Had Hillary Clinton won the 2016 election, the legislative compromise that allowed Congress to weigh in on the Iran nuclear agreement without actually ratifying it as a treaty would have been an arcane footnote.
But Donald Trump won the election, and so an overlooked element of that legislation could provide a poison pill for at least the beginning of America’s exit from the bargain that defines Barack Obama’s foreign policy legacy.
The provision is found in the Iran Nuclear Deal Review Act’s requirement for the secretary of state to inform Congress every 90 days about Iran’s compliance with the nuclear agreement, known as the Joint Comprehensive Plan of Action. So far the Trump administration has reluctantly certified Iranian compliance twice. But the president has also hinted that he would like to get out of the deal.
On Monday in a speech at the American Enterprise Institute, Trump’s ambassador to the United Nations, Nikki Haley, outlined how Trump could do just that, even if Iran was technically meeting the requirements of the plan of action.
Speaking of the 90-day certification process, Haley said: “The law asks the president to certify several things, not just one. The first is that Iran has not materially breached the JCPOA. That’s the one everyone focuses on.” She went on to say that the law also “asks the president to certify that the suspension of sanctions against Iran is appropriate and proportionate to Iran’s nuclear measures, and that it is vital to the national security interests of the United States.”
That’s important because it gives the president flexibility if he chooses to begin the process for getting out of the deal. Because of the way the law is written, Trump can decertify Iran even if the U.S. intelligence community determines that Iran is adhering to the deal’s limits on stockpiles of low-enriched uranium and is still allowing monitors to its known nuclear sites.
For example, Trump could point to Iran’s test of ballistic missiles as a violation of the U.N. Security Council resolution that endorsed the nuclear bargain in 2015. The plan of action itself is not clear on the missile issue, whereas the resolution prohibits it.
Trump could also determine that the deal itself is not in the national interest because of its structural flaws. Key provisions of the deal forged by the U.S., Iran and five other great powers expire between 2025 and 2030. By that final year, Iran will be able to install as many advanced centrifuges as it chooses and enrich as much low-enriched uranium as it chooses. Trump could say that is not worth the risk.
Haley didn’t say what Trump had told her about the nuclear deal or what she had advised Trump. But her speech Monday laid the groundwork for decertifying Iran if the president so chooses.
She focused on the major structural flaws in the nuclear bargain, noting that there are no intermediate steps for punishing Iranian cheating or other non-nuclear behavior that threatens U.S. interests and allies in the region.
“They are counting on the world brushing off relatively minor infractions, or even relatively major ones,” she said. “They are counting on the United States and the other parties to the agreement being so invested in its success that they overlook Iranian cheating.” She ended this section of the speech with the observation: “The Iranian nuclear deal was designed to be too big to fail.”
Haley is correct about the many flaws of the nuclear deal. The latest one came to the surface last month when Haley traveled to Geneva to meet with the International Atomic Energy Agency to discuss inspections of Iranian military sites and suspected undeclared nuclear facilities. Iranian leaders responded to her request by asserting inspectors would not be allowed to visit military facilities.
At the same time, because the benefits of the Iran nuclear deal accrue over time, namely that it continues to allow transparency of its nuclear program and keeps its low-enriched uranium stockpiles low, many experts have concluded it’s not worth blowing up the deal, as flawed as it is.
So far, Trump has signaled that he disagrees. As I reported in July, the president came close to overruling his top advisers the last time he had to certify Iranian compliance and relented only at the last minute.
If Iranian compliance is not certified, Trump may be able to have the best of both worlds. He could signal to his supporters that he is keeping his campaign promise by instructing Secretary of State Rex Tillerson to rule against Iran. And yet he still would not have killed the nuclear deal; he would simply have punted to Congress. At that point lawmakers could vote whether or not to re-impose the crippling secondary sanctions that effectively cut Iran off from the global economy.
But they may end up not going that far either. If Congress brings back those sanctions, Iran is within its rights to kick out inspectors and restart its full industrial-size program. So far, Trump has not said what he would do in that circumstance. Neither has Congress.
Eli Lake is a Bloomberg View columnist. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.