FPI Analysis: How Congress Can Shape A Deal with Iran

November 20, 2014

By Thomas C. Moore [1]

As negotiations with Iran near a November 24 deadline under the Joint Program of Action (JPA), the President and Congress find themselves at a stalemate.  Under current law, Congress has no immediate tools available to block a deal with Tehran or prevent further sanctions relief.  Meanwhile, the administration has suggested that “President Obama will do everything in his power to avoid letting Congress vote on [a deal],” and the administration can point to its success in stonewalling more than 100 bills and resolutions on Iran over the past two years.  The administration should not, however, exaggerate its ability to silence Congress in the long run.

The fact of the matter is that if the President negotiates a deal while marginalizing Congress, as William Tobey of Harvard’s Belfer Center for Science and International Affairs has observed, “35 years of American foreign policy designed to isolate Iran, will inevitably be reversed, with no enabling legislation by Congress and no supporting consensus required or expected in the foreign policy community.”  Without such legislation or support, an agreement with Iran would simply not be sustainable; it would soon be challenged by Congress or rejected by a future administration.

This analysis offers three proposals for Congress and the President, which would allow them to agree to an approach toward Iran that can secure congressional support for a good deal:

  • Option 1 would allow Congress to describe its conditions for a good deal before a final agreement is inked with Iran.
  • Option 2 would provide Congress with the opportunity to review any prospective deal with Iran before it is implemented.
  • Option 3 would deter actions by China, Russia, or Europe that could undermine the global sanctions regime, either under a bad deal or another extension of negotiations.

Given that the November 24 deadline is just days away, these proposals are framed in a manner that they should be applicable either in the final weeks of the 113th Congress or in 2015. 

Option 1:  Setting the Conditions for a Good Deal

While negotiating a prospective nuclear deal, President Obama has issued waivers that suspend many of the current economic sanctions on Iran.  Although the President cannot lift sanctions permanently without notifying Congress, he can continue to issue waivers for as long as he desires under current law.  Continued waivers would indicate, however, that any deal with Iran has a weak foundation, in both political and legislative terms.

Instead, Congress could pass new legislation that ties the issue of future waivers to a certification by the President that negotiations with Iran have a meaningful prospect of producing a deal that satisfies a specific set of minimum requirements.  Such a law could also limit the duration of any future waivers, so that the President would have to certify with greater frequency that ongoing negotiations have real potential to produce an acceptable deal. 

The key phrase of such a bill would state that “the President shall not continue to waive any sanction under the Iran Freedom and Counter-proliferation Act of 2012, section 1245 of the National Defense Authorization Act for Fiscal Year 2012 (FY12 NDAA), the Iran Threat Reduction and Syria Human Rights Act of 2012, and the Iran Sanctions Act until the President makes a certification to the appropriate Congressional Committees at least 30 days prior to his use of any such waivers.”  Congress could then describe the conditions that must be met for further waivers, to include other sanctions laws the President may seek to waive.

The conditions set forth in such a law could include that a deal must enable the International Atomic Energy Agency (IAEA) to verify that any nuclear activities taking place in Iran are of an exclusively peaceful nature.  To that end, the IAEA must be able to complete its investigation of possible military dimensions (PMD) of the Iranian nuclear program.  If the IAEA confirms that the nuclear program had such dimensions, it must be allowed to take measures that will deprive Iran of the capability to pursue such activities in the future.

The minimum requirements could also ensure that the IAEA can verify Iranian compliance with both its existing nuclear safeguards agreement as well as its Additional Protocol.  Similarly, a deal must enable the IAEA to confirm Iranian compliance with obligations imposed by resolutions of both the U.N. Security Council and the IAEA Board of Governors.

Even if Iran agreed to a deal that included such conditions, it cannot be known in advance whether Iran would actually allow the IAEA to conduct the necessary inspections and investigations.  The purpose of such legislation is not to assure such compliance, but rather to prevent the negotiation of a bad deal with which Iran could comply without verifiably ceasing its pursuit of a nuclear weapons capability.

Finally, this proposal would require that if the President cannot make the certification required, then he must state the reasons why he cannot.  This statement could provide the basis for future congressional review, and possible disapproval, of an Iran deal either in a separate law or in a resolution of disapproval.

Option 2:  Enabling Congressional Review of a Deal

In addition to specifying the conditions for a good deal with Iran, Congress also has a strong interest in being able to review the specifics of any deal before it is implemented.  There is already legal requirement for such review periods before the implementation of other kinds of nuclear deals.  Congress could also choose to combine a review period with a formal evaluation of the deal’s merit, such as a resolution of approval or disapproval on which the House and Senate could vote.

The proposal here is simply that Congress pass legislation requiring that any deal be reported to Congress and sit with the appropriate committees for a specified number of days before any further action is taken.  This requirement could apply to interim deals, such as the JPA, as well as permanent arrangements.

The key text in such a bill would state that “the President shall not implement or otherwise instruct any Agency to implement any agreement submitted to Congress, to include the use of any available waiver authority already effective on the date of the enactment of this Act, until the date that is 30 days of continuous session after he has submitted the text of such agreement to the appropriate congressional committees.”  Such a proposal could also require a determination from the President that the agreement will prevent Iran from obtaining a nuclear weapon, and a report describing any affected sanctions under the proposed deal.

Already, there exists a legal requirement that peaceful nuclear cooperation deals under the Atomic Energy Act must sit with Congress for periods of “continuous session days” before a President can proceed with them.  These kinds of days generally can only be counted when both the House and Senate are in session.  The purpose of this counting method is simply to ensure that no deal avoids scrutiny if it happens to arrive during a recess. 

Option 3:  Shoring up the Sanctions Regime

Russia and China are already taking actions that strengthen Iran’s hand by reducing the pressure applied by economic sanctions.  This behavior is likely inconsistent with the JPA and has already provided tangible benefits to Tehran.  However, there are legislative options for addressing such threats, whose passage the President should welcome.

In summer 2013, Russia concluded a large trade and energy agreement with Iran.  The White House called the $20 billion deal “inconsistent with the terms” of the JPA, while the Chairman of the House Foreign Affairs Committee said it constituted “an illicit oil-for-goods” contract.  Subsequent press reporting also included information that “Moscow and Tehran are discussing plans for Russian companies to help construct power plants in Iran, in return for crude oil.” On November 11, the Russian State Atomic Energy Corporation (ROSATOM) signed a deal with the Iranian Atomic Energy Organization for eight new reactors to be supplied by Russia to Iran and that includes the potential for Iran to make fuel assemblies for Russian-supplied reactors in Iran.

On November 16, news reports from Iran indicated that China will “double its investment in Iranian infrastructure,” to include “water, electricity, oil and gas projects” effectively doubling the value of existing projects from $25 billion to $52 billion.

For leverage against Russia and China, Congress can draw on the peaceful nuclear cooperation agreements that the United States has with both countries, negotiated in accordance with section 123 of the Atomic Energy Act.  Russia’s agreement entered into force in 2011 while China’s expires in 2015.  Congress could consider the suspension or termination of the US agreement with Russia should Russia continue sanctions-busting activity.  With regard to China, Congress may consider a requirement that, as a condition of renewing its agreement, the President must certify that China is not undermining U.S. sanctions on Iran.  China also benefits from presidential waivers that enable it to import Iranian oil albeit at a reduced level.  Congress can make such waivers conditional on Chinese respect for sanctions on Iran. 

More broadly, Congress can enact a requirement that, should Russia, China or any other nation begin normal trade, travel and financial relations with any person or entity that is the subject of UN Security Council sanctions on or before November 24, 2014, notwithstanding whether they have been lifted, and before the United States would permit normal trade, travel and financial transactions with them, that the President report on such activity to Congress.  This would allow better oversight as to sequencing and harmonization of international sanctions relief for Iran with U.S. law, in particular, insight into how far ahead or behind in harmonization with U.S. sanctions relief other nations are or plan to be.  

As a practical matter, should any Russian, Chinese or European person or entity engage in commerce with these persons and entities, those activities remain subject to sanctions under U.S. law.   This will be the key test for the durability of U.S. sanctions laws blocking the advancement of Iran’s missile and aerospace firms, as well its nuclear entities, from gaining significant foreign assistance after any deal that Congress does not approve of.

Conclusion

The purpose of this analysis has been to describe a number of options available to Congress in order to work with the President to ensure that any agreement entered into with Iran does not reverse decades-old efforts to isolate Tehran from the global economy without receiving broad congressional and public support.  Although Congress cannot prevent the President from waiving sanctions under current law, it has a number of options within reach to require the President to meet certain conditions in any deal with Iran, to submit a deal for congressional review, or to demonstrate its seriousness to international partners who may be too eager to break the current sanctions regime.

The essential conclusion that this analysis offers is that those who most ardently support the President’s efforts to reach a nuclear deal with Iran that ends that country’s nuclear program and ends Tehran’s isolation from the global economy should support efforts to bring Congress on board with any such deal.  Any attempt to silence Congress is bound to fail when there are so many legislative options available to congressional leaders on this issue to make their voices heard.


[1] Thomas C. Moore served as the lead Senate Foreign Relations Committee staff member for the Senate’s resolutions of advice and consent to ratification, and congressional passage of implementing legislation on, the U.S.-IAEA Additional Protocol, legislation governing U.S.-India nuclear trade, and Senate consideration of the Moscow Treaty and New START Treaty.  He also was the lead staff member for Committee review of all U.S. foreign military sales.  He has authored articles concerning verification and compliance with arms control treaties and provided testimony to Congress on U.S. peaceful nuclear cooperation with other nations.

 

See also:

Mission Statement

The Foreign Policy Initiative seeks to promote an active U.S. foreign policy committed to robust support for democratic allies, human rights, a strong American military equipped to meet the challenges of the 21st century, and strengthening America’s global economic competitiveness.
Read More