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Senators Should Let Negotiators Negotiate

Senators Charles Schumer, D-N.Y., and Robert Menendez, D-N.J. (Photo:

Senators Charles Schumer, D-N.Y., and Robert Menendez, D-N.J. (Photo:

As regular readers know, the United States and five other countries (P5+1) concluded an interim nuclear agreement (the Joint Plan of Action) with Iran, setting the conditions that will hold during negotiations on a final agreement concerning the Iranian nuclear program and the international economic sanctions imposed on that country and also outlining some aspects of the final agreement. A bipartisan group of senators, however, has come to the conclusion that Congress must weigh in on this issue, by adding further sanctions or at least the threat of further sanctions, before the negotiations proceed, even though the United States, in the interim agreement, pledged not to impose “new nuclear-related sanctions” during the initial six-month period of talks. The effort is embodied in the proposed Nuclear Weapon Free Iran Act of 2013. The White House has been vocal in its opposition to this congressional interference in the negotiating process, even suggesting that the failure of negotiations could ultimately lead to war. At the same time, to show Congress that it was not getting soft on Iran, the administration has expanded the list of companies and individuals to be targeted for violating existing sanctions.

The move for more sanctions has been led by two Democrats, Robert Menendez of New Jersey, who chairs the Foreign Relations Committee, and Charles Schumer of New York. In response to White House objections, Schumer has said, “Many of us believe that ratcheting up sanctions, not reducing sanctions, is the best way to produce peace and get Iran to forego a nuclear weapon.” Menendez has argued that the White House and the State Department objected to earlier rounds of congressionally imposed sanctions, but those sanctions did not prevent the present round of negotiations and may even have helped. That argument is not devoid of logic; nevertheless, if you accidentally shoot yourself once and survive the experience, does that really mean you are free to shoot yourself endlessly without worry of negative repercussions?

Not everyone in the Senate favors the imposition of additional sanctions. The Banking Committee considered a similar bill but set it aside so as not to undermine negotiations in progress. Ten Senate committee chairs, in an unusual rebuke to the Foreign Relations chair, addressed a letter to Majority Leader Harry Reid openly opposing the sanctions bill.

The bill is not without some safeguards. It states that new sanctions will be imposed only if Iran violates the current interim agreement or fails to come to a final agreement at the end of six months, with some flexibility for an additional six-month delay. (The Joint Plan of Action makes the initial six-month period renewable by mutual consent). Still, it seems an unnecessary provocation that could easily be used by Iranian hard-liners to undermine the talks from their side. It is not at all unusual for hard-liners on both sides of a negotiation to form a sort of de facto transnational alliance to scuttle an agreement. In a further unnecessary provocation, the act declares the sense of Congress that the use of force against Iran should be authorized if Israel is “compelled” to attack Iran (not, mind you, if Iran attacks anyone). It also declares the sense of Congress that sanctions should be tied to the issues of terrorism, human rights abuses, and support for the Assad regime in Syria. Whatever one thinks of those causes, introducing them as additional reasons for sanctions would seem to contradict the intent of the present negotiations. Are sanctions to continue even if Iran agrees to forego nuclear weapons? Why, then, would Iran agree?

In addition to believing that sanctions will increase pressure on Iran to negotiate, backers of the initiative fear that Iran will prolong the negotiations and use them to escape the existing restrictions if it does not face strict time limits with automatic triggers. On the other hand, senators ought to be aware that the existing restrictions work only because they have the backing of the world’s major powers. This was not easily achieved, and it has made the Iranian sanctions far more effective than, say, the unilateral U.S. sanctions against Cuba, which Cuba has been able to evade for half a century. The continuation of the global consensus on Iranian sanctions is not guaranteed, however. In particular, if the exiting sanctions regime is seen as succeeding, as intended, in getting Iran to negotiate on the nuclear issue and the United States is then seen as refusing to negotiate or as intentionally undermining those negotiations and causing them to fail, then we might expect to see the consensus unravel in rapid order. Rather than reinforcing pressure on Iran, the new sanctions could ultimately bring relief and sympathy to that country as other powers conclude that the United States is not serious about finding a peaceful solution to the Iranian nuclear issue.

Finally, the bill also sets out objectives to be achieved by a final agreement that contradict the outline included in the interim agreement. The Joint Plan of Action, for instance, foresees a “mutually defined enrichment programme” with limits on what Iran can produce and strict international monitoring. Under the Nuclear Weapon Free Iran Act, on the other hand, the president must certify that a final agreement will “dismantle Iran’s illicit nuclear infrastructure, including enrichment and reprocessing capabilities and facilities, . . .”

Negotiations are almost always a “two-level game,” with an administration negotiating an acceptable agreement with key political players at home at the same time that it negotiates with on the same agreement with a foreign government (which, in turn, is negotiating with key political players in its own home). Saying that they recognize this reality, backers of new sanctions argue that passing a sanctions law that includes automatic triggers and mandatory treaty provisions will strengthen the president’s hand by showing the Iranians how little freedom he has to make concessions.

The problem is that while the senators may allude to clever negotiating practices and the two-level game, they do not, in fact, recognize the reality. Both sides have provisions that they believe must be included in the treaty, both have political realities back home, and both have “red lines” beyond which they will not be able to make concessions. Both sides are likely to begin negotiations by exaggerating their requirements in an effort to discover just how good a deal they can get. It is only in the process of negotiating that each will gradually develop an idea of what a feasible agreement could look like, or they may discover that they have no overlapping interests and no agreement is feasible. But for Congress to give its maximum demands the force of law in advance of negotiations and then present them as a fait accompli runs a very grave risk of violating the other side’s red lines from the very start and of quickly convincing the other side that negotiating is pointless.

It is true, of course, that the Constitution grants the Senate (although not the whole Congress) the right of “advice and consent” with regard to treaties. It is also likely that at the time of the Constitutional Convention the Founders had prior advice in mind. George Washington attempted to solicit the Senate’s prior advice on a treaty exactly once; neither he nor any of his successors ever tried to repeat the experience. If we are to have a hope of success in the real world, the Senate will just have to trust the administration to do its best to probe the depths of Iranian diplomacy and forge a workable deal, with the understanding that the Senate has the final say on ratification.

That said, the administration cannot completely disregard Congress’s wishes. A number of senators have clearly staked out strong positions on the issue, and the Senate has the right to withhold its consent from the final product. The House, while not involved in the treaty ratification process, would have to agree to the dismantling of sanctions required to implement a treaty. That is a sobering thought. Still, no treaty can be ratified or implemented if it is not negotiated first. A new sanctions law now makes a successful negotiation less likely. If negotiations are conducted and Iran refuses to come to agreement, there will be plenty of time to pass new sanctions afterward. There is no point in ruining an opportunity for diplomacy before we have even started.



Scott Monje

Scott C. Monje, Ph.D., is senior editor of the Encyclopedia Americana (Grolier Online) and author of The Central Intelligence Agency: A Documentary History. He has taught classes on international, comparative, and U.S. politics at Rutgers University, New York University (SCPS), and Purchase College, SUNY.