In January last year, we posted a devastating analysis by Ed Levine, an arms control specialist and 30-year Capitol Hill veteran, of the Kirk-Menendez bill, which seemed clearly designed to sabotage the November 2013 Joint Program Of Action (JPoA) accord between the P5+1 and Iran. The analysis by Levine, who worked on the Intelligence Committee for both Democratic and Republican senators for 20 years and on the staff of the Foreign Relations Committee for another ten years, drew a lot attention and no doubt contributed to the decision by both Menendez and AIPAC to suspend their efforts to gain Democratic support for the bill.
Now, Kirk and Menendez are back with a new version of their deal that, despite their claims to the contrary, also appears aimed at sabotaging an eventual comprehensive deal between the P5+1 and Iran.
But the negotiations face a more immediate threat from yet another bill, the Iran Nuclear Agreement Review Act of 2015, proposed by the new Republican chair of the Foreign Relations Committee, Tennessee Sen. Bob Corker.
Its ostensible aim is to ensure Congressional review of any comprehensive deal, although it’s pretty clear that the bill, if approved as currently written, would serve the same purpose as the Kirk-Menendez initiative. The 16,000 delegates who are attending this week’s AIPAC policy conference, no doubt fired up by Bibi Netanyahu’s exhortation, are at this moment lobbying their members of Congress in favor of the Corker bill, as well as the latest version of Kirk-Menendez. That should tell you all you need to know about the likely impact if it’s passed over Obama’s veto.
Given the breadth of its initial support in committee, the bill has a very real chance of obtaining a veto-proof majority. (The White House has already promised to veto it.) And it could go the floor as early as next week and, in any case, before a comprehensive deal can be reached. It’s thus particularly critical that people who care about this issue know its specifics and implications. For that reason, we are posting the following analysis of the Corker bill that Levine wrote for the Council for a Livable World and the Center for Arms Control and Non-Proliferation for which he is an advisory board member.
More Harmful than Helpful: The Iran Nuclear Agreement Review Act of 2015
by Ed Levine
On February 27, Senator Bob Corker (R-TN), chairman of the Senate Foreign Relations Committee, introduced the Iran Nuclear Agreement Review Act of 2015 for himself and 11 co-sponsors, headed by SFRC ranking minority member Bob Menendez (D-NJ). Senator Corker has said that he intends to move the bill out of the SFRC during the second week of March, and he will likely seek Senate and House floor action before the P5+1 and Iran can sign a comprehensive nuclear settlement agreement.
Senator Corker’s previous effort in this regard, the Iran Nuclear Negotiations Act of 2014, had only Republican co-sponsors and went nowhere. This year, he has attracted four initial Democratic cosponsors: Menendez; Tim Kaine (VA); Heidi Heitkamp (ND); and Bill Nelson (FL); and one independent, Angus King (ME). Given the harm that this bill could cause, one may fairly wonder whether its non-Republican co-sponsors ever read the text.
The Challenge for Congress: It’s Hard to Do Anything Useful
There are good reasons why the executive branch, rather than Congress, conducts international negotiations. The President represents the whole country, rather than particular states or constituencies; the executive branch has the resources and personnel to engage in long and detailed negotiations; and executive branch departments and agencies can provide negotiators with timely intelligence and diplomatic information that Congress too often lacks.
Congress can provide valuable policy guidance for negotiations, and has done so at times. Usually, however, its role is to react to what the President proposes. If a negotiation leads to a treaty, then the Senate may pass or refrain from passing a resolution of advice and consent to U.S. ratification of the treaty. If the negotiation leads to an executive agreement or to an international organization decision such as a resolution of the United Nations Security Council or the International Atomic Energy Agency Board of Governors, Congress may pass or reject legislation to implement the agreement or decision, or authorize or reject needed funding. It is a real challenge for Congress to craft a larger role for itself without hamstringing the President.
The U.S. separation of powers, in contrast to a parliamentary system, has always made negotiations more difficult. U.S. negotiating partners can never be completely sure that the United States will make good on its commitments. A second major challenge for Congress, then, if it wants to influence negotiations before they are concluded, is to push the negotiations in the desired direction without undercutting U.S. negotiators by leaving them unable to assure other countries that an agreement with us will, in fact, be implemented. The challenge is all the greater in this case, as Iran has distrusted the United States for many years (mainly because we once overthrew its government and later supported Iraq when Saddam Hussein used chemical weapons against Iran), and the ability of the United States to influence Iran is dependent in large measure on our ability to maintain broad international support for the U.S. position and for the international economic sanctions regime.
Failing the First Test: A Flawed Process of Congressional Review
Senator Corker’s basic intent is to mandate a process whereby Congress will have 60 days in which to enact a motion of disapproval of any comprehensive nuclear agreement with Iran. During those 60 days, the President may not lift or suspend any statutory Iran sanctions. (The bill does not block the President from acting on sanctions imposed by executive orders issued pursuant to his own authority under the U.S. Constitution.) Setting aside, for a moment, the diplomatic risks that this legislation would impose, even if there were no such risks, does Senator Corker’s bill propose a useful congressional review process? Spoiler alert: the answer is “no.”
The foolishness in the Iran Nuclear Agreement Review Act begins with subsection (a)(1) of the new Section 135 that the bill would add to the Atomic Energy Act. The requirement to submit an agreement to Congress “not later than 5 calendar days after reaching an agreement with Iran” is an invitation to congressional error. Treaties and other international agreements are not normally submitted to Congress until they have been thoroughly analyzed by the executive branch. Importantly, they are submitted with an authoritative section-by-section analysis prepared by the Office of the Legal Adviser in the Department of State. The process of analyzing an agreement and preparing the section-by-section analysis often takes a few months. That passage of time gives both Congress and the executive time to raise and consider any concerns that the agreement might occasion. It also affords a certain cooling off period before any congressional action is taken. The Corker bill, by contrast, would not give Congress the time needed for truly reasoned consideration of an agreement. Rather, it would encourage a vote in each house of Congress while tempers are hottest, and before any careful legal analysis of the agreement could be brought to bear.
Subsection (a)(1) goes on to require that a “verification assessment report” from the Secretary of State be submitted within 5 days, as well. Subsection (a)(2) specifies that the report must assume that Iran could “use all measures not expressly prohibited by the agreement to conceal activities that violate its obligations under the agreement” and “alter or deviate from standard practices in order to impede efforts to verify” its compliance. It also states that the report “shall include a classified annex prepared in consultation with the Director of National Intelligence.”
Verification assessment reports simply are not completed in 5 days; you would be very lucky to get a cogent report in 5 weeks. The mandated assumptions are good ones, commonly required when the Senate considers an arms control treaty; and the State Department and the intelligence community have been considering these questions ever since the negotiations began. But it’s hard to answer them before the agreement’s verification provisions are adopted, and it’s even harder to determine the verification provisions before you have agreement on what is to be verified. So the key input to a verification assessment is the last item that will be pinned down in any comprehensive settlement with Iran; then: “Go! You have 5 days.” By requiring such a premature report, the Corker bill would deprive Congress of truly useful analysis and encourage it instead to act on the basis of first impressions and ideological arguments.
Paragraph (a)(2)(A) only muddies the situation by requiring that the verification assessment report address how well we will be able “to ensure Iran’s activities permitted [under the agreement] will not be used to further any nuclear-related military or nuclear explosive purpose.” This could be read to imply that Iran should not be allowed to develop nuclear-powered warships, satellites, or sensing devices. For better or worse, such military applications are not barred by international law and are not part of the current negotiations with Iran. It is unclear why this odd wording was used, instead of referring to “nuclear weapons or other nuclear explosive devices,” the formulation used in the Nuclear Non-Proliferation Treaty. Perhaps Senator Corker’s concern is the risk of an Iranian “dirty bomb;” in that case, he would have been more precise if he had referred to “nuclear or radiological weapons.” Even an Iranian radiological weapons program would be outside the scope of the current negotiations, however, and also outside the scope of the NPT.
Subsection (c)(1) of the new Section 135 adds another confusing element. It states that statutory sanctions relief actions may be taken if a joint resolution favoring the agreement is enacted during the 60-day period, and that such actions may not be taken if a joint resolution opposing the agreement is enacted during the 60-day period. But, what if no joint resolution is enacted during the 60-day period? Then, pursuant to paragraph (c)(1)(C), statutory sanctions relief actions “may be taken…if, following the period for review…, there is not enacted any such joint resolution.” That’s interesting. Two types of joint resolutions have just been discussed in this subsection. Let’s give the drafters the benefit of the doubt, and assume that paragraph (c)(1)(C) is meant to refer to a resolution of disapproval. What happens if such a resolution is enacted a week, a month, two years, or a decade after the end of the 60-day review period? Does it purport to nullify any sanctions relief actions taken since the end of the 60-day review period? That would seem legally and practically feckless. So, let’s assume that enacting a joint resolution of disapproval after the end of the 60-day review period would bar statutory sanctions relief actions after the enactment of the resolution. One thing we can be sure of is that, if the President opposed the joint resolution, all manner of statutory sanctions relief actions would be taken just before the joint resolution was enacted.
Another safe guess is that, after the end of the 60-day review period, a joint resolution of disapproval would be a most unlikely legislative vehicle. Congress can enact a law requiring the President to cease implementation of part or all of an international agreement whenever it pleases, if it has the votes. All it gets from the Corker bill is two half-baked reports and 60 days in which the President may be unable to implement certain U.S. commitments.
Failing the Second Test: The Irony and Diplomatic Risks of an Added Congressional Vote
Note what we have just concluded: Congress can pass a law undoing an international agreement whenever it has the votes. It may be unwise; it may undermine the world’s respect for international law and for the United States. But Congress does not require Senator Corker’s bill to stop implementation of an Iran nuclear agreement.
So, what would the 60-day review period achieve? It would delay full U.S. compliance with an agreement. But its major impact would be to remind the world that the United States might not fulfill its obligations under the agreement. And what good does that do? In theory, it might encourage Iran to be more forthcoming, so as not to lead Congress to scuttle an agreement. In practice, however, it is more likely to encourage Iran’s own hard-liners to scuttle the negotiations, on the grounds that the United States is using improper pressure on Iran and, in any case, is simply not to be trusted. Enactment of the Corker bill may well move our P5+1 negotiating partners to a similar conclusion, moreover, and thereby undermine the international sanctions on which we have relied to encourage Iranian flexibility. As noted at the beginning, it isn’t easy for Congress to be useful in negotiations; this element of the Corker bill is a good illustration of that general point.
Congress and Compliance: Another Flawed Process, and More Diplomatic Risk
Section (d)(1) requires that the President inform Congress “within 10 days of receiving credible and accurate information relating to a potentially significant breach or compliance incident by Iran.” The problem with this requirement is that it often takes weeks or months to determine whether a piece of information is “credible and accurate.” So, the President will have to choose between “disobeying the law” and feeding unconfirmed information to Congress. Then, pursuant to section (d)(2), he will have only another 10 days in which to determine and report to Congress whether the alleged activity “constitutes a material breach” of the agreement and, if so, what is being done about it. Again, the Corker bill demands speed rather than care.
Section (d)(3) requires a compliance report every 180 days. While much of the required report makes sense, a few provisions may not. Thus, paragraph (d)(3)(E)(ii) demands that the report highlight any Iranian centrifuge R&D that “may substantially enhance the enrichment capacity of Iran if deployed,” even if such R&D is in compliance with the agreement. Since all the more advanced centrifuges on which Iran is working would have at least double the enrichment capacity of the IR-1 model now in use at Natanz, it would follow that all of Iran’s R&D efforts would have to be highlighted every 180 days. Paragraphs (H) and (I) go on to require reporting on Iranian money laundering and support for terrorism. Those are important topics, but they would seem to have nothing to do with a comprehensive nuclear settlement agreement.
On top of the periodic 180-day compliance reports, section (d)(5) requires periodic 90-day compliance certifications. This provision requires the President to certify, inter alia, that “Iran has not taken any action…that could significantly advance its nuclear weapons program.” Would that include the permitted centrifuge R&D noted earlier? The answer is unclear.
A clearer, and clearly problematic, required element of the 90-day certifications is that “Iran has not directly supported or carried out an act of terrorism against the United States or a United States person anywhere in the world.” Iranian support for terrorism is a very significant problem, of course, but it is not an issue that will be addressed in the nuclear agreement now being negotiated. Senator Corker’s bill, by inserting the terrorism issue into U.S. implementation of any nuclear agreement, is thus “moving the goalposts,” and doing so in a manner that could well scuttle the negotiations. Moreover, Iran can run afoul of this provision without doing bodily harm to any individual. The definition of “United States person” used in this bill includes “an entity that is organized under the laws of the United States or any State.” Thus, if Hizbollah (which receives Iranian financial and material support) were to plant a bomb next to the Beirut branch of a U.S. bank, that would arguably suffice to prevent the President from making the next 90-day certification. Once that happens, section (e) provides for expedited consideration of a bill to reinstate all the statutory sanctions that were waived, suspended or reduced pursuant to an Iran nuclear agreement, even if Iran is in complete compliance with its obligations under that agreement.
Senator Corker’s summary of his bill is telling on the compliance question: “After the congressional review period, the president would be required to assess Iran’s compliance with the agreement every 90 days. In the event the president cannot certify compliance, or if the president determines there has been a material breach of the agreement, Congress could vote, on an expedited basis, to restore sanctions that had been waived or suspended under the agreement.” His summary makes no mention of the terrorism certification that he has added to the compliance certification requirement. Perhaps he hopes that his colleagues will not notice the moving goalposts.
Section (e)(3) gives Congress 60 days in which either leader in either House (or his or her designee) may introduce the legislation. Section (e)(4) refers such a resolution to the Foreign Relations or Foreign Affairs Committee, and section (e)(5) would discharge it from committee after 10 session days. Careful consideration in committee does not appear to be the intent. Indeed, if one of the committees opposes the bill, it must still report it within 10 session days or the bill will be discharged from committee. And if one House of Congress fails to take up the bill, then paragraph (e)(8)(B) provides that the other House’s bill, if passed, will be entitled to expedited procedures in the first House. The deck is stacked in favor of passage.
Section (e)(6) is also interesting. The model for expedited procedures is normally section 601 of the International Security Assistance and Arms Export Control Act of 1976, which does not specify the expedited procedures to be followed in the House of Representatives. When I served the Senate, it was asserted that the House would not allow its procedures to be dictated by statute. Has that changed since 2011? Is the House really willing to limit debate, by statute, to 2 hours equally divided on the issue of whether to cease complying with an international agreement? (Last year, Senator Corker was willing to allow 20 hours of debate on a resolution of disapproval. Perhaps he is less tolerant of debate now, or perhaps there was a typographical error either in last year’s bill or in this one.) Others may know the answer.
Section (e)(7), which specifies the expedited procedure in the Senate, differs somewhat from the procedures in section 601 of the 1976 security assistance act. For example, when there is a motion to proceed to the resolution of disapproval, section 601(a)(4)(A) states: “An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.” Paragraph (e)(7)(A) of the Corker bill, by contrast, states that a motion to proceed shall be in order “even though a previous motion to the same effect has been disagreed to.” Section 601 of the security assistance act does not explicitly bar multiple motions to proceed, but it certainly seems to suggest that you only get one try. If a motion to proceed under section 601 is defeated, then arguably no later motion can bring the resolution of disapproval up under expedited procedures. The Corker bill would allow opponents of an agreement to try again and again to bring the resolution of disapproval to the floor, with expedited procedures intact.
The waiving of points of order in the Corker bill also differs from section 601, as does the prohibition of motions to postpone debate or to proceed to the consideration of other business. Again, perhaps there is a more recent model for expedited procedures. If not, then the drafters of this bill may be credited with more care and creativity in trying to assure that nothing can stop the rush to judgment. But these provisions are at least in keeping with the intent of section 601, whereas the explicit permission to file multiple motions to proceed is arguably at odds with the intent of section 601. Paragraph (e)(7)(E) of the Corker bill is also especially curious; I do not recall a previous statute limiting Senate debate on a veto message.
One might ask why such pre-planned haste is required on a bill to revoke the lifting of sanctions. In last year’s Corker bill, these provisions were applied to a joint resolution of disapproval of the agreement. This year’s bill does not provide expedited procedures for such a resolution, but, behold, they are all applied to the later legislation. Perhaps the drafters simply loved the expedited procedures from last year’s bill too much to part with any of them this year.
The bottom line is that Senators should consider the Corker bill carefully. Do they really want to send a message to Tehran that the President may be unable to fulfill his commitments? Do they really want to move the goalposts by adding support for terrorism to the list of reasons for reinstating sanctions? The Corker bill will endanger both the negotiations and the sanctions regime; it does not merit support.