Secret annexes: See no evil

The first of Woodrow Wilson’s Fourteen Points reads: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.”  While the call for open negotiations was always unrealistic, the notion that we should be bound only by public agreements is central to both a disciplined foreign policy and our Constitutional order.

The Obama administration’s secret side-deals to the Iran Nuclear Agreement put both of these at risk.

{mosads}At issue are two secret arrangements between the International Atomic Energy Agency (IAEA) and Iran, concerning Iran’s obligations under the agreement and under prior UN resolutions.  One is about the military and nuclear research facility at Parchin, and the inspections regime there; the other is about Iran’s necessary disclosure of the Potential Military Dimensions (PMD) of its nuclear program.

The two side-deals came to light during a visit to Vienna by Sen. Tom Cotton (R-Ark.) and Rep. Mike Pompeo (R-Kan.) this past week, where the IAEA made clear its refusal to make the terms of those agreements public.  Since then, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) and Ranking Member Ben Cardin (D-Md.) have both requested that the administration make public the texts of the arrangements.  This is required by the clear text of Corker-Menendez.

The administration’s line on these side-deals has typically wavered and now become incoherent.  At first, they agreed that the side-deals existed, that they didn’t have the text, but that they had been informed of the terms, and would brief Congress in a classified session.  Now, they claim that the side-deals aren’t really side-deals at all.  Instead, they claim that these are arrangements not with the P5+1, but with the IAEA. 

Of course, they are arrangements that are directly tied to fulfilling terms in the P5+1 Agreement, rendering this a distinction without a difference.  And spokesman Josh Earnest insists that while the text will not be available, they are “integral” to the P5+1 Agreement.  Just not part of it.

This both-ways-at-once tap dancing also undercuts another key administration talking point: that while Iran successfully lobbied to have US inspectors barred from the IAEA teams, a US presence at the IAEA provides all the oversight we need.  If our presence at the IAEA is so comprehensive, how have we not already secured the exact text of this side-deal?

The reason they have changed their tune is obvious: not releasing the documentation of those arrangements would violate the law, the Iran Review Act.  The legal and practical implications of that violation are hard to gauge.  It could reset the 60-day clock to the point where the side-deals are briefed, which would upset the timing of sanctions release.

It could also simply put the administration in clear violation of the law.  Should Congress choose to test the matter by rolling the dice in the courts, an injunction could prevent the lifting of U.S. sanctions into the next administration.

Eager to avoid any of these complications, Obama is redefining side-deal as “not a side-deal.”

Even more disturbing than this policy mistake – broad though it may be – is Constitutional imbalance being propagated here.  By bypassing Congress and going directly to the UN, the president is essentially enshrining an executive power to formally bind the U.S. to anything he can get a Security Council resolution on.

By including secret agreements into the package, he’s going one step further: the president can unilaterally legally bind the U.S. to secret agreements through the UN Security Council.

The Tsar and the Kaiser might think this a great idea.  There’s no reason we should.

Sharf is a contributor to the Salomon Center for American Jewish Thought and Watchdog Arena. He is head of the PERA project at the Independence Institute, a Denver based free-market think tank. Follow him @joshuasharf