The Obama administration negotiated a bad deal with Iran. The deal modifies the Nuclear Non-Proliferation Treaty (NPT) to which America is a signatory. As such, the Iran deal is inconsistent with the Corker-Cardin bill, and it should be considered separately.
Background
For decades, the Iranian government has supported international terrorism, held American prisoners, hindered our commerce, and expropriated our property. Iran has caused the death or injury of hundreds of American soldiers and civilians. It oppresses its own people and restricts their access to information. Since the negotiation of the deal, Iran has continued to threaten the United States in word and in deed almost daily.
Iran’s hostile acts are not limited to the United States. It threatens neighboring countries and brazenly seeks nuclear weapons. A signatory to the Nuclear Non-Proliferation Treaty (NPT), Iran has repeatedly and shamelessly violated its provisions by closing off nuclear sites to international inspectors.
As punishment for flouting the NPT, an international coalition of nations together with the UN over the past 10 years imposed sanctions and embargoes against Iran and froze its financial assets. The sanctions did not result in compliance with the NPT. But the sanctions did force Iran to the negotiating table. Over much of the past year, Iran negotiated with several governments including our own over the future of international economic sanctions and the Iranian nuclear weapons program.
The negotiators’ objectives were clear. Iran sought to lift embargoes and sanctions and unfreeze its financial assets. The international community sought at the very least to have Iran return to compliance with the NPT.
It was under the premise of a negotiated compliance with the NPT that Senator Corker and Senator Cardin proposed a Congressional review process for an agreement with Iran. Their proposal became the Iran Nuclear Agreement Review Act of 2015 (the Corker-Cardin bill).
The Agreement
In July, Secretary of State John Kerry and representatives from other countries signed a document with the Iranian government. The Iranian government achieved its two primary objectives in the agreement. Economic sanctions would be lifted as soon as the agreement came into effect, without any requirement of performance by Iran. Iranian assets worth perhaps $150 billion, much of which is personally controlled by the ayatollahs, would be unfrozen. That money would be available to keep the ayatollahs in power and to support their attacks on the Unites States and its allies.
The United States achieved none of its goals in the deal. Iran remains noncompliant with the NPT. Indeed, the agreement is nothing but an amendment to the NPT granting Iran an exception to the NPT.
Iran will not be accountable for past or future failures to comply with the NPT. The NPT is materially changed by the Iran deal. Under the NPT, international inspectors have access in non-nuclear countries such as Iran to any nuclear facility at any time. Under the Iran deal, the NPT provision does not apply. Instead, inspectors are limited to times and places approved by the Iranian government. According to an Iranian official, Iran will even have the power to select its inspectors. Moreover, for at lest one nuclear weapons site, international inspections will be forbidden. The Iran deal conflicts with the NPT in other ways as well.
The repeated injuries to Americans over the past several decades, and the four Americans still held hostage by Iran, were not even addressed.
The purported case for the agreement
Nonetheless, the Administration insists the Iran agreement is a good deal because Iran promises that it will at least temporarily suspend its nuclear weapons program. The agreement, the Administration argues, will delay the day when Iran has nuclear weapons, and is the best deal that the United States could obtain in light of diminished support for continued sanctions. The Administration also claims that the deal will contribute to peace and stability by providing Iran’s government an opportunity to rejoin the community of nations and to engage with its neighbors.
Notwithstanding the flaws of the Iran deal, enough U.S. senators have bowed to pressure from the Administration or bought into its arguments so that the Iran deal will not be blocked by the Corker-Cardin process.
Is it an executive agreement or a draft treaty?
The Obama Administration insists the document is an “executive agreement” and not a treaty. Others, such as Andrew McCarthy, see it as a draft treaty, which requires a 2/3 Senate vote for ratification. Still others, including myself, see it as in large part a modification of the NPT, which also requires a 2/3 Senate vote.
It is important to remember that the Corker-Cardin bill did not amend the Constitution and cannot be used to circumvent the Senate’s responsibility to approve by a 2/3 vote any treaty or amendment to a treaty. At the time of the consideration of the Corker-Cardin bill, the contents of the Iran document were unknown. Members of Congress believed that a final agreement would be consistent with the NPT. The bill did not anticipate reviewing a draft treaty. The word “treaty” does not appear in the bill. It is a lawful means of reviewing an executive order or agreement; it is not a lawful means of reviewing a draft treaty.
Moreover, the Corker-Cardin bill says that the President shall provide: “a certification that the agreement meets U.S. non-proliferation objectives.” Yet, as I have explained elsewhere, the Iran document weakens and amends the Nuclear Non-Proliferation Treaty by exempting Iran from the specific requirements the Treaty imposes on non-nuclear countries. It is difficult to see how the exemption of Iran “meets U.S. non-proliferation objectives.”
Treaty ratification requires a 2/3 approval of the U.S. Senate. It is difficult by design, but is not, as Secretary Kerry testified before the House, “physically impossible” Hundreds of treaties have been ratified over the years. The mere difficulty of ratifying the document signed with the government of Iran is not a basis to abrogate the U.S. Constitution and to avoid treating the document as a treaty.
The Constitution provides a mechanism for Constitutional amendments. Congress cannot by mere statute amend the Constitution. The Corker-Cardin review process specifically provides a mechanism for Congress to review an agreement, not a draft treaty. If the document signed by Secretary Kerry were even in part a draft treaty or draft treaty amendment, it could not become the law of the land by a backdoor circumvention of the Constitution.
How to consider the Iran deal
The Administration appears to take the position that it is the sole arbiter of whether a document is a draft treaty or an executive agreement. The other branches of government may take umbrage with the Administration’s view of itself as a monopoly in determining the legal status of a document. Either chamber of Congress could, for example, pass a simple resolution stating that the Iran deal language is a draft treaty, creating a conflict with the executive branch. Any number of other disputes might arise under the Iran deal, and those disputes should be taken to court.
At least two broad categories of direct disputes emerge under the Administration’s Iran deal.
- The first category of disputes pertains to the process by which the deal becomes effective law. The dispute as to whether the Iran deal is an executive agreement as claimed by the Administration or at least in part a draft treaty could be brought to a court by any number of parties including individual legislators or groups of legislators or quite likely other parties that are adversely affected by the Administration’s executive agreement position. A court could be asked, either by the Administration or some part of Congress, to declare the status of the Iran deal or at least portions of it—an executive agreement or a draft treaty. If some or all of the language of the Iran deal is deemed a draft treaty or draft treaty amendment, the Corker-Cardin process cannot apply.
- The second category of disputes, independent of the Congressional review process, relates to the effect of the Iran deal on the NPT. The Administration believes that it has authority to negotiate with Iran to make binding modifications or amendments to the NPT. Other parties believe that the NPT legally binds various governments independent of non-treaty agreements.
Many parties have an interest in the preservation and enforcement of the NPT particularly with respect to Iran. Such parties could ask a court to compel the Administration to take steps to preserve the NPT or to compel enforcement of the NPT. Regardless of whether the Iran deal language survives the Corker-Cardin process, a court could resolve disputes brought by parties insisting on the full enforcement of NPT.
The two categories above merely pertain to dispute that arise under the Iran deal. They do not include any of the countless other grievances that various parties with Iran, including some that have received judgments from American courts.
Some believe the Iran deal is a fait accompli. The Administration sees a procedural victory in the Corker-Cardin process even with a minority of Members and Senators backing the deal. The Iran deal modifies the NPT and thus cannot be approved by the Corker-Cardin process. Congress and the courts should insist that the United States amend a treaty in accordance with the U.S. Constitution.