For Now, President Obama Can Continue to Negotiate with Iran
INSS Insight No. 686, April 19, 2015
Oded Eran
http://www.inss.org.il/index.aspx?id=4538&articleid=9277

SUMMARY: The Corker-Cardin bill approved unanimously by the Senate Foreign
Relations Committee on April 14, 2015 is a compromise that will allow
President Barack Obama to continue negotiating with Iran and even conclude
an agreement on the Iranian nuclear program. For its part, Israel finds
itself in a situation in which it cannot try to change the agreement
formulated between the Republicans and Democrats in the Committee in any
fundamental way without at least the tacit support of the White House. Any
criticism of the bill on the part of senior Israeli figures will be met with
antagonism by both parties. Moreover, if the bill is passed and if Iran is
not found in flagrant, serial violation of the agreement, the Iranian issue
will lose the weight it might have had in the next US presidential election.
Nonetheless, the Israeli government and Israel’s friends in Washington would
do well to examine the possibility of separate legislation, or at least the
formulation of understandings between Israel and the administration that
would, to the extent possible, be enshrined in a Congressional act even if
not through binding law.

The Corker-Cardin bill approved unanimously by the Senate Foreign Relations
Committee on April 14, 2015 is a compromise that will allow President Barack
Obama to continue negotiating with Iran and even conclude an agreement on
the Iranian nuclear program. The bill also postpones the confrontation
between the President and Congress – where both houses are currently
controlled by the Republicans – to the day after an agreement. The
compromise reflects both the Republican willingness to allow the executive
branch to engage in diplomacy vis-à-vis Iran, and the President’s
willingness to recognize the role of the legislative branch, as defined by
the “Advice and Consent” clause in Article II, Section 2 (Clause 2) of the
Constitution concerning treaties between foreign nations and the United
States. President Obama had claimed that an agreement with Iran is not a
treaty, but changed his mind, primarily as a result of pressure by
Democratic senators, who realized that in so charged a public debate it is
unreasonable that the US Congress would have no say whatsoever.

Against this background, the President is free to conduct negotiations with
Iran for the duration of the talks; the problems he could face would emerge
only once the final agreement is in place. The proposal formulated to date
(S.615) sets a precise schedule for the process of ratifying the agreement:
the President has five days to present the agreement to Congress; Congress
can debate the agreement for 30 days (unless it is brought to Congress
during recess, whereupon this period will be extended to 60 days); if within
12 days Congress decides not to approve the agreement, the President may
cast his veto; Congress has 10 days to decide whether or not to override the
veto.

The presidential veto is the key to understanding the change in the
president’s posture. For the agreement to be approved by both the
legislative and executive branches of government, both houses of Congress
must endorse it. If Congress decides to reject the agreement, the
Constitution lets the President ignore Congress but reserves the Senate the
right to override the veto if done a two-thirds majority vote of voting
senators. Assuming that all one hundred of the senators would rally for so
important a vote, the President would need thirty-four of the forty-six
Democratic senators to block an override of his veto. In other words, should
the Republican majority decide unanimously to reject the agreement with
Iran, all the President needs is the loyalty of thirty-four members of his
own party. President Obama is convinced that if he cannot rely on his own
political colleagues in the Senate, his condition would be so precarious
that the United States would not be able to fulfill its part of any
agreement.

In exchange for the concession by the Republicans in the Senate Foreign
Relations Committee, the administration is obligated on two levels. At the
ratification stage – a period lasting, as noted, up to 52 days – the
administration will not lift any statutory sanctions, i.e., sanctions
imposed on Iran by Congress. The second concession by the administration
concerns notification and reporting. From its initial submission of the
agreement to Congress and throughout the timetable stipulated, the
administration agrees to report to Congress on all items related to
verification and implementation, including any Iranian violations of the
agreement and nuclear advances by Iran in light of the violations.

Already in the first report on the agreement the Secretary of State will be
asked to include a verification assessment report on Iran’s obligation and
what sanctions should be lifted, whether by the United States or other
nations and the UN. The assessment is also to include a presidential
statement that the agreement is in keeping with the national objectives of
the United States when it comes to nonproliferation of nuclear arms, and
that whatever Iran is allowed to do in its nuclear program will not be
exploited by Iran to military nuclear ends. The Secretary of State’s report
will also relate to the capabilities of the International Atomic Energy
Agency to implement the required verification and ensure access to all
suspect nuclear development sites in Iran. The Secretary will be required to
take into account the almost certain possibility that Iran will exploit
anything not explicitly forbidden by the agreement to hide activity that
violates its commitments.

Within 10 days of receiving reliable information that Iran is significantly
violating the agreement, the President will report this to the relevant
committees in Congress; within 20 days, the President will report if the
situation has been rectified. Furthermore, every 180 days, the President
will report on the state of the Iranian nuclear program and Iran’s upholding
of its commitments, and report on Iran’s rejections of any IAEA demands,
purchases of materials liable to help it advance military nuclear
capabilities, and centrifuge activity not approved by the agreement that
could shorten the breakout time to the bomb. The President will assess
whether or not Iranian financial institutions can be linked to money
laundering for the purpose of terrorism and activity in the Iranian
ballistic missile program. The President will also be required to report on
human rights violations in Iran.

By means of these various reports required of the President, the Secretary
of State, and other branches of the administration, Congress will try to
maintain its position on implementation of the agreement if reached and
approved. Undoubtedly, the Republican majority wanted much greater freedom
of action that would have allowed it to undermine the agreement. Even the
obligation to report on Iranian financing of terrorism and human rights
violations will have little effect on undercutting the agreement once it has
been approved and set into motion. If the President does in fact report on
incriminating information in these areas, Congress can only cancel the
lifting of the specific sanctions imposed on Iran in these two areas.

Israel is mentioned in the current bill: “The President should determine the
agreement in no way compromises the commitment of the United States to
Israel’s security, nor its support for Israel’s right to exist.” This is a
highly innocuous statement, which in no way adds anything of significance to
the circumstances liable to develop from the very fact that an agreement is
achieved, and certainly should Iran violate it and continue its military
nuclear program. The President and the other branches of the administration
will have to report on a string of issues, including such that will
apparently not appear in the agreement, e.g., Iran’s development of
ballistic missiles. But the very fact of the reporting, no matter how
meticulous or stringent, is far from making an operative decision that could
relieve the threat to Israel.

Israel, then, finds itself in a situation in which it cannot try to change
the agreement formulated between the Republicans and Democrats in the Senate
Foreign Relations Committee in any fundamental way without at least the
tacit support of the White House. Any criticism of the Corker-Cardin bill on
the part of senior Israeli figures will be met with antagonism by both
parties. Moreover, if the bill is passed and if Iran is not found in
flagrant, serial violation of the agreement, the Iranian issue will lose the
weight it might have had in the next US presidential election, a race that
has already started. The close bipartisan cooperation in the Senate Foreign
Relations Committee, indirectly involving the White House, and the fact that
two Republican senators – Paul and Rubio – supported the proposed
legislation in the committee vote, will make it difficult for other
Republican senators to criticize the President for his conduct on the
Iranian nuclear issue in its intra-US aspects.

Nonetheless, the Israeli government and Israel’s friends in Washington would
do well to examine the possibility of separate legislation, or at least the
formulation of understandings between Israel and the administration that
would, to the extent possible, be enshrined in a Congressional act even if
not through binding law. One may assume that this, with Israel as the only
country aside from the US and Israel mentioned by name in the bill, would
involve a lifted eyebrow or two, perhaps even a harsh, albeit discreet,
diplomatic response on the part of US allies in the Middle East, likewise
worried about Iran’s conduct in the region in general and its nuclear
ambitions in particular. For this reason too, it may be that both the
administration and Congress could be interested in the United States
guaranteeing the security of certain of its allies in case of flagrant
Iranian violations of the agreement, and especially an Iranian attempt to
break out to nuclear arms. In any case, such a discussion with the
administration and Congress should begin only after the bill receives final
approval and is signed into law by the President, so that Israel cannot be
accused of derailing the legislative process.