need to find ways to overcome credibility deficits Trump has created.
In reality, though, by inflating treaties and disparaging other forms of international agreements, the Trump administration is trying to undermine diplomacy, not to strengthen it.
Demanding that future agreements be concluded as treaties sets an impossibly high bar. To ratify a treaty, two-thirds of the Senate must vote in favor. Our politics just does not allow for that kind of consensus. Perhaps the saddest example of this dysfunction came in 2012, when the Senate could not even ratify a treaty that simply translated the Americans with Disabilities Act into an international commitment. The treaty was negotiated and signed by Republican President George W. Bush, but even with former Republican presidential candidate and Senate Majority Leader Bob Dole returning to the Senate floor in his wheelchair to lend support, it garnered only 61 votes. Not bad for our hyperpartisan times, but six short of success. Only eight Republicans voted for it, and of them, only three are still in the Senate.
No reasonable observer can believe that two-thirds Senate majorities are possible on difficult and contentious issues. They are not even possible on easy ones, like celebrating U.S. leadership on disability rights and extending our best practices to the rest of the world.
Even if a treaty could pass the Senate, Hook’s argument that future presidents would be unable to break treaty commitments is false as a matter of law. The Constitution requires two-thirds of the Senate to pass a treaty, but it is silent on how the U.S. can withdraw from one. In 1978, President Jimmy Carter withdrew the U.S. from our Mutual Defense Treaty with Taiwan in order to clear the path for diplomatic normalization with Beijing. In 2001, President George W. Bush withdrew from the Anti-Ballistic Missile Treaty. Neither president referred to Congress in making these decisions, and the courts refused to intervene. The president cannot “withdraw” from a law; he must enforce it until the Congress repeals it. But, ironically, the president can withdraw from a treaty despite the two-thirds requirement for passage through the Senate.
There are politically workable and legally available alternatives to treaties that have been used regularly by presidents of both parties. In fact, Hook misrepresents the status of the JCPOA. It was not “a personal agreement between two governments”—whatever that might mean—but a deal between seven countries and the European Union enshrined in a binding United Nations Security Council Resolution. The Trump administration’s dismissive treatment of the deal undermines our moral authority in holding other countries, not least Iran, accountable to Security Council decisions.
So why is the administration fixated on treaties? I fear they are trying to do two things. Both, frankly, nefarious.
First, they are trying to mask their contempt for congressional oversight. The Iran deal was not submitted to the Senate as a treaty, but Congress passed and Obama signed the Iran Nuclear Agreement Review Act, which gave Congress a strong formal oversight role. Congress had the ability to block the deal from coming into force, members received highly detailed regular reports, and they could have forced U.S. withdrawal from the deal if the administration could not certify Iran’s compliance. Outside of these formal requirements, Obama administration officials testified in committee hearings and conducted regular briefings for members and staff. (I know—I was on the receiving end of hard questions in many of these meetings.)
The Trump administration has done much less to keep Congress informed and consulted. Pompeo made a farcically dishonest claim to Congress that our allies are working “to reduce the risk of harm to civilians” in Yemen despite warnings from his own lawyers. There were no hearings or briefings prior to the administration’s decision to withdraw from the Iran deal. There were no classified briefings before the Singapore summit with North Korea’s Kim Jong Un or the Helsinki summit with Russia’s Vladimir Putin.
Even if Trump wanted to keep Congress informed, which he does not, he is not staffed for the task. Key roles at the State Department are unfilled, meaning there are no senior officials around to brief Congress. Trump is unpredictable, and even his own key staff are in the dark about the content of the one-on-one meetings he takes with foreign adversaries. It is not hard to hear Pompeo’s own frustrations (as well as his disrespect) when Senator Ed Markey asks him very reasonable if probing questions about North Korea and he smirks, “fear not.” Rather than fix these problems and include Congress in foreign policy strategy, the administration makes vague and distant promises to submit future agreements as treaties.
Second, and more dangerously, saying that no deal is legitimate if it cannot get two-thirds of the Senate is the practical equivalent of saying, “no deal.” The president reserves this impossible standard for diplomatic efforts alone. He imposes sanctions using executive authority. He authorizes military strikes in Syria using very dubious executive authority. National security adviser John Bolton announces that “we’re not going to leave [Syria] as long as Iranian troops are outside Iranian borders” with no real legal authority. So coercion and escalation are available options, but negotiation and compromise are effectively ruled out.
This is of a piece with the administration’s overall rhetorical approach to diplomacy. They say they want a deal with Iran, but only one that addresses every point of contention between us—on other words, they want to meet on the Battleship Missouri without first winning a war. Again, nondiplomatic tools are not held to the same standard of perfection or nothing.
Hawks around the president are trying to change the terms of debate for future administrations, making negotiations more difficult and conflicts more likely. They mask belligerence with diplomatic efforts that are doomed from the start by impossible expectations. They make a meaningless nod toward constitutional legitimacy despite the reality of deeply divisive partisanship. Partisanship that they stoke on a daily basis.
I would like to see our politics function better. The U.S. will not—should not—long maintain its role in the world with the rot of partisan dishonesty that now governs in Washington. In the meantime, the world does not stop. We continue to face real national security challenges. We should always seek diplomatic solutions to those challenges.
It is perverse and dangerous to insist, as the Trump administration implicitly does, that international agreements must require a higher degree of domestic consensus than acts of war.