September 25, 2015

Parsing the Latest Version of the Cardin Bill

Screen Shot 2015-09-25 at 10.23.45 AMSen. Ben Cardin (D-MD), one of four Senate Democrats to publicly disapprove of the nuclear accord reached between the United States, other major world powers, and Iran, promised legislation to provide for congressional oversight of the nuclear agreement and to push back against Iran’s activities in the Middle East. Yesterday, a revised version of the bill was released—one that improves on an earlier draft by taking out what were regarded as “poison pills” that would have effectively killed the nuclear accord.

Nonetheless, the bill as a whole seeks to limit and reverse the progress the Obama administration has made in tamping down tensions with Iran. Certain provisions of the draft legislation threaten to incite the Iranians—most particularly, the Iranian parliament—into undertaking similar action, thereby threatening to thrust the parties back into a cycle of mutual recrimination from which they had so recently departed.

Several weeks ago, Iran’s leader, Ayatollah Ali Khamenei, reprimanded those members of Iran’s political elite that excused the rhetoric and conduct of the U.S. administration in its efforts to sell the nuclear accord to a skeptical Congress. According to Khamenei, “Of course, I believe the domestic struggle in the United States is real. But, what is officially stated deserves to get a response. If it is not answered, then the statements of the other party become consolidated.”

As such, passage of the Cardin legislation will provoke a direct Iranian response, which is certain to create a fresh wave of controversy in Washington. By tossing the parties into a cycle of tit-for-tat responses, at the precise moment that the U.S. and Iran begin preparations to implement the nuclear agreement, the Cardin bill threatens to cloud the atmosphere between the parties and thus undermine the nuclear accord at its inception. As such, the Cardin bill remains much as before—unnecessary and unhelpful in achieving U.S. goals vis-à-vis Iran and the wider Middle East region.

False Understanding of U.S. Authority to Impose New Sanctions

Most troublingly, the newest version of the Cardin bill commits some basic interpretive errors of the Joint Comprehensive Plan of Action (JCPOA)’s provisions, threatening to set the stage for congressional opponents to undermine the nuclear accord in the future. Likewise, the proposed legislation sets up an expedited procedure for the imposition of new terrorism-related sanctions, both insulating Congress from taking up a considered piece of legislation through normal legislative procedures should conditions so merit it and incentivizing those parties in Iran and elsewhere to actively work to undermine the nuclear agreement by advertising an American response to an international incident.

Earlier drafts of the Cardin bill would have prevented the president from lifting certain sanctions designations imposed on Iranian entities, including Iranian banks, said to support Iran’s ballistic missile activities. Those provisions have been deliberately excised from this latest draft, where the names of Iranian persons and entities included in Attachment 3 & 4 of the JCPOA have been protected from Congress’s mandate that all sanctions imposed with respect to Iranian persons under the authorities of Executive Orders 13382 and 13224 continue in effect until the president certifies that such entities are no longer supporting either Iran’s ballistic missile activities or acts of international terrorism.

However, prefacing these changes in § 6 of the Cardin bill, the legislation states that the United States shall have a policy, “in interpreting the [JCPOA], that nothing in the JCPOA limits or curtails the ability of Congress to pass sanctions legislation to address Iranian terrorism activities and Iran’s ballistic and cruise missile activities.” This echoes Congress’s initial concern that certain provisions of the JCPOA limit its authority to pass new sanctions legislation on Iran without violating U.S. obligations under the nuclear accord.

Properly interpreted, § 26 of the JCPOA’s Main Text does impose certain restrictions on the U.S. ability to impose new sanctions on Iran. For instance, the JCPOA states that the “United States will make best efforts in good faith…to prevent interference with the realization of the full benefit by Iran of the sanctions lifting specified in Annex II.” Moreover, § 26 of the JCPOA’s Main Text notes that the “U.S. Administration…will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA.” Finally, § 26 of the JCPOA’s Main Text further states that the “U.S. Administration…will refrain from imposing new nuclear-related sanctions.”

In sum, the iteration and reiteration of this basic point suggest that the Iranians were seriously concerned that U.S. authorities would impose new sanctions that would replicate those lifted as part of the nuclear accord, albeit under a different pretext. For this reason, § 26 of the JCPOA’s Main Text states that the U.S. administration will refrain from re-imposing those sanctions specified in Annex II—meaning, in my reading, that the U.S. could not impose sanctions on Iran’s Central Bank for terrorism-related purposes, for instance, as doing so would altogether nullify the benefit to Iran of the sanctions-lifting outlined in the JCPOA. As Under-Secretary for Terrorism and Financial Intelligence Adam Szubin has been keen to point out, the JCPOA is a virtual quid pro quo, in which Iran trades constraints on its nuclear program (the quid) in return for sanctions relief from the United States (the quo). By re-imposing sanctions that have been lifted under the nuclear accord, the U.S. would undermine the transactional nature of the JCPOA in such a way as to render it worthless for the Iranians.  

Although the Cardin bill’s interpretive error in this respect is innocuous at present, it does threaten to set the stage for deal opponents in Congress to more actively work to undermine the JCPOA by promoting a false understanding of Congress’s authorities to impose new non-nuclear sanctions on Iran without placing the United States in breach of its JCPOA commitments. As such, its inclusion reflects the fact that deal opponents have reverted to playing the long game, setting the stage for the U.S. to abrogate the nuclear agreement when the time is opportune.

Expediting Consideration of New Sanctions Legislation

Such a long-term strategy for derailing the nuclear accord is likewise evident in the Cardin bill’s provision for expedited consideration of new terrorism-related sanctions.

Pursuant to § 9 of the draft bill, Congress is authorized to expedite consideration of legislation that would authorize or require the President to impose sanctions on persons that support acts of international terrorism harmful to U.S. security interests and committed by the Government of Iran or by a U.S.-designated foreign terrorist organization receiving financial or other material support from the Government of Iran. Congress’s expedited consideration would be triggered by a Presidential determination that such an act of terrorism was directed or conducted by the Government of Iran or that the Government of Iran had “substantially increased its operational or financial support for a terrorist organization that threatens the interests or allies of the United States…

Although the president would retain basic authorities to make such determination and thus trigger Congress’s expedited consideration of new legislation (or not), the idea that Congress would require the president to impose sanctions on certain persons, as opposed to authorizing the president to do so, is deeply troubling, perhaps even offensive to the president’s powers to conduct the nation’s foreign policy. Most certainly, it disturbs the notion—evident in § 26 of the JCPOA’s Main Text—that the U.S. administration would be in full control of U.S. sanctions authorities for the duration of the nuclear accord.

Moreover, by advertising the U.S. response to an international incident involving the U.S. and Iran or one of its proxies, this provision threatens to incentivize those parties most interested in derailing the nuclear accord. Rather than acting as a deterrent to such acts of violence, then, the provision for the expedited consideration of new terrorism-related sanctions runs the risk of acting as a catalyst for acts of violence.

Further, provided that Congress did not require the president to impose sanctions but merely authorized him to do so, the “qualifying legislation” would duplicate current authorities that exist and can be operationalized at the discretion of the president. Nothing in the “qualifying legislation,” for example, would fail to be captured under Executive Order 13224, which is a designation program imposing sanctions on parties engaged in acts of international terrorism or support for such acts. As such, the Cardin bill would provide the United States negligible advantage in its dealings with Iran, all the while excusing an Iranian response.

Advertising Unlawful Uses of Force

Some thought-leaders in Washington have offered spurious advice to the administration and Congress to pre-authorize the use of force against Iran if Iran violates the nuclear accord or seeks to develop nuclear weapons. To the credit of members of Congress—who have proven unable to authorize the president’s ongoing military operations against the Islamic State in Iraq and Syria—the Cardin bill rejects any pre-authorization of the use of force, instead opting for inclusion of a statement of U.S. policy that “all of the options, available to the United States, including the military option, remain available to prevent Iran from achieving a nuclear weapons capability.”

Nonetheless, such a provision is arguably anathema to the nuclear accord negotiated between the U.S., other major world powers, and Iran. Although much attention has been focused on the constraints the JCPOA places on Iran’s nuclear program, as well as the sanctions-lifting the U.S. and its European partners are obliged to undergo, few have noted that the Main Text of the JCPOA includes a provision stating that the “E3/EU+3 and Iran reaffirm their commitment to the purposes and principles of the United Nations as set out in the UN Charter”—a not-so-subtle reminder that UN Member-States are obligated to “refrain…from the threat or use of force against the territorial integrity or political independence of any state…” In consideration of the fact that the United States was arguably in violation of UN Charter Article 2(4)’s prohibition on the threat of force—perhaps the bedrock principle of the UN Charter—ever since President Obama first uttered the “all-options-on-the-table” line and started to operationalize it, the inclusion of this provision in the introductory paragraphs of the JCPOA likely held a great deal of importance for the Iranians. Passing legislation inclusive of a provision that is, at the very least, in tension with this clear obligation to refrain from the threat of force is an early suggestion to Iran that the United States is operating in bad faith in its implementation of the nuclear accord.

Reversing U.S.-Iran Diplomatic Momentum

Other provisions of the Cardin bill leave it to the president to take substantive action and to define the scope of such action. For instance, there were initial concerns that the Cardin bill would expressly authorize the transfer of the Massive Ordnance Penetrator (MOP) to Israel, alongside aircraft capable of delivering the MOP. Such concerns are adequately resolved in this latest draft, as § 5 of the Cardin bill authorizes (but does not require) the president to transfer “ordnance and delivery systems” to Israel so that it can “effectively deter conventional and nuclear threats” from Iran. Ultimately, as is clear from this proposed statutory language, the matter will be one of presidential discretion, much as it has been these last several years.

Additionally, the bill contains extensive reporting requirements for the president, including the obligation to detail a regional strategy for pushing back against Iranian activities in the Middle East (§ 4) and to track Iran’s (soon-to-be) un-restricted oil revenues overseas (§ 8). Further, the president is obligated to report on his efforts to ensure Europe’s commitment to re-imposing sanctions on Iran in case of an Iranian breach of the JCPOA, as well as on the IAEA’s final disposition of the PMD issue.

Nonetheless, even these provisions have the effect of reversing, if not negating, whatever positive momentum has been created between the U.S. and Iran as a result of the recent nuclear accord. By requiring the president to lay out a detailed strategy before Congress on how the United States plans to take offensive action (e.g., the interdiction of weapons shipments between Iran and its proxies) against Iran, amongst other items, the Cardin bill seeks to limit the opportunities for the U.S. and Iran to work together to tackle mutual problems, including the rise of the Islamic State, the implosion of Syria, the threat of a Taliban resurgence in Afghanistan, increased opium trafficking in South Asia, and so on. Failing to leverage either the nuclear accord or the re-opening of a diplomatic window between the U.S. and Iran to the U.S. advantage, however, does not help calm the tensions presently roiling the Middle East.

Improvements have been made to the newest version of the Cardin bill. Most significantly, the proposed legislation no longer directly interferes with the president’s ability to implement the nuclear accord.

Nonetheless, serious concerns remain not just in regards to the bill’s substantive provisions but also to the signal it sends to Iran and the U.S. partners in the nuclear negotiations. Any legislative action that unilaterally interprets provisions of the JCPOA to the U.S. advantage will be met with a reaction in Tehran, likely from Iran’s own parliament, which is all too keen to get its word in on the nuclear accord. Such tit-for-tat responses threaten to throw the U.S. and Iran back into a negative loop, right at the moment that the parties seek to tamp down their tensions.

This piece originally appeared in LobeLog.

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