A little-noticed provision in a lengthy bill aimed at setting U.S. policy toward China risks jeopardizing some of America’s most sensitive diplomatic negotiations.
The intent of the Chair and Ranking Member of the Senate Committee on Foreign Relations, Senators Bob Menendez and James Risch, who authored the Strategic Competition Act of 2021, appears to have been laudable: the provision’s title suggests it is aimed at enhancing transparency of the international agreement-making process. As Curtis Bradley, Jack Goldsmith and Oona Hathaway noted in Just Security, the provision in question — Section 310 of the manager’s package of the bill — adds needed transparency to the striking of executive agreements. The provisions would also bolster transparency for advice and consent treaties, where the Senate has a constitutionally-defined role. More broadly, it is undoubtedly the case that Congress needs greater and more fulsome insight into executive agreements to fulfill its vital oversight role.
However, at least some Members of the Senate Foreign Relations Committee were surprised and rankled by the provision, which has been described as a “stealth poison pill” for negotiations with Iran. Their concern is warranted: Section 310 sweeps too broadly and would have unintended consequences by chilling the most sensitive types of diplomacy that have always been entrusted to the executive branch. In particular, the inclusion of preemptive reporting at the negotiation stage, and particularly on “non-binding instruments,” is a major mistake. In practice, section 310 creates extensive but vague requirements for diplomacy itself, backed by a funding cut-off for any agreement or non-binding arrangement that does not meet those requirements.
What Sec. 310 Says
The key features of section 310 are as follows. Within five days of the State Department approving “the negotiation or conclusion of an international agreement or qualifying non-binding instrument,” Congress would need to be notified of the “intended scope, substance, form and parties” to the talks; the legal authorizations underlying the negotiations; details on opportunities for public comment; and any changes to statutes or regulations that might result. That written notice must be unclassified “unless the proposed text” of the agreement or non-binding arrangement will itself be classified. Five days after an agreement or non-binding instrument is concluded, its text must be provided to Congress. All “implementing material” must also be submitted to Congress within five days of its creation and on an “ongoing basis” for the life of all agreements and arrangements subject to the provision.
The language is expansive with respect to what sort of non-binding instruments would be subject to these requirements, defining a “qualifying” non-binding instrument as anything that “has an important effect on the foreign policy of the United States” or has been the subject of a written communication from the Chair or Ranking Member of either of the foreign relations committees. And the provision is backed by a funding cut-off that prohibits obligating or expending any funds to implement or conclude any agreement or arrangement subject to the provision that does not comply with these requirements.
An Overly Broad Scope
The executive branch needs flexibility and — critically — confidentiality to be able to engage in diplomacy in any form, with many potential outcomes on the table. Officials often begin diplomatic communications without knowing whether or not an executive agreement or non-binding arrangement will result. This is what allows states to explore diplomatic solutions with both partners and adversaries in sensitive contexts.
Unfortunately, the structure of section 310 puts counterproductive and artificial constraints on that diplomatic process, undermining needed flexibility and confidentiality. It makes little sense for our nation’s diplomats to fear that expanding the scope of talks, or offering concessions that may go beyond what was described to Congress at the outset of negotiations, could lead to a funding freeze. They need flexibility to do their job.
There are many types of communications with foreign governments that could be considered qualifying non-binding arrangements — from G7 communiques, to a bilateral statement with another state following a meeting or summit, to sensitive prisoner swaps, to the Framework for Elimination of Syrian Chemical Weapons reached with Russia in 2013, or the Joint Comprehensive Plan of Action (JCPOA) concluded in 2015. Some are negotiated over months with a great deal of prior preparatory work (like the JCPOA), while others are drafted quickly to memorialize outcomes of meetings or events and hold the participants politically accountable. It is not always the case that negotiators are even planning to conclude an “arrangement” when discussions are underway.
Given the expansive nature of Section 310, all of the arrangements above — and many others — could trigger reporting and be tied to the threat of a funding freeze. This risks boxing the State Department in. Either the diplomacy would be subject to the stringent requirements and associated funding cut-off, or it must be declared to not have an “important effect” on the foreign policy of the United States. As Bradley, Goldsmith and Hathaway noted in their article:
We note that, for nonbinding agreements, the bill leaves a great deal to be worked out in State Department regulations, including what constitutes an “important effect on the foreign policy of the United States.” There is also the question of how to ensure compliance, given that as many as perhaps fifty agencies conclude what might be considered qualifying nonbinding instruments.
Dangerous Ramifications for Diverse Negotiations
The net impact of the changes imposed by Sec. 310 could be the end of confidential backchannel diplomacy as we know it, and even more political obstruction in the negotiation of diplomatic agreements that are in the U.S. interest.
It isn’t hard to imagine how Sec. 310 could have a major chilling effect on negotiations of all sorts. Much of the diplomacy that would fall under Sec. 310’s scope — from ceasefire negotiations to halt a raging conflict to intelligence sharing arrangements — often involves navigating around spoilers, sometimes in multiple nations, who are eager to sabotage progress for political reasons. Requiring details on the intended scope, parties and desired end state of such negotiations would undoubtedly rule out many beneficial talks before they could even get underway, making Americans and the nation far less secure. The ability to provide a notification in classified form should provide some comfort, but given the track record of congressional leaks of sensitive information, and even congressional efforts to sabotage ongoing diplomatic talks, it yields little reassurance.
Advertising the desired end-state of a negotiation at the outset risks showing the administration’s hand on what it is aiming to achieve in any negotiation, reducing flexibility for diplomatic back-and-forth that could shape an agreement more in line with U.S. interests. Moreover, as demonstrated in high-profile negotiations in recent years, politics has unfortunately not stopped at the water’s edge and many Members of Congress (some with higher political goals) have proven all too eager to misconstrue and undermine sensitive negotiations however they can.
Sec. 310 Needs to be Revised or Removed
Congress, and the foreign relations committees in particular, have an important role in U.S. foreign policy and enhancing transparency is an important goal. But there is a significant distinction between helpful transparency and rewriting the rulebook on American diplomacy in a way that could undermine, not advance, U.S. interests. Section 310 crosses that line and risks upsetting numerous diplomatic negotiations before they ever have the chance to get off the ground. As a result, it could have an expansive and harmful effect on American diplomacy and many of its significant goals- – from ensuring nonproliferation, to securing freedom for Americans abroad, to negotiating stronger efforts to reverse the impact of climate change. That should not be the aim of any bill in Congress. The Senate should work with the Biden administration to revisit and remove the harmful provisions of Sec. 310 from any version of the legislation that moves forward.