Posts

The Senate Must Sue Obama to Block the Iran Nuclear Treaty by Robert B. Sklaroff, M.D. and Lee S. Bender, Esq.

When we published “How Best to Overturn the Iran Nuclear Pact” in the August 2015 New English Review, we reviewed several options. One proposal suggested by Dr. Robert B. Skalorff entailed direct litigation by Congress before the Supreme Court under provisions of the US Constitution seeking a ruling  treating   the Iran nuclear pact as a  treaty requiring  advise and consent of the Senate . We  wrote:

That proposal entailed independent Congressional litigation on demonstrable Constitutional legal grounds regarding executive overreach. If the Senate was granted standing on direct appeal, based on the B. Altman SCOTUS ruling, it might result in a predisposed SCOTUS rendering a positive ruling thus quashing the Iran nuclear pact. Further, the ruling might unfetter the hands of any successor to President Obama on inauguration day in 2017 to undertake remedial actions. Such actions might reduce the current existential threats to both the US and Israel.

In furtherance of that original proposal we are publishing  the following article by Dr. Robert A. Sklaroff and Lee S. Bender, Esq. which expands upon the original concept noting support from  Constitutional law experts and applicable case citations.

The Senate Must Sue Obama to Block the Iran TREATY

By Robert B. Sklaroff, M.D. and Lee S. Bender, Esq.

When Congress returns from recess after Labor Day, one of the most pressing issues on the agenda is the Joint Comprehensive Plan of Action (JCPOA), known commonly as “the Iran deal.” Much has been discovered since the Corker-Cardin-Menendez bill was enacted, including the White House’s and State Department’s deceit which influenced the Senate to abandon its constitutionally-provided role regarding treaties.

Now it might take a lawsuit spearheaded by Senate Majority Leader Mitch McConnell (R-KY) to reverse not only the damage to the Constitution but also potential damage to America and our allies as a result of the provisions of the Iran nuclear-deal.

Senate Majority Leader Mitch McConnell has overwhelming justification to sue President Obama over the JCPOA which constitutes a treaty and thereby must be ratified by a 2/3-vote of those present prior to implementation.

Such a suit could ultimately prompt the Supreme Court to disclaim Obama’s portrayal of this document as an Executive Agreement. It could also sustain the overwhelming will of the American people–according to polling data—to trash this “legacy” effort, for reasons that have been exhaustively detailed.

Blocking implementation of the Iran nuclear-deal would thereby necessitate the legislative branch triggering a confrontation between the judicial and the executive branches.

Two essays {authored by RBS} published in The Hill explored the legalities of this initiative, focused on its “treaty” [July 29] and “rule-of-law” [August 25] components.

In the interim [USA Today, August 5], Professor Alan Dershowitz recognized that a Supreme Court opinion challenged the President’s power to enter into long-term deals with foreign powers without the consent of Congress. He cannot avoid Congressional oversight by simply declaring an important deal with foreign powers to be an executive agreement rather than a treaty [Gibbons v. Ogden]:  “[G]eneral and permanent commercial regulations with foreign powers must be made by treaty, but…the particular and temporary regulations of commerce may be made by an agreement of a state with another, or with a foreign power, by the consent of Congress.”

Two other authors, legal-authority Andrew C. McCarthy [National Review Online, July 17] and accomplished-author Caroline B. Glick [Jerusalem Post, July 21] also claimed the deal is a treaty, but none of these columnists proposed a remedy that would force a clash with this out-of-control Obama Administration. Jerry Gordon has detailed, comprehensively, “How Best to Overturn the Iran Nuclear Pact” [New English Review, August 2015].

The drip-drip-drip of news about details of the deal as well as “secret” side arrangements that has emerged this summer congeals into two major rationales for such litigation, addressing both specifics and lack of transparency. Specifically, multiple side-deals between Iran and the IAEA satirize the concept of “anytime, anywhere surveillance” but, perhaps more important, Obama and his cabinet-members “inexplicably” failed to reveal this information to Congress as secrets.  Moreover, the Administration also misled Congress and the American public about the nature of the deal and the resulting preservation of Iran’s nuclear infrastructure and right to continue advanced research that will provide it with a bomb when the pact expires in a mere decade to 15 years.

The “legislative intent” of the Corker-Cardin Bill (Iran Nuclear Agreement Review Act of 2015) was focused exclusively on Iran’s nuclear program, contrasting with the final pact the Administration concluded that was expanded to allow lifting of conventional-weapon sanctions. Iran sought—and was granted—this specific concession at the very end of the negotiations.  This was outside what the Administration had originally advised Congress about the parameters of this deal, focused on nuclear-weapons capability and not conventional weapons (or ICBMs). Thus, the final version of the Iran nuclear-deal encompassed issues, such as weaponization, that the Administration did not disclose to Congress before it debated and passed the Corker-Cardin Bill.

(Other facets of the negotiation were also misrepresented by the Obama Administration prior to when Kerry inked the deal. For example, although release of American prisoners was not ultimately achieved, Deputy Secretary of State Antony Blinken testified before the Senate Foreign Relations Committee on  January 21, 2015 that the Administration’s negotiators “continue to insist” that Americans held in detention be released.)

This pattern of deception started before the Corker-Cardin Bill was passed in May. It was even maintained by Iran when the Tasmin News agency reported [June 15] “Secretary of Iran’s Supreme National Security Council (SNSC) Ali Shamkhani reiterated that negotiations between Tehran and six major world powers solely focus on nuclear topics, dismissing any talk of military subjects in the talks.” And, reflecting the persistence of the deception,  it was manifest one week prior to when the deal was signed [July 14] during a Senate Armed Services Committee hearing via testimony from Defense Secretary Carter and Chairman of the Joint Chiefs of Staff Dempsey that the arms embargo, pursuant to Security Council Resolution 1929, was not to be lifted [July 7].

Thus, overall, absent the ability to review all relevant data, the Senate (1)—cannot render an informed judgment, consistent with its “advise/consent” role, and (2)—cannot be viewed to be facing a 60-day deadline, for the Corker-Cardin Bill mandates that this “clock” start “ticking” only after the database has been completed.

Refusal to provide copies of side-agreements to Congress continues unabated, as per testimony on August 5 by chief-negotiator Wendy Sherman and IAEA Director General Yukiya Amano. We now know why normally-sedate Senator Corker exploded (“We cannot get him to even confirm that we will have physical access inside of Parchin”) because such inspections have been serially outsourced by Obama to the IAEA and then, we learned more recently, by the IAEA to Iran.

The “toughest inspections-regime in history” forces America (and the world) to allow Iran to provide proof that Iran is not making nukes in Iran.

Perhaps more ominous is the dismissive posture adopted by Secretary of State Kerry [July 28] when confronted by Rep. Brad Sherman (D-CA) during a House Foreign Affairs Committee hearing. The innocent hypothetical was unambiguous:  Would he “follow the law” governing existing congressional sanctions if Congress voted to override a veto? The elitist reply challenged rule-of-law:  “I can’t begin to answer that at this point without consulting with the President and determining what the circumstances are.”

Could BHO go rogue?

The ability of the Supreme Court to exercise “judicial review” is rooted in the Supremacy Clause, was affirmed in 1803 [Marbury v. Madison], and has never been tested again to this day.

But, because the Supreme Court does not command any enforcement-military, the remedy for potential lawlessness is unclear. Indeed, this concern would extend to any nullification effort by the President related to the prospect that the Supreme Court would declare the Iran-Nuclear Deal to be a “treaty” rather than the “executive agreement” the President has potentially improperly considered it to be, to skirt congressional oversight and approval.

These concerns were predicted [May 7] and corroborated [July 23] in essays that presage the current crisis [by RBS, both published in The American Thinker]. They were confirmed in an e-mail exchange by noted constitutional scholar, Dr. John C. Eastman [the Henry Salvatori Professor of Law & Community Service at the Dale E. Fowler School of Law at Chapman University and Founding Director of The Claremont Institute’s Center for Constitutional Jurisprudence]:First, because only a ‘treaty’ is the Supreme law of the land, a mere executive agreement could not overturn statutorily-imposed sanctions.” Eastman continued in an e-mail, “And neither, in my view, could a change in the constitutionally-mandated default rule for adopting a treaty.  Second, if that is true, then members of the Senate who, collectively, had the votes to prevent ratification of a treaty would have standing to challenge the process that negated their vote.  That’s the Coleman v. Miller case on all fours.” This 1939 landmark decision ensured that Congress was empowered to specify a deadline by which an external entity was to affirm proposed legislation, such as a Constitutional amendment.

The Ottoman-Islamic defeat at the “Gates of Vienna” in 1683 is on the verge of being reversed by Obama/Kerry and their P5+1 partners, again in Vienna; the irony is that the West is validating Iranian-Islamic supremacism. It seems only the U.S. Senate can rescue (Judeo-Christian) Western Civilization from the Administration’s collaboration and perfidy.

The Senate must definitively impose a limit to the President’s executive lawlessness before a constitutional crisis erupts. Resolution by the courts may be the most effective way to check and to balance the scales that Obama has usurped.

Robert B. Sklaroff, M.D. is a physician-activist and may be contacted at rsklaroff@gmail.com.  Lee S. Bender, Esquire, is an attorney, activist and co-author of the book, “Pressing Israel: Media Bias Exposed From A-Z.”

RELATED ARTICLE: Iranian national arrested in Hancock County, Mississippi accused of tackling deputy, making terroristic threats

EDITORS NOTE: This column originally appeared in the New English Review.

Israeli Populist Protest Against Offshore Gas Development Deal Misguided

Last week, Israeli PM Netanyahu effectively declared offshore gas deal with Delek Partners and US Noble Energy, Inc. a national security issue. This was the conclusion reached after discussions with the development partners and economic analysis of other major gas developments resulting in a proposed framework to replace a series of bust deals with the Israel Antitrust Authority. He and his Energy Minister Yuval Steinitz may have a daunting task ahead next week contending with coalition partner, Economics Minister Aryeh Deri of Shas and Populist/Green opponents of the new deal. They support the position of the outgoing General Director of the Israel Antitrust Authority, Dr. David Gilo who resigned on May 26th objecting to the new deal saying he would not leave until August 2015. We have written about the offshore gas developments in several New English Review (NER) articles andIconoclast posts.  See: “Could Israel Lose the Energy Prize in the Eastern Mediterranean” NER (Jan. 2015). We specifically pointed out the radical populist actions by Dr.  David Gilo, who didn’t appear to have the requisite understanding of   energy market dynamics, let alone geo-political realities, or the risk capital requirements to develop and distribute gas.

Last December Gilo reneged on a March 2014 comprise deal with the Delek-Noble development partners instead accusing them of being a duopoly operating  in restraint of trade. Instead he sent the development partners a consent decree forcing sale of interests in the offshore gas deals for which they provided the risk capital to bring to develop them. Thus began the unraveling of a potentially important development of significant natural gas reservoirs in Israel’s offshore Exclusive Economic Zone in the Eastern Mediterranean Levant Basin.  Delek and  Houston based Noble Energy  had spent  over $6 billion before bringing  in the  9  trillion cubic feet tcf Tamir field in 2009 and  the 21 tcf  Leviathan field in 2011. Delivery of gas from the Tamar field began in 2013, while the significant larger Leviathan field might be brought on stream in 2018.  When the Knesset adopted revised   royalty and tax scheme proposed by the Sheshinski Committee in 2013, Israel looked like it might be on the path to a bright economic future.  That included the possibility of earning upwards of $70 billion in future revenues funding an authorized Sovereign Wealth Fund. The tax revenues from the gas sold for domestic use and export would substantively alleviate social program and national security budgetary burdens. That was also evident to former Reagan National Security aide, Prof. Norman Bailey of Haifa U and, Caroline Glick, deputy managing editor of the Jerusalem Post in an op-ed published on Thursday, July 2, 2015, Israel’s  Populist Energy Crisis.  

Saturday night, July Fourth, the Jerusalem Post reported, thousands from the student Green Course movement protesting the new gas deal from Netanyahu in Tel Aviv’s Rabin Square, Jerusalem, Beersheba and at the PM’s home in Caesarea.  According to the Post, “The activists demanded lower gas prices and increased use of gas in domestic factories, accusing the government of bending to foreign interests.”

The new proposal that Netanyahu is poised to secure cabinet approval on Monday, July 6th had the following terms according to the Post:

Under the government’s gas outline, Delek subsidiaries Delek Drilling and Avner Oil Exploration would have to exit the 282-b.cu.m, Tamar reservoir, whose gas began flowing to Israel in March 2013, selling their assets there within six years.

Houston-based Noble Energy could remain the basin’s operator, needing to dilute its ownership from the current 36 percent share to 25 percent within the same time frame.

The Delek subsidiaries and Noble Energy would be required to sell their holdings in two much smaller offshore reservoirs, Karish and Tanin, within 14 months. Because the buyer would be required to sell gas only to Israel, export allocations intended for these reservoirs would be transferred to Leviathan, according to the outline.

In 2013, the cabinet decided to cap exports at 40% of production, and pipelines designated for export will not be entitled to tax benefits guaranteed to local pipelines, as mandated by the Sheshinski Committee, whose recommendations on hydrocarbon taxation became law in 2013.

Glick in her Post op Ed  suggested that the hit that Israel had taken in foreign direct investment had a lot to do with misguided populist economic doctrine that pervades the Zionist Union, Yesh Atid, some coalition partners and Knesset opposition.  From my own investment banking exposure in Israel these populist economic views are a reflection of the founding Labor Socialist parties and the Histadrut. The latter owns enterprises that have never been effectively privatized.  It is also a poor reflection on a country that prides itself on the law, that doesn’t extend to honoring contractual obligations. She argues that is reflected in downward trends in Foreign Direct Investment cited in the most recent UN Council on Trade and Development report:

In 2014 Foreign Direct Investment in Israel was 46 percent below levels in 2013, dropping from $11.8 billion to $6.4bn. During the same period worldwide direct foreign investment dropped a mere 16%, meaning the drop in investment in Israel was nearly three times the global average.

Israel also had demonstrated that it was okay for foreign partners like Noble Energy to invest billions in offshore energy development, just as long if it came through, that the terms could change denying appropriate returns to risk investors.  Moreover, the hue and cry in Israel that the duopoly of the Delek –Noble gas partnership could result in price gouging was false.   When in fact since the Tamir field came on stream average gas prices dropped in Israel resulting in both lower energy and manufacturing costs.

The Israel Noble Energy manager Binyamin Zomer reinforced Glick’s observations with these comments cited in Globes Israel Business:

Let’s make it clear. We didn’t break the law, and we didn’t prevent competition. What we did do was to succeed beyond the expectations of the government that invited us to invest in Israel. Israel was happy, it seems, for Noble Energy to risk its money in Israel, as long as it was unsuccessful. There is a monopoly – that’s not a crime. Let’s understand why this happened. The company agreed to invest its money where other companies refused (and we won’t apologize for that); the supply of gas from Egypt ended in 2011 (and that was not our fault); other companies with no experience found no gas (again, not our fault); and the incessant interference by regulators with no background in oil and gas drove every gas company away, except for Noble Energy.

Glick offered the following proposals to rectify the impasse:

If we are to correct the damage – to our energy market specifically and to the Israeli economy overall – there is only one path to take. The Knesset must abrogate the 2011 windfall profits law and end all attempts to define the Delek-Noble partnership as a monopoly while seeking new, creative ways to seize their profits.

Then, the Knesset must pass a law that will protect investors from attempts to retroactively change the terms of operating licenses they receive from the State of Israel.

Israel has enough problems with the anti-Semitic boycott movement that is growing by leaps and bounds. We need to curb our populist tendencies and stop making those who want to invest in Israel feel that they are fools to do so.

As the late Hollywood and radio personality of my youth Bill Bendix might opine, “this is a rotten development.” Israel’s obsessive democracy  makes  the country  prone  to  divisive squabbles and in this case  possibly resulting in losing  a glittering economic future.  This latest Knesset speed bump doesn’t bode well  for Israel  achieving first world economic preeminence.  As we have written innumerable times these Israeli populists are economically uniformed  genetic socialists who have no understanding of both geo-political resource realities and commodity market dynamics or the risk reward relationships undergirding energy development. We blame Dr. Gilo whose dictatorial arrogance reneging the original compromise deal with both Delek Group and Noble Energy was nothing but political grandstanding . He was awaiting the victory of Zionist Union and populist parties like Yesh Atid that didn’t occur on March 17, 2015.  He should never have been permitted to remain as the radical leftist Antitrust Authority General Director until his departure in August after he rejected the Netanyahu government’s replacement deal on May 26th. No self respecting energy development group will invest a shekel in Israel’s energy resources because it is no better than a third world country that doesn’t honor agreements. Israel may have just screwed itself out of the future source of wealth that would alleviate social disparities and the budgetary burdens of national defense. Prime Minister Netanyahu is now caught in a nearly impossible task to  push through this new agreement on July 6th given the makeup of his ruling coalition. The fictional book and film character Forest Gump has the last word on those populist protesters in Israel, “stupid is as stupid does”.

EDITORS NOTE: This column originally appeared in the New English Review. The featured image is of Tel Aviv offshore gas deal protesters, July 4, 2015. Source: Jerusalem Post.

The Two-State Solution is Dead. Long live what?

Ted Belman, editor and publisher of the blog Israpundit writes: The Two-State Solution is dead.  All that remains is for the US to declare it so. Palestinians leaders and Israeli leaders have made it clear.

In a speech on Jan 10/14, Palestinian Authority (PA) Chairman Mahmoud  Abbas made it crystal clear that he would never abandon the “right of return”, would never recognize Israel as a Jewish state and would never make a deal unless East Jerusalem was given to the Palestinians as their capital, all of which cross Israel’s red lines.

When the latest “peace process was getting started, Israeli leaders kept referring to Abbas as a moderate, contrary to the truth, and even referred to him as a partner in peace, also not the truth. No more.

Upon Israel’s release of the third batch of murderers in December and in response to the leaders of the PA celebrating them as heroes, PM Netanyahu said:

“Murderers are not heroes. [..] This is no way to educate toward peace. This is no way to make peace. Peace can be achieved only when the education toward incitement and toward the destruction of Israel is stopped. There will be peace only if our security and settlement interests are ensured. Peace will be established only if we could defend ourselves, by ourselves, against any threat.”

In the past week, Netanyahu, Yaalon and Bennett all criticized Abbas.

Netanyahu told VP Biden that recent comments by Abbas were proof that he does not want peace.

Min of Defense Boogie Yaalon said, Mahmoud Abbas “lives on our sword,” “Once we leave Judea and Samaria, he is finished. In fact, throughout the recent months, there is no negotiation between us and the Palestinians – but rather, between us and the Americans. The only thing that can ‘save’ us is that John Kerry will get a Nobel peace prize and leave us alone.” and “I live and breathe the conflict with the Palestinians, I know what they think, what they want and what they really mean,” he went on. “The American security plan that was presented to us is not worth the paper it was written on.”

Economy Minister Naftali Bennett denounced Abbas as “no different than Yasser Arafat,”

The fact that Yaalon was forced to apologize does not invalidate the truth of his remarks.

No doubt that Kerry is now looking for an exit strategy from his doomed efforts to force Israel to make concessions.

If not the Two-State Solution, then what?

Wm Galston writing in The New Republic on June 2011, said: “Benjamin Netanyahu offers no viable alternative to the status quo, and the opposition offers no viable alternative to Netanyahu. [..] The majority of Israelis actually seem comfortable to the point of complacency with today’s de facto truce and limited Palestinian autonomy.”

He was right. Netanyahu, Yaalon and many Israelis, though they prefer the Two State Solution on their terms, in its absence, are quite comfortable with maintaining the status quo.

But not everyone embraces the status quo. They fear Israel’s further isolation and deligitimation. They are clamouring to be pro-active rather than passive or defensive.

They all want to annex Judea and Samaria (West Bank) but differ on what to do with the Arabs that live there.

Deputy Minister of Transportation, MK Tzipi Hotovely recently said:

“The goal is for Judea and Samaria to be under Israeli sovereignty. It is ours and it was acquired legally in a bloody, defensive war. We must now implement the vision of the Greater Land of Israel and begin to apply sovereignty in all of the territory. This is the vision reflecting belief in the holy precept that the Land of Israel is ours and we have no right to revoke this precept. It is fidelity to the ideology of the Right and the religious public, which believes that this is our land.”

“We must begin a gradual process of 25 years under the heading of ‘annexation-naturalization’.”

‎” We must bear in mind that this is a hostile entity and it is impossible to ‎turn them into citizens overnight.”

Caroline Glick recently published her latest book, ‘The Israeli solution: A One State Plan for Peace in the Middle East’ arguing that whereas in Israel, the conversation has begun about alternatives to the ‘Two-State’ model, no such conversation is taking place in America. Instead American policy beginning with Nixon was and is to appease the PLO, now PA, at Israel’s expense.

“The only thing that should interest us is that Judea and Samaria is Israel,” she says and notes that even though providing the Palestinians with permanent residency and the right to apply for citizenship is not a perfect solution and will damage Israel on certain levels, “it is absolutely clear that it is better than establishing a Palestinian state. Such a state would be the ruin of Israel.”

Prof Martin Sherman, while totally supporting the annexation of Judea and Samaria, warns Glick and Hotovely, to “look before you leap” for reasons he makes clear.  He is adamantly against offering citizenship.

“Topping the list of bad ideas is the notion that, given the proven infeasibility of the two-state paradigm, Israel should extend its sovereignty over the entire area of Judea-Samaria and offer “immediate permanent residency to all its [Arab] Palestinian residents, as well as the right to apply for citizenship.” This is an approach so fraught with manifest disaster that it pains me that someone of the caliber of Caroline B. Glick, for whom I have the utmost regard and with whom I am seldom in disagreement, has chosen to advocate it.

“An almost childlike naiveté is required to entertain the belief that Israel could sustain itself as a Jewish nation-state with a massive Muslim minority of almost 40% – as the societal havoc that far smaller proportions have wrought in Europe indicate.”

Instead, he argues for a  “humanitarian solution” which envisages voluntary Arab emigration induced by generous compensation.

Glick rejects this and the Jordan Option as “irrelevant ideas that no one will accept, especially the Palestinians themselves.”

But were Sherman’s idea be adopted by the US and the EU, the conflict would be fully and finally solved in a decade.

Kerry for his part has resorted to threatening Israel with dire consequences should she not capitulate. In a November interview in Israel he said: “If we do not resolve the issues between Palestinians and Israelis, if we do not find a way to find peace, there will be an increasing isolation of Israel, there will be an increasing campaign of delegitimization of Israel that’s been taking place on an international basis,” In fact Governmental sources report that US Secretary of State John Kerry is behind the European boycott threats on Israeli products and companies operating in Judea, Samaria, East Jerusalem and the Golan Heights.

At the Saban Conference in November, he said “Force cannot defeat or defuse the demographic time bomb.”

What Demographic Bomb

While the left, the EU and the USA continue to threaten Israel with claims that Israel is losing the demographic war, the opposite is the truth.  Amb (ret) Yoram Ettinger has been studying the demographics in Israel for a decade and has often written that the demographic trend supports Israel now in the foreseeable future. According to him, Jews outnumber Arabs from the river to the sea, excluding Gaza, by a 2:1 majority and the numbers will only get better.

But the Two-State Solution carries with it a real demographic bomb. If a  Palestinian state was created, Lebanon, Syria and Jordan would demand that the descendants of the original refugees now living in their countries, numbering now over 4 million, be returned to Palestine. If the PA gives up the “right of return”, and most of these “refugees” were to return to Palestine, both Palestine and Israel would be greatly destabilized. So much so, as to require no return to Palestine either.

Glick advises:

“I brief the members of the House of Representatives and the Senate several times every year. Each time I present this plan on Capitol Hill, the response borders on euphoria. In the United States, just as in Israel, there are millions of people who understand that the ‘Two-State’ solution is a disaster. They are just waiting for someone to tell them that they can abandon it. My book gives them, and the Israeli public as well, the alternative that they are waiting for.”

Let’s hope they adopt it.

EDITORS NOTE: This column originally appeared on The New English Review.