New Criticisms of Nuclear Agreement

Even though there is little sign of slowdown in the progress toward implementation, the debate and discord over the agreement have hardly abated and many of its opponents are still publicly advocating against it, as well as looking for grounds on which to challenge its legality.

In the past, members of the US Congress have signaled they might initiate litigation to stop the deal based on the perception that the Obama administration failed to abide by the terms of the Iran Nuclear Agreement Review Act, which guaranteed congressional review of any deal struck with Iran before such a deal could go into effect. The Congressmen have asserted that non-disclosed “side deals” to the Joint Comprehensive Plan of Action were signed by Iran and the International Atomic Energy Agency, and that these constitute annexes to the agreement, the text of which should have been released to Congress, according to the Review Act.

While this topic was given a great deal of primacy among many Republican and some Democratic opponents of the Obama administration’s Middle East strategy, it has yet to rise to the level of a formal legal challenge. Instead, some of the same opponents have turned their attention to another potential legal problem with the JCPOA. Fox News and other outlets reported on Friday that the agreement may conflict with earlier federal legislation, putting the US president in the position of having to violate existing law in order to carry out his policy preferences.

The challenges relate to the Iran Threat Reduction and Syria Human Rights Act, which was signed into law by President Obama in August 2012. Lawmakers have concluded that the JCPOA contradicts the ITRA by opening up the possibility for the US government to treat foreign subsidiaries to US-owned firms differently from their parent companies in providing licenses for doing business with Iran. Utilizing this provision of the nuclear agreement would re-open a loophole that was explicitly closed by the ITRA.

Fox News acknowledges that this particular contradiction can be avoided by simply not acting on that provision, but this does not address another, larger problem related to the ITRA. That is, even if parent companies and foreign subsidiaries are given the same licensing, the federal legislation requires that Iran be removed from the State Department’s list of sponsors of terrorism before such licensing can occur. Thus, the lawmakers conclude that provision of sanctions relief via licensing of US parent companies would directly violate the Iran Threat Reduction Act.

On this basis, Texas Senator and Republican presidential candidate Ted Cruz re-raised this issue of litigation to undermine the Iran nuclear agreement. But in this case that litigation would not target the federal government directly, but would instead utilize the existing terms of the ITRA to penalize any company that attempts to utilize licenses to do business in Iran while it remains listed as a state sponsor of terrorism.

Whether Cruz’s strategy would have sufficient support among other lawmakers to actually go into effect remains to be seen. A number of media reports have indicated that the lawmakers who drew this conclusion about conflict with federal law only did so “privately.” Such language leaves open the possibility that their criticisms will be private as well and will aim primarily at expressing displeasure with the Obama administration’s policies, and not at moving to actually overturn them.

Indeed, some critics of current Western policies in the Middle East seem convinced that symbolic gestures of opposition are all that they can offer, as those policies have become entrenched for the time being, and have arguably begun to generate long-term consequences. One such consequence, according to many critics and analysts, is a shift in the balance of power in the region, as a policy of rapprochement with Iran has prevented the West from challenging its intervention in the Syrian Civil War, the Houthi rebellion in Yemen, and more.

On Thursday it was reported that Saudi Arabia had begun to formulate a new, official defense doctrine that seeks to amplify its own military power to compensate for a lack of US leadership in the region. Such moves may be cause for worry about an increase in sectarian conflict, all without bringing an end to Iran’s expanded influence.

What’s more, an editorial in Y Net News suggested on Friday that this and other consequences are now seen as inevitable by the denizens of Middle Eastern conflict areas, and that this is the primary cause of the recent surge of refugees seeking new homes in Europe. In fact, this editorial specifically blamed the nuclear deal for giving Middle Easterners the impression that domestic affairs and military conflicts would only worsen in their homelands.

“As soon as they saw that the nuclear deal had been signed, and that Iran would receive $150 billion and an end to the sanctions, they realized that what is happening in Syria, Iraq and Lebanon is not going to end in our lifetime,” the article claimed.

But others have been equally critical of current Western policies without striking quite such a bleak tone. Another editorial, published on Friday by Townhall, sought to keep attention focused on the fact that the West is poised to give Iran 150 billion dollars in unfrozen assets but has made no effort to enforce US court orders demanding that the Islamic Republic pay a total of 66 billion dollars to victims of terrorist attacks directed or sponsored by Tehran.

The article emphasizes the past failing of the Obama administration in the nuclear negotiations but also implies that opportunities may arise for the US Congress and a future president to reverse poor decisions such as the non-enforcement of this financial penalty. The author suggested that such actions would be far more popular on both sides of the aisle insofar as they would send a suitably aggressive message to rogue states like Iran while limiting that message to one of financial consequences in lieu of military intervention.