April 14, 2015

Americans Deserve a Say on Iran Deal

  1. President Obama should want congressional approval of a nuclear agreement with Iran, to provide more robust domestic legitimacy.

  2. Where President Obama has claimed authority to act on national security issues, he has invited congressional support for those actions because he said it is best when the nation speaks with a unified voice.

  3. Creating a process for future congressional approval of a final agreement is not the same as assessing whether the deal merits approval.

President Obama has announced a prelude to a framework to continue negotiating a final agreement over Iran’s illicit nuclear program. The American people and Congress must be given an opportunity to review a final deal if one is reached. The president, vice president, and both Obama secretaries of state all said as much when they were Senators.

Congressional approval would show the agreement has the full imprimatur of the political branches of the U.S. government, thus making the deal more politically stable and its implementation more viable over the long term.  

Senator Obama Would Demand Congress Review an Iran Nuclear Agreement

In 2007 and 2008, Senators Obama and Biden co-sponsored bills requiring legislative approval of any long-term security commitment President Bush made to Iraq. Senators Kerry and Clinton joined them.

“The president cannot make such a sweeping commitment on his own authority. Congress must grant approval.”

-- Senator Joe Biden, 8/1/2008

Senator Obama’s legislation said that if such an agreement was not approved by the Senate as if it were a treaty, or was not otherwise authorized by Congress by legislation, it would not “have the force of law.” Senator Biden’s legislation similarly counseled that an agreement “should involve a joint decision by the executive and legislative branches.” Both provided that no funds could be used to implement a security agreement unless it was approved by Congress.

Speaking about his Iraq bill, Senator Biden explained that the American people have a right to be involved in agreements of such great importance:

“Congress still remains largely in the dark. We have not seen draft language. We do not definitively know which portions of the agreement will be binding, and which will not be. We are not in a position to evaluate whether the agreement will create obligations – either legal or political – that will constrain the next administration, whether Democratic or Republican. The president cannot make such a sweeping commitment on his own authority. Congress must grant approval. The legislation we introduce today requires that Congress be made part of the process. I have often stated that no foreign policy can be sustained without the informed consent of the American people.”

A long-term agreement with Iran over its nuclear program is as important as a security agreement with Iraq.

The Obama administration also promised congressional review as recently as last month. In a March 14 letter to Foreign Relations Committee Chairman Corker, White House chief of staff Denis McDonough wrote, “we will aggressively seek ... congressional support for a deal if we reach one.” Secretary Kerry testified to Congress that this agreement will have to “pass muster with Congress.” Having Congress review the agreement is the way to give those words effect.

President Obama Should Want Congressional Approval of an Agreement

On some critical national security issues in the recent past, President Obama has claimed he has the authority to act but that congressional approval would be best. That position should apply to any final agreement with Iran.

Take, for example, the use of military force against ISIL last year. After the president started to bomb ISIL targets, he claimed to “have the authority” he needed to do that but said he would “welcome congressional support for this effort,” on the argument that it would “show the world that Americans are united.”

In 2013, the president belatedly decided to enforce his “red line” against Syria’s use of chemical weapons. He announced he had “decided that the United States should take military action against Syrian regime targets.” While saying that he believed he had “the authority to carry out this military action without specific authorization,” he added that “the country will be stronger” if Congress authorized it, and the “actions will be even more effective.” He went on to say, “the people’s representatives must be invested in what America does abroad.”

President Obama’s position on the benefits of Congress approving the executive’s significant foreign policy initiatives applies just the same in the context of a final agreement with Iran over its nuclear program. The agreement is to be in place for a long time. Congress will be asked to take specific actions in the course of its implementation, such as repealing sanctions. Congress will be lobbied not to interfere with implementation. The best way to secure those goals would be to seek out congressional support for the agreement. If the president wants Congress there on the landing, it is best to have them there on takeoff.

If a final agreement is reached, Secretary Kerry has said it will be an “arrangement” between Iran and the P5+1. He testified to the Senate Foreign Relations Committee in March that it is not “a legally binding agreement.” The president thus has no obligation under the Constitution to “take care” that it be faithfully executed. It is, at most, a question of political discretion – as opposed to a legal question – whether the United States carries out this arrangement with Iran or not.

To be sure, compliance with international political agreements creates diplomatic stability. This is a compelling argument in favor of carrying out the agreement. Getting congressional support for a final agreement increases political support over the life of the deal. It also lessens the chances of future domestic mischief in the implementation of the agreement.

On the other hand, if the president refuses to seek congressional support for any final agreement, then it will rightfully be seen as not having the full imprimatur of the U.S. government. A future president would be relatively unconstrained to carry it out less enthusiastically. Future Congresses could legislate inconsistently with it. Because the agreement is not legally binding, as Secretary Kerry observed, the important thing is to create a political environment that favors implementation. Congressional support of a deal now would at least give future U.S. political actors pause before they ignore or undermine the agreement.

If the president ignores Congress, then the political branches are not bought-in to this agreement, and the potential for its collapse increases. President Obama should want congressional support for whatever final agreement he may reach with Iran – if only to make his legacy-seeking arrangement more politically stable over the long term.

The North Korea Case Study

The collapse of President Clinton’s 1994 Agreed Framework with North Korea – and the resulting nuclear weapons tests – is a compelling parallel. North Korea had not been complying with its obligations under the international nonproliferation regime. Under the Agreed Framework, it would cease its illicit nuclear program in exchange for a variety of benefits, namely the provision of fuel oil and light water reactors.

The similarities between the North Korea and Iran situation are many:

  1. President Clinton announced the Agreed Framework as “represent[ing] the first step on the road to a nuclear-free Korean Peninsula. It does not rely on trust. Compliance will be certified by the International Atomic Energy Agency.” President Obama said this framework agreement with Iran “will prevent it from obtaining a nuclear weapon. ... This deal is not based on trust, it’s based on unprecedented verification.”
  2. It was argued the North Korean regime would collapse before the Agreed Framework ever had to be fully implemented. The Obama administration is similarly suggesting that by the time this framework agreement expires, “a different, or at least a more cooperative, Iranian regime will be in power.”
  3. Neither agreement was or is “legally binding.”
  4. President Clinton assiduously avoided any congressional review or approval of the agreement when completed. It appears President Obama is prepared to do the same.

Initial congressional skepticism of the Agreed Framework was later shown to be well founded. North Korea went on to undermine the agreement in most material respects, yet President Clinton continued to implement it. Without congressional support for the Agreed Framework, it became increasingly difficult to maintain domestic support for its implementation. North Korea’s failure to live up to its responsibilities and commitments was only compounded by its additional belligerent behavior, such as the launch of a Taepodong missile over Japan in 1998. The public revelation of North Korea’s covert uranium enrichment program caused the ultimate unraveling of the agreementr, as North Korea demonstrated it was never interested in denuclearization.

In this case, a Democratic president completed a controversial nuclear agreement with a rogue state. Congress was led by the other political party during implementation. It was not asked to lend its political support for the agreement when first signed. The rogue state adhered to that agreement with questionable fidelity, and continued its belligerent behavior in many other respects. The agreement did not survive a major crisis directly related to its implementation, which happened under a new president.

If Iran does not comply with a final agreement, like North Korea failed to do, that certainly cannot be ignored. Moreover, if this agreement is completed, it seems highly unlikely Iran will cease its other belligerent behavior, much like North Korea. Iran’s support of terrorist groups, expansion of unhelpful influence in the region, and systematic human rights violations will almost certainly continue. That bad behavior could encourage congressional interference with the agreement, while bipartisan approval of it by Congress would increase the likelihood the agreement could withstand future malfeasance by the Iranians.

Arguments against Congressional Review Are Misplaced

Opponents of congressional review have said, “to force Congress to weigh in now on the Iran nuclear talks before a final deal has been completed would be a reckless rush to judgment.” That completely misses the point. Congress is not weighing in now on the Iran nuclear talks before a final deal has been completed. It is not passing any judgment whatsoever on a final deal. It is merely setting up a process where Congress can review and approve any final deal if and when it is reached. It is setting up a process for Congress to render its judgment later.

The deputy secretary of state told the Foreign Relations Committee on January 21 that, if members of Congress “had been asked to pronounce themselves within a month or so” on the interim agreement, “many members initially might have given it a thumbs-down.” He went on to say that it would be “premature” for Congress to take a position on an Iran final agreement “before we’ve demonstrated whether Iran’s going to live up to it and meet its commitments.”

This would seem to be a compelling argument in the administration’s favor when it came time for Congress to review the agreement. It would be free to argue a comprehensive nuclear agreement with Iran should be approved because congressional skepticism of the interim agreement was not borne out. The administration would also argue Iran has lived up to its interim agreement commitments. If this agreement is as good as President Obama says it is, and there truly is no other option, then it would seem he could make a compelling case for congressional approval.

On the other hand would be Iran’s well-established course of performance on nuclear commitments. For example, Olli Heinonen, a former IAEA deputy director, has said if there is not a covert, undeclared nuclear facility in Iran, it will be the first time in 20 years that is the case. Iran also signed a framework agreement with the IAEA a year and a half ago to address the possible military dimensions of its nuclear program. The IAEA director general recently said Iran has addressed only one of the agreement’s 12 issue areas to work on.

The place for these substantive arguments to be made is in the course of congressional review of the agreement.

Conclusion

In his letter to Senator Corker, Denis McDonough described how the administration would try to “increase [the] international legitimacy” of any final agreement with Iran over its illicit nuclear program. It would seem the Obama administration would similarly want to increase the domestic legitimacy of any final agreement by having Congress review it. Senators Obama, Biden, Kerry, and Clinton would have insisted upon it.

The administration has repeatedly claimed it is better to have no deal than a bad deal. If an agreement is reached, Congress must be given an opportunity to judge its merits. The American people, through their elected representatives, should be the final judge of whether the deal reached truly is better than no deal at all.

Issue Tag: National Security