I knew a lawyer who was a philosophy major as an undergrad. At a party many years ago – maybe we had consumed a few sips of beer – I asked him, what does studying philosophy have to do with being a lawyer?
“Oh,” he said. “It’s very relevant. In philosophy, you study ‘ontology’ – when is a thing a thing. The classic example is the Ship of Theseus problem. Every year they replace a seventh of the stuff on the ship as it wears out. So after seven years, there’s actually no physical aspect of the ship that was there seven years before, but we still call the ship by the same name. Is it still the same ship?”
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“So,” the lawyer said. “We have ontology problems in the law all the time. You park your car on a public street. When you come back, there’s a tow truck there and the tow truck driver has his hitch attached to your car. ‘I’m here now,’ you say. ‘Let me go.’ ‘Sure,’ the guy says. ‘You just have to pay me for the tow.’ ‘What tow,’ you ask. ‘My car is exactly where I left it. You haven’t towed it at all.’ ‘Nah,’ the guy says. ‘The tow starts when I touch your car with my hitch; that’s the tow.’ If you go to court, then a judge has to decide: When is a tow a tow? When the tow driver touches his hitch to your car, or when the car starts to move?”
The word on the street is that the AIPAC people are dancing around, high-fiving each other about how they kicked sand in our faces and stole our lunch money Tuesday, because the Senate Foreign Relations Committee (SFRC) unanimously passed the controversial Corker bill on congressional review of the Iran nuclear deal.
But of course, the bill that SFRC passed unanimously wasn’t the same bill that Corker introduced. There was a deal: Democrats negotiated to remove provisions of the bill that the administration found objectionable, and the administration lifted its veto threat. When the administration lifted its veto threat, Democrats said: “OK, no need to bleed against AIPAC now, coach blew the whistle on the play.” That’s why all Democrats supported the amended bill; not because they necessarily think the bill is perfect, but because coach blew the whistle on the play. You don’t want to be like a soldier on a remote island who thinks he’s still fighting a war after his government has already signed a deal.
Here’s what the New York Times reported on the deal [my emphasis]:
The essence of the legislation is that Congress will have a chance to vote on whatever deal emerges with Iran — if one is reached by June 30 — but in a way that would be extremely difficult for Mr. Obama to lose, allowing Secretary of State John Kerry to tell his Iranian counterpart that the risk that an agreement would be upended on Capitol Hill is limited.
But if it rejected the agreement, Mr. Obama could veto that legislation — and it would take only 34 senators to sustain the veto, meaning that Mr. Obama could lose upward of a dozen Democratic senators and still prevail.
So, Congress gave itself permission to vote on the deal after June 30 – after the deal is concluded. And then, if they can get a veto-proof majority, they can sink the deal. Woot! Who can stop Congress from voting on anything they want anytime they want, if they can get a veto-proof majority? Nobody! Tomorrow they can pass a resolution urging the first lady to back off with the healthy eating stuff and promote the virtues of french fries instead. President Obama asked Congress to delay any vote on the Iran deal until after June 30. So, Congress gave themselves permission to vote on the deal after they respect the deadline that President Obama asked them to respect. Good job, Congress! Next you can give yourself permission to name post offices.
So, if Congress gave itself a power that it already had, what were they really fighting about?
The New York Ttime noted [my emphasis]:
Mr. Corker also agreed to a significant change on the terrorism language.
Initially, the bill said the president had to certify every 90 days that Iran no longer was supporting terrorism against Americans. If he could not, economic sanctions would be reimposed.
Under the agreement, the president would still have to send periodic reports to Congress on Iran’s activities regarding ballistic missiles and terrorism, but those reports could not trigger another round of sanctions.
This isn’t a small change. It’s absolutely crucial. The original language in the Corker bill represented an existential threat to the negotiations. Since the multilateral talks began under the Bush administration, they’ve always been about Iran’s nuclear program and nothing else. Now that a deal is close, a bunch of people who want to kill the deal say they want to introduce new issues into the talks: Yemen, Syria, why Iran’s leaders won’t admit that Wisconsin cheese is better than Tabrizi cheese.
Of course, that would be bad faith bargaining – if you bring new issues in at the last minute and say we have to resolve these now or else no deal, you’re just saying that you don’t want a deal. That would kill the talks. Everybody knows that. So that language in the Corker bill was an obvious poison pill – President Obama had to get that language out, so he had to threaten to veto the bill, because that’s how the president inserts himself into the legislative negotiations, by issuing a veto threat. Otherwise he’s not going to have any say in what the Republican Congress puts on his desk.
Senator Coons offered a new definition of what a “bad deal” is in the context of the amended bill:
“If the administration can’t persuade 34 senators of whatever party that this agreement is worth proceeding with, then it’s really a bad agreement,” Senator Chris Coons of Delaware, a Democrat on the Foreign Relations Committee, said. “That’s the threshold.”
So now we only have to convince 34 out of 100 senators that it’s OK to proceed? Ouch, AIPAC, you really hurt me. “Don’t throw me in that briar patch.”