Leaving everything on the table with Iran--except diplomacy
On the House suspension calendar for tomorrow is this year's “Give Iran Hell Via Broad, Indiscriminate Sanctions!” legislation, known formally as HR 1905, the “Iran Threat Reduction Act of 2011.” When a bill is placed on suspension, it means that it is being considered “non-controversial,” which this bill sure does seem to be, at least in Congress: 358 Members are currently cosponsors. However, hidden in the depths of this legislation is a provision that ought to be anything but non-controversial: a measure which aims to prohibit any contact between certain US and Iranian officials. I say “ought to be” because many cosponsors don't even know that this provision exists.
Let me give you the backstory. Back in May, Rep. Ileana Ros-Lehtinen, head of the House Foreign Affairs Committee, introduced HR 1905 as the obligatory annual Iran sanctions ramp-up bill. AIPAC then proceeded to make the bill a cornerstone of its 2011 lobbying—and when AIPAC comes knocking, we know that most Members of Congress have a hard time saying “no.” The legislation quickly earned the cosponsorship of over 80% of the House. Then, at the end of October, the bill went into committee markup. As often happens, some things got removed, some got added. One of the things that got added was section 601(c):
(c) RESTRICTION ON CONTACT.—No person employed with the United States Government may contact in an official or unofficial capacity any person that—
(1) is an agent, instrumentality, or official of, is affiliated with, or is serving as a representative of the Government of Iran; and
(2) presents a threat to the United States or is affiliated with terrorist organizations.
(d) WAIVER.—The President may waive the requirements of subsection (c) if the President determines and so reports to the appropriate congressional committees 15 days prior to the exercise of waiver authority that failure to exercise such waiver authority would pose an unusual and extraordinary threat to the vital national security interests of the United States.
In other words, no US government employee may contact in any fashion any Iranian government official, affiliate, or representative who “presents a threat to the United States” or is affiliated with terrorist organizations unless the President issues a waiver 15 days prior to contact.
But who is to determine who “presents a threat” to the United States? The term is not defined within the legislation, but is mentioned another time earlier in the section, in 601(a). There, the text clearly states that the Secretary of State will be the one to determine who “presents a threat” to the US. But how will she do this? What are the guidelines? What does it mean to “present a threat”? Such things seem to be left to the Secretary of State. And that's kind of a scary thought.
Now, you might be thinking to yourself, “but Congress doesn't have the power to restrict the President's ability to conduct diplomacy.” And you would be quite right—in a sense. As Ambassadors Thomas Pickering and William Luer have pointed out, this provision raises “serious constitutional issues over the separation of powers.” It is, of course, the President's constitutional power to conduct diplomacy. In fact, the Justice Department has already issued a letter to Rep. Ros-Lehtinen about its constitutional concerns regarding this piece of legislation. Unfortunately, the letter does not explicitly mention section 601(c). The Obama administration, however, has been fastidious in recognizing attempts to limit or commandeer this power, seeking legal opinions from the Office of Legal Council and issuing signing statements when infringement on this power has been suspected. And then there is always the option of ignoring the provision.
However, while Congress can't institute legal restrictions on the President's power to conduct diplomacy, it can make it more difficult for him to do so by feeding into Iranian suspicions that US offers of engagement are not proffered in good faith, thus creating a “chilling effect” on relations. The Iranian government is well aware of the Iran-related legislation that the US Congress considers, and what the votes are. How will it look that a broad majority of the US Congress passed legislation to restrict contact with Iran? How will it react if and when some of its leaders—perhaps including Iran's chief nuclear negotiator Saeed Jalili, who may have past and present ties to the Iranian Revolutionary Guard—wind up on the “threat” list? Iran is already suspicious of US intentions for engagement, and this legislation would just make matters worse.
Furthermore, executive diplomacy isn't the only sort of diplomacy that there is—and diplomacy isn't the only sort of contact that the US could have with Iran. What about inter-parliamentary meetings between members of the US Congress and the Iranian Majlis? What about intelligence gathering? What about travel for US government employees? What if they have friends or relatives on this list?
We are also assuming here that the President wishes to conduct diplomacy. But what if we have a President Romney or—God forbid—a President Bachmann who would relish the opportunity to sabotage a diplomatic solution with Iran? This provision could be dangerous in such a President's hands.
Congress should not be making diplomacy with Iran more difficult —it ought to be making it easier. Diplomacy with Iran is the only way we can resolve issues over its nuclear weapons program, its human rights abuses, and its role in various conflicts in the region—in particular, Iran's participation is necessary in order to bring about a political settlement to the war in Afghanistan. As Richard Holbrooke once said: “We recognize that Iran, with its long, almost completely open border with Afghanistan and with a huge drug problem ... has a role to play in the peaceful settlement of this situation in Afghanistan.”
Diplomacy is also necessary for understanding the Iranian government, its intentions, and the motivations behind its policies. “We haven't had a connection with Iran since 1979. Even in the darkest days of the Cold War we had links to the Soviet Union…If something happens it's virtually assured that we won't get it right, that there will be miscalculations which would be extremely dangerous in that part of world... I think any channel would be terrific, ” admitted former Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen in September.
By making it more difficult to conduct diplomacy, this provision does nothing to promote a peaceful resolution to our problems with Iran—it only makes it more likely that the final resort is to war. We often hear, with regard to Iran, that we need to “keep all options on the table”—so why take diplomacy, the method most likely to bring about a solution to our differences, even partly off the table by restricting which US officials can meet with which Iranians?
There is still time to get this legislation off of the House's suspension calendar. We are often told by advocacy organizations that “your Representative needs to hear from you!” Well, in this case, they really do, not just to hear your opinion, but because otherwise, they may not know that they are supporting this provision. Many offices do not even have an updated version of the bill. Thomas, Congress's legislation database system, is still displaying the old, pre-committee version of the bill. The new version of the bill can, however, be found on the House Foreign Affairs Committee website.