After the U.S. mid-term elections: The Congressional role in U.S.-Iran policy
By Lenny Ben-David
November 24 is seen as a critical date in the negotiations between Iran and UN Security Council's permanent members (the "P5+1" the United States, France, Britain, Russia, China plus Germany) on the fates of Iran's nuclear enterprise and the economic sanctions imposed on the recalcitrant and bellicose Islamic Republic.
Despite Vice President Biden's resolute vow to stop Iran's nuclear weapons program, Iranian leaders adamantly pledge to maintain their rogue efforts. And despite the very rigorous sanctions imposed on the Islamic regime for its support of international terror, human rights crimes, and nuclear activities, Iran continues to fuel the Hizbullah, Hamas and Islamic Jihad terror machines, execute hundreds of its citizens (more than 1,000 since Hassan Rouhani became president in May 2013), and deny access to United Nations nuclear inspectors.
Iran's expeditionary and proxy forces and agents are active in Yemen, Lebanon, Syria, and Iraq. The country's religious, political and military leaders openly reject any rollback of Iran's nuclear program, threaten the U.S. Navy in the Persian Gulf, mock the attempts by Western countries to reach a détente with Iran, and call for Israel's "annihilation." According to Asharq Al-Awsat, "Iranian websites close to the Islamic Revolutionary Guard Corps have run special feature reports and interviews relating to Iran's capability to ‘attack and destroy' Israel using ballistic missiles named ‘Israel-hitters,' the semistate- run Fars and Tasnim news agencies reported on November 15, 2014." In the same report, a former commander of the Revolutionary Guard and current secretary of Iran's Expediency Council was recently quoted as stating, "It was Iran's ballistic capabilities that had caused the P5+1 to retreat from their previous policies against Iran" and begin making concessions.
As November 24 looms, the P5+1 negotiations are perceived by some as a helter-skelter rush to accommodate and even appease Iran.
Several recent developments could serve to strengthen U.S. negotiators' hand in their Geneva talks with the Iranians – should they choose to play those cards. They are:
When negotiations failed to resolve the nuclear issues last year, the P5+1 and Iran agreed to an interim plan known as the Joint Plan of Action (JPOA), setting the November 24, 2014, deadline. According to the JPOA, Iran was expected to commit to placing "meaningful limits of its nuclear program," and the P5+1 states would "provide Iran with limited, targeted, and reversible sanctions relief for a six-month period." From the few facts that have emerged from the current negotiations, it appears the United States negotiators continued to follow the lax guidelines of the JPOA and have already made major concessions to Iran. In October, veteran U.S. diplomat and former senior director for the central region at the National Security Council, Dennis Ross, elaborated on those concessions:
The P5+1 negotiators agreed already - "to allow Iran to avoid suspending uranium enrichment, despite UN Security Council resolutions mandating it do so; accepting that Iran should be treated like any other NPT signatory after the full implementation of the comprehensive agreement despite its past transgressions; acquiescing to Iran's insistence that it not acknowledge that it pursued a nuclear weapons program; not including the Iranian ballistic missile program in the proposed comprehensive agreement; accepting Iranian arguments against converting its Arak facility to a light water reactor and shutting down the Fordow facility; and accommodating the Iranian insistence on not dismantling centrifuges (instead, they would perhaps reduce output, disconnect the pipes, and be flexible on how many centrifuges might ultimately still operate)."
In short, the U.S. goal appears to be to "freeze" the Iranian activities at today's level rather than any "dismantlement" or "rolling back."
How Close to an Agreement?
The P5+1 and Iranian negotiators reconvened in Vienna on November 18, hoping to finalize a permanent agreement on Iran's nuclear program. "There's still a big gap," President Barack Obama told CBS on November 9. "We may not be able to get there." Philip Gordon, Middle East counselor on the National Security Council, echoed the president's cautious note: "There are gaps because they are trying to preserve some things that we are simply not prepared to accommodate…. "It is not however impossible to close those gaps. What we are focused on is getting it done by November 24th — anything after that dramatically reduces the chances for a deal."
The Iranian leadership is actually upping the stakes as the November 24 deadline approaches. Regime spokesmen are now calling for the immediate relief of United Nations sanctions as well, a step seen as a way of stripping legitimacy from the P5+1 sanctions. The commander of Iran's Revolutionary Guards Corps navy, Admiral Ali Fadavi warned the U.S. Navy to leave the Persian Gulf. "The U.S. is seeking to keep its presence in the Persian Gulf to preserve its domination. Iran is a powerful country in the Gulf," Fadavi threatened, "and Americans have no choice but to leave the Persian Gulf." Iran also refused to cooperate with inspectors from the International Atomic Energy Agency (IAEA) seeking to determine Iranian experiments on designing an atomic bomb, according to an IAEA confidential document, Reuters reported on November 7. "Concrete progress is needed on the central issue of whether Iran has worked on nuclear weapons and is maintaining a capability to revive such efforts," U.S. expert David Albright and former IAEA chief inspector Olli Heinonen insisted, according to the Reuters report.
Heinonen also warned of new, faster centrifuges in Iran's possession. "IAEA inspectors cannot be certain Iran is not hiding thousands of advanced IR-2m uranium enrichment centrifuges," according to a Washington Times report on November 11, 2014. "Iran could be in possession of thousands more of the centrifuges than it has declared during talks — a situation that could mean Tehran is actually on the verge of developing a nuclear weapon."
Iran confirmed its scientists were feeding natural uranium gas into the faster IR-5 centrifuge, but insisted that it was "ordinary research and development and we are doing that. We continue with R&D."
Iran has also introduced thousands of additional centrifuges, and may possess as many as 19,000 of the enrichment machines. The P5+1 has accepted Iran's demand to maintain a domestic enrichment program, but reportedly demanded that Iran reduce the number by approximately 75 percent. Iranian negotiators refuse.
Iran's Supreme Leader Sets the Tone
In recent weeks, Supreme Leader Ali Khamenei issued bellicose tweets setting down "red lines" for his negotiating team and releasing his plans for "annihilating" Israel.
1. Annihilate Israel, November 8, 2014. "This barbaric, wolflike & infanticidal
regime of #Israel which spares no crime has no cure but to be annihilated. "
The Role of Congress
Sanctions against Iran have not always shared equal enthusiasm in Congress and the White House, and often Congress voted for tougher sanctions than those sought by the White House.
Unnamed Administration officials told the New York Times on October 19, "If agreement is reached, President Obama will do everything in his power to avoid letting Congress vote on it." The Times continued: "The Treasury Department, in a detailed study it declined to make public, has concluded Mr. Obama has the authority to suspend the vast majority of those sanctions without seeking a vote by Congress, officials say." White House spokesmen were quick to discount the report, but distrust remains high between the two branches of government.
A report by the Congressional Research Service (CRS) in February 2014, Iran: U.S. Economic Sanctions and the Authority to Lift Restrictions, provides a 27-page list of sanctions imposed on Iran "in an effort to change the government of that country's support of acts of international terrorism, poor human rights record, weapons and missile development and acquisition, role in regional instability, and development of a nuclear program."
The CRS explains the mechanics of the sanctions:
"The ability to impose and ease economic sanctions with some nimbleness and responsiveness to changing events is key to effectively using the tool in furtherance of national security or foreign policy objectives. Historically, both the President and Congress have recognized this essential requirement and have worked together to provide the President substantial flexibility. In the collection of laws that are the statutory basis for the U.S. economic sanctions regime on Iran, the President retains, in varying degrees, the authority to tighten and relax restrictions."
Perhaps the most common caveat in the sanctions legislation is the clause that "The President may waive the application of sanctions… if the President determines that such a waiver is in the national interest of the United States." The CRS report notes that "in some instances, Congress has enacted restrictions on the President's unilateral authority to revoke an order, and the economic restrictions therein, until specific conditions are met."
Presumably, these congressional restrictions could be applied in the case of the current sanctions relief under discussion. Some observers note that President Obama could veto such restrictive legislation, but over the course of six years the president has vetoed legislation only twice. Would an Iran sanctions bill be his third?
Constitutional scholar Prof. Alan M. Dershowitz argues in The Hill, "The constitution divides the conduct of foreign policy between the executive and legislative branches, depending on the issue. The U.S. Constitution, in fact, states that the President "shall have the Power, by and with the advise and consent of the Senate, to make Treaties provided two-thirds of the Senators present concur" (Article II). Moreover, Article I expressly empowers Congress to "regulate commerce with foreign nations…." It is arguable that any deal with Iran will be enough like a treaty to warrant Senate ratification, but even if that were not the case, any deal would necessarily require the removal of sanctions enacted by Congress," Dershowitz continued, "And Congress plainly has the power to refuse to reduce sanctions and indeed to strengthen them." A senior Senate Democrat asserted Congress' role in the sanctions issue recently: "As a separate and co-equal branch of government, Congress has an obligation to provide oversight and a duty to express is views." The prominent senator added, "If Iran's nuclear weapons capability is frozen, rather than dismantled, that is a fundamental and significant difference. If it's merely frozen, should they choose to start again, they will remain at the threshold of becoming a declared nuclear state – because if nothing is dismantled, nothing will have changed."
Ideally, the Senate should have the power to accept or reject a treaty over Iran's nuclear program, in accordance with its Constitutional powers. In exercising its powers the Senate historically has acted in famous cases, such as the Versailles Treaty and the Salt II Treaty, thereby playing a decisive role in U.S. foreign policy. But even if the Obama administration would argue that the Iran agreement is not formally a "treaty" and therefore not subject to the decision-making process outlined by the U.S. constitution, there are alternative ways Congress could exercise its powers.
On the eve of the midterm elections, Sen. Mitch McConnell (R-KY), the future majority leader of the Senate, saw Congress' role as strengthening the U.S. negotiators' positions. "What we ought to do, if we can't get an acceptable agreement with the Iranians, is tighten the sanctions," McConnell advised. "Not to stop the talks, but to say at the end of the talks, if there's no good outcome, then the Iranians would get tougher sanctions."
The reshuffling of congressional committees after January 3, 2015, will find new Senate chairmen and ranking members who are firm in their opposition to giving Iran undeserved sanctions relief. For instance, the current chairman of the Senate Foreign Relations Committee, Sen. Robert Menendez (D-NJ), joined his Republican colleague Sen. Mark Kirk in pledging to "act decisively" to toughen sanctions against Iran if they don't approve of any potential nuclear deal, according to The Hill, on November 12, 2014. "As co-authors of bipartisan sanctions laws that compelled Iran to the negotiating table, we believe that a good deal will dismantle, not just stall, Iran's illicit nuclear program and prevent Iran from ever becoming a threshold nuclear weapons state," they said in a statement on November 12.
"If a potential deal does not achieve these goals, we will work with our colleagues in Congress to act decisively, as we have in the past," they added. Menendez and Kirk said a deal should require "stringent limits on nuclear-related research, development and procurement," and for Iran to come clean on all "possible military dimension issues." The two senators continued, any agreement should also include a "robust inspection and verification regime for decades," to prevent Iran from covertly becoming a nuclear power. "Gradual sanctions relaxation would only occur if Iran strictly complied with all parts of the agreement," they said.
With the large "gaps" between Iran and the P5+1 nations, it is possible that by November 24 the sides will decide to adopt another interim extension. Some members of Congress have warned that in such a case they will toughen sanctions rather than give Iran more time to spin their centrifuges. Critics of Congress' actions will undoubtedly blame Congress, Israel and Jewish groups for creating tensions between Iran and the United States, but they ignore the fact that if the talks fail, it will be because the Iranian hard-liners were solidly opposed to any concession to the West. It will mark a historic diplomatic moment when the Islamic Republic of Iran is denied its claim for "limited liability" for its violations of international law and United Nations resolutions.
Lenny Ben-David is the Director of Publications at the Jerusalem Center for Public Affairs. He served as a senior Israeli diplomat in Washington, an arms control consultant in eastern Europe, and director of AIPAC's Jerusalem office.