Edward Levine, an Advisory Board Member to the Center for Arms Control and Non-Proliferation, has written an analysis of the Iran Nuclear Negotiations Act of 2014 put forward by Senators Corker (R-TN), Graham (R—SC), Rubio (R-FL), McCain (R-AZ) and Risch (R-ID)..
Read the full analysis below.
What follows are preliminary comments on the Iran Nuclear Negotiations Act of 2014, as circulated on July 23 (Senate Legislative Counsel document MRW14538). Readers should note that my detailed knowledge of legislation ended three years ago, so additional acts or resolutions since then may provide precedents of which I am unaware.
General Comments: The Iran Nuclear Negotiations Act of 2014 has only Republican co-sponsors. We may reasonably infer from this that SFRC Chairman Menendez declined to join his ranking minority member in sponsoring this bill. While the bill could still be intended as a vehicle that will obtain the support needed for enactment, it seems more likely that this is a “message bill.” It may be intended to remind both U.S. and Iranian negotiators that Congress is watching and will not accept a nuclear agreement that concedes too much. It may also be designed to tell voters and contributors that Democrats and the Obama administration are “soft on Iran” in comparison to Senate Republicans.
It is unlikely that this particular bill will ever be enacted. It is of concern, however, because something like it could be embraced by Chairman Menendez and other Democrats down the road and because its “hard on Iran” stance could send the (perhaps unintended) message that the United States is incapable of following through on any reasonable Iranian nuclear agreement.
Congressional Nullification, in General: Section 3 of the bill creates a process whereby any comprehensive Iranian nuclear agreement must be submitted swiftly to Congress and put to a vote on a joint resolution of disapproval. If such a resolution were to be enacted (which would presumably require overriding a presidential veto) or if the President fails to submit the agreement to Congress in a timely fashion, then State Department funding for implementation of the agreement (including any sanctions relief pursuant to the agreement) would be cut off pursuant to section 3(d).
The right of Congress to cut off these funds, pursuant to Article I, section 9, clause 7 of the U.S. Constitution, is fairly clear, irrespective of the wisdom or folly of such an action. If Senators Cooper and Church could bar the commander in chief from sending troops into Cambodia in the midst of a war, then I suspect that Congress can bar him from implementing an agreement. Note that the bill would not cut funding for negotiations per se, which might intrude upon presidential powers that are implied under Article II, section 2 of the Constitution.
The reader might ask whether this bill is even needed in order for Congress to enact a law or joint resolution cutting off funding to implement an agreement. The answer is: no, not really. If the agreement is in the form of a treaty, of course, then the Constitution already requires that it be submitted to the Senate and obtain a two-thirds vote in favor of U.S. ratification. If the agreement is not a treaty, Congress is still free to enact a law or resolution cutting off funds for its implementation whenever it pleases, if it has the votes to do so. It can also include such language in a regular authorization or appropriations bill; indeed, the relevant appropriations bill would be the most logical vehicle, as appropriations are required on an annual basis. But appropriators may or may not share the views of Congress as a whole on this issue, and the process of drafting final appropriations language is often restricted to congressional and committee leadership. Besides, by the time the appropriations process produces a bill, an Iran nuclear agreement (and some of its attendant sanctions relief) might have been significantly implemented.
Note how the frame of reference for implementation of an Iran nuclear agreement has changed. Originally, it was said that sanctions relief would require legislation, and that this was where the views of Congress would be brought to bear. The Iran Nuclear Negotiations Act appears to assume, however, that the administration would be able to achieve much or all of the needed sanctions relief without new legislation. Hence, a prudent or paranoid legislator would opt for a specific process, enacted in advance, that assures Congress a timely vote on whether to accept the agreement.
Congressional Nullification, in This Case: As noted above, a bill may be constitutionally permissible and yet be foolish, rather than wise. In the case of the Iran Nuclear Negotiations Act of 2014, the folly begins with section 3(a)(1). The requirement to submit an agreement to Congress “not later than 3 calendar days after entering into the agreement” 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 of 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 also gives both Congress and the executive time to raise and consider any concerns that the agreement might occasion. It thus affords a certain cooling off period before any congressional action is taken. Most notably, the executive branch controls the date of submission of peaceful nuclear cooperation agreements pursuant to section 123 of the Atomic Energy Act of 1954, as amended, which is the usual model for agreements to which Congress may enact a resolution of disapproval. The Iran Nuclear Negotiations Act, by contrast, would deny Congress the time needed for truly reasoned consideration of an agreement. Despite the claim that it would lead to a full and transparent debate, the bill would force a quick debate and vote in each house of Congress while tempers are hottest, and before any careful legal analysis of the agreement could be brought to bear.
Section 3(b) does not require committee hearings and does not, in fact, require any action by congressional committees. In practice, it would provide merely a two-week pause for consideration of an agreement. It would be a challenge for a committee to engage in a meaningful hearing process in so short a time. Executive branch officials would protest that they had not had enough time to analyze the agreement; outside experts would be left to react to a text and press reports, rather than having any authoritative guidance; and only the most ideologically committed (on either side) would likely agree to testify on such short notice.
Section 3(c)(2) is interesting. I do not know of a precedent for a legislative requirement that Congress reconvene, let alone within two days of the receipt of an agreement. The Office of the Senate Historian or the Congressional Research Service might know whether this is truly new language, or is based on a statute with which I am not familiar.
Section 3(c)(3) gives each House of Congress another 15 days (after the first 15 days) in which either leader in either House (or his or her designee) may introduce a resolution of disapproval. Section 3(c)(4) refers such a resolution to the Foreign Relations or Foreign Affairs Committee, and section 3(c)(5) would discharge it from committee in another 15 days. Thus, the resolution of disapproval would be discharged and available for a resolution to proceed to floor action within 30-45 days after the agreement was submitted to Congress. Once again, the effect is to push Congress to fire before aiming, or at least before fully understanding what it was they were aiming at. Perhaps section 36 or the Arms Export Control Act was the model, as it affords action within 45 days; but AECA requires such swift action in order to stop an arms sale, while there is no legislative limit on when Congress can block U.S. implementation of an Iran nuclear agreement.
Section 3(c)(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? Or is this language that, while perhaps proposed at times in the past, has never been accepted by the House? Others may know the answer.
Section 3(c)(7), which specifies the expedited procedure in the Senate, differs somewhat from the procedures in section 601 of ISA & AECA on 1976. 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.” Section 3(c)(7)(A) of this 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 does not explicitly bar multiple motions to proceed, but it certainly seems to suggest that you only get one try. The point here is that 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. This 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 this 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.
Section 3(c)(7)(E) is especially curious. I do not recall a previous statute limiting Senate debate on a veto message. But as there is nothing here that forces the Majority Leader of the Senate to bring the veto message to the floor, this provision might have only limited impact; it would settle one procedural question, but a unanimous consent agreement might still be needed to achieve floor action to override the veto.
Section 3(d) appears designed to keep the bill within the sole jurisdiction of the Foreign Relations Committee. Thus, it cuts off only those funds authorized for the Department of State, and only those funds “that remain available for obligation as of the date of the enactment of this Act.” Indeed, were the bill to be enacted in September, during the final days of Fiscal Year 2014, its practical impact on Department of State actions on or after October 1 might be negligible. It is also possible that the executive branch could get around the funding ban by using funds authorized for, say, the Department of Energy and the Treasury Department to implement enforcement of the agreement and reduction of sanctions. And the President may have the constitutional authority to exercise any waiver authority given to the Secretary of State under Iran sanctions laws, as subsidiary officials are agents of the President. But if Congress had the votes to override the veto of a resolution of disapproval, then one assumes that it could block these other avenues as well, in time.
Mixing Intelligence and Policy: Section 4(a) of the bill adopts one of the worst proposals of past bills on Iran and North Korea. (I do not recall whether a comparable provision has ever been enacted.) It would force the Director of National Intelligence to investigate and report to Congress, within 10 days, every allegation of Iranian non-compliance that was made by any foreign country or intelligence service, among others. One need only recall the BND (German intelligence) source, whom the CIA codenamed Curveball, whose claims regarding weapons of mass destruction in Iraq proved so politically useful to those who wanted to go to war. Didn’t we already see this movie?
It would be one thing to say, “the DNI shall keep the appropriate committees of Congress fully and currently informed regarding credible intelligence concerning Iranian compliance with an agreement,” for which there is ample legislative precedent. That would give U.S. intelligence the option of combining reports, weeding out self-serving warnings by individuals or foreign services with limited information but a big axe to grind, and reporting on a scheduled basis unless there is a big event to share. And let’s face it, sometimes it takes more than 10 days to “determine whether the information is credible and accurate” and report it to Congress. If Congress wants the U.S. Intelligence Community to give it more respect, then Congress in turn must respect the needs and limitations of intelligence collectors and analysts.
Section 4(b) is equally misguided. First, it makes intelligence analysis the basis for an automatic policy action. Any DNI will tell Congress that the role of U.S. intelligence is to provide accurate information on what foreign countries are doing. The question of whether those activities are violations of an agreement with the United States is not a question that the Intelligence Community is allowed or even competent to answer. Interpretation of the foreign country’s legal obligations is a matter left to policy departments, and in particular to the State Department. If you force the DNI to opine on that, you will very likely get a non-answer. The non-answer is all the more likely when you tell the DNI that if he says “yes,” then all reduced sanctions “shall be reinstated in full by action of law” (whatever that means) 5 days later. No DNI wants to be publicly responsible for triggering such a major policy action, so the demand that he report his determination will in fact press him to not determine that non-compliance has occurred, even if he knows in his heart that it has.
Finally, it would be most unwise to peg a sanctions “snapback” to any and every finding “that Iran has failed to comply…with the terms of any other agreement related to Iran’s nuclear program.” The fact is that no complex agreement is ever implemented perfectly. Countries are forever finding themselves in unintentional non-compliance with this or that provision. This has happened to the United States, just as it has to other countries. The vast majority of non-compliance issues are settled amicably through diplomatic discussions. Snapping back sanctions every time an Iranian compliance issue arises will do nothing more than inflame Iran and unsettle our P5+1 partners, thereby jeopardizing the very Iran sanctions regime that we will still rely upon to deter or counter significant non-compliance.
Section 4 of the bill thus may “send a message,” but it does not show the care that we may see in an enacted provision once Congress is called upon to pass a law repealing or revising some of the Iran sanctions. A serious provision of this sort might have: a “fully and currently informed” requirement regarding U.S. intelligence; a policy-agency reporting provision regarding whether Iran was in violation of its obligations and, if so, the implications of that finding and what was being done about it; a ban on going ahead with further sequential sanctions relief until the non-compliance was remedied; and “snapback” sanctions reinstatement if and only if the Secretary of State (or the President) determined that Iranian non-compliance was of such a magnitude and duration as to call into question Iran’s commitment to refrain from developing or possessing a nuclear weapon.
Cutting Off Negotiations: Section 5 would end sanctions relief in the midst of negotiations, thereby very likely scuttling those negotiations. Because its immediate impact is only on sanctions, rather than upon our negotiators, it is probably constitutional. Again, however, there is much more folly than wisdom in this proposal. The provision is presumably intended to avert a situation in which the Joint Plan of Action could be continued, with minor changes, into the indefinite future while negotiations failed to produce a comprehensive settlement. Most experts say, however, that the JPA is more advantageous to the P5+1 than it is to Iran. Why we should prefer the status quo ante, with Iranian production of uranium enriched to nearly 20 percent and of a reactor designed for plutonium production, to a continuation of the current limits on Iranian nuclear activities in return for very minor sanctions relief is something of a mystery. Some people fear that our remaining Iran sanctions will atrophy over time, but in fact they seem to be operating smoothly. What would most upset our allies and, therefore, the sanctions regime is precisely this sort of legislation.
Finally, the definition of a comprehensive settlement in section 5(2) is truly curious. Will a comprehensive settlement in fact be “of a duration that is significantly longer than the [duration of] any nuclear-related agreement between the United States and Iran entered into before the date of the enactment of this Act?” Did the 1957 U.S.-Iran Atoms for Peace agreement have a limited duration? (I have not found a text, but have not heard of any limitation.) What about the 1967 contract between the U.S., Iran, and the IAEA, under which we agreed to provide special nuclear material to Iran? As far as I can tell, that agreement has no limitation on its duration, although it arguably became irrelevant once the material was provided and payment received. (The text may be found at the IAEA website.) It may be, thus, that no comprehensive settlement agreement will last as long as the 1957 agreement, so the Iran sanctions would be reinstated under section 5 no matter how wonderful the agreement was. The faults in this paragraph are readily remedied, but they add to the sense that the Iran Nuclear Negotiations Act is intended not to be enacted, but only to “send a message.”
Edward Levine serves on the Center for Arms Control and Non-Proliferation National Advisory Board. He spent more than 14 years as a senior professional staff member of the Senate Foreign Relations Committee and over 20 years with the Senate Select Committee on Intelligence.