Congress Can Play a Vital Role in the Iran Talks

Co-authored by Lee A. Casey

The Obama administration on Feb. 20 began negotiations for a permanent deal to stop Iran's nuclear-weapons program. There are reasons to worry about where this will lead. If the administration is serious about avoiding a strategic disaster, it should negotiate a formal treaty (involving the Senate from the start), broaden the agenda and strengthen our allies' role in the negotiating process.

For decades, America's policy—supported by U.S. allies and the United Nations Security Council—has been that Iran cannot be allowed either operational nuclear weapons or the capability to acquire them rapidly. Therefore, any permanent agreement with Iran must ensure that all elements of Tehran's current nuclear infrastructure are dramatically scaled down to a level of a legitimate civilian nuclear program. This restructuring must be permanent, verifiable and include a full accounting of Iran's past nuclear activities.

The Obama administration is not headed down this path. This is clear from what we know about the six-month interim agreement signed in December between Iran and five permanent members of the Security Council plus Germany, which the administration negotiated largely single-handedly. That deal remains secret—even from most members of Congress—but it implicitly legitimizes Tehran's uranium enrichment.

Meanwhile, the administration no longer even pays lip service to a military option as a fallback to diplomacy. The White House also opposes additional standby economic sanctions if negotiations fail. The administration even appears willing to accept a permanent agreement that doesn't eliminate Iran's capability for a quick nuclear breakout.

A deficient agreement with Tehran would come with a steep price, beyond the risk that it would effectively pave the way for nuclear breakout. If the administration chooses to negotiate it largely in secret from Congress, and with only perfunctory engagement by U.S. allies, it will destroy America's already tattered credibility abroad. Engaging Congress and U.S. allies during the negotiations offers the best chance of avoiding such damage.

With its current negotiating strategy, the administration might be unable to comply with its own obligations. For instance, the sanctions that Iran's nuclear ambitions have spawned over decades cannot be swept aside by an executive agreement with Iran, nor can the president simply waive their requirements, however fond he may be of unilaterally rewriting statutes.

Unless there is a self-executing treaty that by definition becomes supreme law of the land (which is politically unlikely given sentiments in the Senate), Congress would have to pass new legislation to lift the U.S. sanctions regime, and new Security Council resolutions would be needed. If the administration cannot convince Congress to pass such legislation, Tehran could portray the U.S. as the agreement breaker, giving the mullahs an excuse not to comply.

Even if the administration continues to sideline Congress, the type of major agreement the White House has in mind can only be constitutionally accomplished as a treaty, by and with the advice and consent of the Senate. Presidents have used executive agreements from time to time to settle monetary claims between the U.S., its citizens and other countries. Precedents include the 1933 “Litvinov Assignment” with the Soviet Union that resolved monetary claims arising out of Moscow's repudiation of czarist-era debts, and the 1981 Algiers accord settling claims from the Iranian Revolution and hostage crises. But major arms-control agreements limiting nuclear capabilities have properly been accomplished as treaties.

Despite strong bipartisan opposition in Congress to a deficient nuclear deal with Iran, the administration has so far been able to keep lawmakers, and especially the Senate, at arm's length because Senate Majority Leader Harry Reid has prevented any Iran-related bills from a vote. But there are other ways for Congress, and especially the Senate, to make its voice heard.

Congress should pass “sense” of the Senate and House resolutions making clear that any Iranian agreement must be a treaty and must stipulate that Iran relinquish its nuclear breakout capabilities. Congress should also participate in the treaty negotiation, which in past arms-control negotiations has meant Senate observers. The Iranians can hardly object to such Senate involvement, since Tehran has included several parliamentarians in negotiations and indicated that Iranian lawmakers would have to ratify any agreement.

There also are important international-law reasons to broaden the negotiation agenda. Iran's proclamations of its desire to destroy Israel constitute threats to commit genocide in violation of the 1948 U.N. Convention on the Prevention and Punishment of Genocide. Iran's nuclear program is the tool to implement these genocidal threats. The U.S. has an obligation under the convention to prevent genocide. So unless Iran credibly repudiates publicly its threats to destroy Israel, the U.S. cannot strike a deal with Iran that does not eliminate Tehran's nuclear breakout capability. Consistent with its U.N. Charter obligations, the U.S. also cannot simply dismantle its sanctions regime without securing repeal or modification of those resolutions.

All of this suggests that the administration needs to revise fundamentally its approach to nuclear-arms talks with Iran. If negotiations fail, having Congress and U.S. allies engaged would be useful for rebuilding the domestic and global consensus for revitalizing economic sanctions against Iran and putting the military option back on the table.

Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker Hostetler LLP. Mr. Rivkin is also a senior adviser to the Foundation for the Defense of Democracies.