CNAS Commentary: Legislative Options to Strengthen JCPOA

Washington, October 12 – With President Trump poised to withhold certification that Iran is adhering to the Joint Comprehensive Plan of Action (JCPOA), Center for a New American Security (CNAS) Adjunct Senior Fellow and Executive Director of the Center on Law and Security at NYU School of Law Zachary Goldman has written a new commentary, “Legislative Options to Strengthen JCPOA.”

Please find the full commentary below:

President Trump appears poised to withhold a certification required by the Iran Nuclear Agreement Review Act (INARA) that Iran is adhering to its obligations under the Joint Comprehensive Plan of Action (JCPOA), and that sanctions waivers issued pursuant to the deal are in our vital national interests.This is so despite the fact that the International Atomic Energy Agency (IAEA) has repeatedly confirmed that Iran is not violating its nuclear-related obligations under the JCPOA. Nevertheless, the president has called the deal “one of the worst” ever struck and “an embarrassment” to the United States. Prolonged public debate about certification while Iran continues to adhere to the terms of the JCPOA has damaged American credibility and distracted from the objective of sustaining and strengthening nuclear arms control objectives.

Congress can take the lead on advancing U.S. national interests when it comes to Iran. It should amend INARA so that periodic certification requirements do not result in a political crisis every 90 days when the president is forced to engage with a deal he clearly disfavors. But the president cannot simply refer the matter to Congress and be done with it. The administration will be forced to confront the JCPOA again in January, when presidential waivers of statutory sanctions that the United States committed to make under the JCPOA will come due. Congress should take further steps to ensure that the waivers remain in place for as long as Iran is abiding by the deal to keep the JCPOA in place and thereby constrain Iran’s nuclear program. Congress can also help the administration find other ways to combat Iranian support for terrorism, human rights abuses, destructive cyberattacks, and other malicious activities. The following commentary describes issues related to waivers and certification of the JCPOA, and a path forward for Congress to preserve the nuclear deal’s security benefits in the event the president fails to issue INARA certifications this month.

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INARA was adopted in May 2015 to ensure that Congress would be able to review the JCPOA, negotiations about which were nearing their conclusion at the time. The statute facilitated Congress’s role as a co-equal branch in the conduct of American foreign affairs, but also required periodic certification by the president that Iran was adhering to its end of the bargain and that the sanctions waivers prescribed by the JCPOA remained in the U.S. national interest.

Failure to make the certifications required by INARA does not automatically mean that the United States has abrogated its commitments under the JCPOA. Instead, failure to make the required certification will open a 60-day window during which congressional leadership can introduce legislation to reimpose nuclear sanctions on Iran that will be considered under expedited procedures. Reimposing nuclear-related sanctions waived pursuant to the JCPOA would cause the United States to violate its commitments under the deal, freeing Iran to walk away from its own obligations should it choose to do so, and Congress should not pass such a statute under any circumstances.

Instead, Congress should immediately amend or repeal INARA. The statute served its primary function two years ago by providing Congress with a window to review and vote on the JCPOA before the nuclear deal went into effect. And it has become clear that forcing President Trump to certify Iran’s compliance with a deal he thinks is “embarrassing” every 90 days is politically untenable. In any event, such certifications do not add much to the compliance mechanisms included in the JCPOA—there are a number of ways to hold Iran’s feet to the fire if it does not adhere to its nuclear-related obligations. Congress could repeal INARA as part of a broader package of measures designed to constrain Iran’s destructive activities throughout the Middle East, its ballistic missile program, its support for terrorism, its cyberattacks, and its human rights abuses.

Repealing INARA will not, however, end the Trump administration’s self-imposed conundrum about how to treat the JCPOA. On the campaign trail President Trump vowed to “tear up” the deal. While failure to issue the certifications required under INARA will not accomplish that goal, failure to waive a set of statutory sanctions that the U.S. committed to waive in the JCPOA will do so. These waivers were built into statutes adopted in the years before 2013.  Those statutes provided for the accelerated sanctions campaign that incentivized Iran to make unprecedented concessions with respect to its nuclear program. The waivers must be issued periodically, with the next set of statutory waivers due early in 2018.

It is certainly possible that President Trump will continue to meet U.S. obligations under the JCPOA even if he fails to issue the next INARA certification. But there is a vocal contingency that believes President Trump should simply live up to his campaign promises and withdraw from the deal. The question is, therefore, whether this constituency will give  the president the political space to decertify, attempt to renegotiate various dimensions of the agreement, and perhaps walk away with a symbolic victory from Iran, Russia, China, and our EU partners. Or whether this constituency will instead push President Trump to withhold the waivers in January or later in 2018, fulfilling his campaign promises but snapping sanctions back into place and effectively pulling the United States out of the accord.

Iran remains America’s principal strategic adversary in the Middle East, but the JCPOA served the critical strategic purpose of imposing the most significant limitations ever on Iran’s nuclear program.  Without it, Iran would face few external constraints on its nuclear activities. If Congress wishes to prevent Iran from pursuing an advanced nuclear program by maintaining the effectiveness of the JCPOA it should consider action to ensure that the United States stands by its obligations under the agreement as long as Iran does so. The most straightforward way to do so would be to write the waivers currently in place into statute, requiring them to remain in force unless or until Iran violates its own obligations under the nuclear accord.

Doing so would, to be sure, limit the president’s authority to act in the case of Iran. But Congress set a precedent for doing so in the Countering America’s Adversaries Through Sanctions Act, which became law in August 2017, and which constrained the president’s ability to alter the Russia sanctions program. Congress is similarly considering legislation to limit the president’s ability to fire Special Counsel Robert Mueller.

Those in Congress who understand the strategic value of the JCPOA have the tools to protect it. Doing so signals no love for Iran, but rather the understanding that an Iran with agreed-upon limits on its nuclear program is preferable to an Islamic Republic freed of the limits imposed by the JCPOA.

For more information, please contact Neal Urwitz at 202-457-9409 or [email protected].