The Obama administration tries to box in Congress.
July 21, 2015
The UN Security Council unanimously adopts resolution endorsing Iran nuclear deal. UN Photo/Devra Berkowitz
The United Nations Security Council approved unanimously a resolution endorsing the final Iran nuclear deal agreement, known as the Joint Comprehensive Plan of Action (JCPOA). The resolution, which will go into formal effect 90 days after its passage on July 20th, incorporates the JCPOA as an attachment. It invokes the Security Council’s authority under the UN Charter to call upon all UN member states to support the implementation of the nuclear deal terms.
The intent in adopting the Security Council resolution so quickly was, in the words of New Zealand’s Foreign Minister who was presiding over the Security Council session, “to give international legal force to the agreement reached in Vienna, and extend the obligations it contains across the broader UN membership.”
The New York Times reported that Secretary of State John Kerry could not prevail on his negotiating partners or Iran to put off lifting the UN sanctions on Iran until Congress was able to weigh in. Even some Democrats complained about moving to the Security Council so quickly. Kerry got defensive during an interview on a Sunday talk show. “It’s presumptuous of some people to suspect that France, Russia, China, Germany, Britain ought to do what the Congress tells them to do,” he said. “They have a right to have a vote.”
They may have a right to have a vote, but the United States has the right to veto any such premature resolution. The Obama administration thought it was more important to defer to the impatience of the “international community” than to respect Congress’s role in the U.S constitutional process.
Now, with the resolution in place, Congress is being boxed in by the argument that failure to proceed with implementation of the JCPOA starting in 90 days irrespective of what Congress does would violate international law. Congress could bar Obama from waiving any congressionally imposed sanctions, if it is able to override Obama’s veto. It can also decide down the road not to lift any U.S. statutory sanctions permanently. However, if Congress were to take such actions, the tables would be turned in Iran’s favor. If Iran decided to walk away because of congressional action, the U.S., not Iran, would be blamed for sabotaging the deal. If Iran called Congress’s bluff and relied on the rest of the international community, acting under the new Security Council resolution, to do business with Iran so long as Iran was demonstrating compliance with its commitments. In that case, any “snapback” of sanctions would, as a practical matter, be virtually impossible to accomplish if Iran were then to violate the terms of the JCPOA and the United States is for all intents and purposes sidelined. Yet at least putting off the vote on the new Security Council resolution for 90 days was a risk that President Obama should have been willing to take if he cared about the U.S. Constitution and the welfare of the American people. But time and time again, he has shown that he does not care.
What does President Obama care about instead? Iran has grievances with the United States that we need to understand, he said, in keeping with his global apology tour. An example of such a grievance was what Obama described as U.S. “involvement with overthrowing a democratically elected regime in Iran.” He was referring to the 1953 overthrow of the Prime Minister of Iran, Mohammad Mosaddegh, in which the CIA had a hand. However, if Obama’s handlers had done a bit more research, they would have found out that Ayatollah Khomeini, the father of Iran’s 1979 Islamic revolution, had supported Mosaddegh’s overthrow in part because Mossadegh's cabinet had submitted a bill granting women the right to vote. He supported the Shah until the early 1960’s, when bills for land reform and female franchise were introduced by the Shah’s government.
Using Mosaddegh’s overthrow as an excuse for seizing American hostages in 1979 and holding them in deplorable conditions for 444 days was a cynical maneuver for which the Iranian regime should apologize. It could have made a start by releasing the three American hostages, including a pastor and a reporter, it is holding today. Indeed, the hostages should have been released immediately upon the signing of the JCPOA. However, Obama did not think it was important enough to make their release a precondition for moving forward with completing his legacy nuclear deal.
Obama’s apology tour continues, only this time the consequences may be catastrophic.
Six prior Security Council resolutions passed between 2006 and 2010 have required Iran to suspend its nuclear enrichment program altogether, four of which contain sanctions. They are now to be terminated and replaced with the loop-hole ridden JCPOA, just as Congress begins its 60 day review period to consider what the JCPOA contains.
Security Council Resolution 1929 (2010), for example, had specifically stated that enforcement measures including sanctions would only be lifted if and when “Iran suspends all enrichment-related and reprocessing activities, including research and development, as verified by the IAEA [International Atomic Energy Agency].” Security Council Resolution 1747 (2007) contained a similar edict as a condition for lifting an embargo on Iran’s import or export of conventional arms and ballistic missile related materials.
Iran never complied with this nuclear enrichment and reprocessing suspension edict.
In a report dated May 29, 2015, the IAEA concluded: “Contrary to the relevant resolutions of the Board of Governors and the Security Council, Iran has not suspended all of its enrichment related activities…” The report added that Iran was still “conducting a number of activities” at certain sites “which are in contravention of its obligations to suspend all enrichment related activities and heavy water related projects, notwithstanding that the facilities are under Agency safeguards.”
Iran also stonewalled the IAEA’s investigation of military nuclear related activities that were said to have occurred at sites which Iran had not declared.
The May 29, 2015 report stated:
“The Agency remains concerned about the possible existence in Iran of undisclosed nuclear-related activities involving military related organizations, including activities related to the development of a nuclear payload for a missile. Iran is required to cooperate fully with the Agency on all outstanding issues, particularly those which give rise to concerns about the possible military dimensions to Iran’s nuclear programme, including by providing access without delay to all sites, equipment, persons and documents requested by the Agency.”
In the absence of Iran’s full cooperation and opening up of all suspected sites to unfettered IAEA inspections, the IAEA report stated that “the Agency is not in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.”
Under the sanctions regime established by Security Council resolutions going back nearly a decade, Iran would get no relief from sanctions or the embargoes unless the IAEA certifies that all nuclear material in Iran is being used in peaceful activities.
Despite the fact that Iran is far from complying with these long-established requirements, the resolutions containing them are being swept away. Past Security Council resolutions prohibiting nuclear enrichment and research & development outright are being replaced by a resolution which endorses Iran’s retention of its core nuclear enrichment infrastructure and sunsets major restrictions on further enrichment or research & development. The open-ended conventional arms and ballistic missile embargoes are being replaced by embargoes that will go away in 5 years and 8 years respectively, no matter what Iran does or does not do.
In other words, Iran is being rewarded for its misbehavior. Sanctions relief will begin in a matter of months, possibly triggered by an IAEA report due at the end of this year that would simply provide an “assessment of the clarification of the issues related to the possible military dimensions” of Iran’s nuclear program. All that the IAEA, led by its Director General Yukiya, will be providing is a progress report on whether Iran is finally showing evidence of cooperating with the IAEA investigation, not a final conclusion with full satisfactory answers to all its questions regarding Iran’s past suspected activities.
There are many other things wrong with the final agreement being endorsed by the new Security Council resolution. After the main restrictions on Iran’s nuclear program go away in 12 years or so, Iran will be free to enrich enough uranium in advanced centrifuges to develop a nuclear bomb in virtually no time. With sanctions having been lifted years earlier, Iran will have enough money available to pay for advanced enrichment equipment and missile delivery systems it needs to become a full-fledged nuclear power, while increasing its funding of its terrorist proxies all around the world.
Moreover, while the JCPOA restrictions on enrichment, nuclear-related R&D and purchases remain in effect, the inspectors from the IAEA will not have “anytime, anywhere” access to suspected sites. Experts, including former members of President Obama’s own administration, have said that such access is necessary for effective verification of Iran’s compliance with the restrictions. The Obama administration instead agreed to a convoluted dispute resolution procedure which will give Iran at least 24 days to play a shell game with any covert activities it decides to undertake in contravention of the JCPOA. Iran’s long record of cheating virtually ensures that Iran will game the system set up for deciding whether inspectors will have access to all sites where undeclared suspected nuclear related activities may be going on.
A careful reading of the new Security Council resolution also lays bare two major loopholes in the deal that have not received much discussion so far. When President Obama talks about the “snap back” of sanctions if Iran violates its commitments, he means that any sanctions previously lifted would automatically go back into place. And indeed the JCPOA does provided a complex set of procedures involving the Security Council which boil down to the veto-proof restoral of sanctions if Iran is found violating its commitments. The problem is that any commercial agreements entered into after the lifting of the sanctions – contracts that would have been prohibited if the sanctions had not been lifted - will continue to remain in effect even after the sanctions “snap back.” This means that if sanctions are removed in Year 2, for example, Iran will then be able to enter into multiyear contracts for the purchase and sale of goods, services, commodities and technology that it had been barred from doing before. If in Year 3, Iran is found to have violated key commitments and the sanctions snap back into place, Iran can still bank on those multiyear contracts it had entered into before the snap back.
The second loophole receiving very little attention has to do with the lifting of the ballistic missile embargo after Year 8, whether or not the IAEA gives Iran a clean bill of health on the exclusively peaceful nature of its nuclear activities. Assume for the moment that Iran decides not to cheat beforehand and obtain missile parts and technology from North Korea, which would be virtually impossible to stop. Iran needs only to wait 8 years and then be free of any requirement for Security Council approval in order to procure any items, materials, goods and technology that could contribute to the development of nuclear weapon delivery systems. Indeed, Iran will be free after 8 years, with the blessing of the Security Council, to engage in any activities related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches. If Iran’s nuclear program is intended exclusively for peaceful purposes as Iran has persistently claimed, why on earth would Iran ever need to conduct activities or procure anything that could contribute to the development of nuclear weapon delivery systems?
Israel’s UN Ambassador Ron Prosor spoke to the press shortly after the fateful Security Council vote. He spoke the truth that few wanted to hear:
“Today is a very sad day. Not only for the state of Israel, but for the entire world, even if at this moment, the international community refuses to see the tragedy."
The Obama administration negotiated a disastrous deal with the world’s leading state sponsor of global terrorism. The deal hands the Iranian regime the keys to a nuclear armed future, threatening the future of our children and grandchildren. The United Nations Security Council is being used to midwife the legal instrument that legitimizes the path to a possible nuclear holocaust.
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