A Dangerous Strategy: Examining the Biden Administration’s Failures on Iran

Chairman Grothman, Ranking Member Garcia, and distinguished members of this subcommittee, thank you for the opportunity to address you today on this important issue.

“Follow the money.” That’s what Hal Holbrook told Robert Redford in the 1976 classic All the President’s Men. And it’s what I’ll suggest to you today when it comes to investigating a new secret deal between the Biden administration and the Islamic Republic of Iran.

As we gather here today, the United States is entering the fourth month of a still unacknowledged agreement with the world’s leading state sponsor of terrorism — a perilous arrangement negotiated in secret, without congressional oversight or review, in breach of statutory requirements, alongside an undisclosed investigatiosn into the president’s special envoy for Iran. And while the White House and State Department deny the existence of this agreement for political and legal reasons, the overwhelming evidence points to an undeniable conclusion: America is paying Iran’s extortion racket, ceding to Tehran nuclear threshold status just to avoid making tough decisions before next year’s presidential election.

How Did We Get Here?

As a candidate for office in 2020, President Joe Biden vowed to seek a quick return to the 2015 Iran nuclear deal, formally known as the Joint Comprehensive Plan of Action (JCPOA), and to end the Trump administration’s maximum pressure campaign.¹ During his transition, Iran launched its first salvo of nuclear escalation to test the incoming president’s resolve, beginning production of highly enriched uranium to 20 percent purity level — a provocation Tehran had avoided even at the height of the Trump administration’s maximum pressure campaign.² Indeed, most of Iran’s nuclear expansion occurred after President Biden’s election.³

Despite Iran’s escalation and warnings from policy experts that pursuing a return to a flawed and already expiring nuclear deal would prove disastrous, President Biden shifted American policy from pressure to accommodation in hopes of facilitating the restoration of the JCPOA.⁴ Biden removed the Iran-backed Houthis from the State Department’s list of foreign terrorist organizations, rescinded the American snapback of UN sanctions at the Security Council, relaxed

sanctions to free up cash for Iran to pay some debts and allow for increased oil exports to China, pulled European allies back from censuring Iran at the International Atomic Energy Agency (IAEA) in Vienna, and allowed Iran’s proxies in Iraq and Syria to attack U.S. forces with near impunity.⁵ In the hopes of brokering a deal quickly, Biden appointed Robert Malley to be his special envoy — a Washington insider well known for an ideology sympathetic to the mullahs in Tehran and their terror proxies like Hezbollah and Hamas.⁶ Maximum pressure had been replaced by maximum deference.⁷

Iran’s response to America taking its foot off the sanctions pedal: Escalation on all fronts. What had begun as 20 percent enrichment at the underground facility at Fordow in January 2021 soon became 60 percent enriched uranium production — the highest in Iranian history — by April.⁸ By August 2021, Iran was producing uranium metal, a material used in nuclear weapon cores.⁹ Over the course of 2021 and 2022, the regime would dramatically increase the installation of advanced centrifuges to expand its enrichment capacity while limiting the IAEA’s verification at its centrifuge manufacturing plant. Iran raced forward with the construction of a new nuclear facility near Natanz that will reportedly be buried underground at a depth of 100 meters, potentially immunizing it against Israeli and even American bombs.¹⁰ Attacks on U.S. forces in Iraq and Syria also escalated throughout this period as well — with U.S. Central Command testifying this March that Iranian proxies had attacked U.S. troops 78 times using drones and rockets since January 2021.¹¹

This period was noteworthy not only for American accommodation and Iranian escalation but also for the decision by Tehran to drop all façade of a regime interested in moderation. The selection of Ibrahim Raisi, the hangman of Tehran, as Iran’s new president — and the assembly of a dozen cabinet members subject to proliferation, terrorism, and human rights sanctions — reflected a reaffirmation of the Islamic Revolution.¹² This was a re-dedication to its ideological commitment to destroy the United States and Israel. Gone were the days of wolves in sheep’s clothing — like Hassan Rouhani or Javad Zarif. Tehran was entering a new era of unvarnished demonstration of its barbarism and radicalism — perhaps in preparation for a transition in leadership that could happen at any moment.

Throughout it all, Malley and his supervisors could never take “no” for an answer. And just as we saw in 2015, rather than walk away and return to a policy of pressure and deterrence, the White House position grew more desperate — its offers getting sweeter and sweeter for the Islamic Republic — and Malley turned to Russia for help. A January 2022 headline in Foreign Policy screamed: “The Iran Nuclear Talks’ Breakout Player; Love him or hate him, Russia’s man in Vienna has become the Iran deal’s unofficial spokesman.”¹³ Indeed, Russian Ambassador Mikahil Ulyanov was caught on camera bragging about how much he and the Iranians had extracted from Malley in negotiations.¹⁴

To understand the deal in front of us, we need to better understand how we got here — the details of the Biden administration’s policies toward Iran to date. From there, we can predict where this deal may head next, evaluate its policy implications, and identify opportunities for Congress to assert its oversight prerogative.

According to an NBC News report at the time, under Malley’s Russia-brokered Iran deal, “Tehran would be required to stop enriching uranium up to 60 percent purity and dispose of its current stockpile,” and in exchange, “the Iranian government would receive access to billions of dollars in oil revenues frozen in foreign bank accounts, including in South Korea.”¹⁵ Sounds familiar, doesn’t it?

Iran rejected the notion of an interim deal and a sudden rush toward a broader restoration of the JCPOA ensued — a framework that would ignore Iran’s nuclear advances, leaving the regime closer to the nuclear threshold than ever before with the sunset provisions of the old JCPOA completely intact.

But just as American and Russian officials were predicting an imminent deal, even issuing a sanctions waiver to authorize Russian support to Iran’s nuclear program, Putin’s unprovoked invasion of Ukraine threw a wrench into the mix.¹⁶ While the State Department responded with desperation to close the deal — including Iran-related issues among a list of exemptions for U.S. diplomats to continue meeting with Russian counterparts — Moscow insisted that no deal could move forward without a broad exemption that allowed Russia to evade western sanctions via Iran. Perhaps wanting to avoid the release of Iranian crude amid a spike in oil prices or merely looking to hold on to diplomatic leverage for some point in the future, Putin and Khamenei pulled the plug.¹⁷

But for Malley and this administration, the rush to concessions never ends. After Iran had rejected three compelling offers in a row, the answer for the White House was simply to offer more concessions. Through indirect communications facilitated by the European Union, Tehran asserted new conditions for any comprehensive deal: That the regime maintain a turn-key capability to snapback its enrichment threat by holding on to all its newly installed advanced centrifuges; that all sanctions imposed after the U.S. left the JCPOA in 2018 be removed, not just those sanctions named in the JCPOA; that the Islamic Revolutionary Guard Corps come off the U.S. FTO list; that its largest corporate conglomerate win sanctions relief; and that the IAEA’s investigation into undeclared nuclear material in Iran come to a close. It would be an even worse deal than the fatally flawed JCPOA, providing Iran with more sanctions relief than the JCPOA in exchange for fewer nuclear concessions. And yet it was an agreement the Biden administration pursued with vigor despite the potential for Russia to use the deal to establish a sanctions evasion hub.

As news leaked about Biden’s consideration of Iran’s IRGC delisting request, the White House faced a bipartisan backlash in Congress and outcries from Gold Star Families and victims of Iranian terrorism whose loved ones were murdered by the IRGC and its terrorist proxies in Iraq, Lebanon, Israel, Argentina, Saudi Arabia, and elsewhere.¹⁸ Biden eventually relented to the pressure, vowing to keep the IRGC listed as a terrorist organization, but Malley was empowered to develop sanctions relief options to benefit the IRGC all the same.¹⁹

In late July 2022, the European Union put forward what it claimed would be the final draft of a proposed new deal for Iran to accept or reject.²⁰ Iran and the United States traded indirect responses through August, and talks fell apart by September, with opposition growing in Congress and the midterm elections just weeks away.

According to documents leaked to Iranian opposition press and later Israeli media as well, the Biden administration had proposed a four-phased agreement.²¹ The first step would occur prior to any acknowledgement that a nuclear deal was reached to avoid triggering the congressional notification and review requirements of the Iran Nuclear Agreement Review Act (INARA). That step would be a “prisoner exchange” — that is the release of U.S. hostages held by Iran in exchange for sanctions evasion facilitators and spies — accompanied by the release of $7 billion (the number reported at the time; now known to us as $6 billion) in Iranian funds held in escrow in South Korea due to U.S. sanctions.

Notably, this is the second time in the last two years that funds based in South Korea were tied to a nuclear agreement. And if anyone wants to deny the connection today, it is helpful to look at Rob Malley’s X (formerly known as Twitter) account just before last year’s talks collapsed. “We thank the Republic of Korea for their close partnership, including their efforts to help ensure the return of our wrongfully detained citizens in Iran and to reach a deal on the #JCPOA,” Malley tweeted on September 16, 2022.²² The U.S. special envoy publicly linked the two issues on X — upending any attempt to deny that linkage today.

Phase Two: This phase involved rescinding Trump-era executive orders imposing sanctions on Iran’s automotive, petrochemical, metals, mining, and manufacturing sectors, and on the Supreme Leader’s Office. A reported 170 entities would benefit from sanctions relief. The regime would pocket sanctions-free access to $30 billion in annual export revenue on day one of the agreement — all without congressional review since INARA applied to statutory sanctions relief, not executive orders. In exchange, Iran would halt its production of 60 percent enriched uranium and slow its production of 20 percent enriched uranium. Indeed, this construct sounds an awful lot like the logical follow-up to the deal we’re seeing today.

Phase Three: Once executive orders get rescinded, the White House wouldn’t be able to hide anything from Congress. So that day would also see a congressional notification of an agreement with Iran and INARA’s 30-day clock would start running. Assuming Congress did not reject the deal, the president would issue a national security waiver to allow Iran to sell 50 million barrels of oil and Iran would halt its uranium enrichment at 20 percent purity level.

Phase Four: Iran would be required to resolve the open safeguards investigation at the IAEA, at which point all U.S. sanctions would be lifted, and Iran would resume JCPOA nuclear caps — albeit with its new centrifuges at the ready in storage and the JCPOA sunset dates still in effect. Washington would also rescind a Trump-era executive order threatening sanctions against entities involved in transferring arms to or from Iran.

Iran insisted the IAEA close its probes of undeclared nuclear activities inside Iran before any deal moved forward.²³ But before the White House could find its way to caving yet again, Iran’s morality police beat to death 22-year-old Mahsa Amini for not wearing her hijab to the regime’s liking — a match that sparked an unprecedented national uprising against the regime. With Hollywood elites flooding social media with support for Iranian women and the midterm elections at hand, the White House finally encountered an insurmountable political hurdle to further negotiations.

Some might believe Iran’s transfers of armed drones to Russia became a second impediment to deal-making, but that is simply not the case. The United States began warning that Iran might transfer drones to Russia in July 2022 and negotiated a deal that would subsidize and potentially legitimize those transfers for another two months.²⁴ Indeed, nothing in the new deal consummated this summer requires Iran to halt its transfer of armed drones to Iran — and the expiration of a UN missile embargo next month could set up Iranian missile transfers as well.

That’s why Congress should act expeditiously to pass and send to the president bipartisan legislation imposing mandatory sanctions, including secondary sanctions, on Iran’s ballistic missile program.²⁵

As Ali Vaez, one of Malley’s top aides at the International Crisis Group and someone named by the Tehran Times along with Vali Nasr of Johns Hopkins and Trita Parsi of the Quincy Institute as a past interlocutor between Malley and the regime in Tehran, told one press outlet in May: “I think that it’s true that it was difficult for us to engage in negotiations when Iran was engaged in the brutal crackdown against its own people…But now that the dust has settled, the problem of Iran’s nuclear proliferation is looming large again, and so obviously, the US has to pursue a diplomatic solution to try to curb Iran’s activities.”²⁶

So much for standing up for Iranian women. So much for a commitment to human rights.

At the Foundation for Defense of Democracies, we’ve been tracking the protest movement every week.²⁷ I can tell you with certainty that the uprising movement continues to this day, even if it’s moved off the front page.

In May 2023, as the White House secretly dispatched National Security Council Middle East and North Africa Coordinator Brett McGurk to send messages to Tehran through the sultan of Oman, FDD recorded 277 protests across the country.²⁸ In June and July, as the administration provided Iran with access to at least $10 billion in funds based in Iraq, Iranians staged 460 protests. Last month, as Congress learned Iran would get access to another $6 billion previously frozen in South Korea, we recorded another 352 protests.

These facts should outrage Republicans and Democrats alike. The White House expected as much. That’s why they crafted a plan to seal a new agreement that they hoped would bypass congressional scrutiny, evade INARA, and move money around the world for Iran’s use before this or any other committee could hold a single hearing.

Iran Gets a Financial Bailout

According to a May 30, 2023, report in Axios, McGurk secretly traveled to Muscat, Oman, on May 8, 2023 — presumably asking the Omanis to serve as a backchannel in brokering a deal with Iran.²⁹ This is what McGurk’s boss — National Security Advisor Jake Sullivan — had done in 2013 to offer what would become the Joint Plan of Action and eventually the JCPOA. On May 26, 2023, Oman was the site of a controversial prisoner exchange in which Belgium traded an Iranian diplomat convicted of attempting to bomb a rally in Paris (where prominent Americans were scheduled to attend) for a Belgian aid worker taken hostage by Iran.³⁰ Three days later, on May 29, 2023, the sultan of Oman was sitting in Tehran speaking with Ayatollah Ali Khamenei, presumably brokering the deal McGurk had put in play.³¹ The leak to Axios of McGurk’s initial visit would come the next day.

On that same day, May 30, 2023, the Governor of the Central Bank of Iran (CBI) — an institution subject to U.S. terrorism sanctions for its role in financing the IRGC, Hezbollah and other terrorist organizations — unexpectedly departed for Washington, ostensibly for meetings at the International Monetary Fund (IMF).³² Later that week, speaking from Washington, he would tell Iranian press that “Iran has quick access to $6.7 billion worth of its available financial resources” at the IMF. I would note for the committee that while subsequent press reports confirmed the new U.S.-Iran nuclear deal includes Iran accessing its IMF special drawing rights (SDRs), we have no further information on the details of how SDRs are being swapped for fiat currency nor do we know whether any U.S. officials met with the CBI governor while he was in Washington. Congress should learn what happened and how Iran may be accessing its SDRs.

Confirmation of a new agreement reached between the United States and Iran over its nuclear program was first reported publicly on June 7, 2023, in Haaretz.³³ According to that report, Iran would “stop the process of enriching uranium to high levels” in exchange for sanctions relief.

The report characterized the release of $20 billion for Iran’s use — from Iraq, South Korea, and the IMF — as “the first stage” in this “understanding.” The report also referenced the prior month’s Belgian-Iranian prisoner exchange — a man convicted of attempting to bomb a conference for an innocent aid worker — as a confidence building measure offered to Iran to show the West’s sincerity. The extent to which the U.S. government communicated with Belgian authorities — either directly or through the European Union — is not yet known.

Three days later, on June 10, 2023, Reuters reported the United States had allowed Iran to use $2.76 billion of its funds being held in escrow in Iraq to pay off debts in other parts of the world.³⁴ On July 3, 2023, Iran International quoted the head of the Iran-Iraq Chamber of Commerce as claiming that $10 billion of Iraqi “debts to Iran” had been made available for buying “non-sanctioned” goods.³⁵

On July 14, 2023, The Wall Street Journal reported that Iraq and Iran had agreed to trade oil for gas as another way for Tehran to gain economic relief — a swap that should be prohibited under U.S. sanctions absent a national security waiver since trade in oil remains a sanctionable activity.³⁶

On July 18, 2023, Reuters reported that the Biden administration had issued a new national security waiver facilitating Iraqi payments for Iranian electricity.³⁷ This waiver, however, was something new. Rather than keeping money in escrow in Baghdad, Iraq would now be allowed to transfer its payments to third party countries for Iran’s further use. Under questioning on July 24, 2023, the State Department spokesperson revealed that Iran’s funds previously held in Iraq would be transferred to a bank in Oman where Iran could draw down funds to subsidize its budget.³⁸

Distinguished members of the committee, what I have just reviewed likely constitutes multiple violations of the terms of INARA. The act requires the president to notify Congress of a nuclear agreement with Iran within five days, no matter what form it takes, and then allow 30 days for Congress to review and potentially reject it. This might be a fatally flawed agreement for the United States, but it constitutes an agreement under INARA all the same:

The term `agreement’ means an agreement related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action, regardless of the form it takes [emphasis added], whether a political commitment or otherwise, and regardless of whether it is legally binding or not, including any joint comprehensive plan of action entered into or made between Iran and any other parties, and any additional materials related thereto, including annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements, whether entered into or implemented prior to the agreement or to be entered into or implemented in the future.³⁹

Under the act, the president “may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of law or refrain from applying any such sanctions pursuant to an agreement … regardless of the form it takes,” until Congress has completed a 30-day review period and potentially enacted a joint resolution of disapproval to reject the agreement. Issuing a waiver to provide Iran with sanctions relief tied to a nuclear agreement absent that congressional review represents a material breach of INARA. Congress should not absolve itself of its responsibility to the American people.

Importantly, the sanctions relief provided to Iran via Iraq is not one-time money. That is, unlike in other countries, like South Korea or Japan, where Iran simply wants access to frozen cash, Iraq may be paying for continued imports of electricity into the Omani bank account on a rolling basis beyond the $10 billion it already made available. Notably, the latest waiver provided for Iraq must be renewed after 120 days.⁴⁰

Meanwhile, while billions of dollars were being made available to Iran via Baghdad and Muscat, another central pillar of the new U.S. policy was coming into public view. On June 16, 2023, a Reuters headline screamed “Iran’s oil exports hit 5-year highs as US holds nuclear talks,” while the report said Iran’s crude exports exceeded 1.5 million barrels per day in May — the highest monthly rate since 2018.⁴¹ On July 6, 2023, The Wall Street Journal reported that Iranian oil exports had reached yet another five-year high at 1.6 million barrels per day — more than double the level from one year prior.⁴² By August 21, 2023, Bloomberg reported that one popular tanker tracking firm estimated Iran’s oil exports surpassed 2.2 million barrels per day during the first 20 days of August.⁴³ A September 4, 2023, report from Bloomberg pegged Iranian crude exports at somewhere between 1.4 million and 1.9 million barrels per day — with China being the primary export market.⁴⁴ These figures are in stark contrast to where Iranian oil exports stood at the height of the Trump administration’s maximum pressure campaign, when oil exports had plummeted to a few hundred thousand barrels per day.⁴⁵

On the record, the State Department would have you believe the administration is fully enforcing U.S. oil sanctions. As someone who drafted these sanctions in the U.S. Senate and helped coordinate their enforcement in the National Security Council — there is no way for Iran to boost its exports to this extent without the White House ordering the non-enforcement of U.S. sanctions and providing clear signals to Beijing that U.S. sanctions will not be enforced. Indeed, on August 25, 2023, Bloomberg reported that “US officials privately acknowledge they’ve gradually relaxed some enforcement of sanctions on Iranian oil sales.” Congress passed laws for a reason. Iran’s conduct has not changed. Congress has a responsibility to ensure sanctions are not merely on the books but also enforced.⁴⁶

Putting a value estimate on this oil sanctions relief is a moving target given the changing price of oil, the discount China is likely receiving, and the inherent costs associated with illicit transfers, albeit with tacit U.S. permission. The Wall Street Journal reported a conservative estimate of $25 billion in annual revenue using an average of 1.6 million barrels per day and deep discounts on oil of up to $30 per barrel.⁴⁷ We don’t know if the administration has greenlighted any financial payments between China and Iran. But we are seeing evidence of major barter deals in which Beijing pays for this oil in the form of multi-billion dollar infrastructure projects — like a $2.7 billion redevelopment of Tehran’s international airport announced in late August.⁴⁸

Members of the committee, this too is a violation not only of INARA but of other U.S. sanctions law mandating the imposition of sanctions on persons involved in these transactions. Unlike other statutes, the sanctions laws governing Iranian oil exports are not subject to the executive’s discretion. These laws use the word “shall” instead of “may” when mandating the imposition of sanctions. Even if there were an argument for president’s prerogative to refrain from imposing sanctions on Chinese firms involved in these oil transfers, INARA prohibits such non- enforcement of statutory sanctions prior to the mandatory congressional review period.

That brings us to the latest phase of the nuclear deal — the one that caught everyone’s attention and awakened Washington to the reality that a deal was already underway.

Last month, after Congress had returned home for August recess, the United States and Iran moved forward on the hostage ransom payment scheme conceived more than a year ago.⁴⁹ In exchange for the release of five U.S. hostages, the United States would release unnamed Iranian nationals imprisoned in the United States and authorize the transfer of $6 billion in funds out of South Korea to a bank account in Qatar. While past reports had put Iran’s frozen funds in Seoul at around $7 billion, some now suggest that a combination of past humanitarian transactions and significant exchange rate adjustments left Iran’s cash value at $6 billion.⁵⁰

On August 20, 2023, news reports confirmed the $6 billion held in South Korean won had been transferred to the Swiss National Bank for conversion into euros.⁵¹ The Swiss estimated the conversion process would take several weeks. Once completed, the funds will be transferred to Qatar where — just like the Omani model established for Iraq — Iran will be allowed to draw down funds to subsidize its budget. According to the Iranian Foreign Ministry, “The decision on how to utilize these unfrozen resources and financial assets lies with the Islamic Republic of Iran.”⁵² A September 5, 2023, report claimed the United States and Iran wanted to complete the money transfer and human exchange by the start of the United Nations General Assembly.⁵³

Do not be fooled: This is not a hostage negotiation conducted in a vacuum. Malley’s tweet and last year’s reporting on the failed comprehensive nuclear deal made that clear. And as Reuters confirmed earlier this week, the arrangement was negotiated by Ali Bagheri Kani, Iran’s chief nuclear negotiator.⁵⁴ This has been and remains tied completely to broader negotiations over Iran’s nuclear program.

Members of the committee, here again we find a possible violation of INARA. This week, the administration issued a national security waiver pursuant to both Section 1245 of the Fiscal Year 2012 National Defense Authorization Act and the Iran Freedom and Counterproliferation Act of 2012, retroactively authorizing the transfer of $6 billion connected to designated Iranian institutions, moving across multiple countries, and being made available for Iran’s use – all without prior congressional review.⁵⁵

As we continue to follow the money, we see Iran already requesting access to $3 billion held in escrow in Japan. Iran’s foreign minister visited Japan on August 7, 2023, to open the discussions.⁵⁶ All eyes should be on an expected Japan-Iran bilateral meeting on the sidelines of the General Assembly, with Japan likely carrying messages from the United States.

Finally, there are the political benefits enjoyed by Iran under this deal. On October 20, 2023, the United Nations missile embargo on Iran will expire unless UN sanctions are snapped back. This will grant international legitimacy to Iran’s transfer of armed drones to Russia for use against Ukraine and further legitimize any future transfers of ballistic missiles, too. It will also legitimize Russian or Chinese support to Iran’s ballistic and cruise missile programs. It’s hard to imagine anyone believes this to be in the U.S. national security interest.

The snapback mechanism itself is set to expire in 2025. Following the sunset provisions that continue through 2031, every threatening nuclear activity observed in Iran today will become fully legitimate under UN Security Council Resolution 2231. Hard as it is to believe, it’s clear today that there will be no snapback before October 20, 2023. Ukraine will suffer first, the Middle East will suffer soon after, and ultimately, the United States will face an increased threat as Iran advances its intercontinental ballistic missile program. The tens of billions of dollars in sanctions relief that Iran will receive will underwrite all these malign activities. While the administration claims the funds are restricted to humanitarian uses, money is fungible. What the regime will save by paying its debts with this new infusion of cash will free up money to pay for weapons, terrorism, an advancing nuclear program, and human rights crackdowns.

America Gets Expanded Nuclear Weapons Capabilities in Return

We have established that there is an agreement between the United States and Iran as defined by INARA. We have documented all the benefits for Tehran under that agreement. Logically, you should ask what the United States is getting in return.

On June 14, 2023, The New York Times reported that under the deal, Iran would agree “not to enrich uranium beyond its current production level of 60 percent purity … halt lethal attacks on American contractors in Syria and Iraq by its proxies in the region, expand its cooperation with international nuclear inspectors, and refrain from selling ballistic missiles to Russia.” In other words, the United States would be paying a classic protection racket to keep Iran’s already dangerous and threatening conduct from becoming incrementally more dangerous and threatening.

On August 26, 2023, Russia vowed to continue its military cooperation with Iran.⁵⁷ While we will wait to observe whether Iran transfers ballistic missiles to Russia after the UN missile embargo expires, there is no sign of Iran’s existing military relationship with Russia retreating. Indeed, Washington is now subsidizing Iran’s military support for Russia’s war against Ukraine — while coming back to Congress to request more money for Ukraine’s defense.

On the nuclear front, the deal so far is resulting in the expansion of Iran’s nuclear weapons capabilities, not its curtailment. Across every indicator — enrichment, centrifuge installation, new underground facility construction, facilitating IAEA monitoring and access, and cooperating with an IAEA probe into undeclared nuclear weapons work — Iran’s nuclear threats worsened over the last three months.

According to the IAEA’s latest reports, Iran is not expanding its cooperation with international inspectors. Instead, Tehran continues to deny IAEA verification at its centrifuge manufacturing plant and conceals information about two undeclared nuclear sites where the IAEA discovered traces of uranium.

Across its three enrichment plants, Iran reportedly increased its stockpiles of uranium enriched to 5, 20, and 60 percent, thereby advancing Tehran close to producing 90 percent, or weapons-grade uranium.⁵⁸ By one estimate, “Iran can make enough weapon grade uranium for six nuclear weapons in the first month of breakout. By the end of the second month, it could have enough for 8 weapons, by the end of the third enough for 9, by the end of the fourth enough for 10.”⁵⁹

Keep in mind that from a technical perspective, 60 percent uranium production is already 99 percent of the way to producing weapons-grade uranium. Five percent uranium production is already 70 percent of the effort to make weapons-grade uranium, while 20 percent uranium product is 90 percent of that effort. Earlier this year, Iran was caught producing uranium enriched to nearly 84 percent purity level. Iran’s capability and capacity continues to grow even as it gains access to billions of dollars.

More alarming still, nothing in this deal addressed Iran’s construction of a new underground facility — potentially intended to be an enrichment facility — that is reported to be deeper and more impenetrable than Iran’s underground facility at Fordow.⁶⁰

Put simply, the United States is greenlighting Iran’s buildup of nuclear weapons capabilities on condition that Iran hold off — for now — on 90 percent enrichment while advancing its buildup of enriched uranium and other nuclear capabilities at other dangerous levels. We are paying to make the threat larger and more challenging, rather than confronting the illicit conduct and using a mix of pressure and military deterrence to reduce the threat. And it’s all being carried out in secret without disclosure to Congress and without first holding a vote as allowed under INARA.

I would note that this entire negotiation and deal has taken place against the backdrop of continued attempts by the regime in Tehran to assassinate former U.S. officials and kidnap or kill Iranian Americans on U.S. soil. These plots continue today. What does it say about a White House that would offer and then provide cash payments to a regime while that regime hunts down former senior American officials and other citizens?

How Congress Can Respond

The question for Congress is what to do now with the facts staring you in the face. Whether you believe this deal is good or bad, defending Congress’ oversight prerogative is paramount.

That all of this has played out alongside another secretive event — the suspension of Special Envoy Malley’s security clearance, an ongoing FBI investigation, leaks of information and documents to Iranian media outlets — is even more concerning. We know more about the Malley saga today from the Tehran Times than from any U.S. government or media source. How is that possible?

On August 27, 2023, the Tehran Times published a document that appeared to be an authentic internal State Department memorandum notifying Malley of his clearance revocation.⁶¹ The letter is dated April 21, 2023 — more than two weeks before McGurk would fly to Oman to kick off the deal. According to the Associated Press, after Malley skipped a classified congressional briefing on Iran on May 16, 2023, “State Department officials told lawmakers that Malley was on ‘extended personal leave’ and suggested that his absence might be related to a family health issue.”⁶² We would later learn that Malley was on paid leave until June 29, 2023, when he was finally placed on unpaid leave, where he remains today.⁶³ The extent to which Malley coordinated or supported the planning and execution of the new deal remains a mystery — as does the underlying story of why Malley lost his clearance and what lies at the heart of a continuing investigation. We also don’t know how the Tehran Times gained access to State Department documents — was there a hack, a leak, or something else?

The first step for this committee must be a demand for document production related to the nuclear deal and to Malley. When you look at the web of sanctions relief designed in this deal, all meticulously planned in ways to offer plausible alternative justifications other than a nuclear deal, it’s obvious that dozens upon dozens of manhours went into developing this scheme. That would require heavy input from lawyers at the NSC, the State Department, the Treasury Department, and perhaps other agencies — likely coordinated at high levels inside the National Security Council.

Preparatory documents with important details proving the scheme would likely have been produced ahead of phone calls and meetings with Omani, Qatari, South Korean, Japanese, Belgian, European Union, and other European officials. Communications between the Treasury Department and banks in South Korea, Oman, Qatar, Ireland, and Germany likely exist, too.

As for Malley, while the Justice Department and State Department may limit document production to protect an ongoing investigation, some documents may be fair game — like copies of his schedule and travel receipts. Ascertaining whether his personal email account was used in connection with his official duties may also shed some light.

Next, unless the administration provides a complete picture voluntarily, Congress should subpoena the Office of Foreign Assets Control to testify under oath about how money is being moved and under what authority. Understanding what legal loopholes the administration believes it is exploiting will be the key to potentially legislating those loopholes closed.

Finally, the House of Representatives should move forward with a joint resolution of disapproval rejecting the deal and describing its danger to America’s national security. Even though the White House failed to comply with INARA, Congress should follow its own path and reject the deal — putting pressure on the Senate to consider the joint resolution as well. This process will be important in helping the American people understand the content of this secret deal and notifying the private sector that Congress on a bipartisan basis stands opposed to it.

Congress should consider other legislative options as well to both prevent the further erosion of U.S. sanctions and send clear signals to the private sector that the Iran sanctions architecture Congress built isn’t going anywhere. Two current proposals come to mind. The Iran Sanctions Relief Review Act’s demand for the administration to notify Congress in advance of any licenses that may alter U.S. policy toward Iran may have proven useful in snuffing out this deal before its implementation.⁶⁴ And the Solidify Iran Sanctions Act would make the Iran Sanctions Act permanent and deny a future president the ability to dismantle much of the statutory architecture Congress built over decades on a bipartisan basis.⁶⁵