President Trump has made clear since the he was on the campaign trail his extreme distaste for the 2015 Joint Comprehensive Plan of Action (JCPOA), negotiated among the United States, the UK, Germany, France, Russia, China, the EU, and Iran, to verifiably cut off all of Iran’s potential pathways to a nuclear weapon in exchange for relief from nuclear-related, secondary sanctions. Rather than using his own available legal authority to stop implementing the JCPOA, Trump is looking for a way to make his apparent desire to back out of the deal Congress’ problem. Congress shouldn’t take the bait.

Back in July, Trump reportedly asked his staff to create an “option” not to make a certification that he is required to consider every 90 days under the statute Congress passed to govern its oversight of the JCPOA, the Iran Nuclear Agreement Review Act of 2015 (INARA). The certification includes three provisions related to Iran’s compliance with the JCPOA and a fourth that the deal remains in our vital national security interest. It has been satisfied every 90 days since the deal went into effect. Despite the verified fact of Iran’s continued compliance with the JCPOA, the lack of any material change in circumstances or new information since Trump’s last certification, and the views of some of his own top national security professionals, the United States’ closest allies, and a majority of the American people that the deal is in our national interest, Trump will reportedly fail to make the next certification. Under INARA, a failure to certify that all four conditions are met creates a 60-day window in which Congress is permitted – but not required – to consider under highly expedited procedures legislation that would “snap back” into place the biting sanctions that were waived in order to implement the JCPOA.

But reportedly Trump is not expected to ask Congress to re-impose sanctions under the snap back mechanism in INARA, which would be an immediate U.S. violation of the deal under current circumstances. Instead, the White House and other opponents of the deal apparently hope that in the chaotic situation caused by a failure to certify, Congress will feel political pressure to impose new sanctions on Iran, purportedly as a means of exacting new concessions beyond the terms of the JCPOA. Even if that’s not the deliberate strategy, it’s a probable effect. What proponents of this approach don’t admit is that such sanctions would still violate the deal, merely causing it to unravel more slowly.

Fortunately, Congress has an easy path forward to avoid getting caught in this trap. Under INARA, Congress can simply choose to do nothing following a failure to certify, which would leave the deal intact. Putting aside INARA’s window for snapping back sanctions, it has been reported recently that some in Congress are instead working with the Administration on amendments to INARA or new sanctions legislation aimed at “fixing” the deal. Congress should also steer clear of this misguided “renegotiation through domestic legislation” fantasy. We must call out this strategy for what it is – a backdoor attempt to get Congress to legislate the collapse of the deal by violating our own commitments.

Regardless of whether INARA’s expedited procedures are used or new sanctions bills are considered through the normal process, if legislation that constitutes a U.S. violation of the deal is passed in these circumstances – with the International Atomic Energy Agency (IAEA) confirming continued compliance, without using the dispute resolution processes provided in the JCPOA itself (a sign of bad faith), and without support from key partners – it will be the United States, not Iran, that will have gone rogue and broken its commitments. Trump’s punt to the Hill ensures that members of Congress who vote for his strategy will be stuck with the blame when the United States is left isolated and without the credibility we need to address our policy aims vis-à-vis Iran, let alone the real nuclear crisis on our doorstep vis-à-vis North Korea.

To understand how to avoid this outcome, I’ll first provide an overview of INARA’s requirements, the consequences of a failure to provide a “compliance certification,” and explain why Congress should not enable Trump’s renegotiation through domestic legislation strategy. I’ll then explain the following rules of thumb for Congress on how to ensure domestic legislation is not being used as a backdoor to collapse the nuclear deal: First, there should be no modifications to our domestic law that link re-imposition of sanctions or the continued performance of our JCPOA commitments to issues beyond Iran’s JCPOA compliance. Second, new sanctions intended to alter the nuclear deal would violate the deal and should be off the table.

INARA in a Nutshell

INARA was enacted in May 2015, when negotiators weren’t even sure whether a final deal would be reached. It was primarily intended to allow Congress to take a vote on whether the United States could implement our end of a prospective nuclear deal, which had become a political football. This was a high stakes proposition, as a no vote would kill the deal before it had a chance to be implemented. In that sense, it also worked against the sequenced steps approach in the final deal itself – U.S. sanctions relief commitments only kicked in after Iran took major and sometimes irreversible steps to significantly constrain its nuclear program and submit to an extremely robust monitoring and transparency regime, key elements of which are permanent under the deal. In the summer of 2015, Congress failed to vote down U.S. implementation of the JCPOA. Under international monitoring, Iran physically dismantled a good deal of its nuclear infrastructure, shipped out 98% of its enriched uranium, poured concrete into the core of its only reactor capable of producing weapons-grade plutonium to render it permanently inoperable, and implemented rigorous transparency measures across its nuclear program. After those steps were verified by the IAEA in January 2016, the United States and EU suspended our nuclear-related secondary sanctions.

After running INARA’s first gauntlet, Trump’s general distaste for the JCPOA has thrown into the spotlight an entirely separate set of INARA provisions: a stringent array of reporting and certification requirements created in the event a deal did come into effect. Alongside fulfilling Congress’ oversight responsibilities, these provisions were intended to leave the Obama Administration little flexibility in addressing issues of non-compliance without Congress again having a say in whether the United States should stay in the deal at all.

To that end, INARA contains not one, but two triggers for a fast-track mechanism under which Congress can choose to end U.S. participation in the deal. Specifically, if either of these triggers is pulled, Congress has a 60-calendar day window in which it can choose to use extremely expedited procedures to snap back into place nuclear-related sanctions that were suspended to implement the JCPOA. Legislation will qualify for consideration under INARA’s expedited procedures if it would reinstate the statutory sanctions that were waived to implement the deal and prohibit “any further” sanctions relief to effectuate the JCPOA. The expedited procedures were designed to be efficient and very difficult to stop once put in motion. Perhaps the most salient example is that they require only 50 votes for snap back by bypassing cloture requirements in the Senate.

Let’s look at each of these two triggers more closely to understand the administration’s options and the paths forward for Congress.

INARA’s Dual Triggers for Congressional Consideration of Snap Back

1. “Material Breach” Requirements First, INARA requires that the President report to Congress within 10 calendar days of receiving “credible and accurate information relating to a potentially significant breach or compliance incident by Iran.” Following such a report, the President must provide a determination to Congress within 30 calendar days as to whether the “potentially significant breach or compliance incident” constitutes a “material breach.”

While “material breach” is a defined term in the Vienna Convention on the Law of Treaties (Art. 60) – and one that doesn’t normally have much salience with respect to non-binding arrangements like the JCPOA – Congress created a unique definition in INARA, arguably with a lower threshold. Under INARA, a “material breach” is a failure to perform a JCPOA commitment that “substantially”: “(A) benefits Iran’s nuclear program; (B) decreases the amount of time required by Iran to achieve a nuclear weapon; or (C) deviates from or undermines the purposes of [the JCPOA].” If the Executive believes there is a “material breach,” the determination provided to Congress must include whether Iran has “cured” the breach, the action or failure to act that led to the breach, actions necessary for Iran to cure it, and the status of Iran’s efforts to do so.

Thus, at least with regard to material breaches, INARA clearly contemplates that Congress will consider whether significant implementation problems can be resolved prior to considering snap back. This makes sense, given snap back amounts to the United States abandoning the deal. Tellingly, there has been no indication that the material breach provisions of INARA have been or will be triggered.

2. “Compliance Certification” Requirements Second, as has been the subject of much recent discussion, including by our friends over at Lawfare, INARA requires the President to certify every 90 days that four conditions are met:

“Iran is transparently, verifiably, and fully implementing the agreement;”

“Iran has not committed a material breach with respect to the agreement or, if Iran has committed a material breach, Iran has cured the material breach;”

“Iran has not taken any action, including covert activities, that could significantly advance its nuclear weapons program;” and

“suspension of sanctions related to Iran pursuant to the agreement” is “appropriate and proportionate to the specific and verifiable measures taken by Iran” with respect to its nuclear program and “vital to the national security interests of the United States.”

Similar to the material breach provisions described above, the first three prongs relate to Iran’s compliance with the JCPOA. However, the fourth prong has nothing to do with compliance. A failure to certify based on the fourth prong would not mean that Iran has violated its nuclear commitments (the title “compliance certification” is a misnomer as to this fourth prong). And unlike the material breach trigger for snap back consideration, the compliance certification does not require that the President provide information to Congress regarding what caused a compliance problem or the status of efforts to resolve it. It calls only for a binary determination as to whether each prong is met. Notwithstanding recent testimony by Secretary of Defense Mattis that staying in the JCPOA is in the national security interests of the United States, this is the direction the Trump Administration is reportedly heading.

Trump’s Purported Strategy in Failing to Certify and Why it Won’t Work

The Trump Administration purports to be pursuing this non-certification and imposition of new sanctions approach as leverage to seek “fixes” to the nuclear deal, such as the extension of certain provisions that sunset after a decade or the addition of new issues to the deal’s scope. However, as explained here by Colin Kahl, former national security advisor to Vice President Biden, it would be complete folly to attempt to renegotiate a multilateral arrangement that is working by breaking our commitments or threatening to do so. That approach would leave us isolated and distrusted by even our close allies, resulting in far less leverage than we have now, not more. Phil Gordon, former White House coordinator for the Middle East, North Africa, and the Gulf, aptly describes the prospect of renegotiation as “pure fantasy.”

These pieces, and others, explain why non-nuclear issues were not included in the JCPOA when it was negotiated. Those reasons are just as pertinent today, including the lack of international consensus on how to address non-nuclear issues of concern and the sound strategic decision not to accept additional compromises in the nuclear realm given the priority of resolving the potential threat of a nuclear-armed Iran. As a result of this singular focus within the four corners of the JCPOA, we have a stronger nuclear deal that left open other ways to address non-nuclear issues outside of its ambit.

Likewise, let’s be clear that the sunset of certain provisions of the deal after 10, 15, 20, of 25 years does not create a loophole by which Iran will ever be permitted to race toward a nuclear weapon – the key verification and monitoring provisions, as well as the prohibition on Iran ever pursuing a nuclear weapon, never expire.

Thus, we should not assume that Europe and Asia would join us in re-imposing the secondary sanctions that they only acquiesced to (against their own economic interest) in the service of achieving a diplomatic solution on the nuclear issue in order to chase so-called “fixes.” If we break our word, it is almost certain that we will be left with the worst of all worlds – an unconstrained Iranian nuclear program, badly damaged U.S. credibility at a time when we need it more than ever to address the very real North Korea nuclear crisis, and an inability to rally our allies to address a manufactured source of instability in a volatile region.

Considerations for Congress Following a Failure to Certify

What are Congress’s options if Trump fails to certify? And what considerations should members have in mind before casting possible votes under INARA or otherwise?

1. Do Nothing If either of the two triggers for snap back consideration are pulled, INARA provides a 60-day period in which Congress may stop U.S. implementation of the deal through the expedited snap back mechanism described above. But it is primarily the Executive’s sanctions waivers (along with licensing activity) that implement our commitments, and those Executive actions are not impacted by a failure to certify under INARA unless Congress avails itself of the expedited procedures and passes snap back legislation. While Congress gave itself an opportunity with INARA to exit the deal quickly, it did not handcuff itself to the President’s position. Given the circumstances around Trump’s decision not to certify, for once, inaction is the appropriate congressional response.

For a number of reasons, we should be extremely wary of any claims that Congress must act following a decision not to certify. First, the IAEA has yet again recently confirmed Iran’s continued compliance, a fact about which no serious disagreement exists. Second, despite Ambassador Haley’s arguments to the contrary, it’s hard to argue with a straight face that the “spirit” of the deal has been violated based on issues outside the scope of the deal itself. Third, and more important given where Trump appears to be headed, failing to certify based on the more subjective fourth prong of INARA is still a manufactured pretense. The certification that suspension of sanctions is vital to U.S. national security interests has been made every 90 days since the deal went into effect, and nothing material has changed since the last time Trump’s Administration made this certification: no major compliance incidents on Iran’s part, no change in the level of sanctions relief being provided on our part, no change in how our most significant allies view the deal, and no change in the IAEA verification reports that show it is working. Withholding certification based on the national security interests prong is clearly just another subterfuge for asking Congress to take on the risk of killing the deal.

Finally, if implementation of the JCPOA by all sides continues in the years to come (which I very much hope to be the case), it is possible that a real compliance incident could justify congressional concern at some point down the road. Members would be wise to go on record now to make clear that they take their oversight responsibilities seriously and will insist on due diligence and full information before considering snap back. Given Trump has cried wolf on compliance, members may want to clarify that in deciding whether to vote for snap back if there are serious compliance problems in the future, they will take into account a range of factors, including: the basis for any material breach notification or failure to certify; the credibility, accuracy, and thoroughness of any information provided; whether the administration is working in good faith with the JCPOA participants to address any significant problems that may exist – such as through the Joint Commission or the JCPOA’s dispute resolution process; whether U.S. nuclear experts, the IAEA, our Intelligence Community, and our JCPOA implementation partners share the President’s assessment; and whether there is a coherent and achievable strategy in place should it be necessary to re-impose sanctions based on a serious and unresolvable breach.

2. Don’t Try to Use Domestic Sanctions Legislation to Attempt to Renegotiate the Deal If the Trump Administration is working on proposals to amend INARA, as has been hinted at in recent reporting, Congress should refuse to carry the White House’s water. INARA is already an incredibly rigorous and detailed statute that provides for an unprecedented level of Congressional oversight and has real teeth in the form of expedited snap back consideration.

If Congress must amend INARA – for example, to remove the onerous certification requirement so that only the more sensible, but still quite stringent, material breach provision triggers the 60-day window for consideration of snap back under expedited procedures – a few simple rules of thumb should be followed to avoid collapsing the deal. First, there should be no modification that links re-imposition of nuclear-related sanctions to issues beyond JCPOA compliance. INARA calls for detailed reporting on issues outside the scope of the JCPOA, such as Iran’s ballistic missile program and its support for terrorism, but these issues were not imported into the material breach or compliance certification provisions precisely because tying a snap back trigger to these non-JCPOA issues would be a sure way to violate our commitments in the deal. This was the bipartisan understanding on which INARA was passed and a line that must be held. Any attempt to modify INARA to tie snap back to issues beyond the scope of the deal or to achieving new concessions must be called out for what it is: another means of using Congress to violate U.S. commitments under the deal.

As a related process matter, snap back should never be mandatory or automatic. As it stands, INARA doesn’t tie Congress’s hands to the President’s views, and that’s a good thing. Good governance requires that Congress allow itself the ability to undertake due diligence before deciding whether to take on the risk of abandoning the deal, based on the particular facts and circumstances at the time. And Members of Congress who vote for a mandatory or automatic snap back mechanism may very well be blamed for tying Congress’s hands down the line, particularly if the Executive were to abuse its discretion but with congressional imprimatur.

Finally, beyond potential amendments to INARA, what considerations should Congress have in mind with respect to new “non-nuclear” sanctions? Congress earlier this year passed legislation aimed at addressing Iran’s other destabilizing activities. It would be wise to first insist that the administration explain how it is enforcing these existing non-nuclear sanctions. Congress should also press for a realistic strategy on other steps the administration can take – from serious diplomacy aimed at de-escalating regional conflicts to enhanced law enforcement and intelligence cooperation with our allies to disrupt Iran’s support for terrorism and its ballistic missile program – before writing new sanctions bills.

If Congress decides it must pass new sanctions legislation, either following a failure to certify or further down the road, we must be wary of the wolf in sheep’s clothing. New sanctions legislation could be crafted to contain appealing elements that do not run afoul of our JCPOA commitments, but we must apply the same rules of thumb to purported “non-nuclear” sanctions bills. If the purpose of any new sanctions is in effect to alter the terms of the nuclear deal (such as by attempting to alter sunsets), the new sanctions are by definition new “nuclear-related” sanctions and a violation of our commitments. And if a bill ties “non-nuclear” issues to the continued performance of our JCPOA commitments, it would be yet another means of Congress legislating a U.S. violation of the deal.

Put simply, breaking our commitments will not help us achieve our security aims. Congress must recognize the reality that the United States cannot unilaterally renegotiate through domestic legislation a multilateral arrangement that our allies support – and that is achieving its intended goal of cutting off all of Iran’s potential pathways to a nuclear weapon. At a time when we should be focused on steps to enhance our credibility and preserve diplomatic options to address the real nuclear crisis we face with North Korea, Congress must be the bulwark against those who would throw us further into isolation and chaos.

[Editor’s note: You may want to read Tess Bridgeman’s follow-on analysis: “What the White House Announcement on Iran Deal Really Means: Three Takeaways”]

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