Ayatollah Ali Khamenei, Congressional review, David Rivkin, Frozen Iranian Assets, IAEA, INARA, International Atomic Energy Agency, Iran Nuclear Agreement Review Act, Iran Nuclear Deal, Justin Amash, Mike Pompeo, Pew Research, Sanctions, Self-Inspection, Side Agreements, The Blaze, Verification
Support among the American public for the Iran nuclear deal has collapsed to just 21%, according to the latest Pew Research poll. But whether you like the deal or not, it appears that the Obama Administration will have acted illegally by failing to present all of the required documents surrounding the deal to Congress before the deadline for a vote. In fact, the deadline itself is not lawful. Those are the points behind a legislative strategy by House Republicans, based on bipartisan legislation signed into law by President Obama on May 22.
The law, The Iran Nuclear Agreement Review Act of 2015 (INARA), changed the rules under which Congress could ratify a deal negotiated with Iran to rules instead requiring a nullification. Essentially, it allowed Obama to classify the deal as an “executive agreement,” rather than a treaty. Under the Constitution, a treaty requires a 2/3 vote in the Senate for ratification. The INARA establishes a timeline for Congress to consider any deal and requires a negative vote of 2/3 to scuttle it. At the link just above, Representative Mike Pompeo (R-KS) and attorney David Rivkin call this an “exceptional bipartisan congressional accommodation.” Indeed, it was! INARA itself was an enabler of executive power. Now, Obama’s approach to Congressional review of the deal is typical: he is simply ignoring the legal provisions of INARA that he finds inconvenient.
It’s tempting to say the GOP erred badly in supporting the INARA to begin with. However, the legislative strategy explained by Pompeo addresses two key violations of the law. First, it requires the President to submit to Congress all details surrounding the deal, including any “side agreements”, such as the the two described here by Representative Justin Amash:
“These side agreements cover how a primary Iranian military site will be inspected for nuclear activity and how Iran will resolve outstanding issues on possible military dimensions of its nuclear program. Remarkably, it was only through a chance meeting between two members of Congress and the IAEA [International Atomic Energy Agency] that the existence of these secret agreements came to light. The Obama administration apparently preferred to keep Congress in the dark, and even now the administration refuses to provide the side agreements to Congress. Indeed, Secretary of State John Kerry claims that even the president’s negotiating team doesn’t have access to these side agreements.“
Under INARA, the deal should be dead on that basis alone. In addition, INARA states that the 60-day clock for Congressional review does not start ticking until all parts of the agreement (including side deals) have been submitted to Congress. In addition, Obama has no authority to begin lifting sanctions against Iran until the actual review of the entire agreement is complete. From Rep. Pompeo:
“Indeed, since the act also provides for the transmittal of the agreement to Congress between July 10 and Sept. 7, the president’s ability to waive statutory sanctions will remain frozen in perpetuity if Congress does not receive the full agreement Monday [Sept.7].”
So again, the deal should be dead. Unfortunately, today (September 10) in the Senate, Democrats successfully filibustered a resolution against the nuclear deal, so it will not even come to a vote in that chamber. Nevertheless, House Republicans will push on with their own measures:
“Late Thursday [Sept. 10] they agreed on a party-line 245-186 vote to a measure specifying that Obama had not properly submitted all documents related to the accord for Congress’ review, and therefore a 60-day review clock had not really started.
That will be followed Friday by votes on a bill to approve the accord — which is doomed to fail, but Republicans want to force Democrats to go on record in favor of the agreement — and on a measure preventing Obama from lifting congressionally mandated sanctions on Iran.“
In fact, a Congressional lawsuit against the Administration is possible, but the courts move slowly, and removal of sanctions against Iran will begin as early as next week. If a lawsuit goes forward, nothing decisive is likely to happen in the courts until after the 2016 election.
The deal itself has a lot to dislike, starting with the other party to the negotiation. Iran is often described as the largest state sponsor of terrorism in the world. (see here as well.) Yesterday (Sept. 9), in connection with the nuclear deal, Iranian Supreme Leader Ayatollah Ali Khamenei said that Israel would no longer exist in 25 years. Would you negotiate with such a malignant counter-party?
Some details of the deal are still a mystery, since provisions of the side deals regarding verification are unknown. If they can be believed, even the Administration does not know all of the details. However, we do know that the deal relies upon the veracity of Iranian self-inspections, which is preposterous. Iran may deny access to “undeclared” nuclear sites by international inspectors. A review process taking up to 24 days may or may not reverse such a denial. Again, the inspections have no teeth. The deal ends embargoes on shipments of conventional arms, which will open the door to more sophisticated weaponry, including certain kinds of ballistic missiles. And the deal also makes over $100 million of frozen assets from oil sales available to Iran, which could be used to fund clients like Hezbollah. What the deal does not include is the release of four Americans currently imprisoned in Iran.
The deal is defended on several grounds, primarily that it is said to be the only way to slow Iran’s development of nuclear weapons. That, of course, is debatable. Verification is iffy, to say the least. The sanctions certainly must slow progress on nuclear development, and tougher sanctions could conceivably do more. And war is not the exclusive alternative, as some supporters have tried to suggest. Will appeasement help to change Iran into a friendly trading partner? Will it make the Iranian theocracy into a real ally? Fat chance! Still, the sanctions carry a humanitarian cost, which is another defense of the deal. Unfortunately, the stakes may be too high to weigh those benefits heavily against the humanitarian disaster that a nuclear Iran and/or a nuclear arms race in the middle east could bring.
Another point of tension in the U.S. is the hard position a number of states are taking on divesting of ownership in companies who do business in Iran. According to The Blaze:
“There’s now a plan to put a defund-Iran measure on the November 2016 ballot in 30 states, all of which already have either laws or policies preventing state tax dollars from going to companies that do business with state sponsors of terrorism.“
However, the Iran agreement contains the following provision:
“If a law at the state or local level in the United States is preventing the implementation of the sanctions lifting as specified in this JCPOA, the United States will take appropriate steps, taking into account all available authorities, with a view to achieving such implementation.“
And what would “all available authorities” entail? Federal lawsuits? Withholding federal funds?
Good or bad, the Iran deal is very likely to be implemented in violation of a law just signed a few months ago by the President. This is yet another example of the cavalier approach to law and to Constitutional authority taken by the Obama Administration. The deal may not survive too long beyond Obama’s term, however.