Can the Iran deal still be beaten?
As I'm sure most of you have heard, the Iran disapproval resolution died in a cloture vote in the Senate last night, which means that the deal is assured that it can go ahead.
Or is it? This is Thomas Lifson.
Speaker Boehner has announced that he may sue. Jake Sherman writes in Politico:
Speaker John Boehner said Thursday he might sue President Barack Obama again.
The
Ohio Republican said Obama has not turned over the entirety of the Iran
agreement for congressional review as mandated by law. Boehner said
legal action is “an option that’s very possible.”
“If
you read the provisions in [the congressional review law], it’s pretty
clear that the president has not complied,” Boehner said Thursday during
his weekly news conference. “Because it makes clear that any side
agreements and any other type of an agreement — including those that do
not directly involve us — must be turned over as part of it. I do not
believe that he’s complied.”
The speaker said the agreement is "worse than anything I could’ve ever imagined."
Although
the courts have generally been reluctant to become involved in disputes
between the legislative and executive branches, a recent Obamacare
decision gives some hope.
Northwestern University constitutional law
professor Eugene Kantorovitch explains in the Washington Post:
In
fact, there are at least two paths to invalidating any sanctions relief
implemented by the president – a lawsuit by a House of Congress, or
action involving state sanctions laws.
Yesterday
a D.C. Federal district court issued a landmark ruling in House of
Representatives v. Burwell, upholding the House of Representatives
standing to challenge Executive action under the Affordable Care Act.
The question of institutional legislative standing is a fairly novel
one, and thus this is an important decision.
Whether
it survives on appeal, the decision creates a major and previously
unanticipated opening for a congressional lawsuit challenging the Joint
Comprehensive Plan of Action. The constitutional argument would focus on
the non-transmission of documents required under the Iran Nuclear
Agreement Review Act of 2015 (the Corker-Cardin deal), which would seem
to satisfy the standing test established by the district court.
Omri Ceren, in an email, summarizes the complex argument:
It
begins in the usual place: the 60 day review process hasn't started
because the Iran-IAEA side deals haven't been transmitted to Congress.
But the injury isn't just that waiving sanctions is illegal, which is
the way the argument usually proceeds. Instead the Kontorovich argument
is that Congress has been denied its Article I prerogative to exercise
its legislative authority: since binding action on the JCPOA can only
occur between Day 1 and Day 60 of the Corker "period of review," and
since that clock hasn't started so we're not in Day 1, Congress has been
denied the ability to act on the JCPOA. (snip)
White
House spokesperson Earnest was asked about possible Congressional
litigation at today's White House press briefing. His answer: "we've
been clear that the [transmitted] documentation included all the
documentation that was in the possession of the United States
government" [b].
That
answer is unlikely to satisfy Congress and may not pass judicial
scrutiny. The White House appears to have intentionally not called for
the side deals, lest they have to transmit them. Olli Heinonen - a 27
year IAEA veteran who sat atop the agency's verification shop - has
explained that the U.S. could very easily call for the side deals
because the U.S. is a member of the IAEA Board: "According to the IAEA
rules and practices such documents could be made available to the
members of the IAEA Board... If a board member asks it and others resist
the distribution ... this can be overcome by a vote... Simple majority
is enough, and no vetoes exist in the IAEA system."
...
Meanwhile, Senator Ted Cruz recommends two more steps, in addition to noting the lack of complete documentation mentioned above:
Leader
McConnell should schedule a vote on a resolution expressing the sense
of the Senate that, if the agreement had been introduced as a treaty, it
would not be ratified. This will put senators on record and will make
clear that there is insufficient support in the Senate for approving the
agreement as a treaty.
Third,
given President Obama’s regrettable history of lawlessness, it is
reasonable to assume that he will simply ignore the law and declare that
he is lifting sanctions under the agreement anyway. On that assumption,
we should make clear to the CEOs of banks holding frozen Iranian funds
that their misplaced reliance on the president’s lawlessness would not
necessarily excuse them from the obligation to comply with existing
federal sanctions laws. And if they release billions in funds to
Khamenei, they risk billions in civil (and possibly even criminal)
liability once President Obama leaves office. Having spent years
advising major corporations in private practice, I can say that their
general counsels will likely tell them their legal exposure is real,
which could well result in the banks deciding not to release the funds
to Iran, despite the president’s actions.
The
real Rubicon to be crossed in the Iran deal is the release of financial
assets to Iran. Once they are gone, they cannot be gotten back, and
based on statements from Iran as late as yesterday, it is certain they
will be employed in part to rain down death and destruction on Israel,
the United States, and all who do not adhere to the mullahs’ version of
Islam. One can imagine Obama’s fury of banks decline to release funds
based on liability worries.
Hmmm.
Shabbat Shalom everyone.
Labels: Barack Hussein Obama, Eugene Kontorovich, Iran Joint Comprehensive Plan of Action, Iran sanctions regime, Iranian nuclear threat, Senate's treaty powers, Ted Cruz, United States Senate
The day after
Note that's the day after the
kidnapping and murder of three Israeli teens by 'Palestinian' terrorists this past summer. If that stands, it means that the kidnapping and murder would not by justiciable by the International Criminal Court.
Not that it's
likely to matter. The court is likely to be institutionally biased against Israel anyway.
There is no reason to think the prosecutor or Court are eager for
Israel/Palestine cases, and a lot of reasons to think they are not,
given the disproportionate political headaches they entail.
Yet
there is cause to think that the the Court is a most improper venue for
sorting the Israeli-Palestinian conflict. Indeed, even absent any bias,
the Court is structured in a way that cannot do equal justice, and is
thus properly seen as a Palestinian tool against Israel. Moreover,
recent statements by the Prosecutor give troubling evidence that she may
be willing to replace legal analysis with the off-the-shelf views of
the “international community” on the conflict.
To be clear, I
think the most likely outcome from the Palestinian effort is no full
investigation of either side, at least any time soon. Rather, I am
trying to explain why the Palestinians see the ICC as a good bet – one
more likely to break their way than not. This is important because many
distinguished jurists and academics
not unsympathetic to the Palestinians have warned them that they have
more to loose than gain from ICC proceedings. But they went ahead
anyway, which means they have a different analysis – one that I try to
reconstruct here.
The Court’s track record suggests it is
incapable of rendering impartial justice in an ongoing bilateral
conflict. The Court is not some well-established, Olympian seat of
judgment. Rather, it is a weak, conflicted and floundering institution, beset by profound embarrassments that might affect its decision-making.
It has completed only three cases, with two convictions. Most recently,
it has seen two of its highest-profile matters – the only ones
involving sitting heads of state – disintegrate. These were the
prosecutions of Kenya’s president for election violence, and of Sudan’s
president Bashir, for genocide. Both proceedings failed because of the
persistent, and in the case of Kenya, subtle, non-cooperation of the
target regime. (Despite their current embrace of the ICC, the
Palestinians have long been on record opposing the ICC’s arrest warrant
against Bashir.) The ICC has proven itself completely incapable of
prosecuting a case against an unwilling regime, especially an
authoritarian or illiberal one.
Read the whole thing.
Labels: anti-Israel bias, Eugene Kontorovich, International Criminal Court, kidnapping, murder
Ooops....
Haaretz (presumably unintentionally) puts a huge 'settlement' in Israel.
Via Eugene Kontorovich
Labels: East Jerusalem, Eugene Kontorovich, Haaretz, occupation
'Disputed territory'
The Wall Street Journal has discovered the concept of disputed territory. No, of course not in Judea and Samaria. In the Western Sahara. But Eugene Kontorovich still thinks
it's a hopeful sign.
While addressing the geographic issue, the Journal chooses
to characterize the territory as “disputed” – following Gov. Chris
Christie’s controversial description of the West Bank. The
characterization is accurate – the territory is disputed between Morocco
and the Sawahari Polisario government. Like the West Bank, Western
Sahara was not the territory of a sovereign state when Morocco took
control. Nonetheless, the U.N. Security Council called for Morocco to
withdraw, and several subsequent G.A. resolutions characterizing the
territory as occupied. While it gets less attention, Western Sahara is
treated as occupied in the leading international law texts.
One wonders if the Journal’s characterization of the
territory will encounter the derision that greeted Christie’s comments,
and whether the paper will now also describe the West Bank as merely
“disputed.”
Still waiting for the Washington Post to call it 'disputed' too.
Labels: Eugene Kontorovich, Judea and Samaria, occupation, Western Sahara
A lecture worth hearing
Any of you who are in the New York City area on Wednesday afternoon (today) may want to pop over to Washington Square to hear Chicago professor Eugene Kontorovich speak to the NYU Federalist Society on '
disputing occupation.'
On Wednesday, January 25, Eugene Kontorovich will discuss the topic of "Disputing Occupation: Israel's Borders and International Law." The speech will examine such central questions as legal status of settlements, the “1967 borders,” and Palestinian statehood and self-determination.
...
What: Eugene Kontorovich on "Disputing Occupation: Israel's Borders and International Law"
When: Wednesday, 1/25 @ 4pm
Where: Vanderbilt Hall 218
Given NYU's uber-Liberal reputation (one of the main reasons I became a conservative is the reaction I got to wearing Ronald Reagan buttons at NYU Law during the 1980 election campaign), I am amazed that Kontorovich is even being allowed on campus!
It's been nearly 28 years since I graduated NYU Law, but from what I recall, Room 218 is an ordinary classroom that seats maybe 60-100. Here's hoping they have to move it downstairs to that big room on the ground floor where we had Professional Responsibility (which was required) and New York Practice (which almost everyone took). That room probably holds about 300 people.
And if anyone posts video, please let me know.
Labels: Eugene Kontorovich, NYU Students for Israel
Double standards in criticizing Israel's anti-boycott law
Law professor Eugene Kontorovich points out some of the
double standards being invoked by critics of Israel's anti-boycott law.
Most European nations – and Israel – have numerous laws criminalizing speech that would not conceivably pass muster under the First Amendment. This does not mean these countries deny freedom of speech; merely that there are competing ideas.
But even the US has a law against boycotting Israel. It has been on the books for decades, and has been regularly enforced, but no one has suggested it is unconstitutional – and that is for a law protecting another country’s economy. Moreover, Israel’s law, unlike the American one, applies only to organizing boycotts, not to actually adhering to one.
In any country, guarantees of free speech do not apply to speech that causes actual harm, – like yelling ‘fire’ in a crowded theater. Some countries take this quite far. Great Britain has strong libel laws that prevent people from truthfully condemning public officials. While the law is widely criticized, no one has suggested Britain has thereby lost its democratic status. Critics of Israel’s anti-boycott law denounce it as fascist. In Europe, calling others fascist has gotten prominent politicians prosecuted – prosecutions that have not provoked lectures on free speech from the EU or America’s State Department.
EVERY NATION has laws against conspiracies to cause economic harm: antitrust laws prohibit speech when its purpose is to unfairly cause economic harm. And the common law makes it a tort to “interfere with prospective business advantage,” i.e. scaring off someone’s customers.
The anti-boycott law prohibits speech intended to cause economic harm to businesses solely because of their national identity. Nondiscrimination laws commonly ban plans to deny business to specified groups of certain national or ethnic origins.
Israel’s new law bans discrimination against businesses because they are Israeli.
Most European states – and Israel – have laws prohibiting speech that is perceived as “hateful” or which simply offends the feelings of particular groups. Often such speech expresses important viewpoints.
A boycott of Israel promotes hatred of Israel, and certainly offends the vast majority of Israelis. To be sure, boycott supporters argue that at least when it comes to settlers, such hatred is deserved, but that is always the opinion of those whose speech is blocked by such laws.
The boycott movement is designed to imperil the State of Israel, and can actually do so. This danger outweighs the benefits of allowing such speech, especially since the law does not in any way limit advocating policies or viewpoints that such boycotts are supposed to promote. Indeed, the law has a characteristic crucial for free-speech scrutiny – it is “viewpoint neutral.”
That is, it applies to boycotts of Israel whether organized by the left wing or the right wing.
Like most European democracies, Israel’s constitutional protection of speech has long been narrower than America’s.
One example is that speech restraints have long been used against right-wing groups. Just recently, a prominent right-wing activist has been prosecuted for “insulting a public official,” after denouncing those responsible for expelling Jewish families from Gaza in 2005. In recent weeks, police have arrested several rabbis for authoring or endorsing obscure treatises of religious law that discuss (allegedly too leniently) the permissibility of killing enemy civilians in wartime.
Most saliently, the far-Right party of Rabbi Meir Kahane was kicked out of the Knesset because its views were deemed racist. Such actions manifestly constitute interference in political expression, and would clearly violate freespeech norms in the US, but that does not make them unconstitutional in Israel. Nor did these actions trigger alarm among the international community.
The cartoon at the top of this post was drawn by a young Russian immigrant named Tatiana Soskin. She attempted to affix it to a storefront in Hebron, was immediately arrested and was eventually
sent to jail for two years. The
New York Times, the '
human rights' organizations, the State Department (Mrs. Clinton's husband was the President at the time) and the Europeans were all silent. None of them came to Soskin's defense.
Free speech for me but not for thee?
Read the whole thing.
Labels: anti-boycott bill, double standards, Eugene Kontorovich, freedom of speech, Tatiana Soskin
