According to a blockbuster report on Fox News last night by James Rosen, the nuclear deal with Iran (the Joint Comprehensive Plan of Action or JCPOA) violates U.S. law by reopening a legal loophole that will allow subsidiaries of U.S. companies to do business with Iran.
This loophole was closed by the Iran Threat Reduction and Syria Human Rights Act (ITRA), signed into law by President Obama in August 2012. Rosen discovered that this loophole will be reopened by a provision buried in an annex to the Iran deal (Annex II, section 5.1.2) which says that in exchange for Iranian compliance with the agreement, the U.S. “shall…license non-U.S. entities that are owned or controlled by a U.S. person to engage in activities with Iran that are consistent with this JCPOA.”
Rosen contends the JCPOA’s annex II language violates U.S. law in two ways.
First, under the ITRA, the prohibition barring foreign subsidiaries of U.S. firms from doing business with Iran cannot be lifted unless the president certifies that Iran has been removed from the State Department’s state sponsor of terrorism list and that Iran has ceased the pursuit, acquisition, and development of weapons of mass destruction.
Second, several executive orders and laws signed by Mr. Obama state that despite the JCPOA, all prior federal statutes relating to sanctions on Iran shall remain in full effect.
This includes the Iran Nuclear Agreement Review Act of 2015 (also known as the Corker-Cardin Act), signed by President Obama on May 22, 2015, which requires that “any measure of statutory sanctions relief” afforded to Iran under the terms of the nuclear deal may only be “taken consistent with existing statutory requirements for such action.” According to Rosen, “The continued presence of Iran on the State Department’s terror list means that “existing statutory requirements” that were set forth in ITRA, in 2012, have not been met for Iran to receive the sanctions relief spelled out in the JCPOA.”
This is not the first time experts have claimed the JCPOA violates U.S. law.
National Review columnist Andrew McCarthy has written that the Corker-Cardin congressional review process violated the Constitution’s requirements that treaties be ratified by 2/3 vote of the U.S. Senate. Although the president refuses to admit the JCPOA is a treaty, McCarthy believes it is and wrote that Corker-Cardin’s provisions that allowed Congress to reject the JCPOA by passing a veto-proof and filibuster-proof resolution of disapproval turned the Constitution on its head.
McCarthy and many Republican members of Congress also maintain that President Obama did not meet the terms of Corker-Cardin because he failed to provide all documents associated with the JCPOA to Congress for a congressional review, including all side deals. This became a major point of contention during the congressional review after Congressman Mike Pompeo (R-KS) and Senator Tom Cotton (R-AR) were told by IAEA officials about secret side deals to the JCPOA between Iran and the IAEA that would not be shared with Congress. A few days later, the Obama administration informed Congress in classified briefings that the side deals would allow Iranians to collect samples as part of IAEA investigation of past Iranian nuclear weapons work.
Because of the secret side deals dispute, the House passed a resolution declaring that the failure of President Obama to provide all secret side deal documents to Congress violated Corker-Cardin. Several House members hope to bring legal action against Mr. Obama over this issue.
My colleague Clare Lopez, a former CIA officer and Iran expert, contended in an August 11, 2015 article in The Hill, that the JCPOA violates Article VI of the U.S. Constitution because it is contrary to America’s legal obligations under the Nuclear Nonproliferation Treaty (NPT). Lopez argued that the NPT is the law of the land because it is a treaty ratified by the United States. She also noted that the NPT obligates its nuclear-weapon State Parties “…not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.”
On the other hand, according to Lopez, the JCPOA, a presidential executive agreement, violates the NPT and the Constitution because it “explicitly obligates the U.S. to both “assist” and “encourage” (not to mention “defend”) the Iranian regime’s nuclear weapons program.” Lopez cited Prof. Louis Rene Beres, Emeritus Professor of Political Science and International Law at Purdue University, who told her that the contradiction between the NPT and the JCPOA “represents a conspicuous violation of U.S. law.”
Concerns that President Obama was playing fast and loose with U.S. law on the Iran deal coupled with concerns that the deal will not stop Iran’s pursuit of nuclear weapons and would give Iran over $100 billion in sanctions relief that Tehran is certain to spend on terrorism is why only 21% of Americans supported the agreement when Congress voted on it last month. The legal problems with the agreement described above have further undermined its credibility.
Rosen’s report on how the JCPOA will close a loophole allowing subsidiaries of American companies to do business with Iran may be the agreement’s the most serious flaw because it appears to clearly violate U.S. laws and executive orders. Although Rosen’s discovery will not kill the JCPOA during Mr Obama’s presidency, he quoted Senator Ted Cruz (R-TX) who said this about the significance of this issue:
“Any U.S. company that follows through on this, that allows their foreign-owned subsidiaries to do business with Iran, will very likely face substantial civil liability, litigation and potentially even criminal prosecution. The obligation to follow federal law doesn’t go away simply because we have a lawless president who refuses to acknowledge or follow federal law.”
The debate over President Obama’s dangerous nuclear deal with Iran is not over. Growing evidence that Iran does not plan to comply with the agreement and the likelihood of more stories like Rosen’s on what was really agreed to in the deal will increase the likelihood that if a Republican wins the 2016 presidential election, he or she will tear up this terrible agreement on his or her first day in office.