Tuesday, March 31, 2015

Bargaining in the Shadow of #47Traitors

Yaseen EldikDoes one always bargain in the shadow of betrayal?

Indisputably, parties to a negotiation are often concerned with deception. This looming fear creates a desire for trust, and as a direct result, parties might engage in certain behaviors in order to communicate their trustworthiness. However, this tactic can also serve as a façade for betrayal’s unsuspecting nature. While betrayal remains socially unacceptable in theory, its reality is more complex: those associated with it are occasionally revered and respected. Entering the contentious realm of betrayers are the 47 Republican Senators who wrote an open letter, on March 9th, 2015, to the Leaders of the Islamic Republic of Iran.

The Senators declared that “[they] will consider any agreement regarding [the Iranian] nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.” They went on to note that the “next president could revoke such an executive agreement . . .with the stroke of a pen.” Outrage over the letter grew quickly. Detractors claim that the letter undermines President Obama’s ability to negotiate a nuclear weapons deal with Iran. Retired Major Gen. Paul D. Eaton “would use the word mutinous” to describe the Senators. He goes onto suggest that their behavior could be “construed as an illegal act.’” The behavior of the Senators is being argued by some to have violated the Logan Act, which prohibits citizens who lack proper authorization from negotiating with foreign governments. Many question the Senators’ judgment. A recent New York Times article described widespread use of the trending tag “#47Traitors” to label and call attention to what they perceive as deplorable conduct of the Senators.

President Obama, while negotiating with Iranian leaders, likely did not anticipate that members of the United States Senate would attempt to undermine his authority, much less in such a public forum. The use of the word “traitor” to describe these Senators undoubtedly categorizes their conduct as betrayal. The publication of this letter raises the question: what was their intention? Was this letter a calculated political move? Was it symptomatic of a bruised Republican ego? Are both interpretations true?

Answering these questions is important, and still only gets us halfway to understanding this complex event. As understood in the academic discourse of negotiation, an actor should know that whatever his or her intentions around a certain act, his or her behaviors might exact unintended consequences. Both are important.

Within negotiation, leverage is often recognized as a “prime mover” used by parties to reach an agreement.* Viewing this letter through a lens of leverage while also trying to understand the authors’ intent, it seems possible that these Senators were intending to inflate their own authority in order to gain a seat at the negotiating table. Leverage is often understood as a source of power that can be gained through “status, knowledge and information, organizational control, personal charisma, and superior alternatives.”* Perhaps the Senators had President Obama as their intended reader when they wrote this letter. By displaying their authority as greater than his own, the Senators’ letter could be described as a tactic to coerce the President into giving them control over the terms of this nuclear arms agreement. However, this could also have the unintended impact of contributing to the likelihood that the President will feel unable to trust these Senators, and so he will not welcome their opinions into a nuclear treaty agreement. In addition, if a Republican president is elected in 2016 she too will have her authority undermined by the contents of this letter although the authors might not have intended for it to ultimately hurt their political party.

The issuance of this letter and the ensuing media storm contribute to partisan tensions and vicious divides between the branches of government. While the Twitter hashtag #47traitors continues to roam the Internet, it does not seem too far-fetched to presume that future negotiations with Iran, and perhaps even other countries, will be held against the backdrop of this controversial letter. The corrosive features of this letter will remain lingering between Democrats and Republicans, promoting distrust and infecting American national discourse. Thus, it is almost certain that, at least for the time being, all parties will continue to bargain in the shadow of betrayal.

Yaseen Eldik is a 2L at Harvard Law School. During his course of studies at Harvard Law School, Yaseen has taken the Negotiation Workshop, the Negotiation and Mediation Clinic (HNMCP) and The Lawyer as Facilitator workshop. The framework of leverage used in this piece was informed and inspired by Paul F. Kirgis’ “Bargaining with Consequences: Leverage and Coercion in Negotiation,” 19 Harv. Negot. L. Rev. 69 (2014). See the asterisk when appropriate to imply a citation of this work.