An IAEA Side Deal could void the Iran Deal

Secretary of State John F. Kerry testifies on Capitol Hill in July on the Iran nuclear deal.
Source: (Andrew Harnik/Associated Press)


US Rep. Mike Pompeo of the House Permanent Intelligence Committee and David B. Rivkin, Jr.  Senior fellow Foundation for Defense of Democracies, Constitutional litigator and former Justice Department and White Counsel official who served in both Bush Administrations present cogent arguments for voiding the Iran Nuclear Pact for the non-delivery of IAEA side agreements by the Administration in this Washington Post opinion article. They make the case that the Iran Nuclear Agreement Review Act requires the submission of all documents as a specific condition for the Congress taking a vote. Further they suggest that should the side agreements not be delivered by Monday September 7th that Congress cannot be expected to take a vote on or before the previously agreed to deadline of September 17th.  Moreover, that the Senate would be empowered under the Constitution bring suit against the President. This appears to a variation to similar litigation proposed by Robert B. Sklaroff, MD and Lee S. Bender published in the NER and other publications. It also follows the logic of Jerome Marcus, Esq. in a Wall Street Journal op ed that argues that all relevant negotiations documentation have, under earliest Constitutional provisions required delivery of such documents by the  Administration to the Senate under its granted in Article III for advise and consent of treaties. Here are some excerpts from the Washington Post opinion article by both Pompeo and Rivkin:

The act defines “agreement,” with exceptional precision, to include not only the agreement between Iran and six Western powers but also “any additional materials related thereto, including 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.” But the president has not given Congress a key side agreement between Iran and the International Atomic Energy Agency (IAEA). This document describes how key questions about the past military dimensions of Iran’s nuclear program will be resolved, as well as the precise operational parameters of the verification regime to which Tehran will be subject.

This omission has important legal consequences. At the heart of the act is a provision, negotiated between Congress and the White House, freezing the president’s ability to “waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran” while Congress is reviewing the agreement.

That review period was supposed to take 60 days and is triggered the day the president submits the agreement to Congress. However, because the president failed to submit the agreement in full, as the law requires, the 60-day clock has not started, and the president remains unable lawfully to waive or lift statutory Iran-related sanctions. Indeed, since the act also provides for the transmittal of the agreement to Congress between July 10 and Sept. 7, the president’s ability to waive statutory sanctions will remain frozen in perpetuity if Congress does not receive the full agreement Monday.