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Voting Up-or-Down on an Iran Nuclear Deal: Not as Easy as 123
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Volume 7, Issue 4, February 11, 2015

The new chairman of the Senate Foreign Relations Committee, Bob Corker (R-Tenn.), says he will introduce legislation that would give Congress the opportunity to vote to disapprove or approve a comprehensive nuclear agreement between the P5+1 (China, France, Germany, Russia, the United Kingdom and the United States) and Iran.

Corker argues that an up-or-down vote on a P5+1 and Iran deal—patterned on the procedures in Section 123 of the Atomic Energy Act for congressional approval/disapproval of civil nuclear cooperation agreements—is a way for Congress to weigh-in and have a “constructive” role in Washington’s negotiations with Iran.

However, a closer examination of Corker’s initial proposal to subject the P5+1 and Iran agreement to the same legislative requirements as a bilateral civil nuclear cooperation agreement or an arms control treaty raises more questions—and problems—than its answers.   

Consequently, the Obama administration has signaled that it opposes the Corker proposal, which has not yet been formally introduced but may soon be considered by the Senate Foreign Relations Committee.

Corker’s proposal would block implementation of any comprehensive agreement between the P5+1 and Iran until the congressional review period and vote is completed. 

The congressional review period would not begin until the Obama administration and the intelligence community completes a detailed nonproliferation assessment of the agreement—a complex process that could take many weeks to prepare.

As a result, Corker’s proposal would effectively delay or block implementation of measures in the comprehensive agreement that would curtail Iran’s nuclear capabilities.

This would put the comprehensive agreement, as well as the interim agreement, in a state of legal and political limbo that could lead to the unraveling of the historic diplomatic opportunity to prevent a nuclear-armed Iran. 

In addition, any initiative that would subject a comprehensive P5+1 and Iran deal to congressional approval (and possible amendments that place conditions or requirements on its implementation) would overstep congressional authority in the area of executive branch conduct of foreign policy.

By putting the agreement, and/or waivers of sanctions necessary to implement the deal, up for an early vote—and possible disapproval— before Iran has a chance to demonstrate it will carry out initial nonproliferation steps, Congress creates the very real risk that the United States (not Iran) would be blamed for derailing any long-term P5+1-brokered agreement to verifiably limit its nuclear capabilities. Such a deal, is, by far, the most effective way to prevent a nuclear-armed Iran, proliferation in the region, and/or another war in the Middle East.

Before any legislation for a direct vote of approval/disapproval is advanced in Congress, responsible policymakers should carefully examine the proposal, evaluate downside risks, consider common sense alternatives, and recall the respective roles of the legislative and executive branches.

They should be mindful that unlike a civil nuclear cooperation agreement between the United States and another country, a comprehensive nuclear deal with Iran will be a political agreement between the five-permanent members of the UN Security Council, Germany, and Iran designed to induce Iran to meet goals and obligations established by the Security Council and Iran’s obligations as a party to the Nuclear Nonproliferation Treaty, including its agreements with the International Atomic Energy Agency (IAEA).

Over time, Congress will have a vital role in monitoring implementation of a comprehensive nuclear deal with Iran, including legislative action to remove and/or not renew legislatively-mandated, nuclear-related sanctions on Iran—if and when Iran fulfills key non-proliferation obligations called for in a comprehensive agreement.

An Iran Nuclear Deal Is Not a 123 Agreement

Senator Corker stated in a January 2015 Senate Foreign Relations committee hearing that he is working on legislation that would require an up-or-down vote on a comprehensive Iran deal that “builds off the 123 agreements” currently in place. 

Under Section 123 of the Atomic Energy Act, nuclear cooperation agreements are subject to approval by Congress. These “congressional-executive” agreements are designed to ensure that U.S. cooperation with foreign nuclear programs, including the transfer of U.S. nuclear material, equipment, or technology, conforms to U.S. export control laws, meets Nuclear Regulatory Commission licensing requirements, and is used exclusively for peaceful purposes and not for the development of nuclear weapons.

After the administration negotiates a civil nuclear cooperation agreement with another country, it is submitted to Congress, first to the House Committee on Foreign Affairs and the Senate Foreign Relations Committee, and then to Congress, for review.

The agreement must meet nine nonproliferation criteria and include a nuclear proliferation assessment statement explaining how the agreement meets those criteria and does not damage U.S. national security interests.

If no action is taken by Congress during the review period, the nuclear cooperation agreement enters into force. If Congress adopts a joint resolution disapproving the agreement and the resolution becomes law, the agreement does not enter into force.  Sometimes, the resolutions are hotly debated and amendments are adopted that set additional conditions on U.S. nuclear transfers to the other country.

A nuclear deal with Iran, however, will not involve the transfer of proliferation sensitive material, technology, or information from the United States.

Instead, the P5+1 and Iran nuclear agreement will require Iran to meet specific requirements that effectively limit its capability to produce material that can be used for nuclear weapons and will put in place additional monitoring requirements to guard against any dash for nuclear weapons in the future. 

Subjecting the P5+1 and Iran agreement to the same legislative requirements as a bilateral civil nuclear cooperation agreement is unnecessary, and it carries enormous risks for the success of a good P5+1 nuclear agreement with Iran.

Delay and Possible Derailment of Steps to Curb Iran’s Capabilities

If it follows the process of a 123 agreement, Corker’s proposals would require putting implementation of the P5+1 and Iran agreement on hold for at least 90 days (and perhaps longer), including implementation by Iran of key steps that would reduce its proliferation potential.

At the onset of a comprehensive nuclear deal with Iran, Washington may need to waive certain sanctions measures in return for Iranian concessions. An extended congressional review process could impede the process and delay implementation of additional limits and monitoring on Iran’s nuclear program.

Worse still, if Congress votes to disapprove of the nuclear deal with Iran or vote to revoke or block the President’s existing legislative authority to waive certain nuclear-related sanctions, the Corker proposal would have derailed the carefully-constructed P5+1 diplomatic framework to verifiably block Iran’s potential pathways to nuclear weapons.

In that scenario, the approach being pursued by Senator Corker would leave the United States with no credible “Plan B” to prevent a nuclear-armed Iran.

Additionally, if the United States is seen as causing the deal to collapse, international support for the sanctions regime that was critical to bringing Iran to the negotiating table will erode.

Executive and Legislative Authority

Voting a verifiable, comprehensive agreement with Iran up or down also undermines the respective roles of the Executive and Legislative branches.

A nuclear agreement with Iran is not a treaty that requires Senate advice and consent for ratification. A nuclear deal with Iran will not, in any way, limit the military capabilities of the United States, as is the case with bilateral or multilateral nuclear arms control treaties and nonproliferation agreements that are subject to the advice and consent of two-thirds of the Senate. Nor will an agreement impose obligations on the United States beyond lifting sanctions that were intended to push Iran to the negotiating table.

It is the prerogative of the executive branch to conclude agreements in the national security interests of the United States. Setting a precedent for congressional review of such agreements sets a dangerous precedent for future executive branch decisions.

Furthermore, given that the UN Security Council will likely consider and approve a new resolution recognizing the agreement and mandating that the P5+1 and Iran undertake certain actions to implement it, a congressional vote of approval/disapproval would be redundant. And, if Congress votes to disapprove the agreement, it could lead to a direct conflict of opinion and legal authority between the U.S. Congress, and the U.S. President/UN Security Council.

Congress’s Constructive Role

There are other, more constructive ways for Congress to monitor compliance and implementation of a comprehensive P5+1 nuclear agreement with Iran.

As part of the broad parameters agreed to in the interim deal, the United States committed to remove all nuclear-related sanctions on Iran as part of a comprehensive agreement. Under that process, the phase-out of those sanctions will begin with Presidential waivers, and later, if Iran meets key nonproliferation obligations, removal of UN Security Council and U.S. sanctions.

In the future, if Iran is abiding by its commitments, Congress will need to pass legislation removing some of these key nuclear-related measures, which incentivizes Iran to comply with the deal in the long term.

Deputy Secretary of State Antony Blinken addressed this point in a January 2015 Senate Foreign Relations committee hearing on the Iran nuclear talks. He said:

“… the best way to ensure that Iran complies with its obligations would be to suspend the existing sanctions, not end them, to test Iran's compliance, and only then, and obviously Congress would have to play a lead role in this, to actually end the sanctions.”

Additionally, Congress can provide a forum for a public discussion of Iran’s implementation of any comprehensive agreement.

Periodic congressional oversight hearings to discuss findings from the IAEA and the executive branch on Iran’s compliance with a comprehensive agreement and the impact of such an agreement on Iran’s nuclear program can serve an important role in holding both sides accountable.

At the same time, Congress should refrain from mandating automatic re-imposition of sanctions measures against Iran on the basis of unsubstantiated third party reports or intelligence obtained by foreign governments about possible noncompliance with the terms of the agreement.

It is and should remain the responsibility of the President, in consultation with the Director of National Intelligence and using information obtained by the IAEA, to determine whether Iran has materially violated the comprehensive agreement in a manner that threatens international security and is not working to come back into compliance with the terms of the agreement.

Establishing a record of compliance (or noncompliance) will be key when Congress eventually votes on whether or not to remove nuclear-related sanctions on Iran that are essential to the implementation of the agreement.—KELSEY DAVENPORT, director for nonproliferation policy, and DARYL G. KIMBALL, executive director

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Posted: February 11, 2015