The framework agreement reached by the United States and its negotiating partners with Iran is a significant accomplishment, imposing substantial constraints on Tehran’s ability to make nuclear weapons. If it is finalized, only one other executive agreement dealing with nuclear weapons will have been more consequential — the first Strategic Arms Limitation accord negotiated by President Richard Nixon and National Security Advisor Henry Kissinger with the Soviet Union in 1972.
SALT I was deemed an “Interim Agreement” — it was supposed to be a placeholder until a new treaty could be negotiated. Because it placed important limits on US and Soviet nuclear weapon delivery vehicles, the Nixon administration decided to seek the Congress’s approval in the form of a legally binding congressional-executive agreement. Simple majorities in both Houses of Congress were required for its passage. The Senate and the House of Representatives approved the Interim Agreement with just two and four dissenting votes, respectively. A companion agreement, the Anti-Ballistic Missile Treaty, was sent to the Senate for its advice and consent. Only two Senators disapproved of its ratification.
The framework agreement with Tehran which must now be finalized in painstaking detail, places all of its constraints on just one party – Iran. As such, there is no legal requirement for the Obama administration to secure Congressional consent under the provisions of Section 33 of the old Arms Control and Disarmament Act, which was preserved after the demise of ACDA and is now codified at 22 US Code, Section 2573 (b). (I know this because my mentor on the legal aspects of arms control, David Koplow of Georgetown Law School, tells me so.)
Here is the language of 22 US Code, Section 2753(b):
“No action shall be taken pursuant to this chapter or any other Act that would obligate the United States to reduce or limit the Armed Forces or armaments of the United States in a militarily significant manner, except pursuant to the treaty-making power of the President set forth in Article II, Section 2, Clause 2 of the Constitution or unless authorized by the enactment of further affirmative legislation by the Congress of the United States.”
Many Republicans on Capitol Hill will remain unalterably opposed to the framework agreement, notwithstanding the unprecedented constraints it places on Iran’s nuclear capabilities. Republican majorities have shown their hand by giving Prime Minister Benjamin Netanyahu a megaphone to imply that President Barack Obama is a modern-day Neville Chamberlain and by writing an open letter to Iran’s theocratic leadership seeking common cause in killing a deal. To reverse course now would clarify poor judgment earlier; to stay the course would confirm past misjudgment.
Republicans don’t trust Obama to serve U.S. national security interests. But “just saying no” to diplomacy is far less trustworthy. The Obama administration deserves the time to finalize the details of this agreement without Congressional attempts to blow it up by the pursuit of new and stronger sanctions. Killing this agreement will lead to the implosion of the negotiating coalition and the very sanctions that some Members of Congress seek to strengthen. Worse, limitations on Iranian nuclear capabilities will erode quickly, placing great stress on the Non-proliferation Treaty. Killing the deal also raises the likelihood of another open-ended U.S. military campaign in the region.
The Washington-based Republican Party has changed radically since Nixon and Kissinger negotiated arms limitation with the Kremlin and opened doors to “Red” China. Republican administrations have previously been instrumental in drawing down nuclear excess and in negotiating nuclear arms reduction treaties. In a bygone era, President Ronald Reagan challenged Soviet leader Mikhail Gorbachev to tear down the Berlin Wall while working with him to tear down nuclear force structure. President George H.W. Bush and his advisers negotiated not one, but two strategic arms reduction treaties.
President George W. Bush’s administration significantly reduced the U.S. nuclear stockpile, but was unenthusiastic about treaties. By the turn of the century, accomplished elders in the Republican Party’s national security establishment were replaced by a generation more reckless in the use of American power and ideologically opposed to negotiating with evil. One result was unconstrained nuclear programs by North Korea and Iran.
Democratic Presidents have always had difficulties securing Republican support for nuclear negotiations, in part because they have been perceived as being too lax in dealing with adversaries. Obama will need to emulate Reagan’s dealings with Gorbachev in seeking both a nuclear agreement with Iran and countering Iranian moves that worry friends and allies. My sense is that this dual-track strategy is already underway, as is evident by the administration’s decision to resume arms sales with Egypt.
How and when sanctions are lifted matters greatly. Most Republicans on Capitol Hill won’t be happy with the timing. But Obama, unlike Jimmy Carter and Bill Clinton, isn’t negotiating a treaty. He is negotiating an executive agreement that is clearly within his presidential authority. The Iran agreement, unlike the SALT I Interim Agreement but like most executive agreements, will be politically, but not legally binding. This presidential authority is as clear as the authority to withdraw from treaties, as Bush 43 demonstrated with respect to the ABM Treaty.
Michael Krepon is Co-Founder of the Stimson Center. This piece originally ran in Arms Control Wonk on April 3, 2015.