President Obama has succeeded in gaining approval for the deal with Iran concerning its nuclear program. The following points about how this came about and its consequences are important to keep in mind.
First, the passage of the deal was made possible by circumventing standard constitutional procedures that apply to agreements of this nature. By labeling it an agreement, Obama cleverly avoided the standard—more stringent–constitutional requirement for ratification of treaties, namely a two-thirds majority vote in the Senate. Since his victory has been gained by a minority, there is and will be a deficit of democratic and constitutional legitimacy attached to the deal. As everyone in Washington dealing with foreign affairs agrees, the Joint Comprehensive Plan of Action between the P5 +1 and Iran is one of, if not the most, important foreign policy decisions of Obama’s presidency. There is also broad agreement in Washington that the JCPOA is the most important nuclear-related agreement that the United States has negotiated since President Reagan and Soviet President Gorbachev agreed on the Intermediate Range Nuclear Forces (INF) Treaty of 1987. In that instance and in the other major nuclear agreements of the Cold War (Strategic Arms Limitation or SALT I and SALT II), the procedure for approval followed the requirements of the United States Constitution. This one falls far short of that gold standard.
A great irony of the Obama administration’s political victory is that the President, himself a former professor of constitutional law, managed to circumvent this long-standing constitutional requirement. Rather than require a two-thirds majority in the Senate, the Administration turned established procedure on its head. Instead of the White House being compelled to win 67 votes in the Senate, the burden to win that super majority now fell on those who opposed the deal or sought to see it renegotiated. It was a very tall order to expect that enough Democratic Senators were going to endure the wrath of the president and most of the most active members of the Democratic Party by voting against the deal. Its supporters now crow about what the Washington Post’s David Ignatius calls “the most determined, strategic success of his [Obama’s] Presidency.” https://www.washingtonpost.com/opinions/the-obama-bet-that-paid-off/2015/09/15/e46b80f6-5be6-11e5-8e9e-dce8a2a2a679_story.html It seems odd to crow about a success that was opposed by 60 percent of the elected representatives in Congress, including 29 Democrats, two of whom (Robert Menendez and Benjamin Cardin) were ranking members of the Senate Foreign Relations Committee.
Second, the “success” of this deal was also made possible by political cowardice. There is no better term to refer to those Democratic Senators who publicly expressed reservations about the deal but then voted in favor of supporting a filibuster to prevent a vote on the deal. Had the vote taken place, and a majority of Senators opposed the deal, the President would have had to use a veto to overcome it. Given the serious nature of the reservations that were expressed by these Senators, it was incumbent on them to make it possible to have full and open debate as well as a recorded vote on the deal itself. The use of the filibuster added to the paucity of democratic legitimacy and accountability that now attaches to the JCPOA.
Third, throughout the debate over the Iran deal that took place in the Senate and more broadly across the country and via the media during the August Congressional recess, it has been striking to observe that supporters of the deal refused to respond directly to the very telling criticisms made by its critics. The Senate debate itself was certainly Senator Menendez’s finest hour, as becomes evident by reading and watching his speech on the Senate floor in opposition to the agreement. http://www.menendez.senate.gov/news-and-events/press/menendez-on-disapproval-resolution-of-iran-nuclear-agreement. Not one of the other Senators who rose in defense of the agreement responded to the detailed and carefully argued points that he raised about the loopholes in the inspection system and the barriers the deal was likely to create to enforcement in the event of Iranian violations.
Fourth, several Democratic Senators offered a bizarre reason to support the agreement, namely that the other members of the P5 +1—Britain, France, Germany, Russia and China—said they would refuse to return to the negotiating table to seek a better deal. Now it is understandable that the diplomats of these countries would make that claim. With the occasional exception of Britain, Iran has not named them as candidates for extinction while they all see major economic opportunities in ending sanctions on Iran. Only the United States and our ally Israel have faced repeated and continuing scenes of mobs calling for our “death.” Yet as Menendez and others have plausibly argued, it is perfectly conceivable that if the United States insisted on renegotiation, they–at least our allies–would be under enormous American pressure to go along. Moreover, and even more importantly, those Democratic Senators whose vote was influenced by what these other countries said were making an astonishing admission, namely that for them the national security policy of the United States would be determined by the policies of Russia, China, Britain, France and Germany. Especially in view of the suggestion that those of us who opposed the deal were placing Israel’s interests ahead of those of the United States, this effort to give determining weight to the views of the other P5+1 partners leaves a bitter taste.
Fifth, I beg forgiveness for being a broken record, but yet again, for this historian, the Iran debate was a depressing example of how reluctant supposedly expert and experienced politicians are to actually read the text of the agreement in question. In the face of clear references in the text regarding delays of not just 24 days but up to an additional 50 days, and plans that are bound to create vested economic and diplomatic interests that will militate against enforcement, supporters continued to confidently assert that the deal would prevent an Iranian bomb for fifteen years. The deal’s supporters simply overlooked those parts of the text, which I examined in previous blogs and they also ignored those of us in and out of politics who tried to bring them to their attention. The deal’s supporters may overlook the inconvenient parts of the text that makes its enforcement unlikely but one can be sure the Iranian government will not overlook them at all. As Michael Gerson has pointed out in The Washington Post, Iran’s actions since the deal has been approved belie the hopeful chorus coming from the White House. https://www.washingtonpost.com/opinions/a-deal-deal-at-any-cost/2015/09/14/ba749c00-5b01-11e5-8e9e-dce8a2a2a679_story.html
Sixth, and last, because every argument that could be brought against this deal has been publicly expressed, if not heard or addressed, those who support it have no excuses in the future to be surprised by anything that Iran does, including their now likely efforts to get the bomb far sooner than in fifteen years. As I wrote in July in this blog, the deal as written works to deter the United States from taking steps that will enforce the agreement if such action is needed. If and when the enforcement machinery becomes bogged down first in the P5 +1 machinery, then perhaps at the United Nations, and the United States finds itself alone in seeking to “snap back” economic sanctions or even considering a military strike, the supporters will have no grounds for expressing frustration and surprise.
The supporters of the deal said that the critics’ fears were misplaced and that we offered no alternative other than war. In so doing, they ignored the compelling arguments that Menendez summarized regarding the ability of the United States to stiffen economic sanctions and try to gain a better deal. We critics are not infallible. There is always that unlikely chance that the optimists now basking in their victory will be proven correct. Yet in the months and years to come, should our criticisms and warnings prove to have been right, those of us who opposed this deal and who sought its renegotiation will not hesitate to remind supporters of the JCPOA of the criticisms they ignored or dismissed, the alternatives they found implausible and the democratic and constitutional deficit that accompanied its approval.