Elements of Its Own Demise: Key Flaws in the Obama Administration's Domestic Approach to the Iran Nuclear Agreement.

• Author: Jaffer, Jamil N.

1. Introduction II. Background III. Mistakes at Home: How the Obama Administration's Approach to Getting the Iran Deal Done Eased the Path to the Trump Withdrawal A. What Kind of a Commitment Was the Iran Deal? B. Why a Political Commitment? C. And What About the Sanctions? IV. Lessons Learned I. Introduction

   A great deal of opprobrium has been levied at President Donald Trump's decision to pull out of the Iran nuclear deal. (1) Many supporters of the deal have argued that the decision to leave the deal undermines America's credibility abroad, marking it as an itinerant partner, and may even violate international law. (2) Contrary to this popular view of the deal and its legal status, this paper argues that early decisions made by the Obama Administration contributed to the deal's failure and led to the United States' eventual withdrawal. For one, the Obama Administration chose not to submit the agreement--known as the Joint Comprehensive Plan of Action (JCPOA)--to Congress for ratification as a treaty nor did the Administration seek to negotiate an ex post approval regime ahead of time. (3) Second, the Obama Administration decided to enter into the agreement solely as a "political commitment" between two sovereigns without even so much as complying with the typical formalisms--like a signed document--that are typically associated with sole executive agreements. (4) These decisions, combined with Congress's forced review of the agreement and bipartisan majority votes against the deal--while ultimately not binding at law--sapped the deal of its legitimacy and eased the path for President Trump's withdrawal. That is, if one is looking to understand why the deal is no longer in place, one need look no further than the way the deal was reached, the prior Administration's decision to ignore the clear domestic political opposition to the agreement, and its concomitant effort to freeze Congress out of the process. It was these decisions that planted the key seeds for the deal's ultimate demise.

   At the outset, it is worth reviewing a bit of the history behind the Iran nuclear agreement. Bilateral negotiations underlying the deal between the United States and Iran began in secret in Oman in 2012. (5) This followed the imposition of strict Congressional sanctions, including the Central Bank of Iran secondary sanctions, which put a significant amount of stress on the Iranian economy by forcing major reductions in international oil purchases by putting purchasers under threat of being cut off from the U.S. banking system. (6) The key negotiations began to take further shape as they came into public view in 2013, with the reentry of the P5+1 negotiating group--composed of the permanent five members of the United Nations Security Council (United States, United Kingdom, France, Russia, and China) plus Germany--into the U.S.-led negotiations. (7) The negotiations nominally took place under the aegis of the P5+1 through 2015; in reality, however, the principal negotiations were being conducted directly between the United States and Iran. (8) The framework elements of the deal were initially announced on November 24, 2014, as part of the initial Joint Plan of Action (JPOA), which was ultimately finalized and formalized in the JPCOA, announced on July 14, 2015. (9)

   As the public negotiations progressed, it eventually became clear to all involved, including Congress and the American public (and the Iranian leadership), that the President and his team did not intend on submitting the deal to Congress for its review or approval, whether as treaty subject to Senate advice and consent, or otherwise. (10) In addition, over time, it also became clear that the President did not intend to seek additional authority from Congress to remove the statutory and other sanctions imposed on Iran, but rather that he intended to use his existing statutory waiver authority to implement any sanction relief necessary under the agreement. (11) At times, the President and his team indicated that Congress would have an opportunity to weigh in on the deal, (12) however, as the deal was being finalized, it became apparent this opportunity would come only at the end of the deal itself, when, if Iran had fully complied, Congress would take action to permanently remove its statutory sanctions on Iran. (13)

   Notwithstanding the President's determination to cede little, if any, ground to Congress on the negotiations with Iran, Congress nevertheless sought to influence the deal in a variety of ways. Senior members of Congress introduced legislation that sought to provide guidance to the executive branch on the aspects of an eventual agreement that would be important to obtaining Congressional support for a deal. (14) These same members of Congress also held hearings and sought briefings to obtain information about the course of the negotiations and to communicate their preferences directly to the Administration. (15)

   Following the announcement of the initial JPOA, while the final agreement was being negotiated, it likewise became apparent to key members of Congress that, not only did the President not intend to submit the deal to Congress for its approval, but also that the Administration might not even provide Congress with a copy of the agreement at all, at least not prior to its implementation. (16) As a result, while Congress could not reach a bipartisan agreement to stop the President from making a deal with Iran, to require the President to seek additional waivers from Congress, or to remove or condition the President's waiver authority on its approval, a strong bipartisan consensus began building around the notion that Congress ought at least get to see the deal ahead of time and ought have an opportunity to act on the deal before it was implemented. (17)

   The result of these efforts was the Iran Nuclear Agreement Review Act of 2015 (INARA). (18) INARA, which initially drew a strong veto threat from the White House, (19) eventually garnered enough support amongst members of Congress that the Administration not only withdrew its veto threat on the brink of an initial vote in the Senate Foreign Relations Committee, but ultimately allowed members of its own party to support the legislation. (20) The legislation temporarily withdrew the President's waiver authority and required him to submit the JPCOA and related materials to Congress. (21) Under INARA, the President was then required to wait for a period of time to allow Congress to consider and vote on resolutions of approval or disapproval on the deal before he could implement any waivers of existing statutory sanctions. (22) The bill eventually passed the Senate nearly unanimously 98-1 and garnered a supermajority in the House of Representatives 400-25. (23)

   Following the passage of the INARA, Senator Tom Cotton (RAR), the one member of the Senate who voted against the INARA, authored a letter, joined by 46 other U.S. Senators, to the Iranian President, noting that any Iran deal not approved by Congress could be revoked by the next President "with the stroke of a pen," and that "future Congresses could modify the terms of the agreement at any time." (24) This letter--widely panned by most foreign policy pundits and claimed by some to run afoul of a rarely utilized (and almost never enforced), century-old law 25--nonetheless served to convey the deep concerns among many members of Congress about the process by which the agreement was reached. (26) The letter also put Iran--and the rest of the world community, including the P5+1--on notice that a significant portion of the elected representatives of the American people (at least in the upper house of Congress) were adamantly opposed to the deal. (27)

   The President, having been forced to withdraw his veto threat, signed the legislation and eventually provided the agreement along with certain key documents to both Houses of Congress. (28) He also sent cabinet members and other senior national security officials to the Hill to testify on the agreement and to provide both classified and unclassified briefings to members. (29) In essence, having been forced to cut Congress into the process at some level, the Administration mounted a full-throated campaign, leveraging sympathetic outside organizations, to put pressure on members of Congress to support the deal--or at least not vote against it when the INARA-driven vote came up. (30) Ultimately, resolutions on the deal were considered in both Houses, and while the House voted against the deal with a substantial 269-162 bipartisan majority, the Senate--while also garnering a bipartisan 58 vote majority opposed to the deal--was unable to overcome the 60 vote threshold needed to stop a legislative filibuster of the disapproval resolution. (31) And neither chamber was able to muster the supermajorities that would have been necessary to survive the inevitable presidential veto of any disapproval measure. (32) Thus, while INARA succeeded in forcing the President to submit the deal to Congress and to pause on providing immediate sanctions relief to Iran, (33) since Congress was unable to muster the votes necessary to overcome a filibuster and an eventual veto, following the end of the statutory review period mandated by the legislation, President Obama's waiver authority was restored and he utilized it to provide the sanctions relief sought by Iran as part of the deal. (34) Even more interesting, while the deal was pending review in Congress, the Administration went to the U.N. Security Council and obtained an ostensibly binding--at least under international law--Security Council Resolution requiring states to comply with certain provisions of the deal. (35)

   And that was where things stood on the eve of the November 2016 Presidential election when, against nearly every poll (and perhaps against all odds), Donald Trump became the President of the United States. Then-President-Elect Trump, who--like nearly...