Prepared by Edward Levine, Former Senate Foreign Relations Committee staff and Center for Arms Control and Non-Proliferation National Advisory Board member
1. The initial presidential certification [page 3, lines 13-15]. The bill requires that the President transmit any nuclear agreement with Iran to the appropriate congressional committees, with a certification that the agreement:
ensures that Iran’s nuclear activities permitted thereunder will not be used to further any nuclear-related military or nuclear explosive purpose….
The problem with this requirement is that there are “nuclear-related military” purposes that have nothing to do with nuclear weapons. Nuclear power is used for warships; it is used for satellites; it can be used for unattended beacons, or other equipment. None of these other military uses are barred by any treaty, and they will not be barred by a nuclear agreement with Iran. So, right from the start, the bill puts forth an impossible condition.
2. Delaying U.S. implementation of the agreement [page 6, lines 3-12]. The bill says that during a 60-day review period after he transmits a nuclear agreement with Iran to the appropriate congressional committees,
the President may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of law or refrain from applying any such sanctions pursuant to [the agreement]….
If the final agreement calls for any relief from U.S. sanctions during this 60-day period, the bill could thus force the United States into noncompliance with the agreement. Now, a 60-day delay might not, in and of itself, cause any great pain. But the message that this provision would send to Iran and to our allies is that the United States cannot be counted upon to comply with the agreement.
3. Snapping back sanctions relief every 90 days [page 12, lines 15-18]. The bill gives Congress the ability to consider, under expedited procedures, legislation to “snap back” all the sanctions relief granted under a nuclear agreement with Iran, whenever the President is unable to make a series of five certifications. One of those certification is that:
Iran has not taken an action, including covert action, that could significantly advance its nuclear weapons program;
The problem with this certification is that the President may be unable to make it even if Iran is in full compliance with the agreement. For example, any Iranian R&D on advanced centrifuges could be seen as significantly advancing a nuclear weapons program down the road, in the years after the ban on using those new centrifuges expires. Since a nuclear agreement with Iran will surely allow some centrifuge R&D, it may well be impossible for the President ever to make the required certification. So, there could be a vote on new “snap back” legislation every 90 days.
4. Including support for terrorism as a reason to “snap back” sanctions relief [page 12, lines 19-22]. Another of the certifications required every 90 days 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;
This provision introduces an issue utterly unrelated to a nuclear agreement. It sends the message that even if Iran complies fully with a nuclear agreement, the United States may decide not to meet its own obligations under the agreement. This can only undercut our negotiators as they work to pin down important details of this agreement. Note also that the terrorism certification could become impossible to make if a group like Hizbollah were to place a bomb outside the Beirut branch of an American business, even if nobody was injured in the bombing. This is because the definition of “United States person” used in the bill [page 24, lines 9-13] includes “an entity that is organized under the laws of the United States or any State.”
5. Including violations with no military impact as a reason to “snap back” sanctions relief [page 12, lines 10-14]. Another certification required every 90 days is that:
Iran has not committed a material breach with respect to the agreement or, if Iran has committed a material breach, Iran has cured the material breach;
This certification requirement seems reasonable enough, until we read the definition of “material breach” [page 23, lines 17-25], which includes:
any breach of the agreement that substantially… benefits Iran’s nuclear program;
Note that this definition does not say Iran’s nuclear weapons program. Thus, a breach that substantially benefits Iran’s peaceful nuclear energy program would suffice to make it impossible for the President to make this certification. Why might Iran breach a nuclear agreement, if not to develop a nuclear weapon? Perhaps just out of habit or paranoia, a fear that the world will sabotage some new nuclear reactor. Or perhaps due to corruption, if the covert procurement mechanism includes kickbacks (from a higher-cost supplier, say) to some Iranian officials. Whatever the reason, this provision could lead to “snap-back” legislation that was due to Iranian noncompliance, but not due to any increased Iranian threat. Telling the world that Congress would do this can only strain the P5+1 coalition.
6. “Snap-back” legislation that cannot be snapped back [page 14, lines 4-17]. The “snap-back” legislation that will qualify for expedited procedures under the bill is detailed precisely. It must cover all U.S. statutory sanctions relief that is offered by the agreement (rather than allowing for any partial “snap-back”) and it may not include any mechanism for re-lifting the sanctions once Iran comes back into full compliance. Thus, the bill is designed more to reimpose sanctions than to secure Iranian compliance with a nuclear agreement. This bias will not pass unnoticed by Iranian negotiators and officials, and it will not help U.S. negotiators.