America’s most significant foreign policy agreement of the 21st century never was sent as a treaty to the Senate for approval. This was because, in 2015, President Obama knew he did not have the two-thirds support of the Senate required to approve his signature foreign policy achievement, the Joint Comprehensive Plan of Action (JCPOA) to become a treaty. Fifty-eight senators from both parties opposed the nuclear agreement in its final form; only a Democratic minority of 42 senators approved the deal negotiated by then-Secretary of State John Kerry along with Iran, Russia, China, England, France and Germany.
How the Obama administration manipulated the process while having only 42 senators in favor of the deal was a coup of political brilliance — and unfortunately also was an American national security disaster. Congress was hoodwinked into passing the Iran Nuclear Agreement Review Act (INARA), which turned the Constitution on its head. It changed the threshold for congressional approval from the 67 votes required to pass as a treaty, to 67 votes that now would be needed to disavow the Iran nuclear agreement. Therefore, it took only 34 votes for the Obama administration to claim Congress had its say on the JCPOA process. That’s mind boggling.
On Nov. 19, 2015, the Obama State Department responded to an inquiry from then-Congressman Mike Pompeo, now secretary of State, claiming the JCPOA “is not a treaty or an executive agreement, and is not a signed document.” How many Americans are aware of this?
In truth, presidents of both parties believe foreign affairs are the exclusive purview of the executive branch and for generations have tried to bypass congressional oversight, even when it has been constitutionally dubious. According to former U.S. attorney Andrew C. McCarthy, writing in the National Review, constitutionally, an “international agreement becomes legally binding on the American people only if it is ratified as a treaty or enabled by ordinary legislation. Neither is true of the JCPOA.”
You would think that making an international agreement with a leading state sponsor of terrorism — with so much American blood on its hands — would obligate any administration not to bind America to an unsigned agreement such as the JCPOA. That agreement legitimized Iran’s right to enrich uranium, with time to have an industrial-size nuclear program condoned by the international community, and allowed unlimited conventional weapons purchases beginning in October 2020 — and did not allow inspections of military facilities where Iran’s clandestine nuclear work happens. Any sites to be visited would have 30 days’ notice, plenty of time to remove whatever Iran wouldn’t want inspectors to see.
There are strong indications that President Trump’s withdrawal from the nuclear deal and his “maximum pressure” sanctions campaign are taking a toll on Iran’s economy, creating a disaffected populace. The Islamist theocracy ultimately wants to survive to fight another day, and may choose to reopen negotiations with United States. This becomes a more likely possibility if President Trump is re-elected and sanctions on Iran continue to increase, taking a further toll on a fragile economy and threatening the regime’s stability.
The Europeans who have attempted to convince the mullahs to live up to Iran’s responsibilities to the JCPOA may have inadvertently moved Iran closer to re-entering negotiations with the United States. The Iranians have been cheating for a while, and even the European countries had to respond. According to the Washington Institute’s Charles Thepaut and Elana DeLozier, “By triggering the nuclear deal’s dispute resolution mechanism, Britain, France and Germany are opening diplomatic space that could help the United States and Iran return to the negotiating table.”
A compelling case could be made not to re-negotiate with Iran and to wait for the sanctions to precipitate a popular uprising to overthrow the anti-Western regime. In theory, that would be the best outcome for American national security interests. However, President Trump is a self-described deal maker and would like nothing better than to renegotiate the Iran nuclear deal more in America’s favor, to include restrictions on Iran’s ballistic missile development and its support for terrorism, and to curb Iran’s hegemonic ambitions.
Iranian Foreign Minister Javad Zarif, in a January interview with Der Spiegel, didn’t rule out the possibility of renewing negotiations, but for the time being, he is holding out for sanctions relief as a pre-condition for beginning talks.
If President Trump did negotiate a new nuclear deal, would he be obligated to send it to the Senate for approval as a treaty, given that Obama did not? It is definitely possible that Democratic senators would vote against any deal he negotiates, even if it would be something they would favor if negotiated by a Democratic president.
If that happened, the Trump administration might choose to do what Obama did: bypass the Senate and consider it an executive agreement. If he did that and it was not legitimized as a treaty, any future president — just as Trump did to Obama’s agreement — could unilaterally abrogate it or make it more favorable to Iran. What’s good for the goose is good for the gander. If President Trump does make a deal with Iran, he should send it as a treaty to the Senate.
Trump must remember Ronald Reagan’s prescient warning in negotiating with a hostile foreign power: “trust but verify,” something the Obama administration pointedly omitted. This time, Trump must secure ironclad guarantees that international and American inspectors would have an unlimited right to inspect any nuclear facility at a moment’s notice.
Since the elimination of Iranian General Qassem Soleimani, leader of its Quds Force, the U.S. has regained leverage with its sanctions campaign against Iran. Iran might not agree to make any significant concessions, but America needs to continue the pressure. The Iranian strategy has a set date: November 2020. If Trump wins a second term, the negotiations begin.
Dr. Eric R. Mandel is the director of MEPIN, the Middle East Political Information Network. He briefs members of Congress and their foreign policy aides on the geo-politics of the Middle East. Follow him on Twitter @MepinOrg.