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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.

Bibigate – The Contretemps over Netanyahu’s Speech to Congress on Iran’s Nuclear Program

Last Saturday night a retired U.S. Navy officer said “I’ll bet you even money that Bibi will withdraw from the proposed speech before a joint session of Congress”. I joshed him and said “I wouldn’t count on it.”

Sunday, I received suggestions that Israeli Prime Minister Netanyahu should have a Plan B given the rising contretemps in the media over US House Speaker John Boehner’s invitation to talk about Iran before a Joint Session of Congress. There  was a welter of criticism from the White House, Minority Leader Nancy Pelosi and mainstream media talking heads  included David Brooks of the New York Times and  Chris Wallace and Shepherd Smith of  FoxNews.  They were admonishing Speaker Boehner and Israeli Ambassador Ron Dermer with terms like “dicey, wicked more for photo op” and “partisan politics” and “unwise for Israel.”  It was ostensibly about the lack of courtesy shown the President by not giving prior notice to the White House of the invitation extended to Netanyahu.  There was pique by certain unnamed senior officials in the White House over what some might call Bibigate.

However, let us remember there was increasing  bi-partisan support for new Iran nuclear sanctions legislation despite  the President’s warning that he would veto it if it was passed. New Jersey Democratic Senator Bob Menendez was particularly incensed at the President for his questioning his motivations.  Menendez said: “The more I hear from the administration and its quotes, the more it sounds like talking points that come straight out of Tehran. And it feeds to the Iranian narrative of victimization, when they are the ones with the original sin.”  Lest, we forget, the President had threatened a veto if increased Iran legislation passed.  It was abundantly clear in the January 16th Joint Press Conference at the White House when the President Obama agreed with UK PM David Cameron’s remarks, urging Senators on Capitol Hill not to take up new sanctions legislation at a “sensitive time”. Thus, one could speculate that Speaker Boehner’s invitation to Netanyahu on January 21st to speak to a Joint Session of Congress in early March was a rebuttal to the President.

The rancor over Bibigate was visible in the final week of January into February.  Wednesday, January 28thCNN released a clip of Fareed Zakaria’s February 1st GPS interview with President Obama.  Obama suggested that a visit with Netanyahu was “inappropriate,” as it was too close to the upcoming March Knesset elections.  The President said, “I’m declining to meet with him simply because our general policy is, we don’t meet with any world leader two weeks before their election, [I] think that’s inappropriate. And that’s true with some of our closest allies.”  Those comments engendered another rebuttal that the White House may have been giving tacit support to the involvement of Presidential Campaign aide Jim Byrd in advising the Labor-Hanuat opposition to Netanyahu in the Knesset general elections.

Friday, January 30th, Jeffrey Goldberg published an interview in The Atlantic with Israeli Ambassador to Washington, Ron Dermer, a former US Republican strategist and member of the Netanyahu’s inner circle.   Dermer discussed the background for Boehner’s issuance of the invitation to Netanyahu to speak to Congress on Iran. Dermer suggested that while the Prime Minister “meant no disrespect towards President Obama … Netanyahu must speak up while there is still time to speak up”.

That led Cornell Law Professor William Jacobson on the blog Legal Insurrection to opine that Obama’s not offended; he just wants Bibi out of office.

The Hill round up on the Sunday Talk shows had comments from Rep. Paul Ryan on NBC’s “Meet the Press” and Arizona Senator John McCain on CNN’s “State of The Union.”  Over the issue of Speaker Boehner’s invitation to Netanyahu Ryan said,” The Invitation to Israeli prime minister was ‘absolutely’ appropriate. I don’t know if I would say it’s antagonizing”.  McCain drew attention to the new low in U.S. – Israel relations under Obama saying, “It’s the worst that I’ve ever seen in my lifetime.”

Virtually out of nowhere, Sunday, February 1st, commentary from an “Insight” blog post of the Israeli Institute for National Security Strategic Studies at Tel Aviv University shed light on a bizarre theory of what was behind Bibigate.  The author of the INSS post, Zaki Shalom, suggested:

The backdrop for the Administration’s expressed dissatisfaction with Israeli Prime Minister Netanyahu’s intention to present his position on negotiations with Iran to Congress, creating a rather transparent linkage between Israel’s positions on negotiations with Iran and sanctions, and U.S. willingness to assist in combating the Palestinian attempt to exert international legal and diplomatic pressure on Israel.

On Thursday, January 30, 2015, the Senate Banking Committee voted out a ‘softer’ version of the Kirk –Menendez Sanctions legislation by a vote of 18 to 4, including six Democrats.  As reported by The Hill, the legislation:

… Would impose sanctions on Iran if a comprehensive agreement to roll back its nuclear program is not reached by June 30 and would allow the president to waive sanctions indefinitely for 30 days at a time.

However, the bill would be shelved until March 24th for a possible floor vote.  Senator Bob Corker (R-TN) said, “All of us understand it’s not going to be voted on before March 24”. While the measure may portend a possible override vote should President Obama veto it that still requires Senator Menendez to keep the group of 17 Democratic Senators who support this version of sanctions legislation in the bi-partisan alliance.

Israeli concern over a weak final agreement by March 24th  is reflected  in a Times of Israel report published  Sunday, February 1st,” US sources deride Israeli ‘nonsense’ on Obama giving in to Iran.”  Israeli  sources contend that Iran is likely to get 80 % of what it is seeking- the ability to continue enrichment with  upwards of 9,000 centrifuges, especially the advanced IR-2s. The Israelis believe that would give Iran nuclear breakout within weeks.  Add to that mix Iran flaunting pictures in a ToA  report of a Medium Range Ballistic Missile (MRBM) capable of covering all of Europe. That is to be followed in 2015 to 2016 by one cap ICBM range. Of course there a number of us who believe that Iran may already have purchased nuclear weapons from rogue regimes, but may lack nuclear warheads, which are likely to be supplied by North Korea to be mounted on those ICBMs.

Especially as the President observed, there is less than a 50/50 chance of reaching an agreement. Then assuming the current polls are correct and Bibi retains the ability to form a new Knesset coalition after the March 17th election, he may speak with both authority and strength.

As a usual astute observer of Israel from Europe, Imre Herzog, opined when I wrote him on my side bet “you might win the bet”.

EDITORS NOTE: This column originally appeared in the New English Review. The featured image is of U.S. House Speaker John Boehner and Israeli PM Benjamin Netanyahu. Washington Times File Photo  5-24-2011.

US Appeasement of Iran Endangers the entire Persian Gulf

Following the Iconoclast post yesterday on the “Two Faces of Sen. Dianne Feinstein”, there was an exchange of views with Shoshana Bryen, Senior Director of the Jewish Policy Center and Sarah Stern, President of the Endowment for Middle East Truth.  We were discussing a  matter related to the threat that Iran posed  to the US in the Western Hemisphere; the Administration succumbing to de facto Iranian nuclear hegemony in the Persian Gulf. Daniel Pipes in an, NRO-The Corner article, drew attention to  Administration appeasement enabling Iran to strike deals with Oman and the United Arab Emirates (UAE). This resulted in  Iran gaining potential control over the strategic Straits of Hormuz, “Has Iran gained a Foothold in the Arabian Peninsula”?

Pipes’ important article appeared while Washington and the world media were focused on the implementation of the Six Powers Joint Plan of Action, portions of which were released by the White House yesterday.  Other salient provisions  of which were sequestered at the request of UN nuclear watchdog, the International Atomic Energy Agency (IAEA).   He drew attention to the agreements both the UAE and Sultanate of Oman:

According to a sensational report by Awad Mustafa in Defense News, a Gannett publication, not only has Tehran signed an agreement with the UAE  over three disputed islands near the Strait of Hormuz, but it has also reached a possibly even more important accord with the government of Oman. Both of these agreements have vast implications for the oil trade, the world economy, and Iranian influence.

According to an unnamed “high level UAE source,” secretive talks taking place over six months led to a deal on the Greater and Lesser Tunbs finalized on Dec. 24: “For now, two of the three islands are to return to the UAE while the final agreement for Abu Musa is being ironed out. Iran will retain the sea bed rights around the three islands while the UAE will hold sovereignty over the land.”

This is big news, but yet bigger potentially is the source’s stating that “Oman will grant Iran a strategic location on Ras Musandam mountain, which is a very strategic point overlooking the whole gulf region. In return for Ras Musandam, Oman will receive free gas and oil from Iran once a pipeline is constructed within the coming two years.”

Both agreements center on the Strait of Hormuz, the world’s most important oil passageway and vulnerability.

  • The UAE deal involves the tiny but strategic islands of Abu Musa and the Greater and Lesser Tunbs near the straits, occupied by Iranian forces since 1971, just as the UAE emerged as an independent country.
  • It’s not clear what granting to the Iranians “a strategic location on Ras Musandam mountain” means but Musandam is the very tip of the Straits of Hormuz and Tehran winning access to any sort of military position there could enhance their ability to block the oil trade as well as make trouble on the peninsula.

Oman’s role in facilitating the UAE-Iran talks, says the source, was approved by Washington: “Oman was given the green light from Iran and the US to reach deals that would decrease the threat levels in the region and offset the Saudi Arabian influence in the future by any means.”

Couple this development with what happened at a US Senate Foreign Relations confirmation hearing Wednesday involving the Obama emissary who facilitated those back channel conversations with Tehran in Oman, Puneet Tawar.   The Global Affairs blog of The Hill in a post noted how two Republican minority members, Florida Senator Marco Rubio and Idaho Senator James Risch stopped Tawar’s confirmation, “Rubio, Risch block Obama nominee over ‘back channel’ talks with Iran”:

Sens. Marco Rubio (R-Fla.) and James Risch (R-Idaho) are holding up a vote on a State Department nominee over his involvement in back channel talks with Iran that have infuriated Republicans, The Hill has learned.

The Republican lawmakers prevented the Senate Foreign Relations Committee from voting Wednesday to confirm White House Iran adviser Puneet Talwar as the new Assistant Secretary of State for political military affairs.

Talwar was one of several U.S. officials who met in secret with Iranian negotiators in Oman in 2012 and 2013 before multilateral talks officially resumed following President Hassan Rouhani’s election in June.

“Sen. Rubio is requesting additional information from Mr. Talwar about his role in the so-called ‘back channel’ outreach to Iran,” a Rubio spokeswoman told The Hill in an email.

[…]

“It focused exclusively on the nuclear issue, so there were no other side discussions underway,” Talwar responded. “And it was merged [with the multi-party talks] after the conversations gained traction.”

In my discussion with Bryen and Stern I drew attention to what an Iranian nuclear hegemon in the Persian Gulf might do to US national interests.  Iran producing a nuclear weapon might threaten US Fifth Fleet base in Bahrain and possibly its strategic base at Diego Garcia in the Indian Ocean.  Both of these facilities   protect the free flow of oil to U.S. allies South Korea and Japan, among others.  Bryen pointed out that Japan may choose an energy deal with Russia rather than risk an oil cutoff from the Gulf if the U.S. is no longer the guarantor.  Such a deal would change the nature of American “pivot to Asia” and alliances there.  If Iran produces nuclear weapons, which it may have already, it is likely to play a form of n-dimensional nuclear Three Card Monte.   If the US capitulates, then the Gulf emirates and the Saudis may have to resort to baksheesh to preserve their access to the Persian Gulf and Straits of Hormuz to make mega-revenues in the world energy trades.  The Saudis at least have pipelines to secure Red Sea ports. The Iranian Shia mullahs on the opposite  shore of the Persian Gulf will simply use hidden nuclear suasion to gain revenues from their despised Sunni members in the Muslim Ummah.

In a Wall Street Journal excerpt  from former Secretary Gates’ memoir, Duty, he criticized the political operatives  populating the West Wing National Security Council (NSC). In contrast to other Administrations,  many Obama NSC advisers are people to whom the Administration owed political favors. Among those he cites are  Tom Donilon, former Clinton era chief of staff at the State Department, who like his  NSC deputy, Denis McDonough, the later is Obama’s current Chief of Staff, had limited  national security groundings.  Early Obama Administration NSC chief, former Marine Gen., Jim Jones criticized Donilon for “his lack of overseas experience”,   telling him “You have no credibility with the military”, according to Bob Woodward’s, Obama’s Wars.  McDonough, prior to joining  Senator Obama’s staff  was a foreign affairs aide to former Senate Majority Leader  Tom Daschle and subsequently served in the same capacity with former Interior Secretary and Colorado Senator Ken Salazar.  We wrote about McDonough’s role in meeting  with Muslim Brotherhood leaders at the 2012 Brookings Doha Qatar Center meetings. Wendy Sherman, a colleague of Donilon at State during the Clinton Administration,   did us no favors over the oil/ food for no nukes deal with  North Korea under Kim Jong -Il, the late father of the current ruler, Kim Jong- Un.   All we received from Ms. Sherman’s efforts were nuclear tests;  test  of ICBMs and exchange of technology to assist Iran in its bomb making.  Now as Undersecretary of State, Sherman has brought us the P5+1 agreement.  As to nuclear bomb making support by North Korea just recall, the pictures we have of Iranian and North Korean scientists assisting Syria in building the nuclear bomb factory on the banks of the Euphrates destroyed by Israel in September 2007.  The Administration has failed in the view of many to meet the sense of the Kissinger adage: “America has no permanent friends or enemies, only interests”.

The Obama Administration has jeopardized potential strategic control of the oil rich Persian Gulf.  Both the UAE and Oman know that. This could present a threat to Diego Garcia in the Indian Ocean with its stockpile of nuclear weapons and  cruise missiles and B-52 bombers.  As Bryen commented, “When Munich occurred at least the Chamberlain rationale was that it gave the British and French time to prepare for war against Nazi Germany”.  However, what rationale does the Administration have?

The Persian Gulf allies have witnessed the Administration losing resolve in the region causing them to seek whatever cover they can from the predatory hegemon to avoid becoming what Churchill called, “crocodile food”.   Is Israel next?

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