Kerry on Iran Nuke Deal: ‘We’re Not Negotiating a Legally Binding Plan’

Terence P. Jeffrey | March 11, 2015 | 1:26pm EDT
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(AP Photo)

( - Secretary of State John Kerry told the Senate Foreign Relations Committee today that the nuclear-weapons agreement the Obama administration is trying to negotiate with Iran--where the Grand Ayatollah Ali Khamenei is supreme leader and commander in chief--will be an agreement “between leaders of a country” and will not be a “legally binding plan.”

Kerry also expressed his belief that the U.S. Congress will have no authority to modify such a deal.

In listing the powers of the president, the Constitution says, in Article 2, Section 2, Clause 2: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

But Kerry said the nuclear deal with Iran will not be a treaty. He also noted that the United States does not have diplomatic relations with Iran.

Additionally, Kerry expressed his doubt that any future president would dare to nullify the non-legally-binding, non-treaty deal President Obama cuts with the Iranian leader so long as it is working and the Chinese, Russian, British, French and German governments (who are working along with the administration to negotiate such a deal) still back it.

Director of National Intelligence James Clapper has twice testified in Congress that Iran’s supreme leader—the Grand Ayatollah Ali Khamenei—will personally decide whether Iran builds a nuclear weapon.

Kerry made his declarations about what he understands to be Congress’s lack of authority to in any way alter a hoped-for nuclear deal with Iran in response to an open letter that 47 senators sent to the Iranian government.

That letter, put together by Sen. Tom Cotton (R.-Ark.), said: “[W]e are writing to bring to your attention two features of our Constitution—the power to make binding international agreements and the different character of federal office—which you should consider as negotiations progress.

“First, under our Constitution, while the president negotiates international agreements, Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote,” said the senator’s letter. “A so-called congressional-executive agreement requires a majority vote in both the House and Senate (which, because of procedural rules, effectively means a three-fifths vote in the Senate).

“Anything not approved by Congress is a mere executive agreement,” the senators said.

The letter then pointed out that while the Constitution limits a president to two 4-year terms--meaning Obama must leave office in two years' time--it allows senators to serve unlimited 6-year terms.

“What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.”

During testimony today about the administration request for an authorization to use force against the Islamic State, Sen. Chris Murphy (D.-Conn.) asked Kerry about the letter.

During his long response, Kerry said that “the senators’ letter erroneously asserts that this is a legally binding plan.” In fact, the term used in the senators letter is “binding international agreements”—and the point of their letter was that any deal negotiated by the president that is not submitted to Congress for approval or ratification would not binding.

“Now, with respect to the talks, we have been clear from the beginning we are not negotiating a, quote, legally binding plan,” Kerry said. “We are negotiating a plan that will have in it a capacity for enforcement. We don’t even have diplomatic relations with Iran right now.

“And the senators’ letter erroneously asserts that this is a legally binding plan. It is not. That’s number one,” said Kerry.

“Number two: It’s incorrect when it says that Congress could actually modify the terms of an agreement at any time,” Kerry said. “They do not have the right to modify an agreement reached executive-to-executive between leaders of a country.

“Now sure,” Kerry continued, “could another president come in with a different attitude? No president, I think, if this agreement meets its task and does what it is supposed to do--in conjunction with China, Russia, France, Germany, Great Britain, all of whom are going to either sign off or not sign off on an agreement. I would like to see the next president—if all of those countries say this is good and it is working--turn around and just nullify it on behalf of the United States.”

After Kerry made these remarks, Sen. Cotton responded with a tweet:

“Important question: if deal with Iran isn't legally binding, then what's to keep Iran from breaking said deal and developing a bomb?”

Director of National Intelligence James Clapper has twice testified in the Senate Armed Services Committee that Khamenei will personally decide if Iran builds a nuclear weapon.

“Clearly, Tehran has the scientific, technical and industrial capacity to produce them, so the central issue is its political will to do so,” Clapper testified on April 18, 2013. “Such a decision, we believe, will be made by the supreme leader, and at this point we don't know if he'll eventually decide to build nuclear weapons.”

“We continue to hold that they have not yet made that decision,” said Clapper then. “And that decision would be made singly by the supreme leader.”

In February of this year, Clapper repeated this assessment to the committee. “We believe the supreme leader would be the ultimate decision maker here,” he said. “As far as we know, he's not made a decision to go for a nuclear weapon.”

“I do think they certainly want to preserve options across the capabilities it would take to build one,” Clapper said. “But right now they don't have one, and have not made that decision.”

According to information provided by the Obama White House in a background briefing for reporters, Iran, under Khamenei, has twice secretly worked on constructing uranium enrichment facilities. One of these is located at Natanz another near Qom.

In this Sept. 25, 2009 background briefing, a senior administration official explained why the administration suspected the facility near Qom was built to enrich uranium for a nuclear weapon.

“Our information is that the facility is designed to hold about 3,000 centrifuge machines,” he said. “Now, that's not a large enough number to make any sense from a commercial standpoint. It cannot produce a significant quantity of low-enriched uranium. But if you want to use the facility in order to produce a small amount of weapons-grade uranium, enough for a bomb or two a year, it's the right size. And our information is that the Iranians began this facility with the intent that it be secret, and therefore giving them an option of producing weapons-grade uranium without the international community knowing about it.”

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