An assessment of Senator Ben Cardin's proposed bill to modify the JCPOA

Originally published in LobeLog

By Jim Lobe

Despite his protestations to the contrary, the bill that Sen. Ben Cardin (D-MD) plans to introduce to “strengthen” the Joint Comprehensive Program of Action (JCPOA) agreement between the P5+1 and Iran appears filled with “poison pills” designed to scuttle the accord.

The “Iran Policy Oversight Act of 2015,” which Cardin insisted Friday “would be consistent with the administration’s interpretation of the agreement,” appears to challenge in major ways Obama’s intent. It will almost certainly draw strong objections from the White House as well as its P5+1 partners and Iran.

LobeLog obtained the 35-page “discussion draft” of the document and excerpts and/or summarizes it at some considerable length below, so that the reader can assess both its content and intent.

According to Arms Control Association (ACA) president Daryl Kimball, who has seen the draft but did not provide it to LobeLog,:

The bill seeks to reinterpret the requirements of the JCPOA and some of its sequencing and is being offered by somebody who just announced he is opposed to the deal. So this legislation must be interpreted as an attempt to undermine or block the implementation of the JCPOA, and other members of Congress need to recognize that.

And those who might still believe that this is not an attempt to undermine [the JCPOA’s] implementation must recognize that when it hits the floor, it could well become a Christmas tree for amendments by anti-deal members that are more clearly designed to kill the JCPOA.

As it is, the draft bill and its language fairly bristle with hostility and threat toward Iran that the Iranian leadership—including its disproportionately hard-line parliament that will shortly begin its own debate on the JCPOA—will no doubt interpret as provocative and evidence of bad faith on the part of the U.S. Congress at the very least.

Specific Provisions

For example, the Cardin bill declares the “Sense of Congress” that all statutory sanctions provisions that might otherwise expire, including the Iran Sanctions Act, be reauthorized—an action that Iranian officials have already declared would be considered a violation of the JCPOA—not only before their expiration, but “for a time period that is at least as long as the provisions in the JCPOA or any other related agreement addressing re-imposition of sanctions are in effect…” (Sec. 3, paragraph 5) But some provisions in the JCPOA expire in 25 years, implying that sanctions legislation should remain in effect for at least that long.

The specific provisions of the draft bill are generally consistent with the summary of the “Iran Policy Oversight Act of 2015” that we posted on this site on September 3 under the title “AIPAC’s Plan B?” (and that we still believe is a correct one). And the same objections that we noted in that post clearly still apply.

For example, the bill authorizes the delivery to Israel of Massive Ordnance Penetrators (MOPs) “and the means to deploy them” and requires the president to “ensure that Israeli personnel have every opportunity and means to train with such defense systems, including joint training exercises utilizing strategic bombers…” (Sec. 10) Aside from the provocation such an action would pose to Iran, arms-control experts insist that any transfer by the U.S. of strategic bombers like B-52s or B-2s to Israel would constitute a clear violation of the New START Treaty commitments.

The bill also attempts to reinterpret—or effectively renegotiate—specific provisions of the JCPOA. For example, it states that “any production of highly enriched uranium (HEU) by Iran would be a violation of the JCPOA…” (Sec. 3, paragraph 4) But the JCPOA itself merely restricts Iran’s enrichment to reactor-grade levels for the first 15 years of the agreement, at which point the limitation would cease to exist unless a new agreement were put in place.

“While Iranian production of HEU is undesirable, it is not necessarily prohibited by the JCPOA after 15 years,” Kimball told LobeLog. “At the very least, this provision can have a complicating impact, and it could lead the Iranians to take opposite and equal reactions.”

Under the JCPOA, Iran is required to seek ratification by its parliament of the Additional Protocol (AP) of the Nuclear Non-Proliferation Treaty no later than eight years after implementation takes effect or upon the broader conclusion by the International Atomic Energy Agency (IAEA) that all nuclear material in Iran remains in peaceful activities. Cardin’s bill, on the other hand, states that nuclear-related U.S. sanctions cannot be permanently lifted until Iran ratifies the AP, thus upsetting the sequencing set out in the JCPOA (Sec 3, paragraph 7). This effectively raises the bar for the permanent lifting of sanctions and could actually provoke Iran into delaying ratification.

The bill would also require the administration to provide “complete information” to key congressional committees on all efforts by the IAEA to resolve all pending issues regarding “possible military dimensions” of Iran’s nuclear program, including “the Parchin military base, methods and results of any environmental sampling, and information on the technical-expert meetings that took place between the IAEA and Iran officials and scientists…” (Sec 8) But such disclosures would violate confidentiality agreements that the IAEA must adhere to in its interactions with member governments and would probably render Tehran much less likely to provide the cooperation the IAEA requires to resolve the outstanding issues.

In yet another attempted renegotiation of the JCPOA, the bill would eliminate the exemption of more long-lasting contracts agreed to between Iran and foreign companies during the implementation phase in the event that sanctions are “snapped back” due to an alleged violation of the JCPOA by Iran (Sec 4, paragraph 5).

On sanctions more generally, the draft bill would, among other things, continue in effect all U.S. sanctions against Iranian financial institutions allegedly engaged in the acquisition of cruise or ballistic missiles, in direct or indirect support of terrorism until at least 90 days after the president certifies that those institutions are not so engaged (Sec. 11). That provision appears designed to maintain restrictions on the ability of Iranian banks to regain access to the international banking system, which was a central goal of Iran’s negotiations. If not a specific violation of the JCPOA, this provision will almost certainly be used by hardliners in Iran to argue that Washington cannot be trusted. Another provision (Sec. 14) provides for continuing in effect sanctions related to human rights abuses.

As previewed in Plan B, the draft bill would also provide expedited procedures (Sec. 15) for enacting new terrorism-related sanctions against Iran (a recent hobby horse of the neocons). Such legislation, according to the draft,

authorizes or requires the imposition of sanctions on persons that (1) commit acts of international terrorism, at the direction of an official of the Government of Iran, that threaten the security of nationals of the United States or the national security, foreign policy, or economy of the United States; or 2) knowingly assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of (A) acts described in Paragraph (1); or (B) foreign terrorist organizations that receive financial or other material support from the Government of Iran.

The expedited procedures cited in this section could not only reduce or even eliminate the president’s discretion in imposing sanctions, but they also appear to minimize the time and opportunity for Congress to seriously consider options and their implications. The provision could also invite forces in the region that are hostile to Iran to commit terrorist acts in ways that Iran or any Iranian-supported group could credibly be blamed in the knowledge that Congress could act before a serious and full investigation could be carried out.

The bill also would create a high-level coordinator for compliance whose responsibilities would not only be to oversee Iran’s implementation of the JCPOA but also report on non-nuclear issues outside the scope of the agreement, such as Iran’s support for terrorism, its cruise and ballistic missile programs, its human rights performance, and how it is using funds it has gained from the easing of sanctions.

At Cross Purposes with the Administration

Cardin may insist that his only desire is to “strengthen” the JCPOA while remaining “consistent with the administration’s interpretation” of its terms, but I think it’s pretty clear that its approval would have quite the contrary effect. Enactment of this legislation would lead inevitably to the JCPOA’s collapse, and, given the unremittingly hostile tone of the text, will doubtlessly bolster those in Tehran (if not in the other P5+1 capitals) who argue the United States is simply not a credible negotiating partner.

As Kimball put it to me:

Senator Cardin side-steps the consequences of his desired outcome—the rejection of the JCPOA. Congressional rejection of the deal would undercut U.S. negotiating partners and severely undermine U.S. credibility and diplomatic leverage. The necessary international support for Iran-related sanctions would melt away. After more than two years of talks and UN Security Council approval of the deal, Iranian leaders would certainly spurn any effort designed to extract further concessions from them. Iran would be given a free hand to rapidly and significantly expand its capacity to produce weapons-grade material. A major American diplomatic success would become a geostrategic disaster.

Cardin may insist that “ultimately, it is in everyone’s interest to reach a diplomatic solution.” But any hard-headed look at his bill suggests he’s acting as a cat’s paw for AIPAC and its allies whose principal goal is to prevent any diplomatic solution that might ease tensions between the U.S. and Iran.

What follows are excerpts of the Cardin’s “Discussion Draft” and summaries (in brackets) of sections too long or too inconsequential to transcribe on a Labor Day weekend.

IRAN POLICY OVERSIGHT ACT OF 2015

[Sections 1 and 2 deal with the title, table of contents of the Act, and findings regarding the Iran Nuclear Agreement Review Act and the July 14 JCPOA.]

SEC. 3. SENSE OF CONGRESS

It is the sense of Congress that –

1. Iran does not have a right to uranium enrichment, does not require a domestic nuclear energy program to supply its domestic energy needs, and has previously sought to develop a nuclear weapons capability;
2. Congress should and will continue to play a role in furthering policies to prevent Iran from becoming a nuclear weapon state;
3. …
4. any production of highly enriched uranium (HEU) by Iran would be a violation of the JCPOA;
5. Congress will seek to reauthorize all statutory sanctions provisions that would otherwise expire that address United States policy toward Iran, including the Iran Sanctions Act …, for a time period that is at least as long as the provisions of the JCPOA or any other related agreement addressing re-imposing of sanctions are in effect;
6. [The provision calls for adequate additional funding for the IAEA to carry out its verification responsibilities under the JCPOA]
7. The United States sanctions laws addressed to the Iran nuclear issue will not be permanently lifted unless and until Iran ratifies the Additional Protocol to the Comprehensive Safeguards Agreements between Iran and the International Atomic Energy Agency in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons (the “Additional Protocol”), and the IAEA is able to make the broader conclusion that all nuclear material in Iran remains in peaceful activities; and
8. consistent with the political decision of the P5+1 countries conveyed to the Secretary-General of the United Nations prior to the adoption of United National Security Council Resolution 2230 (2015), at the end of the termination of the 10-year resolution, the P5+1 countries will introduce an additional resolution to put in place the same mechanism for an additional five years.

SEC. 4. STATEMENTS OF POLICY.

It shall be the policy of the United States, in interpreting the Joint Comprehensive Plan of Action (JCPOA), and any other related agreement, that –

1. no sanctions relief for Iran is to be provided pursuant to the JCPOA until Iran completes all activities as set forth in paragraphs 2, 4, 5, and 6 of the Roadmap for Clarification of Past and Present Outstanding Issues regarding Iran’s Nuclear Program, signed at Vienna July 14, 2015, between the [IAEA] and Iran, and the completion of such activities is verified by the IAEA in a regular update by the Director General of the IAEA;
2. nothing in the JCPOA limits or curtails the ability of Congress to pass sanctions legislation addressed to legitimate foreign policy purposes, including sanctions related to terrorism, human rights, and Iran’s ballistic missile activities;
3. nothing in the JCPOA limits or curtails the ability of the President to impose sanctions address to legitimate foreign policy purposes, including sanctions related to terrorism, human rights, and Iran’s ballistic missile activities;
4. any action by the Government of Iran to treat the legitimate imposition of sanctions by the United States or its international partners based on support for terrorism, abuses of human rights, or Iran’s ballistic missile activities as grounds to cease performing on its commitments under the JCPOA in whole or in part would not be valid and would be inconsistent with the terms of the JCPOA;
5. in the event that sanctions on Iran are re-imposed consistent with the JCPOA, such sanctions would not retroactively apply to activities, including activities under contractual arrangements, legitimately entered into prior to the re-imposition of sanctions, but sanctions may apply to activities, including activities under contractual arrangements entered into prior to the re-imposition of sanctions, to the extent such activities continue beyond the date of the re-imposition of sanctions; and
6. the JCPOA binds Iran to abide by all of the provisions of the Additional Protocol, which is an expanded set of requirements for information and access to assist the IAEA in its task of confirming that states are using nuclear material for solely peaceful purposes, as of “Adoption Day” as outlined in the JCPOA, regardless of whether the Iranian Parliament approves the Additional Protocol.

SEC. 5. REGIONAL STRATEGY FOR COUNTERING CONVENTIONAL AND ASYMMETRIC IRANIAN ACTIVITY AND THREATS IN THE MIDDLE EAST AND NORTH AFRICA.

[This would amend the Iran Nuclear Agreement Review Act of 2015 by requiring the relevant U.S. agencies to submit by Jan 10, 2016, and every two years thereafter, a 10-year strategy to counter the aforementioned threats, including, among other things, assessments regarding “Iran’s grand strategy and objectives” in the region; its conventional force capabilities and plans; its chemical and biological weapons capabilities and plans; its asymmetric activities (including support provided to Hezbollah, Hamas, “special groups in Iraq,” the Assad regime, “Houthi fighters in Yemen, and other violent groups across the Middle East); U.S. and foreign governments’ plans and operations to counter those activities.]

SEC. 6.-7 [These require the relevant U.S. agencies to submit reports on Iran’s use of funds received as part of sanctions relief under the JCPOA, on its research and development activities that may reduce the time it could acquire a nuclear weapon, and on the degree of its cooperation with the IAEA’s verification regime.]

SEC. 8. REPORTING ON RESOLUTION OF IRAN’S PAST MILITARY DIMENSIONS [PMD] OF IRAN’S NUCLEAR PROGRAM

(a) REPORT – Not later than 30 calendar days after the IAEA submits its final assessment on the resolution on all past and present outstanding issues related to Iran’s nuclear program to the Board of Governors [anticipated by Dec 15-ed’s note] –

1. The President shall submit to the appropriate congressional committees and leadership a report on how outstanding issues were resolved by the IAEA, including complete information on the access Iran provided to the IAEA to potential sites of nuclear activities, including the Parchin military base, the methods and result of any environmental sampling, and information on the technical-expert meetings that took place between the IAEA and Iran officials and scientists; and
2. The President shall:

• make a determination whether the final assessment of the IAEA resolves all outstanding issues related to the [PMD] of Iran’s nuclear program and, if not, what additional information from Iran is required to do so; and
• submit to Congress a plan to resolve any outstanding issues identified by the report.

SEC. 9. STATEMENT OF POLICY ON DETERRENCE

It is the policy of the United States that all of the options available to the United States, including the military option, remain available to prevent Iran from achieving a nuclear weapons capability.

SEC. 10. AUTHORIZATION OF ADDITIONAL SECURITY ASSISTANCE TO ISRAEL.

(a) MASSIVE ORDNANCE PENETRATORS. –

1. IN GENERAL. – The President is authorized to take all necessary and appropriate measures to ensure Israel has the means and capacity to protect itself against a threat from Iran, including additional security assistance to include GBU-57 30,000-pound bunker-buster bombs (known as the Massive Ordnance Penetrators, or MOPS) and the means to deploy them.
2. DEPLOYMENT. – If the Governments of Israel and the United States determine that the threat from Iran against Israel so warrants, the President may transfer to the (GOI) any MOPs, and the means to deliver MOPs, under such terms and conditions as the President determines necessary, pursuant to the authority of paragraph (1) The President shall ensure that Israeli personnel have every opportunity and means to train with such defense systems, including joint training exercises utilizing strategic bombers, consistent with the requirements of this paragraph.

(b) FOREIGN MILITARY FINANCING [FMF]–

[This provides that, when the current U.S.-Israeli agreement on military assistance expires in 2018, the president is authorized to provide any additional FMF through 2028 that Israel may need “to address threats from Iran” and “shall provide any necessary assistance and cooperation to Israel to effectively respond to any heightened threat of terrorism or military threat by any entity supported, directly or indirectly, by Iran.”]

SEC. 11. – CONTINUATION IN EFFECT OF SANCTIONS WITH RESPECT TO IRANIAN FINANCIAL INSTITUTIONS ENGAGED IN BALLISTIC MISSILE PROLIFERATION, OR TERRORISM.

[This section provides that all existing sanctions against Iranian financial institutions allegedly engaged in ballistic or cruise missile proliferation or terrorism “shall remain in effect until the date that is 90 days after the date on which the President submits to the appropriate congressional committees a certification” that such institutions are not providing supporting or otherwise facilitating such activities. This should not be construed “to limit the authority of the President” under existing laws.]

SEC. 12. – UNIFIED POLICY ON ARMS AND BALLISTIC MISSILE SALES TO IRAN.

(a) SENSE OF CONGRESS. – It is the sense of Congress that Iran should continue to be prohibited from undertaking any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and United Nations member states should take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities.

(b) MULTILATERAL ARRANGEMENT. – The President shall seek to conclude a multilateral arrangement with member states of the European Union, the European Union as an organization, and any other foreign country or international organization that in the President’s judgment is important for the success of the arrangement in which each participant –

1. [agrees to exchange relevant information]
2. Agrees not to export such arms [conventional weapons, such as battle tanks and combat helicopters] to Iran if any other participant objects to such export on the grounds that such export could increase Iran’s ability to engage in aggression against its neighbors or otherwise further destabilize the military balance in the Middle East [presumably beyond the five-year period that such exports are banned under the JCPOA].

SEC. 13. – MULTILATERAL DIPLOMACY FOR AN EFFECTIVE SNAP-BACK POLICY. [This section provides that the President “shall carry out an initiative of multilateral diplomacy with the members of the P5+1 countries to agree on specific and calibrated steps to respond to the full range of potential noncompliance incidents by Iran as well as breach by Iran of the [JPOA].”

SEC. 14. – CONTINUATION IN EFFECT OF SANCTIONS WITH RESPECT TO HUMAN RIGHTS ABUSES BY IRAN. [This section is the same as Sec.11 above except that it applies to existing human rights-related sanctions against Iran.]

SEC. 15 – EXPEDITED CONSIDERATION OF NEW TERRORISM-RELATED SANCTIONS AGAINST IRAN.

(a) If the President determines that the Government of Iran has directed or conducted an act of international terrorism against the United States or that the Government of Iran has substantially increased its operational or financial support for a terrorist organization that threatens the interests or allies of the United States, the President shall immediately notify Congress.

[The remainder of this section lays out a detailed process by which Congress may enact legislation that “authorizes or requires the imposition of sanctions on persons that – (1) commit acts of international terrorism, at the direction of an official of the Government of Iran, that threaten the security of nationals of the United States or the national security, foreign policy, or economy of the United States; or 2) knowingly assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of (A) acts described in Paragraph (1); or (B) foreign terrorist organizations that receive financial or other material support from the Government of Iran.”]

SEC. 16. – UNITED STATES SPECIAL COORDINATOR FOR THE JOINT COMPREHENSIVE PLAN OF ACTION.

(a) The President shall designate within the Department of State a special coordinator for implementation of and compliance with the (JCPOA) regarding the Islamic Republic of Iran’s nuclear program.

[The remainder of this provision describes the coordinator’s duties, which include not only the implementation of and compliance with the JCPOA by Iran, but also the coordination “of all activities relating to statutory and executive sanctions” against Iranian financial institutions and monitoring “human rights abuses and activities relating to support for acts of international terrorism by the Government of Iran.”]