The United States and Iran have reached a framework arrangement aimed at terminating hostilities, reopening the Strait of Hormuz, and creating space for future negotiations on Iran’s nuclear program. This is welcome news, not because every provision of the memorandum of understanding (MoU) reflects the best possible position for the United States, but because ending the war and creating space for true diplomacy are vital.
The draft text of the MoU addresses Iran’s nuclear program and U.S. sanctions relief commitments in several significant ways. Paragraph nine contains a “freeze for freeze” type commitment, in which Iran agrees to “maintain the status quo on its nuclear program,” and the United States commits it “will not impose new sanctions on Iran or strengthen its forces in the region.” Paragraphs seven and ten contemplate significant U.S. sanctions relief, and though the specifics are yet to be negotiated, already go well beyond what the United States committed to in the 2015 Joint Comprehensive Plan of Action (JCPOA), negotiated by the Obama administration. The JCPOA was a multilateral arrangement that tightly constrained Iran’s nuclear program in exchange for phased sanctions relief after Iran’s completion of nuclear steps was verified by international inspectors. It was maintained during the initial years of the first administration of President Donald Trump before he unilaterally withdrew the United States, imposing “maximum pressure” instead, despite verified Iranian compliance to that point. President Joe Biden had an opportunity to rejoin the JCPOA upon taking office, but unfortunately, he did not take it.
Today, a “freeze for freeze” as an interim measure is sound policy, and could help lay the groundwork for the much more complex negotiations that need to follow if a new arrangement on Iran’s nuclear program is to materialize. Those negotiations will be incredibly difficult for the United States, given the considerable challenges it has created for itself. The already abysmal lack of trust between the United States and Iran is now nonexistent after the United States (with Israel) unlawfully attacked Iran during negotiations twice in the past year. On the technical nuclear issues, the loss of continuity of knowledge of Iran’s nuclear program by the International Atomic Energy Agency (IAEA) (largely as a result of these wars), the much higher level of uranium enrichment Iran pursued following Trump’s JCPOA withdrawal, and the possible use of new nuclear sites in Iran all exacerbate an already complex situation.
There is a threshold problem, though, that threatens to cut off this badly needed diplomacy before it has a chance to be seriously pursued. The Iran Nuclear Agreement Review Act of 2015 (INARA) mandates that for about 35 days Trump is prohibited from providing the immediate sanctions relief promised in the MoU. Those 35 days correspond to a transmittal and congressional review period for the MoU. The law requires transmittal (with a host of verifications and assessments) within five calendar days of the MoU being “reached” – presumably when it was “signed” by both parties at Versailles – with a 30 day review period following thereafter.
INARA was enacted in 2015 to give Congress an opportunity to kill the JCPOA before it could come into effect (or at least give those on Capitol Hill who were opposed to Obama’s landmark multilateral achievement an opportunity to vote against it). It was designed to keep the executive branch on a tight leash, giving Congress multiple mechanisms for torpedoing the JCPOA should any noncompliance issues arise. The catch is, it applies to any type of binding or non-binding arrangement “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.” That includes this new MoU, and any future final agreement that might be negotiated in the coming months.
The bottom line is that INARA was never an appropriate way for Congress to engage on Iran’s nuclear program, and that is even more true today. Regardless of whether Congress would ultimately vote down the MoU (highly unlikely given a supermajority would be needed to overcome Trump’s veto), a few scenarios are possible now: (1) the president does not transmit the MoU to Congress and ignores the law; (2) the president submits the MoU to Congress but ignores the part of the law prohibiting sanctions relief from being implemented during the congressional review period; or (3) the president submits the MoU to Congress and complies with its requirements not to provide sanctions relief during Congress’ review. The first two scenarios are antithetical to the rule of law. The third is antithetical to peace.
The most obvious way out of this self-created straitjacket is for Congress to simply repeal INARA. Diplomatic negotiations require flexibility, no matter who is in the White House. If Congress wants to pass a law removing waivers from its sanctions laws (which would be an egregious mistake), it can do that. But INARA should not hang as a sword of Damocles over any negotiation that includes Iran’s nuclear program. It should be repealed – or at minimum amended to allow for sanctions relief during the transmittal and review period – for the additional reason that the most realistic alternatives today are extending a disastrous and costly war of choice or ignoring the law.
How INARA Works
As I explained in 2017 when the JCPOA was hanging by a thread during the first Trump administration, prior to U.S. withdrawal:
INARA was enacted in May 2015, when negotiators weren’t even sure whether a final deal would be reached. It was primarily intended to allow Congress to take a vote on whether the United States could implement our end of a prospective nuclear deal, which had become a political football. This was a high stakes proposition, as a no vote would kill the deal before it had a chance to be implemented. […] In the summer of 2015, Congress failed to vote down U.S. implementation of the JCPOA. Under international monitoring, Iran physically dismantled a good deal of its nuclear infrastructure, shipped out 98% of its enriched uranium, poured concrete into the core of its only reactor capable of producing weapons-grade plutonium to render it permanently inoperable, and implemented rigorous transparency measures across its nuclear program. After those steps were verified by the IAEA in January 2016, the United States and EU suspended our nuclear-related secondary sanctions.
The most important provisions of INARA for the immediate implementation of the MOU are the congressional review period and associated prohibition on sanctions waivers during that time, and the definition of “agreements” covered by the law. This is how the key provisions work.
INARA requires that any “agreement” regarding Iran’s nuclear program be submitted to Congress within five days of being “reached” (with required verification assessments and certifications) for a 30-calendar-day congressional review period. If a resolution is enacted to “disapprove” of the agreement during the review period, no statutory sanctions relief may be provided pursuant to the agreement, effectively blocking implementation.
Crucially, as noted above, INARA also prohibits any statutory sanctions relief during the submission and congressional review periods. During JCPOA negotiations, a measure of sanctions relief was already being provided under an interim arrangement (the JPOA, or Joint Plan of Action), and INARA included a carve-out for continuing the JPOA. But that carve-out was specific to the JPOA and isn’t relevant now. Instead, INARA’s prohibition would apply to the U.S. commitments in the MoU to begin providing sanctions relief immediately.
As Jack Goldsmith wrote on June 17, the MoU commits the United States to “immediately”
‘issue waivers for export of Iranian crude oil, petroleum products and derivatives, and all associated services, including banking transactions, insurances, transportation, etc.’ These waivers presumably include waivers of U.S. statutory sanctions against Iran.
I don’t think the president has the authority under domestic law to issue these waivers.
He is correct. Under INARA, “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.” Here’s why the MoU quite clearly satisfies INARA’s definition of an “agreement.”
The MoU Easily Fits Into INARA’s Definition of “Agreement”
INARA defines “agreement” extremely broadly. It is worth quoting section (h)(1) of the statute in full to demonstrate just how capacious the definition is:
AGREEMENT.—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, 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.
This definition clearly covers the draft MoU, which includes 14 points. Under INARA’s definition of “agreement,” it matters not that the MoU will be non-binding (the JCPOA was also non-binding). Nor does it matter that it covers issues beyond the nuclear arena. What matters is simply that it is “related to the nuclear program of Iran” and commits the United States to “take action.”
Here is a briefly annotated list of the points that show why that is clearly the case:
7.The United States commits to ending, on a schedule to be agreed upon as part of the final agreement, all types of sanctions currently facing the Islamic Republic of Iran, including resolutions of the United Nations Security Council and the Board of Governors of the International Atomic Energy Agency (IAEA), and all unilateral U.S. sanctions, both primary and secondary.
Notes: This undeniably “commits the United States to take action.” Specifically, it is a U.S. commitment to end all U.S. sanctions if Iran meets commitments that will be agreed on in future negotiations – that’s much more extensive sanctions relief than was contemplated (or provided) in the JCPOA, which left many secondary sanctions in place and barely dented primary sanctions.
8. The Islamic Republic of Iran reiterates that it will never produce nuclear weapons. The Islamic Republic of Iran and the United States have agreed that the fate of enriched material and the fate of all other mutually agreed nuclear-related issues, including Iran’s nuclear needs, will be adequately addressed in a final agreement; the final agreement will confirm the provisions of this Article.
Notes: This is obviously “related to the nuclear program of Iran.” In addition to Iran’s longstanding stance that it will not develop a nuclear weapon (a commitment it also made in the JCPOA), Iran and the United States are committing to negotiate further with the expectation that Iran will make concessions on nuclear material it has already enriched but also that its “nuclear needs” will be met. This could resemble an arrangement similar to the JCPOA in which tight controls and strict transparency and verification measures were put in place, limiting the level of enrichment and amount of enriched material in Iran’s stockpile, among other restrictions (like restrictions on Iran’s ability to procure materials for its nuclear program), but Iran was permitted to have a limited, closely and continuously monitored peaceful nuclear program (presumably the reference to “Iran’s nuclear needs”).
9. The Islamic Republic of Iran and the United States agree that, pending a final agreement, they will maintain the status quo: Iran will maintain the status quo on its nuclear program, and the United States will not impose new sanctions on Iran or strengthen its forces in the region.
Notes: As mentioned above, this “freeze for freeze” could be an important confidence-building measure. Notably, it is also lopsided compared to the Obama-era interim deal in that Iran commits to freezing its nuclear program, but on the U.S. side the commitments include no new sanctions at all (presumably for any purpose), and a commitment not to build up forces in the region. This linking of nuclear and non-nuclear issues was purposefully avoided in the JCPOA, in which the United States did not make commitments to relieve non-nuclear sanctions or make any commitments whatsoever with respect to its forces in the region. Times have changed, however, and the United States has twice used force during nuclear negotiations at least in part for the stated purpose of limiting Iran’s nuclear program – it may no longer be viable in this MoU or any future comprehensive arrangement to separate out the nuclear issue and broader security-related commitments.
10. The United States undertakes that immediately after the signing of this Memorandum of Understanding, and until the date of the lifting of sanctions, the United States Treasury Department will issue waivers for exports of Iranian crude oil, petrochemical products and their derivatives, and all related services, including banking, insurance, transportation, and the like.
Notes: Issuing waivers to allow Iran to sell oil prior to concluding any further negotiations is a major U.S. concession, and it is the step that is most clearly prohibited under INARA, at least during the transmittal and congressional review periods.
Time to Repeal INARA
With INARA on the books, either the executive branch will fail to implement some of the commitments the United States has made in the MoU (dooming prospects for peace), or fail to implement the law (another blow for the rule of law). Even if that gauntlet can be navigated, there remains a possibility that Congress could block statutory sanctions relief – and in turn, kill the ceasefire, risk Iran closing the Strait of Hormuz again, and torpedo negotiations on nuclear issues before they can seriously commence.
The world is not as it was in 2015, when INARA was enacted as a political ploy that did little for serious congressional oversight but did meaningfully damage the United States’ negotiating position vis-a-vis Iran. Today, nuclear issues and ceasefires are rolled together in a way INARA never contemplated, making the statute damaging not just to diplomatic efforts to constrain Iran’s nuclear program, but also to peace and stability. What’s more, the president’s own party controls both chambers of Congress. There is no better time to repeal this misguided law and let diplomacy proceed.
