Iran Deal: Could a Concerned Congress Hinder Negotiations?

June 16, 2014 Topic: CongressNonproliferationPolitics Region: United StatesIran

Iran Deal: Could a Concerned Congress Hinder Negotiations?

If a comprehensive deal is to be reached, Obama and Congress will need to work together.

As the complex interplay of issues and actors that will determine the outcome of the ongoing negotiations between Iran and the P5+1 heats up, many questions still remain unanswered. One of the important actors, whose role has been relatively underanalyzed and is often not properly acknowledged or understood, is the United States Congress. Congress enjoys a unique foreign-policy role in the American political system and, in the case of the current Iran talks, essentially has the power to make or break a potential final agreement. While observers often tend to focus on the actions of American presidents alone, it is not just the president who determines U.S. foreign and national security policies. Congress enjoys tremendous constitutional foreign-policy prerogatives as well and its backing is crucial in determining the fate of the president’s foreign-policy objectives. Mastering the challenges and prospects of the current negotiations with Iran will be no different and highly depend on the successful cooperation between the American executive and legislative branches.

What is the foreign-policy role of Congress?

The American foreign-policy mechanism is marked by an intricate interaction between different branches of government that were intentionally designed to keep each other in check. The framers of the American Constitution, having fought the British king in the revolutionary war, were reluctant to create an all-powerful presidency. Instead they envisioned a government based on a partnership between the executive and legislative branches. Accordingly, the Constitution divides defense and foreign-policy-related powers between both the president and Congress, creating, in constitutional scholar Edward Corwin’s famous words, “an invitation to struggle for the privilege of directing American foreign policy.”

Article I, Section 8 of the Constitution grants Congress the power to declare war, appropriate funds, fund the military, regulate commerce with foreign nations, and give advice and consent in the ratification of treaties as well as the appointment of ambassadors and other officials (incl. the secretaries of state and defense). In comparison, the president actually enjoys a shorter list of powers. Article II, Section 2 names him Commander-in-Chief of the armed forces and empowers him to make treaties (“by and with the advice and consent of the Senate”) and appoint ambassadors and senior officials (“by and with the advice and consent of the Senate”). Former Supreme Court justice Arthur Goldberg, who also served in the Kennedy and Johnson cabinets, even went so far as to state that "at best, the executive's role in the foreign affairs of this nation is a shared role with Congress” and even though “the President leads our foreign relations,” “it is Congress that ultimately determines foreign policy."

From sanctioning to negotiating with Iran

Congress can assert its foreign-policy role through a number of ways. One of them is the imposition of economic sanctions. It can do so based on its constitutional power to “regulate commerce with foreign nations” (the president can impose economic sanctions under a separate authority provided by federal laws). In the case of Iran, a large number of sanctions have been imposed both by congressional acts as well as presidential executive orders. The first sanctions were imposed in the aftermath of the 1979 takeover of the U.S. embassy in Tehran. Many sanctions have been added since based on a number of issues such as support for terrorism, human-rights abuses, and the pursuit of its nuclear program. As a result, the collection of Iran-related sanctions has developed into a highly complex and multilayered legal minefield today.

While Iranian government officials have in the past often mocked the effectiveness of sanctions, both the president and Congress are in agreement that more recent sanctions that dramatically reduced Iran’s sale of oil, its main source of foreign currency, and restricted its access to the international banking system have created unprecedented pressure on the Iranian government and caused it to change its negotiating stance. Strengthened by an EU boycott of Iranian oil in 2012, they cut the Iranian government’s revenues to their lowest level in 25 years. President Rouhani has complained that when he assumed office last year, the state coffers of the country possessing the world’s largest combined oil and natural gas reserves were virtually empty. Facing severe cash problems, Iran’s current pursuit of a comprehensive nuclear deal is therefore fueled by an eagerness to obtain comprehensive sanctions relief. Congress’s role looms large over this issue, because it is the only body that can modify or repeal the sanctions it has codified into law.

The road to the interim nuclear agreement (Joint Plan of Action)

Several months before President Rouhani’s election in March 2013, Supreme Leader Ayatollah Khamenei, Iran’s ultimate political authority, approved secret meetings between high-level Iranian and U.S. officials. The prospect of an economic dead end, concerns over the possibility of increased domestic unrest, and a desire to maintain the ability to pay billions of dollars in financial support to regional allies such as Syria’s Bashar Assad may have been key determinants in that decision. In September 2013, Khamenei took a step further by publicly endorsing a tactical change in the Iranian stance. He called it “heroic flexibility” and compared it to a wrestler who “shows flexibility for technical reasons” without forgetting “who his rival is and what his main goal is.” Exactly ten days later, the presidents of Iran and the United States talked on the phone for the first time in over thirty years.

In November 2013, two months after Ayatollah Khamenei’s “heroic flexibility” speech and eight months after secret talks with the United States had begun, Iran and the P5+1 reached an agreement in the form of the Joint Plan of Action (JPOA). The JPOA, which technically is not a legally binding document or treaty (hence no need for congressional approval), provides limited sanctions relief in return for certain temporary Iranian nuclear concessions. Far from being a comprehensive agreement, the JPOA’s purpose is to serve as a political commitment and starting point to a more complete agreement. According to James Clapper, the U.S. Director of National Intelligence, what is pushing the Iranian government to pursue the current negotiations is the fact that Iran’s economy “will continue to struggle without comprehensive sanctions relief.”

What are Congress’s concerns?

While a number of Congressmen have signaled reserved optimism about the prospect of a comprehensive agreement with Iran (such as 104 House members who sent a letter to President Obama in this regard), many have also voiced skepticism and concerns. A major worry in Congress is that the leverage created by the tough oil and financial sanctions may be given away too easily without placing sufficient restrictions on Iran’s nuclear program (such as a uranium-enrichment halt or the dismantling of nuclear facilities). Representative Ed Royce, the chairman of the House Committee on Foreign Affairs, has warned about shrinking U.S. leverage over Iran and Senator Robert Menendez, the chairman of the Senate Foreign Relations Committee, has expressed concern that Iran’s strategy is to reverse harsh sanctions, while keeping core elements of its nuclear program intact so it can “quickly revive” it in the future. “If they get their way,” said Menendez, “they dismantle nothing [and] we gut the sanctions.”

Some Congressmen have also drawn comparisons to the negotiations that failed to stop North Korea’s nuclear ambitions. The lead U.S. negotiator in the Iran talks, Wendy Sherman, also played a key role in the North Korean negotiations. At a Senate briefing this year, Senator Mark Kirk called her record in the North Korean talks “a total failure and embarrassment to her service.” The House Armed Services Committee chairman Howard McKeon has expressed concern that “America has not learned its lesson from 1994 when North Korea fooled the world.” Ranking member of the Senate Foreign Relations Committee Bob Corker and Senator McCain have also made the North Korean comparison, with Senator McCain stating his worry about “a situation that would be reminiscent of our experience over two decades with North Korea.”

An additional congressional concern is related to the inclusion of other major issues of concern in the current negotiations. The Iranian government has made it very clear that the objective it pursues in the current talks is sanctions relief. Iran’s foreign minister Zarif has stated that a comprehensive agreement must include “the removal of all the sanctions.” What Iran does not want, however, is the inclusion of other, nonnuclear issues of concern in the negotiations. The problem with this stance is that it conflicts with the fact that a great number of Iran-related sanctions are based on issues outside of the nuclear realm. These include perceived Iranian support for terrorism (the U.S. has designated Iran as a state sponsor of terrorism since 1984), human rights abuses, and the development of ballistic missiles. Some in Congress believe that these issues are closely intertwined with the nuclear concerns and must be addressed in the negotiations. A resolution to this effect has been introduced by Representative Peter Roskam in the House of Representatives (H.Res.445, “urging the P5+1 to only accept a final nuclear agreement with Iran that definitely prevents Iran from acquiring a nuclear weapons capability, ceases Iran’s construction of advanced missiles and warheads, suspends Iran’s support for terrorist organization, and reduces human rights violations within Iran”).