On October 13, 2017, President Trump announced that he would not recertify Iran's compliance with the Joint Comprehensive Plan of Action (JCPOA). This paved the way for Congress to reimpose sanctions on Iran for its nuclear program through an expedited legislative process, but congressional leaders have declined to do so.
In a televised address, Trump remarked:
Today, I am announcing our strategy, along with several major steps we are taking to confront the Iranian regime's hostile actions and to ensure that Iran never, and I mean never, acquires a nuclear weapon.
Our policy is based on a clear-eyed assessment of the Iranian dictatorship, its sponsorship of terrorism, and its continuing aggression in the Middle East and all around the world. …
When the [JCPOA] was finalized in 2015, Congress passed the Iran Nuclear Agreement Review Act to ensure that Congress's voice would be heard on the deal. Among other conditions, this law requires the President, or his designee, to certify that the suspension of sanctions under the deal is “appropriate and proportionate” to measure—and other measures taken by Iran to terminate its illicit nuclear program. Based on the factual record I have put forward, I am announcing today that we cannot and will not make this certification.
We will not continue down a path whose predictable conclusion is more violence, more terror, and the very real threat of Iran's nuclear breakout.Footnote 1
The five permanent members of the UN Security Council, Germany, the European Union, and Iran concluded the JCPOA on July 14, 2015.Footnote 2 Under that agreement, in return for the lifting of various sanctions imposed on it, Iran agreed to never seek, develop, or acquire nuclear weapons and to be subject to an inspection scheme for many years.Footnote 3 Two months before the JCPOA was concluded, Congress passed the Iran Nuclear Agreement Review Act of 2015 to ensure that it had “the opportunity to review any agreement and, as necessary, take action to modify the statutory sanctions regime imposed by Congress.”Footnote 4 Under that Act, the president must determine every ninety days whether he can certify that:
-
(i) Iran is transparently, verifiably, and fully implementing the agreement, including all related technical or additional agreements;
-
(ii) Iran has not committed a material breach with respect to the agreement or, if Iran has committed a material breach, Iran has cured the material breach;
-
(iii) Iran has not taken any action, including covert activities, that could significantly advance its nuclear weapons program; and
-
(iv) suspension of sanctions related to Iran pursuant to the agreement is—
-
(I) appropriate and proportionate to the specific and verifiable measures taken by Iran with respect to terminating its illicit nuclear program; and
-
(II) vital to the national security interests of the United States.Footnote 5
-
If the president is unable to certify these conditions, the majority or minority leader of either the U.S. House of Representatives or the U.S. Senate may—but is not required to—introduceFootnote 6 “qualifying legislation” within sixty days of that determination or event:
-
(A) the title of which is as follows: “A bill reinstating statutory sanctions imposed with respect to Iran”; and
-
(B) the matter after the enacting clause of which is: “Any statutory sanctions imposed with respect to Iran pursuant to __________ that were waived, suspended, reduced, or otherwise relieved pursuant to an agreement submitted pursuant to section 135(a) of the Atomic Energy Act of 1954 are hereby reinstated and any action by the United States Government to facilitate the release of funds or assets to Iran pursuant to such agreement, or provide any further waiver, suspension, reduction, or other relief pursuant to such agreement is hereby prohibited,” with the blank space being filled in with the law or laws under which sanctions are to be reinstated.Footnote 7
The Act provides that such qualifying legislation will receive “expedited consideration” and sets forth strict timelines for consideration and debate on the proposed legislation in both the House and the Senate. For example, if the relevant House committees or the Senate Committee on Foreign Relations do not report the legislation within ten session days of the referral, it must be discharged for further consideration by the full House and Senate.Footnote 8 During consideration on the floor, debate is limited to two hours in the House and ten hours in the Senate.Footnote 9 In the Senate, opponents cannot make use of the filibuster.Footnote 10
In refusing to provide the certification required under the Iran Nuclear Agreement Review Act, Trump did not explicitly determine that Iran had failed to implement the JCPOA or otherwise materially breached the agreement. Two months prior to Trump's refusal to recertify, the International Atomic Energy Agency (IAEA) verified Iran's compliance with the JCPOA for the eighth time,Footnote 11 and did so again for a ninth time on November 13, 2017.Footnote 12 Additionally, in his fourth report on the implementation of UN Security Council Resolution 2231, the UN secretary-general acknowledged the IAEA's reports of Iran's compliance with its nuclear-related commitments and stated that “I continue to believe that the [JCPOA] is the best way to ensure the exclusively peaceful nature of the [Iranian] nuclear programme.”Footnote 13 Trump himself also had certified—although with reluctance—Iran's compliance in both April and July of 2017.Footnote 14
In his October 2017 statement, the president declined to certify on the grounds that the continued suspension of sanctions against Iran was not “[a]ppropriate and proportionate” to other measures taken by Iran to halt its nuclear program. This decision was allegedly the result of a protracted debate within the administration in which Secretary of State Rex Tillerson and Defense Secretary James Mattis persuaded Trump not to immediately terminate U.S. participation in the JCPOA.Footnote 15 Rather than taking this more dramatic step and exercising his own authority to reimpose sanctions, Trump chose to take the more limited step of non-certification, an action which, in and of itself, does not constitute a violation of the deal.
In explaining the decision not to recertify, the president claimed that Iran had violated various provisions of the JCPOA, stating that “on two separate occasions, they have exceeded the limit of 130 metric tons of heavy water” and that “[u]ntil recently, the Iranian regime has also failed to meet our expectations in its operation of advanced centrifuges.”Footnote 16 He also accused Iran of intimidating international nuclear inspectors and refusing access to military sites.Footnote 17
The president's speech also reflected a structural difference in approach taken by the Trump administration and the Obama administration. As former Secretary of State John Kerry has explained, the Obama administration sought to separate efforts to dismantle Iran's nuclear program from its progress in halting support for terrorism and other illicit activities:
Some ask why our agreement didn't stop Iran's destabilizing behavior, including its support of Hezbollah and the brutal Assad regime in Syria. It's a good question with good answers: We were not going to bargain away certainty on the nuclear issue for anything else; as France said, there would be no “quid pro quo.” We had deep disagreements with Iran and zero trust, hadn't negotiated with them since 1979, and were on a collision course toward military action as the countdown clock on break-out ticked down.
The world was united on one issue alone—Iran's nuclear capability. We could not have achieved unity or held the sanctions regime together if we added other issues. But we believed it would be easier to deal with other differences with Tehran if we weren't simultaneously confronting a nuclear regime.Footnote 18
By contrast, Trump's speech placed the nuclear deal within the broader framework of tensions between the United States and Iran. Calling Iran “the world's leading state sponsor of terrorism,”Footnote 19 Trump began his speech by recounting a spate of terrorist attacks and incidents perpetrated or facilitated by Iran beginning with the 1979 seizure of the U.S. embassy in Tehran. He also condemned Iran for its role in “fuel[ing] sectarian violence in Iraq, and vicious civil wars in Yemen and Syria.”Footnote 20 “Given the regime's murderous past and present,” he said, “we should not take lightly its sinister vision for the future.” Iran's actions, Trump continued, showed that it “is not living up to the spirit of the deal.”Footnote 21 In his speech, he also revealed that he had authorized the U.S. Treasury Department to impose sanctions on Iran's Islamic Revolutionary Guard Corps for its support for terrorism.Footnote 22 These sanctions do not violate the JCPOA, which only applies to certain kind of sanctions.Footnote 23
In a statement that same day, the Russian Foreign Ministry described the president's decision not to recertify as “an element of internal political discussions within the framework of US national legislation,” adding that “[w]e hope that this move will have no direct impact on the implementation of the agreement, though it is clearly at odds with the spirit and letter of the JCPOA.”Footnote 24 British Prime Minister Theresa May, German Chancellor Angela Merkel, and French President Emmanuel Macron also issued a joint statement acknowledging the president's decision not to recertify but reaffirming their commitment to the JCPOA and its full implementation. Their statement reads, in part:
[W]e encourage the US Administration and Congress to consider the implications to the security of the US and its allies before taking any steps that might undermine the JCPoA, such as re-imposing sanctions on Iran lifted under the agreement.
At the same time as we work to preserve the JCPoA, we share concerns about Iran's ballistic missile programme and regional activities that also affect our European security interests. … Our governments are committed to ensuring the JCPoA is maintained. Independent of the JCPoA, we need to make sure that our collective wider concerns are being addressed.Footnote 25
Iranian President Hassan Rouhani described President Trump's speech as “incorrect rhetoric, baseless allegations, and bad-mouthing.”Footnote 26 He stated:
This is an international, multilateral deal that has been ratified by the UN Security Council. … This [JCPOA] is not a document between Iran and the United States that [President Trump] can treat the way he likes. Respect and ethics are also important. …
With regard to the JCPOA, we see this [as] an international deal, a multilateral deal. As long as our rights are served, as long as our interests are secured, if we continue to benefit from this deal within the framework of our national interest, we will continue to stick to the deal; we will continue to cooperate with the IAEA within the framework of international law. … However, if one day our interests are not met or other sides refuse to abide by their commitments, they should know, Iran will not hesitate; we'll give them a fitting response.Footnote 27
In the sixty days that followed Trump's decision not to recertify the Iran deal, neither the majority nor the minority leaders of the Senate and the House introduced the expedited legislation contemplated in the Iran Nuclear Agreement Review Act. The window for this expedited legislation has thus closed. Assuming that the president's obligation to make certifications every ninety days continues even after a decision not to certify, the sixty-day window for expedited legislation again will be available should Trump decline to make the certification in January 2018.Footnote 28
Trump's decision not to recertify does not itself place the United States in violation of the JCPOA. But the president or Congress could take other steps that would have this effect. The president could reimpose nuclear-related sanctions, or Congress could legislate to the same effect through ordinary legislation (or through expedited legislation if a subsequent window for doing so pursuant to the Iran Nuclear Agreement Review Act becomes available). In his October 13 address, Trump indicated that members of Congress are considering legislation to amend the Act to strengthen its enforcement mechanisms and permanently prohibit Iran from developing its nuclear program.Footnote 29
Although the United States thus continues to accept the JCPOA, Trump made clear in his speech that this may change. He described “insufficient enforcement and near total silence on Iran's missile programs” as “flaws in the deal.”Footnote 30 He then stated that “in the event we are not able to reach a solution working with Congress and our allies, then the agreement will be terminated. It is under continuous review, and our participation can be cancelled by me, as President, at any time.”Footnote 31
