Analysis of Faults in the Menendez-Kirk Iran Sanctions Bill (S. 1881)
Media Coverage of the Analysis:
New York Times, Los Angeles Times, Sydney Morning Herald, National Interest, Foreign Policy, Ha'aretz, The Bulletin of Atomic Scientists, Voices of America, ArmsControlWonk.com & The Daily Dish.
By Edward Levine, Former Professional Staff to the Senate Select Committee on Intelligence (1976-1997) and the Senate Foreign Relations Committee (1997-2011) and a member of the Center for Arms Control and Non-Proliferation’s National Advisory Board
S.1881, the “Nuclear Weapon Free Iran Act of 2013,” will undercut President Obama’s efforts to obtain a comprehensive solution to Iran’s nuclear activities. To the extent that it removes the diplomatic option, moreover, it will leave the United States closer to a Hobson’s choice between going to war with Iran and accepting Iran as an eventual nuclear weapons state.
Supporters of the bill, which was introduced on December 19 by Senators Menendez (D-NJ) and Kirk (R-IL), claim that enactment of it would not impede the E3+3 (AKA the P5+1) negotiations with Iran, but the text of Title III of the bill manifestly contradicts such claims. Specifically:
- Section 301(a)(2)(I) requires the President to certify, in order to suspend application of the new sanctions, that “Iran has not conducted any tests for ballistic missiles with a range exceeding 500 kilometers.” While this objective may be consistent with a UN Security Council resolution, it moves the goalposts by making the new sanctions contingent not just on Iran’s nuclear activities, but also on its missile programs. This paragraph also does not specify a time period (although the requirement in section 301(a)(1) for a certification every 30 days might imply one), so Iran’s past missile tests beyond 500 km might make it impossible for the President ever to make this certification.
- Section 301(a)(2)(H) requires the President also to certify that “Iran has not directly, or through a proxy, supported, financed, planned, or otherwise carried out an act of terrorism against the United States or United States persons or property anywhere in the world.” Once again, there is no time period specified, so Iran’s past support of terrorism might make it impossible for the President ever to make this certification. Even if a time period were clear, however, this language would mean that if, say, Hezbollah were to explode a bomb outside a U.S. firm’s office in Beirut, the sanctions would go into effect (because Iran gives financial and other support to Hezbollah) even if Iran’s nuclear activities and negotiations were completely in good faith. So, once again, the goalposts are being moved.
- Section 301(a)(2)(F) requires the President to certify that the United States seeks an agreement “that will dismantle Iran’s illicit nuclear infrastructure.” But while Iran may agree in the end to dismantle some of its nuclear infrastructure, there is no realistic chance that it will dismantle all of its uranium enrichment capability. In order for the President to make this certification, therefore, he will have to argue either that “you didn’t say all of Iran’s illicit nuclear infrastructure” (although that is clearly the bill’s intent) or that “if the negotiators agree to allow some level of nuclear enrichment in Iran, then the facilities are no longer illicit” (which begins to sound like statements by Richard Nixon or the Queen of Hearts).
- Section 301(a)(3), regarding a suspension of sanctions beyond 180 days, adds the requirement that an agreement be imminent under which “Iran will...dismantle its illicit nuclear infrastructure...and other capabilities critical to the production of nuclear weapons.” This raises the same concerns as does the paragraph just noted, plus the new question of what those “other capabilities” might be. At a minimum, such ill-defined requirements invite future partisan attacks on the President.
- Section 301(a)(4) reimposes previously suspended sanctions if the President does not make the required certifications. This paragraph applies not only to the sanctions mandated by this bill, but also to “[a]ny sanctions deferred, waived, or otherwise suspended by the President pursuant to the Joint Plan of Action or any agreement to implement the Joint Plan of Action.” Thus, it moves the goalposts even for the modest sanctions relief that the United States is currently providing to Iran. To the extent that the currently-provided sanctions relief relates to sanctions imposed pursuant to the President’s own powers, moreover, section 301(a)(4) may run afoul of the separation of powers under the United States Constitution.
- Section 301(b) allows the President to suspend the bill’s sanctions annually after a final agreement is reached with Iran, but only if a resolution of disapproval of the agreement is not enacted pursuant to section 301(c). The primary effect of this insertion of Congress into the negotiating process will be to cast doubt upon the ability of the United States to implement any agreement that the E3+3 reaches with Iran. The provision is also unnecessary, as most of the sanctions relief that would be sought in a final agreement would require statutory changes anyway.
- Section 301(b)(1) imposes a certification requirement to suspend the bill’s new sanctions after a final agreement with Iran has been reached, even if a resolution of disapproval has been defeated. This certification requirement imposes maximalist demands upon the E3+3 negotiators. Paragraph (A) requires that the agreement include dismantlement of Iran’s “enrichment and reprocessing capabilities and facilities, the heavy water reactor and production plant at Arak, and any nuclear weapon components and technology.” How one dismantles technology is left to the imagination. Paragraph (B) requires that Iran come “into compliance with all United Nations Security Council resolutions related to Iran’s nuclear program,” which would require its suspension, at least, of all uranium enrichment. In all likelihood, however, the complete suspension of enrichment either will be impossible to achieve through diplomacy or will be achieved only for a short time before Iran is permitted to resume an agreed level of enrichment of an agreed quantity of uranium under international verification. Paragraph (C) requires that all the IAEA’s issues regarding past or present Iranian nuclear activities be resolved – an objective that the United States and its allies surely share, but that may prove difficult to achieve even if the other objectives are realized. Paragraph (D) requires “continuous, around the clock, on-site inspection...of all suspect facilities in Iran,” which would likely be inordinately expensive and unnecessary, and might also impose safety hazards.
Taken as a whole, these requirements, however desirable in theory, build a bridge too far for the E3+3 to reach. If they are enacted, all parties to the negotiations will interpret them as barring the United States from implementing the sanctions relief proposed in any feasible agreement. Rather than buttressing the U.S. position in the negotiations, therefore, they will bring an end to those negotiations. Worse yet, they will create large fissures in the E3+3 coalition that has imposed international sanctions on Iran. Thus, even though the bill purports to support sanctions, it may well result in the collapse of many of them.
It is in that context that one should read the sense of Congress, in section 2(b)(5) of the bill, that if Israel is compelled to take military action against Iran’s nuclear weapon program, the United States should provide “military support” to Israel. While such support could be limited to intelligence and arms sales, there would be great pressure for the United States to take a more active military role. So this bill, by its many steps to close the window for diplomacy with Iran, could end the international sanctions regime and lead either to a nuclear-armed Iran or to a war in which U.S. armed forces might well be active participants.