Injury Laws: It is not a ‘side deal’ — it is a part of the deal

Yesterday, I examined the arguments for state and congressional standing to challenge Iran sanctions relief. (For a different take, see Josh Blackman’s incisive response.)

Now I want to examine the substance of the argument that the Administration’s non-transmission of so-called “side deals” between Iran and the International Atomic Energy Agency (IAEA) prevents the time period for congressional review of the deal from starting, and thus also locks in existing sanctions.

The statutory language in the Iran Nuclear Agreement Review Act is quite broad, encompassing “related agreements” such as “side agreements.” That is enough to sweep in the IAEA documents. But they are more than than just “side agreements” — they are part of the deal itself. They are not unconnected, parallel satellite documents, but rather integrated parts of the agreement. Thus not only the letter, but the purpose of the agreement requires Congress to see them to begin the review.

First, it is important to understand the role of the IAEA in the agreement. It is not merely an outside actor. The Joint Comprehensive Plan of Action (JCPOA) mentions the IAEA more than 100 times by name. More generally, the IAEA is an integral part of the JCPOA mechanism. The deal is built around IAEA action. Thus the IAEA’s inspection and verification processes are built into the JCPOA as triggers for sanctions relief and other actions by the signatories. The JCPOA’s timetables for implementation are heavily based on IAEA actions. In short, the the IAEA is part of the deal. See Preamble, par. 10:

The International Atomic Energy Agency (IAEA) will be requested to monitor
and verify the voluntary nuclear-related measures as detailed in this JCPOA. The
IAEA will be requested to provide regular updates to the Board of Governors, and
as provided for in this JCPOA, to the UN Security Council. All relevant rules and
regulations of the IAEA with regard to the protection of information will be fully
observed by all parties involved.

Note that the reference to “parties” here includes the IAEA, unless one thinks this paragraph authorizes it to disregard its own rules. This, of course, supports the view that “parties” in Corker-Cardin includes the IAEA (though is not necessary to the conclusion about Corker-Cardin, which was obviously written before the JCPOA).

Among the roles of the IAEA under the JCPOA is to ensure that “Iran will fully implement the ‘Roadmap for Clarification of Past and Present Outstanding Issues’ agreed with the IAEA, containing arrangements to address past and present issues of concern relating to its nuclear programme…”) See Part C.14.

So the JCPOA refers and incorporates the “Roadmap for Clarification,” signed the same day and in parallel as the conclusion of the JCPOA, despite the Roadmap formally being an arrangement between Iran and the IAEA. So there is nothing odd about Iran-IAEA agreements being part of the JCPOA: This is what the JCPOA says. The Roadmap is not a side agreement, but rather incorporated by reference into the JCPOA.

Within the framework of the IAEA-Iran “Roadmap,” the IAEA and Iran entered into subordinate agreements dealing with particular verification issues, most saliently, the Parchin site.

The Roadmap is clearly a “relevant” document under the JCPOA; indeed, it is incorporated by reference. The arrangements pursuant to the Roadmap are by their terms not separate “agreements.” Rather, as the chapeau to Art. 1 of the Roadmap make clear, the missing documents in question are merely “arrangements” that are part of the “context” of the Roadmap agreement. Thus the so-called “side deals” fall within the Roadmap (and are explicitly adopted by it), and the Roadmap is explicitly adopted by the JCPOA. (See also Annex I, par. 66.).

These are not separate agreements from the JCPOA; they are intertwined. Thus the IAEA’s arrangements with Iran are more than mere “side agreements” — they are part of the deal (though much less is required under Corker-Cardin for their production). A side agreement is a parallel document; these documents are vertically integrated.

In any case, one need not be particular; the statutory language is purposefully sweeping and redundant: If not part of the deal, the documents are surely “additional materials related thereto, including annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance.” Indeed, it would be hard to argue that it is not “implementing materials,” since these arrangements implement the Roadmap, which is explicitly incorporated into the JCPOA.

Apart from the parsing, the crucial point here is that this is not some purely separate set of agreements that it would be incongruous for Congress to expect. Rather, the IAEA is a direct participant in the administration of the JCPOA. And the arrangements in question are part of the Roadmap, which in turn is explicitly adopted by the JCPOA — clearly a “relevant” document.

Especially after King v. Burwell, the purpose and goal of the Act — letting Congress see the Iran deal — could play an significant role in guiding interpretation. Indeed, the law is called the “Iran Nuclear Agreement Review Act of 2015,” and the relevant materials are an incorporated part of the agreement. One can’t review the agreement without the agreement.

Then there is the argument that the president does not have the documents and that the JCPOA ensures their secrecy. That is indeed a problem, but mostly for the president. Corker-Cardin is a statute, with certain requirements. A non-binding non-executive agreement cannot excuse the Executive from complying with the terms of a statute. So if there is a conflict between the disclosure required by Corker-Cardin, which the president of course signed, and the disclosure permitted by the JCPOA, the former would prevail.

On a separate statutory interpretation question, Prof. Rob Howse says Corker-Cardin disclosure does not apply because it is limited to provisions that “commit the United States to take action.” The statute does indeed contain those words. But oddly, given that Prof. Howse had just criticized others for selective quotation, he omits the broad conclusion of the “commitment” sentence, which makes clear it includes “a political commitment … and regardless of whether it is legally binding or not.” In other words, even diplomatic, non-binding commitments count. Thus a “commitment” in the statute is not really a commitment, at least not in the strongest sense of the word.

Can the IAEA weakly commit the United States.? Not by itself it can’t. But the United States (non-bindingly) committed to the the JCPOA, and the JCPOA sets out expectations for the United States and Iran. Under the JCPOA Iran’s compliance with the Roadmap as determined by IAEA as part of a sequence of commitments that also trigger U.S. political commitments. See Annex V, arts. 9 & 11. Note that the U.S. steps that accompany Iran’s roadmap compliance are specifically called “commitments.” [Footnote 1.] Thus the subsidiary arrangements to the Roadmap directly trigger political commitments by the United States. (They can only be political, because the entire JCPOA is purported to be non-binding.)