Kerry: Iran Deal Not a Treaty ‘Because You Can’t Pass a Treaty Anymore’

Patrick Goodenough | July 29, 2015 | 4:10am EDT
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Secretary of State John Kerry testifies on the Iran nuclear deal before the House Foreign Affairs Committee on Tuesday, July 28, 2015. (AP Photo/Andrew Harnik)

( – The White House did not pursue the nuclear agreement with Iran as an international treaty, because getting U.S. Senate advice and consent for a treaty has “become physically impossible,” Secretary of State John Kerry told lawmakers on Tuesday.

At a House Foreign Affairs Committee hearing on the agreement known as the Joint Comprehensive Plan of Action (JCPOA), Kerry was asked about the administration’s approach of seeking a political accord between governments rather than an international treaty.

Rep. Reid Ribble (R-Wisc.) recalled Kerry saying earlier in the hearing that if Congress rejects the JCPOA, other countries will in the future not trust the U.S. since rather than negotiating with an administration they will in effect be doing so with 535 members of Congress.

“For 228 years the Constitution provided a way out of that mess by allowing treaties to be with the advice and consent of 67 U.S. Senators,” he said. “Why is this [Iran deal] not considered a treaty?”

 “Well Congressman, I spent quite a few years ago trying to get a lot of treaties through the United States Senate,” Kerry replied. “And frankly, it’s become physically impossible. That’s why.”

“Because you can’t pass a treaty anymore,” he continued. “And it’s become impossible to, you know, schedule, it’s become impossible to pass. And I sat there leading the charge on the Disabilities Treaty which fell to, basically, ideology and politics. So I think that’s the reason why.”

In response to subsequent questioning by Rep. Lee Zeldin (R-N.Y.), Kerry said there were many other reasons for not seeking a treaty with Iran over its nuclear program.

“We don’t have diplomatic relations with Iran. It’s very complicated with six other countries,” he said, referring to Iran and the other P5+1 negotiating partners – Britain, France, Russia, China and Germany.

“So we thought that the easiest way to get something that had the leverage, had the accountability, could achieve our goal was through a political agreement,” Kerry added. “And that’s what we have.”

In another striking exchange, this time involving a Democrat, Kerry sidestepped the question of whether the administration, in the event Congress rejects the JCPOA and overrides a presidential veto of that rejection, would comply with U.S. law even if it believed doing so would violate the Iran deal.

“Let’s say Congress doesn’t take your advice, and we override a veto,” Rep. Brad Sherman (D-Calif.) put to Kerry. “And the law that’s triggered then imposes certain sanctions. Will you follow the law, even though you think it violates this agreement clearly, and even if you think it’s absolutely terrible policy?”

Kerry said he would need to consult with President Obama before answering such a question.

“So you’re not committed to following the law?” Sherman asked.

“No, no, I said I’m not going to deal with a hypothetical, that’s all,” Kerry retorted.

‘Reasons of expedience’

Under the Constitution, treaty ratification needs support from two-thirds of the U.S. Senate. The Convention on the Rights of Persons with Disabilities, which Kerry referred to, was signed in 2009 but voted down by the Senate in 2012, falling five votes short of the required two-thirds majority.

Administrations have long struggled to get Senate consent for several other negotiated treaties, including the U.N. Law of the Sea, which due to Republican opposition has been awaiting Senate ratification since 1982; the Convention on the Elimination of Discrimination against Women, signed by President Carter in 1980; the Convention on the Rights of the Child (CRC), signed by President Clinton in 1995; and the Comprehensive Nuclear Test Ban Treaty (CTBT), signed by Clinton in 1996.

Commenting on Kerry’s remarks on the difficulties of getting Senate approval for a treaty, Heritage Foundation research fellow Steven Groves wrote Tuesday, “So a historically important nonproliferation agreement was created as a measly executive agreement not based on principle or standard practice – but solely for reasons of expedience.”

“This is not a good reason to avoid Senate scrutiny on important international agreements, particularly deeply flawed agreements such as the Iran nuclear deal.”

Groves noted that administrations have managed to get the Senate to ratify treaties – including on more than 160 occasions during the George W. Bush administration.

Kerry himself, as chairman of the Senate Foreign Relations Committee, had succeeded in getting the Senate to approve the New START arms reduction treaty with Russia in 2010.

“Therefore the Senate is clearly capable of passing treaties,” Groves concluded, “just not unpopular ones like the U.N. Convention on the Law of the Sea, the U.N. Convention on the Rights of Persons with Disabilities, or apparently the Iran nuclear deal.”

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