How Congress Can Nix Biden’s Iran Deal

As President Joe Biden’s envoy Robert Malley seeks to resurrect a weaker version of Barack Obama’s nuclear deal through negotiations with Iran, American officials readily admit that they will be unable to guarantee the survival of any agreement they reach once Biden leaves office. As a result, Iranian officials from Supreme Leader Ali Khamenei on down are demanding “inherent guarantees” from the United States to ensure the latest version of the Iran deal doesn’t go the way of Obama’s version, which was junked by Donald Trump in 2018.

While U.S. government officials I have spoken to provided differing details of the “inherent guarantees” Iran is seeking, it appears they would be triggered if the United States reimposes sanctions. On the nuclear side, a semi-official Iranian government site reported that one such guarantee would allow Iran to rapidly reconstitute its ability to enrich nuclear material to the 60% purity level by keeping its advanced nuclear centrifuges inside the country. According to the same report, the highly enriched nuclear material Iran has generated in excess of the Joint Comprehensive Plan of Action (JCPOA)’s limits could also be kept inside the country instead of being shipped overseas. An alternate version of this guarantee would allow excess material to be held by Russia, which would return it to Iran in the event of certain American sanctions.

According to remarks made last month by Iranian Foreign Minister Hossein Amir-Abdollahian, the issue of guarantees on the economic side was one of two remaining issues in negotiations, alongside the Iranian demand for the removal of the Islamic Revolutionary Guard Corps (IRGC) from the U.S. list of Foreign Terrorist Organizations. Both Iran and Russia wanted guarantees from the United States that any economic contracts exempted from sanctions under the deal would remain immune under a subsequent administration.

Because the U.S. negotiators are unable to provide such a guarantee, the Iranians are said to be seeking some form of economic compensation to be held in trust by a third party that would be paid to Iran in the event that U.S. sanctions are reimposed. In other words, the United States would pay into a giant trust fund to protect the regime from future sanctions presumably triggered by Iran’s own malignant behavior. One U.S. government official close to the negotiations told me they doubted the demand would ever be accepted or could even be fashioned in the first place in any way that wouldn’t cause even more Democrats to jump ship and oppose the deal.

Yet the Iranian concern that the United States government may renege on its promise of sanctions relief is in fact well-placed. In 2015, the regime ignored the warning sent by Arkansas Sen. Tom Cotton and 46 of his fellow senators that Obama’s sanctions promises could prove fleeting. The regime suffered consequences from this error of judgment when Trump withdrew from the deal in 2018.

Now, Iranian officials seem to assume that any deal they reach would remain in place at least through the remainder of Biden’s term—yet that belief may also be mistaken. In recent conversations with a number of Senate and House offices, it became clear that Republicans in the legislative branch are ready to flex their institutional muscles to shatter any deal that is reached, and will work to bring the Iranian regime’s economy back under sanctions should Biden lift them. Much has been written about Congress’ potential use of the 2015 Iran Nuclear Agreement Review Act (INARA) to prevent any deal from lifting sanctions in the first place. Forcing a vote on the deal would show the Iranians just how deep congressional opposition goes, but the measure would be hard-pressed to overcome Biden’s veto.

While it would take a Republican in the White House again to officially cease participation in the new deal and fully return to a campaign of maximum economic and diplomatic pressure, it would only take Republican control of one chamber of Congress to dismantle a fledgling deal next year—which is precisely what top Republicans are planning to do. What follows is a look at the weak points in the new Iran deal’s construction, and how its opponents in Congress are planning to exploit them in order to destroy whatever agreement Malley and the Iranians have struck.

The pending deal is an extremely fragile patchwork containing several concessions from the United States unrelated to Iran’s nuclear program, which are meant to appease various gripes related to the Trump administration’s pressure campaign. While risk-compliance firms are already advising international businesses that Republicans have pledged to reimpose sanctions on Iran in 2025 if they retake the White House, companies and individuals should also know that members of Congress will force the issue even sooner by attaching amendments to must-pass legislation required to fund the government and reauthorize Department of Defense spending.

It is true that members of Congress routinely draft and release legislation on Iran—more than 50 bills have been introduced in this Congress alone—but some of these are toothless statements about the evils of the regime, or shabby efforts hampered by lazy legislative drafting. In these bills, however, lay the rhetorical and policy groundwork for the actual legislative process that largely goes unnoticed by the foreign policy press. There are only two legislative vehicles for national security that reliably survive the cutting room floor and make it to the president’s desk each year: the overall government funding bill and the National Defense Authorization Act (NDAA), which sets policy for the Pentagon but is often accompanied by national security policy riders. The real legislative fights over the Iran deal will start in the coming months as the Senate and House draft and debate the NDAA, and as more fine-tuned Iran measures are submitted as amendments to the bill.

I asked Rep. Jim Banks (R-Ind.), an influential Republican who serves as chair of the 157-member Republican Study Committee (RSC) and is courted by many prospective 2024 candidates, how Biden’s Iran deal would be litigated in the House. “When [Republicans] are in the majority,” he told me, “the 130 cosponsors of RSC’s Maximum Pressure Act will use any and all legislative opportunities, especially through the appropriations process and the NDAA, to reimpose maximum pressure sanctions on Iran.” According to one GOP House staffer, “Republicans will introduce several measures to reimpose Iran sanctions on the NDAA, and most of them will easily get bipartisan support.”

The final fate of those items would be determined by the conference procedure with the Senate. But a similar pledge was also made by Senate Republicans in a March 14th statement signed by every GOP member except Kentucky Sen. Rand Paul. That statement reads in part: “if the administration agrees to a deal that fails to achieve these objectives or makes achieving them more difficult, Republicans will do everything in our power to reverse it.” Letters signed by nearly the entire Republican caucus, including the minority leader, all national security committee leaders, and their possible successors, are extremely rare and should be taken seriously.

Sen. Ted Cruz (R-Texas) is likely to play a key role in this process, and recently led a letter co-signed by 32 Republican senators committing to blocking and reversing the deal’s implementation. For most of last year, Cruz blocked Biden’s nominees over the administration’s refusal to sanction the Russo-German Nord Stream 2 pipeline until Majority Leader Chuck Schumer agreed to hold a vote on sanctioning it. Vindicated in that fight on a grand scale by Vladimir Putin’s invasion of Ukraine, Cruz is perhaps even more animated by Iran oversight. He told me that the Biden administration “has been doing everything possible to hide details of their catastrophic new deal, including having nominees lie in writing to Congress about it,” a reference to Barbara Leaf, Biden’s nominee to serve as the State Department’s assistant secretary for near eastern affairs. Cruz warned that Biden’s officials “hid details because they’re going to lift terrorism sanctions, give Putin billion-dollar nuclear energy carveouts, and agree to a deal that’s even weaker than the last one, which soon expires.”

Cruz also hinted at the likely tone and targets for the next stage of Senate oversight: “Republicans have been exceedingly clear that if any of those happen, we will make Democrats vote on that craven appeasement until sanctions are reimposed and waivers are rescinded, including through must-pass legislation.”

Any new deal reached with Iran, in other words, would have the stability of a porcelain vase sitting on a one-legged table. Republicans are readying their slingshots, and if they manage to hit any of the following marks, the deal is likely to come crashing down.

Iran’s Terror Financiers

As concerned U.S. government officials warned me last month, the United States is preparing to lift sanctions on the key financiers of Iran’s international terrorism apparatus: the Central Bank of Iran (CBI), the National Iranian Oil Company (NIOC), and the National Iranian Tanker Company (NITC). Each are currently sanctioned by U.S. counterterrorism authorities for their support of the IRGC’s Quds Force. The Treasury Department’s sanctions against the CBI also cited its support for the IRGC itself and for Hezbollah. For Iranian negotiators, freeing these financial entities from U.S. sanctions is a top priority.

The CBI has provided billions of dollars to the IRGC and works closely with the Quds Force to provide it with foreign currency to finance terror operations and transfer funds to Hezbollah. CBI is also key to the regime’s efforts to repatriate and process foreign funds and transactions. As long as the CBI remains sanctioned, the regime would not be able to take full advantage of sanctions relief for international trade and finance. That’s why the CBI’s then-governor, Abdolnaser Hemmati, told Bloomberg last year that “the removal of sanctions against the central bank … and any money transfer between them and major foreign correspondent banks needs to be verified” as a condition for the deal.

NIOC is responsible for the exploration, production, refining, and export of oil and petroleum products in Iran. Before the reimposition of sanctions, oil revenue made up around 40% of the Iranian government’s budget. During the Trump administration’s maximum pressure campaign, more than a quarter of Iranian oil rigs were left inoperable because they couldn’t be repaired under the sanctions regime.

NITC, a subsidiary of NIOC, is responsible for the regime’s transportation of crude oil exports, and according to the Treasury Department, played a significant role in oil deals used to generate revenue for the Quds Force and Hezbollah and to prop up Bashar Assad’s regime in Syria.

A senior GOP House aide confirmed to me that all three entities would be the subject of aggressive legislative scrutiny under a Republican majority and that “many of the terror sanctions that Biden lifts today would be reimposed shortly.” A letter released in February by Rep. Mike Gallagher (R-Wis.) and signed by 165 House Republicans, including Leader Kevin McCarthy and Whip Steve Scalise, specifically pledged to “work tirelessly to reimpose and strengthen” any terrorism sanctions lifted, specifically those on the CBI and NIOC.

The Senate is also committed to ensuring that these terrorism sanctions remain in place. The March 14th statement signed by 49 Senate Republicans contains a carefully negotiated and specifically worded threat: “Unless Iran ceases its support for terrorism, we will oppose removing and seek to reimpose any terrorism-related sanctions. And we will force the Senate to vote on any Administration effort to do so.” When Senate Minority Leader Mitch McConnell signs his name on such a vow, it’s worth betting it will be fulfilled.

The Iranians should understand that while Biden may pledge to provide sanctions relief for the regime’s terror apparatus, the U.S. Congress is unlikely to let that relief stand. Going by current midterm polling, such concessions are likely to last no longer than next year before Congress forces Biden to renege on his commitments and reimpose sanctions.

The IRGC

Just as politically important for the regime as obtaining relief for its economic engines is ending sanctions against the IRGC. In part due to domestic rivalries, Iranian negotiators are hypersensitive about ensuring they can remove the regime’s chief terror arm from the U.S. list of Foreign Terrorist Organizations, and have made rescinding that designation another one of their red lines. Various reports on their progress in this regard have emerged in recent days: The Washington Post reported on April 8 that Biden had decided against removing the IRGC, while a Wall Street Journal reporter said on April 12 that no such decision had been made. If Biden does make the ill-advised decision to delist the IRGC, he will face a legislative backlash far stronger than the one he earned for delisting Yemen’s Iran-backed Houthi terror group in February.

Nearly every single Republican in Congress has now spoken out against the removal of the IRGC from sanctions lists, and various bills have been introduced that would block the removal. House Republicans drew their battle line with the Maximum Pressure Act, which holds that the terror designation can only be lifted when Iran meets 12 demands set out by then-Secretary of State Mike Pompeo in May 2018.

Several congressional Democrats have also spoken out vigorously and in public to oppose such a delisting, writing to Biden last month that they were “highly concerned” about reports of the designation being lifted. Congressional aides told me that far more Democratic members would oppose the delisting if it came to a vote. The optics of lifting sanctions on the IRGC in an election year while the group is actively trying to assassinate former U.S. officials on U.S. soil would be disastrous.

Legislation blocking the IRGC delisting or guaranteeing its reimplementation is expected to be offered and likely included in both House and Senate defense bills this year. If the removal of the IRGC sanction truly is a red line for the Iranians, they should walk away now. Any delisting, or a deal predicated on that concession, will be short-lived.

Putin’s $10 Billion Nuclear Deal

Integral to the JCPOA was the regime’s ability to develop nuclear reactors and enrich uranium; both supporters as well as detractors of the deal would agree that allowing Iran to proceed with a nuclear enrichment program was one of the fatal flaws of the deal. The regime has mainly sought to legitimize and advance its nuclear program by bringing in help from abroad—principally through its strong ties to Russia’s nuclear energy industry.

Iran needs this cooperation most at Bushehr. The sites of its Bushehr nuclear power reactors are located on dangerous earthquake fault lines, but that hasn’t stopped the regime from seeking to expand its nuclear program there. Russia agreed to help build the first reactor at the site in 2013 through Rosatom, its leading state nuclear energy company. In 2014, Russia agreed to build two additional reactors at Bushehr, with the possibility of constructing six more reactors in the country. The contract between Rosatom and Iran for the first two reactors was valued at $10 billion, but the Trump administration’s sanctions prevented much of the work from proceeding, and Russia from enjoying the financial windfall.

In February 2022, on the verge of Putin’s invasion of Ukraine, the State Department provided sanctions waivers for Russia and others to work with Iran’s civilian nuclear program. As part of the nuclear deal, the United States has also pledged to not sanction the Russian nuclear work in Iran, leaving the $10 billion contract with Rosatom immune from the possibility of sanction even though Rosatom was directly involved in the takeover of two major Ukrainian nuclear power plants, including Chernobyl. According to Iranian negotiators, this guarantee is another inviolable issue for Tehran. (As we’ve seen, there are several of these.)

Predictably, Biden’s concession does not sit well with congressional Republicans. After news of Biden’s free pass on Russia’s $10 billion contract broke in March, Cruz and 12 of his Senate colleagues introduced legislation that would terminate this waiver altogether and prevent the president from issuing any new ones. Cruz warned that “The Biden administration is so committed to their deal that they are willing to make Iran a nuclear client for Putin … Congress must put a stop to it.”

While 13 senators is not a sufficient number to pass legislation, the names are important—half are members of the committee responsible for writing the NDAA. Another prominent opponent of the nuclear waivers is Sen. Lindsey Graham (R-S.C.), who serves as the lead Republican on the powerful Appropriations subcommittee that funds (and therefore sets policy for) the State Department, which issued these waivers. According to multiple House aides, similar efforts are in development for the House’s legislative markup of the NDAA to reverse Secretary of State Antony Blinken’s waivers.

Democrats may feel comfortable trying to block some of the Iranian oversight initiatives, but they will face a much harder job defending a $10 billion line-of-credit to Vladimir Putin, while at the same time arguing for the importance of sanctioning Russia for its war in Ukraine. If Democrats truly want to punish Putin and his network of complicit companies, they would need to target and isolate Rosatom and its work in Iran. If Congress manages to claim this scalp in 2022, it will be one more crack in the deal that takes it closer to collapse.

Robert Malley

Personnel is policy. Republicans’ final target—Biden’s Special Envoy for Iran Robert Malley—may not hold any special significance for the Iranian regime, but his position will determine whether the Biden administration and its cabinet of former Obama officials are able to clinch their Iran policy agenda.

While White House and National Security Council officials come and go at the pleasure of the president, most senior diplomats and ambassadors must pass through the Senate’s rigorous advice and consent process—now reduced to a simple 50-vote majority—in order to take office. That is why, for decades, secretaries of state have appointed special representatives and special envoys for politically fraught regions and for countries that will not host a U.S. embassy, such as Venezuela, Syria, North Korea, and Iran. Because these envoys technically do not serve as official ambassadors, they are blessed with immunity from Senate confirmation. Given that his prior track record of pointed hostility to Israel—which has included the recitation of Hamas talking points—would make any confirmation hearing an exceedingly risky endeavor, Malley was an ideal candidate for this type of role.

But Malley’s immunity from the Senate’s confirmation process (and that of all his fellow special representatives, envoys, and negotiators) expires at the end of 2022, due to new legislation signed into law by Biden last December in the NDAA. If Biden and Blinken want Malley to remain in his role—which he also held under Obama—he will have to face the Senate’s inevitable ire over his concessions to Iran. The State Department may seek to take advantage of a loophole in the law that could delay this confirmation process for as long as a year, but such a move would generate even more scrutiny and annoyance in the Senate. If Republicans take control of the Senate next year, Malley’s confirmation would certainly be rejected. He has been personally called out by several senators already, while those who have withheld public criticism are still salivating at the prospect of a public hearing.

Even if Malley steps aside or is forced out, Biden is essentially required by the new law to submit a candidate for the top Iran position to the Senate, which will finally force a reckoning of the administration’s Iran policy. If Biden ever wants his nominee confirmed, it will also require his administration to provide real answers to the dozens of congressional oversight letters that have so far been brushed aside or ignored entirely. This confirmation process and the rigor it would entail would provide Biden with a fair opportunity to pivot away from the unpopular path of appeasement and concessions which he, Obama, Blinken, and Malley have blazed in favor of a sturdier strategy of sanctions and military containment that could obtain political buy-in from both parties.

American policy toward Iran would benefit greatly from a steady, long-term approach that might gain the backing of a significant number of members from both parties, and which might endure beyond 2023. Having served in both Congress and the State Department, I am certain that transparency and predictability will not be forthcoming from the executive branch. But for too long, Congress has relegated its responsibilities to the executive branch when it can’t make up its mind or develop a compromise. Real leadership is needed to reach across the aisle and fashion a policy that can stand the test of time.

Ideally, Democrats and Republicans should work together to develop a hard-nosed strategy to contain Iran’s radical ambitions of nuclear extortion, hostage-taking, and regional aggression. Then both parties could equally share the responsibility for dealing with the regime’s destructive agenda—sharing the blame when things get hard, and reaping the credit when prospects improve.

If that all seems a little fanciful, I can at least report that a new Iran policy is coming soon—and neither the Biden administration nor the Iranian regime will be happy with it.