New Iran Sanctions?

by Jim Lobe

As usual, Lara Friedman of Americans for Peace Now (APN) explains and analyzes everything relevant that has happened to date on the Senate side with respect to sanctions on Iran. Following is an excerpt from her weekly Legislative Round-Up:

New Iran Sanctions? State-of-Play in the Senate 

On 1/27 the new Iran sanctions bill, S. 269, entitled the “The Nuclear Weapon Free Iran Act of 2015,” was introduced in the Senate by Kirk (R-IL and Menendez (D-NJ), along with 14 other cosponsors.  This introduction comes on the heels of the letter sent to President Obama from a group of Senate Democrats expressing support for the bill but vowing not to support a floor vote on the bill until afterMarch 24 – with a subset of that same group of signers representing the full Democratic contingent of cosponsors on S. 269.

On 1/27, the Senate Banking Committee held a hearing entitled, “Perspectives on the Strategic Necessity of Iran Sanctions.” The hearing dealt with the question of sanctions but notably did NOT deal with the substance of S. 269.  Chairman Shelby’s (R-AL) opening is statement here; Ranking Member Brown’s (D-OH) opening statement here. Panel 1 witnesses were Deputy Secretary of State Antony Blinken [testimony] and Under Secretary of the Treasury for Terrorism and Financial Intelligence David Cohen [testimony].  Panel 2 witnesses were Mark Dubowitz, FDD [testimony] and Patrick Clawson, WINEP [testimony].  A webcast of the hearing is here.

On 1/29, the Senate Banking Committee held a markup of “The Nuclear Weapon Free Iran Act of 2015.”  For those who are interested in the deep details, please note that, contrary to what is being widely reported, on 1/29 the committee did NOT markup (and amend) S. 269.

So why didn’t the committee deal directly with S. 269?  The answer appears to be that in its rush to move forward with new Iran sanctions legislation, committee leadership made error after error, making this one of the sloppiest legislative paths for a Senate bill in memory.  As a reminder, this markup had originally been scheduled for 1/22.  That original markup was only officially “noticed” to Committee members the afternoon of 1/16 – the Friday before MLK day when Senators had already left for the long weekend – with amendments due no later than noon on the 21^st (in essence, giving committee members half of a working day to prepare).  Shortly after that original notice went out, Banking Committee staff circulated text of the bill to be marked up (bearing in mind that as of that date, Kirk and Menendez had yet to formally introduce their bill).   What followed that same afternoon/evening was a series of revisions and corrections to the notice (at least 4), revising the deadline for amendments, and then correcting errors in the revised notices (and apologizing for all the corrections).  Then, on 1/19 (over the holiday weekend), Banking Committee staff sent out a notice that the markup has been rescheduled for 1/29 – reflecting, it is widely surmised, the failure of the bill’s backers to muster sufficient Democratic support.

Which takes us to this week, when Kirk and Menendez finally introduced their bill on 1/27.  However, as noted above, on 1/16 the Banking Committee formally circulated the text that would be marked up in the 1/22, and then 1/29, hearing.  By the time S. 269 was introduced (and referred to the Banking Committee), it was too late for the Committee to swap this text for the final Kirk-Menendez version (the texts are not identical).  Meaning that what the committee marked up and amended on 1/27 was, in effect, an original Shelby (R-AL) bill (with no cosponsors) entitled, “The Nuclear Weapon Free Iran Act of 2015” – not S. 269.  Now it will be up to Senate leaders to decide procedurally how to deal with this mess (it is not at all clear that everyone has even realized what has happened here.)

With respect to the 1/29 markup, Chairman Shelby’s (R-AL) opening statement is here.  Ranking Member Brown’s opening statement is here.  The mark-up included zero debate or even discussion of the bill itself (and as noted above, the substance of the bill was not addressed in the 1/27 hearing).  Rather, the mark-up served as a forum to simply rubber stamp a piece of legislation with profound national security implications for the United States, as well as to consider a small number of amendments.  The amendments that were submitted for the markup are discussed in Section 3, below (note that not all of the amendments were considered).  Following consideration of the amendments, the Banking Committee voted to adopt “The Nuclear Weapon Free Iran Act of 2015”, as amended and without even the pretense of any substantive debate or discussion of the underlying bill, by a vote of 18-4.

Notwithstanding Senate Banking Committee actions this week, this round of the “sanctions vs. diplomacy” battle has been won by the pro-diplomacy side.  The deal Menendez struck with Democratic supporters of the bill means that there should be no further action on S. 269 (except perhaps to address the problem of the Banking Committee actually amending the wrong version of the bill) until after March 24.  If the GOP brings it to the floor before that, it will likely not have any Democratic support.  After March 24, assuming there is a framework agreement, President Obama will face a new fight in the Senate, trying to convince Senators that moving ahead with S. 269 will undermine the progress that has been achieved (bearing in mind that it can be assumed that some senators will attack any framework agreement, both in principle and substance).  If there is no framework agreement achieved by March 24, President Obama will face an even harder task if he wants to convince Senators to give him more time to reach an agreement before the JPOA expires at the end of June. Either way, this battle is far from over.  (For excellent further analysis of the current situation, see this analysis from Amanda Waldron and Angela Canterbury: Senate Still Deciding: Sanctions or Diplomacy).

In other news, it appears action may be imminent with respect to the Corker (R-TN) effort to promote legislation requiring Congressional approval (or veto) of any Iran deal – an effort that some suggest may be competing with or even undermining efforts to promote the new Iran sanctions legislation.   Further reading:  Defense One 1/26: Iran Sanctions Showdown Is Drawing New Battlelines in Congress[excerpt:  Graham (R-SC): “Even though I don’t think sanctions should be seen as a deal breaker — if there’s any chance that it would be, I’m willing to forgo a vote on sanctions … Just bring it to the Congress so we get to look at it.   Because if you get a bad deal, you’re going to have a nuclear proliferation race.”]; Politico 1/22: Republicans stuck between two paths on Iran; ForeignPolicy.com 1/22: Congressional Infighting Could Boost White House in Iran Talks.

Finally, for the vote-counters among us, please note that supporters of new Iran sanctions do not have a guaranteed veto-proof majority supporting S. 269, notwithstanding the very …optimistic… spin being promoted by, among others, the Israel Project.  On the GOP side, 52 votes can be assumed (Flake, R-AZ, and Paul, R-KY, have both expressed opposition).  On the Democratic side (as of this writing) the bill has 8 cosponsors.  An honest prediction of a vote count must take into account the following:

–          Supporters of S. 269 are suggesting that the 8 cosponsors will automatically vote YES on S. 269 after March 24.  In fact, if the bill is brought to the floor after March 24, Democratic support – even of cosponsors – will depend on what has been achieved by that time.  If there is no framework agreement by that date, it is likely that Democrats who signed the Menendez letter would vote YES in a floor vote, but not certain.  It depends on the case that Obama makes at that time. If there IS a framework agreement by that date, Democrats who signed the Menendez letter and cosponsored are by no means certain to vote YES in a floor vote, against the President and against continued diplomacy (which is what this vote in effect would be).

–          Supporters of S. 269 are also suggesting that the two Democratic senators who signed the Menendez letter but did not cosponsor the bill can be counted on to automatically vote YES in a floor vote – a suggestion that makes no sense.  These senators chose not to cosponsor because apparently they don’t want to go that far, even before March 24; it makes no sense to assume they would automatically vote against the President and against negotiations afterMarch 24, no matter what happens between now and then.

–          Supporters of S. 269 are also suggesting that the three Banking Committee Democrats who voted in favor of the sanctions bill in yesterday’s markup (none of whom are cosponsors or signed the Menendez letter) can be counted on to vote YES on the floor.  This, again, is a reach.  Voting yes in Committee is not the same as promising to vote YES whenever the GOP brings this to the floor.

–          Finally, pro-S. 269 vote counters are suggested that the three other Democrats who supported S. 1881 last year will automatically vote YES on S. 269, despite the fact that these three did not sign the Menendez letter or cosponsor S. 269.  In reality, if these three senators had already decided that they were going to vote against Obama and support S. 269 according to a schedule that suits the GOP (and AIPAC, and the Israel Project) they would have already cosponsored S. 269, rather than staying off of the bill and opening themselves up to what will inevitably be future bogus accusations of not being tough enough on Iran or pro-Israel enough.

3. Iran Sanctions Markup – the Amendments

As noted in Section 2, above, the 1/29 mark-up of “The Nuclear Weapon Free Iran Act of 2015” included zero consideration/discussion of the bill itself, but simply rubber-stamped the legislation after affording brief consideration of a few amendments.  All of the amendments that were submitted for the markup are listed below, along with a short summary of what each sought to do, and their fate.  Not all of the amendments were considered; however, those amendments that were not considered, along with those that failed, offer a useful glimpse into some of the thinking in the Senate about how to get even “tougher” on Iran (and make clear that at least for Senators like Cotton, R-AR, the explicit goal of any new sanctions it to kill diplomacy as quickly as possible).

Amendments submitted for the 1/27 Banking Committee markup of S. 269

– Amdt 1 (Shelby, R-AL) seeks to require an additional assessment report relating to economic sanctions relief for Iran.  This requirement is already included in S. 269, and was apparently added to the Committee version in order to make the text being marked up by the committee agree with the text introduced by Kirk and Menendez.  ADOPTED by voice vote.

– Amdt 2 (Vitter, R-LA) requires an additional assessment regarding nuclear proliferation. This assessment must start with a statement on the “consistency of the text of the agreement with the requirements of this Act” – a strange requirement, since the underlying bill does not lay out requirements for the text, other than in the non-binding Sense of Congress (i.e., these are not “requirements” of the Act).  The rest of the Act is about reporting/assessment/verification requirements and sanctions that will be imposed if those requirements aren’t met.  It is not clear how Vitter expect an agreement with Iran to be “consistent” with those requirements.   ADOPTED by voice vote.

– Amdt 3 (Vitter, R-LA) appears to be a green light for the use of force by Israel against Iran.  The underlying messages appears to be: fine, maybe we can’t prevent the Obama Administration and P5+1 partners from negotiating with Iran, and maybe we can’t prevent a deal, but we can give a green light for a foreign country to launch military action that would make negotiations and/or a deal moot.  And, for those who have short memories, please note that Congress already came down firmly on this issue – supporting Israel if it attacks Iran, in 2013, with the passage of S Res 65.  Making this amendment gratuitous and redundant. ADOPTED by voice vote.

(Vitter press release touting his two amendments is here).

– Amdt 4 (Vitter, R-LA) is an effort to water down the Presidential waiver authority added to this bill in Sec. 208.  As the bill is currently written, all waived sanctions snap back on July 6 and new sanctions start to kick in on that day if the requirements of the bill are not met.  Sec. 208 allows the President to waive all of this for successive 30 day periods. Vitter wants to limit this waiver such that the President can prevent new sanctions from kicking in and can prevent all previously-waived sanctions from snapping back, but with this amendment (which is a “notwithstanding” provision), some of those waived sanctions would still snap back regardless, at a rate of 30% per month.  So if talks extended more than 90 days, they’d snap back completely.  In short, this is an effort to make sure that talks are not extended and if they are, that in advance their failure is guaranteed.  Not considered.

– Amdt 5 (Vitter, R-LA) looks like a backdoor amendment to impose a new kind of sanctions on Iran, targeting international organizations (similar to what Congress already does with the Palestinians and UN agencies). In doing so, this would create another “cutting off our nose to spite our face” law –undermining international organizations whose operations are important (even vital) to U.S. interests and weakening U.S. leverage in those organizations, in order to “punish” those organizations dealing with Iran.  This approach vis-à-vis the Palestinians is already threatening the foundations of the UN system; adopting this approach vis-à-vis Iran would appear to involve an even graver threat, given that Iran is a sovereign nation and member of the UN and international agencies because they understand what a mess it would make.  Not considered.

– Amdt 6 (Toomey, R-PA) is basically seeking to legislate red lines for negotiations (complete dismantlement of Iran’s nuclear program, zero enrichment, etc.) that everyone agrees are a deal-killer.  No ifs, ands, or buts. OFFERED (and defended by Toomey) and then withdrawn by Toomey.

– Amdt 7 (Toomey, R-PA) is basically seeking to give Congress formal veto authority over any agreement. Not considered.

– Amdt 8 (Toomey, R-PA) is a watered-down version of Amdt 7, making it more of a sense of Congress that Congress should get veto authority, rather than that it shall have veto authority.  ADOPTED by a vote of 14-8.   Toomey press release on his amendment is here.

– Amdt 9 (Cotton, R-AR) seeks to eliminate Sec 208, the 30-day waiver authority added (belatedly) to the bill by its authors. Basically this amendment is saying that if a deal is not signed, sealed, and delivered by the beginning of July it’s all over – even if the sides just need a few more hours or days to avoid war. Not considered.

– Amdt 10 (Cotton, R-AR) seeks to drastically water down Sec. 208 so that at most the President could have 30 days after the JPOA expires to keep negotiating.  After that, he would have zero authority to waive the snap-back of previously-waived sanctions or the imposition of new sanctions, as laid out in this bill.  Basically this amendment is saying that if a deal is not signed, sealed, and delivered by the beginning of August it’s all over – even if the sides just need a few more hours or days to avoid war. REJECTED by a vote of 10-12.

– Amdt 11 (Cotton, R-AR) seeks to impose all the new sanctions laid out in the bill, including the snap back of previously-waived sanctions, on the day this Act becomes law.  It thus removes even the pretense that these are “triggered” sanctions, in effect removing the “trigger.”  Not considered.

– Amdt 12 (Cotton, R-AR) seeks to change the bill from one that would impose escalating sanctions over a period of months (assuming sanctions are triggered under the bill) to a bill that would impose all the sanctions in one fell swoop once the trigger is tripped.  It thus eliminates even the pretense of imposing gradual pressure (in the event that talks fail) in order to convince Iran to play ball.  REJECTED by a vote of 10-12.

– Amdt 13 (Cotton, R-AR) appears to be laying the groundwork for compelling the Administration to continue to classify Iran as a country that supports international terrorism – a designation involves mandatory sanctions – until new conditions are met, including requiring certification that “there has been a fundamental change in the leadership and policies of the government of the country concerned” – language that seems to be code for regime change. Not considered.