Obama, sanctions, should, shall and — why?

The Senate is voting today on enhanced Iran sanctions.

The bottom line is that they target third parties — companies, people, whole countries — who deal with Iran’s energy and banking sectors.

Here’s my prediction:

–The bill will pass both houses.

–President Obama will not veto the law, and may even sign it.

–He will waive the sanctions when it comes time to do so, for reasons I’ll explain below.

–He will catch hell from the GOP and the pro-Israel community for doing so.

Rep. Mike Pence (R-Ind.), a presidential hopeful, has already delivered a little preemptive hell-throwing in a statement that just landed in my inbox:

These sanctions include a number of waivers demanded by the Obama Administration, but it is essential that President Obama carry out the clear Congressional intent and cripple Iran’s energy and financial sectors in implementing this legislation. Iran could be merely months away from acquiring nuclear weapons. They continue to test vehicles that could deliver it. This is a time for decisive action by the American Congress and the American administration. Failure to act by this Congress or failure to implement these sanctions by this administration could lead to a second holocaust. 

Yikes. [[READMORE]]

Before this happens, though, and to make my reporting easier, I have to pose this question to all potential hell-throwers:

Why is this election cycle different from all others?

Let me explain.

The crux of the the sanctions, according to U.S. Rep. Howard Berman (D-Calif.), the chairman of the U.S. House of Representatives, who spoke to Jewish media yesterday is a single word change: From "should" to "shall."

Let me try to explain. (I tried to explain this to my wife over breakfast and she stared at me blankly. And she’s smarter than me, so it’s me.)

Okay: Here’s the text* of the original 1996 sanctions act. Here’s what you’d think would be the operative language:

Sanctions With Respect to Iran: Except as provided in subsection (f), the President shall impose 2 or more of the sanctions described in paragraphs (1) through (6) of section 6 if the President determines that a person has, with actual knowledge, on or after the date of the enactment of this Act, made an investment of $40,000,000 or more (or any combination of investments of at least $10,000,000 each, which in the aggregate equals or exceeds $40,000,000 in any 12-month period), that directly and significantly contributed to the enhancement of Iran’s ability to develop petroleum resources of Iran. 

Sounds determinative, right? "The President shall impose …"

Wrong. Presidents can ignore this (and Clinton, Bush and Obama all have) by claiming that they do not know an entity is busting the sanctions. Wave front page New York Times stories in their face all you want, if they don’t have a mechanism to verify the crime, they will ignore it.

Make that, if they don’t have a mechanism that requires them to verify the crime, they will ignore it. The Treasury’s Office of Foreign Assets Control  does a very good job of investigating sanctions busting; but it does this at the discretion of the executive branch, investigating the alleged violations that it (or the president) wants investigated. It is not required to take orders from the Congress.

So why wasn’t there an investigations trigger in the first place? Partly because at the time, in 1996, it appeared fairly certain that President Clinton would use the sanctions; the 1996 law mirrored executive orders he had issued a year earlier. Within a year, however, Mohammed Khatami, a relative moderate, was elected president of Iran, and the Clinton administration shifted gears to outreach.

There was also a separation of powers issue: Congress is, at least according to some folks, not supposed to be in the business of  micromanaging how the president manages foreign policy. By the time Khatami was out, in 2005, and hopes of regime moderation were all but buried, the Bush administration– which placed perhaps the highest premium on executive privilege in modern history  — was into its second term. 

And even if Bush-Cheney were not bound by their own ideological resistance to foreign policy dictates from Congress, there was the matter of its second term effort to build up alliances as a means of placating Iraq and Afghanistan. Sanctioning countries whose help you were trying to solicit was, according to this view, not the way to go.

Still, Iran’s nuclear program, according to all accounts, was continuing apace. What to do.

In 2006, Rep. Ileana Ros Lehtinen (R-Fla.) proposed an expanded sanctions bill that would include an investigations trigger. The Bush administration pushed back.  Her bill, H.R. 282, passed overwhelmingly in the House, but did not get through the Senate. Here’s how the Congressional Research Service analysis puts it:.

Toward the end of the 109th Congress, H.R. 6198, a modified version of H.R. 282, was introduced to address Administration concerns that H.R. 282 and S. 333 did not allow sufficient Administration flexibility. As did H.R. 282, it made sanctionable sales of WMD-useful technology or “destabilizing numbers and types of” advanced conventional weapons, and added a required determination that Iran “poses no significant threat” in order to terminate application to Iran. Unlike H.R. 282, it recommended, but did not require, a 180-day time limit for a determination of violation and changed the multi-lateral sanctions waiver provision (“4(c) waiver,” see above) to a national security interest waiver.

Let’s look at the actual language of the amendment to understand what "determination of violation" means (no link, because searchable items in the Library of Congress records are unlinkable, at least by this Luddite):

1) IN GENERAL- The President should initiate an investigation into the possible imposition of sanctions under section 5(a) against a person upon receipt by the United States of credible information indicating that such person is engaged in investment activity in Iran as described in such section.

`(2) DETERMINATION AND NOTIFICATION- Not later than 180 days after an investigation is initiated in accordance with paragraph (1), the President should determine, pursuant to section 5(a), if a person has engaged in investment activity in Iran as described in such section and shall notify the appropriate congressional committees of the basis for any such determination.’.

"Should," not shall. It’s up to the president if he wants to investigate. It’s up to the president if he wants to sanction.

There was a Democratic attempt in 2008, an election year, to change the word to "shall." The GOP held the bill in the Senate. Democrats said it was to keep their party (and their presidential nominee) from looking tough ahead of November. I’ve asked and asked and asked and never got an answer from Republicans as to why they stymied the bill. (UPDATE: A reader points me to this New Yorker profile, where Chuck Hagel, then a GOP Senator from nebraska, says he held the bill up. I’m not sure he’s the only one, but of course it’s significant that a) Hagel had not endorsed John McCain as a presidential candidate b) was retiring as a senator and c) has since been appointed by Obama to his Intelligence Advisory Board.)

So here we are, and here’s what Berman says is the crux of the matter. From the new bill (pdf):

In subsection (e), as redesignated by paragraph (4) of this subsection—

(A) in paragraph (1)—

(i) by striking ‘‘should initiate’’ and inserting ‘‘shall initiate’’; and

(ii) by striking ‘‘investment activity in Iran as’’ and inserting ‘‘an activity’’;

(B) in paragraph (2)—

(i) by striking ‘‘should determine’’ and inserting ‘‘shall (unless paragraph (3) applies) determine’’; and

(ii) by striking ‘‘investment activity in Iran as’’ and inserting ‘‘an activity’’; and

(C) by adding at the end the following:

‘(3) SPECIAL RULE.—The President need not initiate an investigation, and may terminate an investigation, under this subsection if the President certifies in writing to the appropriate congressional committees that—

‘(A) the person whose activity was the basis for the investigation is no longer engaging in the activity or has taken significant steps toward stopping the activity; and (B) the President has received reliable assurances that the person will not knowingly engage in an activity described in section 5(a) in the future.’’

"Shall" instead of "should." Obama must investigate and he must come to a conclusion based on the investigation. Put it together:

The President shall initiate an investigation into the possible imposition of sanctions …

The President shall determine … if a person has engaged in investment activity in Iran …

(A quick aside: The substitution of "activity" for "investment activity" refers to the bill’s expansion of sanctions to companies who merely trade with Iran’s energy sector, as opposed to invest in it.)

The "special rule" is a presidential waiver. Obama sought the waiver, and others in the bill like it,  as a means of inducing countries like China and Russia to support more moderate U.N. sanctions. He believes multilateral is the more effective way to go.

(The difference between having the option of ignoring legislation and having to waive it is the difference between a politician being able to bury an unpopular decision and having to explain the decision to 535 partisans. Never mind the pro-Israel lobby, the media, the American public. He may still avoid sanctions, but he will pay a political price for it.)

I’m not arguing the merits of Obama’s foreign policy approach. 

The question is, why is Pence — and he won’t be the last —  already warning Obama not  to waive a provision that the Bush administration neutered in 2006 and that Republicans stymied in 2008.

Honestly, I want to know as this goes forward.

The sanctions may be more urgent now, but they would have had greater utility in 2006 and 2008, and before for that matter.

(Thanks to *the Federation of American Scientists and **the National Iranian American Council for archiving these bills.)