End Looms for Congressional Action on the Iran Nuclear Pact

While the Congress is on summer recess until it reconvenes just after Labor Day, the President, his White House staff and loyal Congressional supporters are engaged in briefings and discussions with 15 undecided Senators and 30 House Members endeavoring to gain their support for the Iran nuclear pact. The Joint Comprehensive Plan of Action (JCPOA) was announced in Vienna on July 14, 2015. A week later on July 22nd, the Iran nuclear pact was unanimously endorsed by the UN Security Council. The President is seeking to buttress the vote count under the Iran Nuclear Agreement Review Act of 2015. Congressional rejection of the JCPOA might trigger a Presidential veto.

With each Senate and House Hearing on the Iran nuclear pact, more was revealed about why it might not pass muster. Especially concerning were revelations about the handling of IAEA inspections of suspected military development sites in Iran by Iranian inspectors. These developments have called into question the delivery of a Road Map by the IAEA in October that might release upwards of $100 billion in Iran’s sequestered funds. Critics think the release of those sequestered funds may not be used for shoring up the country’s economy. Instead, they contend it may simply be used to bolster destabilizing activities in the Middle East via Iran’s proxies, Hezbollah in Lebanon, Hamas, the Palestinian Islamic Jihad in Gaza and the Houthi in Yemen.

Several Republican Senators and House Members are drafting legislative proposals for rejection of the Iran nuclear pact or re-setting the 2006 Iran Sanctions Act in 2016. They are proposing possible amendments of the JCPOA, endeavoring to make it a better deal. The President has chosen a partisan path that does not welcome bi-partisan deliberation. There are various  contending options. They encompass resolutions to reject the pact and schedule a vote as a treaty, assuming the President may have the votes to override a veto. As we have discussed in the August edition of the New English Review, there is also possible litigation that might achieve the same end.

Polls taken of Americans by Quinnipiac University show a consistent 2 to 1 edge among respondents urging members of both Congressional Chambers to reject the Iran Nuclear Pact with deep divisions along political lines. The American Jewish opinion, reflected in several polls, is also divided on support for the President’s plan. Polls by the alleged ”pro-Israel, pro-Peace” J Street Group depict more Jews in favor of the President’s position. Further, there have been revelations of campaign contributions to Democrat Senate and Congressional Members by Iranian American Political Action Committees.

Traditional centrist groups like the American Jewish Committee and the Anti-Defamation League have come out opposing the Iran nuclear pact. Secure America Now and AIPAC are actively opposing the Iran nuclear pact. AIPAC established an affiliate, Citizens for a Nuclear Free Iran, solely devoted to blitzing messages in TV ads and social media. They even provide direct links for constituents to contact their Senators and Congressional Representatives to express their views.

As August was ending, Stop Iran Now! Rallies occurred across the U.S. on Sunday, August 30, 2015 in Boston, Miami and Santa Barbara. More such rallies are planned leading up to a major event in Washington, DC, A March to Save America. It has been long hot summer recess for Members of Congress in their states and districts holding town hall hearings to gauge the pulse of constituents on the President’s nuclear deal with Iran.

The President’s Address at American University

Prior to going on a vacation to Martha’s Vineyard, President Obama gave a partisan major address at American University in Washington, DC on August 5, 2015. President Obama used the venue of American University’s new Center of International Service in our nation’s capital to present a 55 minute speech directed at undecided Democrat Senators and Representatives in Congress.

He suggested that the nuclear pact with Iran was better than the alternative: war. The Wall Street Journal noted the hortatory and accusatory rhetoric of the President Obama’s remarks:

Congressional rejection of this deal leaves any U.S. administration that is absolutely committed to preventing Iran from getting a nuclear weapon with one option: another war in the Middle East. So let’s not mince words. The choice we face is ultimately between diplomacy or some form of war.

Following the President’s speech, Senate Foreign Relations Chairman, Bob Corker (R-TN) told reporters:

The president is trying to turn this into a partisan issue, but there is bipartisan concern.

He went out of his way lambasting the opposing Republican majorities in Congress as the party of warmongers. He tied them to the legacy of the Bush II Wars in Iraq suggesting the outcome was the morphing of Al Qaeda in Iraq into the Islamic State or ISIL. He said the cost was thousands killed, tens of thousands injured at a price of a trillion dollars. He told American Jews that he had improved the Jewish nation’s qualitative military edge with commitment of billions in conventional military aid. He implied that support would enable Israel to overcome the Islamic Regime’s existential threats of “Death to America, Death to Israel, Death to Jews,” notwithstanding Supreme Leader Ayatollah Khamenei’s holocaust denial and antisemitism. Obama criticized Israeli Prime Minister Netanyahu’s opposition to the JCPOA for Iran’s nuclear program. He suggested that Netanyahu’s alternative of simply “squeezing” Iran’s theocratic leadership was not a better solution, and might lead to war. On the contrary, Netanyahu has argued that the current Iran nuclear deal actually provides multiple pathways for Iran to achieve nuclear breakout, leading to possible war.

In a post speech dialogue with Washington pundits, the President deepened his partisan criticism of Republican opponents to the Iran nuclear deal. Gerald Seib, who writes a daily Capitol Column for The Wall Street Journal reported the President saying:

There is a particular mindset that was on display in the run-up to the Iraq war that continues to this day. Some of the folks that were involved in that decision either don’t remember what they said or are entirely unapologetic about the results. This mindset views the Middle East as a place where force and intimidation will deliver on the security interests that we have, and that it is not possible for us to at least test the possibility of diplomacy. Those views are prominent now in the Republican Party.

Watch President Obama on this C-Span video of his American University speech, August 5, 2015:

The President’s Message to Israel and American Jews: “We’ll treat you like family.”

There is a song by the pop group Alabama, “Down Home,” that goes: “Down home, where they know you by name and treat you like family. Down home, a man’s good word and a hand shake are all you need.” The tag line ‘we treat you like family’ has become an overworked turn of phrase by hundreds of national and local advertisers, including used car mega dealer, CarNation.

President Obama picked up on that theme in a 45 minute White House interview Friday August 28, 2015, sponsored by the Jewish Federation of North America (JFNA) and the Council of Presidents of Major American Jewish Organizations (COPMAJO). President Obama on the August 28^th webcast said:

The bond between the United States and Israel is not political. It is something that grows out of family ties and bonds that stretch back generations, and shared values and shared commitments and shared beliefs in democracy. And like all families sometimes there are going to be disagreements. And sometimes people get angrier about disagreements in families than with folks that aren’t family.

He held the ties between the US and Israel as “sacrosanct “and hoped that relation would improve after the discussions and presumably the upcoming Congressional vote:

As soon as this part of the debate is over, my hope is that the Israeli government will immediately want to rejoin conversations we started long before on how we can enhance Israeli security in a very troubled neighborhood,

He was hoping to mollify a national webcast audience with a Congressional vote on the Iran nuclear pact looming in Congress. His other key points were that the deal “would cut off Iran from all pathways to a bomb, sparing Israel from an existential threat.” Moreover, that achievement would enable the US to concentrate on preventing Iran from supplying more missiles to Hezbollah. While acknowledging that the mullahs exhibited bad behavior towards the US and Israel, he was less concerned with “taunts.” He was placing reliance on an agreement that had “robust verification and compliance with intrusive inspections.” Inspections that from leaked IAEA confidential protocols with Tehran were alleged by pact critics to be conducted by Iran at military sites, like Parchin. Just prior to the webcast there were reports from the IAEA that nuclear testing may have been conducted at the Parchin military site. That raises questions of whether a Road Map of such prior military developments could be delivered by October to potentially release $100 billion in sanctioned funds to Iran in December. The President suggested that if such cheating was discovered that both US and multilateral sanctions could be “snapped back.” However this seems increasingly difficult given the arbitration commission established by the JCPOA that includes Iran. Further, the rush by European partners in the P5+1 to cash in on development projects in Iran may practically preclude that.

Witness the meeting in Zurich this week with Swiss and Iranian businessmen following the lifting of sanctions by the Swiss government. The Swiss Ambassador to Tehran extolled the virtues of the Islamic Republic of Iran as “a pole of stability in a region.” He spoke in front of a cartoon depicting two doves defecating on the head of Israeli PM Netanyahu. The Swiss Federal Foreign Affairs Department promptly issued “regrets” over the incident. This despite evidence that Tehran, to the contrary, persists in destabilizing behavior.

The President trivialized Iran’s economic importance by saying that Iran is not a “super power.” Despite having a beleaguered economy, the Supreme Leader Khamenei has diverted billions over decades as a state sponsor of terrorism designated by the US State Department since 1999.

He also suggested that the release of more than $100 billion in sanctioned funds would be devoted to restoring an economy whose GDP had plummeted by 20 percent. He took credit for that while Congress had passed sanctions before he begrudgingly signed off on them. He justified the ability to snap back sanctions based on the alleged record of compliance by Tehran over the past two years under the terms of original framework that released modest amounts of funds. He alleged that when Tehran lagged in compliance, there were temporary halts in release of funds until time was afforded to correct issues.

The question and answer portion of the interview with the President focused on questions from viewers including antisemitic rhetoric emerging in the debate over the Iran pact. Other questions from viewers across the country dealt with maintaining the qualitative military edge of Israel and whether reconciliation with Israel could be achieved despite disputatious relations with PM Netanyahu. The President’s response on the debate over the pact allowed him to turn the question back on the Jewish Federation and COPMAJO representatives. He touted the support from New York Jewish Congressman, Jerrold Nadler. Nadler had become the subject of intense protests by local  New York Jewish officials and Holocaust survivors in his Manhattan Brooklyn District. The Times of Israel reported how the President responded:

I would suggest that in terms of the tone of this debate everybody keep in mind that we’re all pro-Israel,” he said. “We have to make sure that we don’t impugn people’s motives.

At the conclusion of the JFNA and COPMAJO interview the President remarked:

I’m hopeful that members of Congress get behind this deal. And I promise you that nobody’s going to have a bigger stake in implementing it effectively than me.

Watch this YouTube video of the JFNA and COPMAJO webcast with President Obama:

Dilemma facing the Democrat Undecideds

The White House JFNA and COPMAJO sponsored interview capped a hectic week for President Obama fresh back from his Martha’s Vineyard vacation. He is preoccupied with trying to shore up support among the remaining 15 undecided Democrat Senators, especially six: Michael  Bennet of Colorado, Richard Blumenthal of Connecticut, Chris Coons of Delaware, Benjamin Cardin of Maryland, Corey Booker of New Jersey and Sen. Jeff Merkley of Oregon. All of these key undecided Democrats have been assiduously courted by the Senate whip team supporting the President and both pro and opposing local groups in their home states.

According to a Politico report, J Street conducted a poll in Colorado showing that 62 percent of Jewish voters supported the President’s position. Sen. Bennet, up for re-election in 2016, has been inundated with thousands of phone calls from constituents opposing the President’s position.

New Jersey Republican Governor and Presidential hopeful Chris Christie beseeched freshman Senator Booker at a Chabad House news conference at Rutgers University to follow the lead of his fellow New Jersey Democrat colleague in the Senate Bob Menendez and New York Senator Charles Schumer, both of whom have opted to reject the Iran nuclear pact in the upcoming Congressional vote. Christie said:

For Sen. Booker this morning, the people of your state, the people of this country and the people of the world are counting on you to be a strong, direct and powerful moral voice. To look your President in the eye — to look our president in the eye — and say, ‘No, Mr. President. Not this time.’

Blumenthal, a supporter of punishing Iran sanctions has promised his largely liberal base in Connecticut that he will deliberate on his position. He met with Soros-backed MoveOn.org and with local opponents to the Iran nuclear pact. Former Senator Joe Lieberman suggested that, “I hope and pray he opposes the agreement. This is the kind of agreement that Dick Blumenthal never would have negotiated.” Blumenthal is also up for re-election in 2016.

Coons of Delaware, a Democrat member of the Senate Foreign Relations Committee, will announce his decision on September 1, 2015 at the University of Delaware. His colleague in the Delaware delegation, Sen. Tom Carper announced his support for the President’s position. Oakley of Oregon, while a nominal undecided, probably has been marked down by the Senate Democrat whip team as a probable in the President’s vote count.

The big unknown is Maryland Senator Cardin, ranking Member of the Senate Foreign Relations committee and co-author of the Iran Nuclear Agreement Review Act (INARA) passed in May. He demonstrated concern over the IAEA side deal and later revelations about Iranian inspections during Committee hearings on the nuclear pact. Normally aligned with the Administration on most issues, perhaps because of the largely Orthodox Jewish presence in Baltimore County and many calls from constituents, he is genuinely conflicted. Cardin is expected to announce a decision prior to the Labor Day holiday weekend.

The Resurrection of the Filibuster Threat

Monday August 24th, President Obama flew out to Las Vegas to appear at a Democratic fundraiser for the successor to Senate Democrat Minority leader, Harry Reid. The following day, Tuesday, August 25th, Reid floated a trail balloon for a possible filibuster that might succeed in delaying or precluding a vote on any Senate Resolution opposing the President’s Iran nuclear deal. CNN Politics reported:

“I felt cautiously optimistic that we would have enough votes to sustain the President’s veto, and that seems pretty clear to me, but we’ll see,” Reid told reporters after an event with President Barack Obama Monday in Nevada, according to a transcript provided by Reid’s staff. “As far as procedurally stopping this bill from moving forward, I hope — I know it’s a long shot — but I hope that it can be done.”

Freshman Republican Senator from Arkansas Tom Cotton immediately issued the following statement:

Harry Reid wants to deny the American people a voice entirely by blocking an up-or-down vote on this terrible deal. He is obstructing because he is scared. He knows that a majority of Americans and Senators oppose this dangerous deal, and that its only chance for survival is if he and the president ram it down the throats of the American people.

CNN Politics suggested that the exchange between Reid and Cotton indicated that the Democrat may have the votes in hand to scupper the vote on the Iran pact:

Overriding a veto would require Republican senators to get 13 Democrats to join them, the threshold for ending a filibuster to hold a vote is lower — 60 votes instead of 67. That Democrats are eying preventing a vote, and not just sustaining a veto, points to increasing confidence that their party members won’t break ranks.

Kristen Orthman, a spokeswoman for Reid, added Tuesday that, “If Senator Cotton is upset with the 60-vote threshold, we recommend he discuss it with the Republican leadership since they were responsible for bringing the bill to the floor that set up a 60-vote threshold.”

Omri Ceren, Managing Director for Press and Strategy at the Washington, DC –based Israel Project was cited by Seth Lipsky in a New York Post article calling the filibuster tactic by the Senate Democrat minority leader Reid, “a “staggering betrayal” and “stab in the face.” Americans in a leading poll have urged Congress to reject the Iranian deal by a 2 to 1 margin.  Ceren further noted:

The pro-Israel community worked in a bipartisan fashion with Congress to give the president breathing room for negotiations while protecting legislative prerogatives. He thinks the Senate Democrats therefore owe Americans an up-or-down vote.

Republicans Work on Options

Meanwhile, the Republican opposition is working on new legislative options, should either a filibuster or veto override result in approval for the Iran nuclear pact and lifting of $100 billion in sequestered funds to Tehran in December. The target of the legislative initiative is the Iranian Revolutionary Guards whose elite leaders like controversial Quds Force commander Gen. Qasem Soleimani are among more than 800 persons whose travel bans and asset restrictions will be lifted by the JCPOA. Foreign Relations Committee member Sen. John Barraso (R-WY) said in a Wall Street Journal article, “Iran has a long rap sheet, and I want to continue to prosecute Iran for its bad behavior.” Republican Presidential hopeful Florida freshman Senator Marco Rubio is preparing sanctions specifically directed at Iran’s Revolutionary Guard leaders. The creation of new sanctions or the resetting of the 2006 Iran Sanctions Act, due to expire in 2016, might present a quandary for Democrat Presidential hopeful, Hillary Clinton and others. The proposal addresses the Islamic Regime’s support for terrorism and human rights abuses. Moreover the Obama White House is concerned that any moves to impose these proposals might trigger a reaction by Iran to scuttle the JCPOA backed by the EU3, Russia and China. There already have been comments by Iranian Foreign Minister Zarif and others to that effect. Another option is one being promoted by Sens. Mark Kirk (R-IL) and Bob Menendez (D-NJ) resetting the 2006 Iran Sanctions Act which is scheduled to sunset in 2016. Under their proposal, the reset sanctions would have no set term and would bar investments by US firms of more than $20 million in Iran’s key energy sector.

Litigation to Pursue the Treaty Option

In the August NER, we wrote about the possibility of another means of quashing the Iran nuclear pact, litigation overturning the JCPOA and treating it as a treaty. In the run up to the passage of the Iran Nuclear Agreement Review Act, there were amendments by Republican Senators Cotton and Johnson that the pact be considered as a treaty and subjected to a two-thirds vote upon the advice and consent of the Senate. Later in Senate Banking Committee hearings on the Iran pact, Mark Dubowitz, executive director of the Foundation for Defense of Democracies suggested that the deal should be amended, eliminating the sunset provisions and the so-called snap back sanctions. As precedent for possible amendment of the JCPOA, he noted more than “250 bi-lateral and multi-lateral agreements and treaties from the Cold War Era.” Secretary Kerry in House Foreign Affairs testimony in late July 2015 contended that it was impossible to get a treaty passed by Congress. That was in response to a query by Congressman Reid Ribble (R-WI),” For 228 years the Constitution provided a way out of that mess by allowing treaties to be with the advice and consent of [two-thirds] of U.S. Senators. Why is this [Iran deal] not considered a treaty?”

When we published “How Best to Overturn the Iran Nuclear Pact” in the August 2015 New English Review, we reviewed several options. One proposal suggested by Dr. Robert B. Sklaroff entailed direct litigation by Congress before the Supreme Court under provisions of the US Constitution seeking a ruling treating the Iran nuclear pact as a treaty requiring the advice and consent of the Senate. We wrote:

That proposal entailed independent Congressional litigation on demonstrable Constitutional legal grounds regarding executive overreach. If the Senate was granted standing on direct appeal, based on the B. Altman SCOTUS ruling, it might result in a predisposed SCOTUS rendering a positive ruling thus quashing the Iran nuclear pact. Further, the ruling might unfetter the hands of any successor to President Obama on inauguration day in 2017 to undertake remedial actions. Such actions might reduce the current existential threats to both the US and Israel.

On August 4, 2015, Larry Klayman of Freedom Watch filed a motion in the Palm Beach Florida Federal District court seeking a declaratory judgment overturning the Iran nuclear pact.  Constitution Daily reported:

Almost as soon as the lawsuit landed on the docket of District Judge Kenneth A. Marra, the judge ordered Klayman to offer reasons why the case should remain alive, as a genuine controversy under the Constitution’s Article III. The judge noted that his court would have no choice but to dismiss the case, if Klayman is unable to show that he would personally suffer a legal injury if the review process for the Iran deal went forward, or is unable to convince the judge that how the deal is being handled in Congress is anything other than a “political question.”

Probably the toughest test for Klayman is his attempt to prove that he has “standing” to sue, in the Article III sense of showing a personal harm, because the Supreme Court in recent years has been regularly tightening the restrictions on the right to file lawsuits in federal courts. That trend, though, has not met with universal approval among federal judges.

The difference between the Klayman Freedom Watch filing and the proposal that Sklaroff and lawyer Lee Bender have proposed is that the Senate would have standing to bring such an action under Constitutional law. At issue is would the Senate Majority Leader bring such an action should Congress fail to pass a resolution rejecting the Iran nuclear pact.

Should such litigation succeed in obtaining a Supreme Court ruling approving a treaty vote by the Senate, it would have a major advantage: the ability to examine the underlying negotiation documents. That prospect was the subject of a Wall Street Journal opinion article by Jerome S. Marcus, “An Informed Vote on the Iran deal.” Marcus is a talented litigator who brought the Z Street case against the IRS with resulting victories in both the DC Federal District and Circuit Court of Appeals. Marcus in the WSJ opinion article describes his personal experience working as a young attorney with legendary State Department legal adviser, Judge Abraham Sofaer, during the Reagan era on clearance of the Strategic Defense Initiative under the 1972 ABM Treaty. He describes going back to foundational documents in the National Archives during the first 40 years following the adoption of the Constitution. He concluded:

The 1854 edition of Thomas Jefferson’s “Manual of Parliamentary Practice,” published after his death in 1826, concurs on this issue: “It has been the usage for the Executive, when it communicates a treaty to the Senate for their ratification, to communicate also the correspondence of negotiators.” The manual also reports precedents showing that, in cases where such material wasn’t initially sent to the Senate, it was requested by the Senate and, in each instance, provided by the executive branch.

The lesson for today is clear: When a legislative body is deciding whether to approve an international agreement, especially one as important as the recent nuclear agreement with Iran, its members have the right to access the agreement’s negotiating record. Members of Congress should demand that record now, and they should examine it, before they cast their votes next month.

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EDITORS NOTE: This column originally appeared in the New English Review.