by Tyler Cullis
Congress is in an apparent race with the Trump administration to see who can pose the greater threat to the sustainability of the Joint Comprehensive Plan of Action (JCPOA)–the nuclear accord between the United States, other major world powers, and Iran.
Last week, Congress introduced separate House and Senate bills that would impose new sanctions on Iran. The most imminent danger to the JCPOA is the Senate bill–the Countering Iran’s Destabilizing Activities Act of 2017 (S.722), co-sponsored by Sens. Bob Corker (R-TN) and Robert Menendez (D-NJ). The proposed Senate legislation would risk upending the U.S.’s obligations under the JCPOA and undoing the long-term restrictions the JCPOA imposed on Iran’s nuclear program, all the while setting the stage for renewed conflict between the two countries.
Several provisions of the Senate bill are troubling. Contrary to the bill’s sponsors, the proposed legislation is not consistent with the JCPOA – containing provisions that would place the U.S. in clear violation of its JCPOA commitments. Just as troubling, the bill would mandate the President to utilize existing sanctions authorities targeting Iran with greater force, all the while providing new sanctions authorities to the President to target the Islamic Republic – an effective green light to the hardline aspirations of the Trump administration. Finally, the bill would take the unprecedented step of designating the Islamic Revolutionary Guard Corps (IRGC) – a branch of Iran’s armed forces – a terrorist group. Absent significant revisions to the bill, the Senate legislation will not only undermine the fundamentals of the nuclear accord, perhaps fatally. It could also quickly engulf the United States in a military conflict with Iran.
Challenge to the JCPOA
On Transition Day, which is either 8 years from Adoption Day or upon a finding from the IAEA that Iran’s nuclear program is being used for exclusively peaceful purposes, whichever is earlier, the United States is required to remove certain Iranian parties from its sanctions lists. Most, if not all, of these entities were designated for involvement in Iran’s nuclear program, but some were also involved in Iran’s ballistic missile program. To the extent that their designation was related to ballistic missiles, this bill would prohibit the President from de-listing those parties on Transition Day, unless the President can provide certification that they have not engaged in activities for which they have been designated in the three-month period preceding their de-listing. If the President cannot provide such certification, then the President would be prohibited from de-listing those parties, placing the U.S. in clear violation of its JCPOA obligations.
Most troubling, this provision–if enacted–will likely provoke an Iranian response. Iran has been careful to reciprocate each U.S. action with its own reaction (see e.g., Iran’s imposition of sanctions on U.S. companies following the U.S. Treasury’s recent announcement of new sanctions designations.) In this case, any reciprocal measure will likely involve Iran’s promised reneging of its own JCPOA commitments. In doing so, both the U.S. and Iran risk undermining the confidence that has so far sustained the JCPOA and prevented either side from terminating the agreement.
Green Light to Trump?
The bill would also mandate the President to impose sanctions on activities related to Iran’s ballistic missile program in a manner that could lead to the re-imposition of sanctions lifted under the JCPOA. Section 4 of the bill requires the President to impose blocking sanctions on persons that engage in activities that have materially contributed or pose a risk of materially contributing to the activities of the Government of Iran with respect to its ballistic missile program, as well as persons who knowingly provide financial, material, technological, or other support for, or goods or services in support of, a person so sanctioned. For example, this provision would mandate the President to impose sanctions on Iranian banks that provide financial services – including, as a benign example, payment of employee salaries at designated Iranian government entities – in ways that would violate the JCPOA. Under the JCPOA, the United States is prohibited from re-introducing or re-imposing the sanctions lifted under the nuclear accord, including the de-listings of certain Iranian entities (e.g., most of Iran’s financial institutions). In mandating the President to broadly impose sanctions on Iranian parties even tangentially related to Iran’s ballistic missile program, this bill risks placing Washington in violation of its JCPOA commitments.
Perhaps more importantly, this provision would also effectively provide a green light to the Trump administration to take a much harder line against Iran for its non-nuclear activities. Some in Congress might think that is a good thing, but the context is everything. First, this puts the JCPOA itself at risk, as the U.S. has certain affirmative obligations under the nuclear accord to prevent interference with Iran’s realizing the full benefits of the sanctions-lifting and refrain from adopting policies or taking actions intended to make the normalization of trade and economic relations between Iran and the rest of the world more difficult. Imposing broad new sanctions on Iran would clearly contradict these basic principles of the agreement. Second, it was not more than a few months ago when the Trump administration put Iran “on notice,” a forewarning of the ambitions of some in the administration to set the stage for a possible military showdown between the two countries. In urging the President to more broadly sanction Iran, Congress risks empowering these more extreme hardline elements in the White House. So far, President Trump has mimicked the prior administration in his use of the sanctions tool; bipartisan support for cracking down on Iran via this legislation could quickly turn the tide and give his administration the confidence to pursue a more aggressive stance toward Iran that could well trigger a military conflict.
Designating IRGC a Terrorist Group
The bill would also designate the IRGC a terrorist group. The bill’s proponents have been willfully obtuse as to the effect of this particular provision (§ 8 of the bill), but it is nonetheless true.
Specifically, the bill would require the President to impose the sanctions identified in Executive Order 13224 on the IRGC and its officials, agents, and affiliates. EO 13224 is the foundational order to the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, and persons designated pursuant to the Order are routinely known as Specially Designated Global Terrorists (SDGTs). Organizational SDGTs are U.S.-designated “terrorist groups.” The bill’s proponents have variously argued that (1) Congress is not mandating the President to designate the IRGC an SDGT, but instead only to impose the sanctions outlined in EO 13224 to the IRGC; or (2) that the SDGT designation cleverly avoids designating the IRGC a Foreign Terrorist Organization (FTO). This is, at the same time, deliberately misleading and beside the point. First, in order to implement this provision, the President will designate the IRGC pursuant to EO 13224 – i.e., as an SDGT. Congress will not be able to wash its hands of this command; it has directed the President. Second, whether to designate the IRGC an FTO or an SDGT is beside the point: considering current sanctions on the IRGC, there are few actual sanctions consequences as a result of either designation. The concerns with designating the IRGC a terrorist group are “extra-legal.”
What are those concerns? Designating the IRGC a terrorist group has zero sanctions consequences, but important real-life ramifications. Currently, the IRGC is designated under no less than three separate U.S. sanctions programs and is subject to robust secondary sanctions. Designating the IRGC an SDGT will thus only duplicate existing sanctions, adding nothing. However, as the U.S. defense establishment has long warned, there could be important consequences to labeling the IRGC a terrorist group, including, but not limited to, possible retaliation against U.S. troops on the ground in Iraq, who are vulnerable to Iran-backed militias. If such a scenario came to pass, the potential for open hostilities between the U.S. and Iran would have been effectively triggered by the (legally inconsequential) designation of the IRGC as a terrorist group.
Passage of the Senate bill would thus render the U.S. non-compliant with its JCPOA obligations, while also providing an effective stamp of approval to President Trump to utilize his sanctions authorities to target Iran in ways that could fatally undermine the JCPOA and pave the path towards war. Important revisions will need to be made in the weeks ahead if Congress intends to avoid responsibility for unraveling the Iran nuclear accord.