Obama wrote a law, violated it and says he is confident he has the authority to do so. Secretary of State John Kerry says the same. Some “Senior” unnamed “Officials see a “conflict” –– as in a conflict with existing law. Fox News’ James Rosen has this story. The video transcript is below.
At issue is a passage tucked away in ancillary paperwork attached to the Joint Comprehensive Plan of Action, or JCPOA, as the Iran nuclear deal is formally known. Specifically, Section 5.1.2 of Annex II provides that in exchange for Iranian compliance with the terms of the deal, the U.S. “shall…license non-U.S. entities that are owned or controlled by a U.S. person to engage in activities with Iran that are consistent with this JCPOA.”
In short, this means that foreign subsidiaries of U.S. parent companies will, under certain conditions, be allowed to do business with Iran. The problem is that the Iran Threat Reduction and Syria Human Rights Act (ITRA), signed into law by President Obama in August 2012, was explicit in closing the so-called “foreign sub” loophole. . . .
As the Iran deal is an “executive agreement” and not a treaty – and has moreover received no vote of ratification from the Congress, explicit or symbolic – legal analysts inside and outside of the Obama administration have concluded that the JCPOA is vulnerable to challenge in the courts, where federal case law had held that U.S. statutes trump executive agreements in force of law.
Begin video transcript:
BRET BAIER: A challenge to President Obama’s nuclear deal you’ve not heard about yet. It involves some complicated legal language and it could endanger one of the agreement’s most controversial sections
JAMES ROSEN: Tucked away in Annex II, Section B of the Iran nuclear deal is a key concession to Iran in the form of sanctions relief –– one that stands to deliver tens of BILLIONS to the Islamic regime.
The passage provides that if Iran meets its obligation, the U.S. government will give licenses to the foreign subsidiaries of U.S. parent companies to do business in Iran. What lawyers call the foreign sub loophole will be opened up in a big way.
The problem is that back on August 10th, 2012 shortly before the President welcomed these [see video] guests to Iftar dinner, he signed into law a measure called The Iran Threat Reduction Act. Section 218 of that law directed President Obama to close the foreign sub loophole and directed the Executive Branch to treat U.S. parent firms and foreign subsidiaries the same ––the only way Section 218 could be voided.
The only way the foreign sub loophole could be reopened is spelled out in Section 605, which requires the President to certify to Congress that Iran has been removed from the State Department’s list of nations that sponsor terrorism.
OBAMA FROM VIDEO CLIP: We will maintain our own sanctions related to Iran’s support for terrorism
ROSEN: When the president announced the Iran deal in July, it did not mention that he was reopening the foreign sub loophole while keeping Iran on the terrorist list, in VIOLATION OF HIS OWN LAW.
Even lawyers inside the Obama administration, concluded, Fox News has learned that the federal courts have previously held that existing U.S. statutes trump Executive agreements.
STATE DEPT SPOKESMAN VIDEO CLIP: We can tell you, and the Secretary [Kerry] is confident that the administration has the authority to follow through on this commitment.
ROSEN: During a Senate Banking Confirmation in September for AdaM SZUBIN nominated as Under Secretary of Treasury for Terrorism and Financial Intelligence, Republican Senator Tom Cotton of Arkansas asked where the Obama administration thinks it derives the legal authority to reopen the foreign sub loophole.
ADAM SZUBIN: In terms of the Iran Threat Reduction Act, that provision contains the licensing authority that Treasury would anticipate using in that eventuality to allow certain categories of activity for those foreign subsidiaries.
ROSEN: The administration points to a different passage in the president’s 2012 law, Section 601, which in turn invokes a much earlier statute, one signed into law by President Jimmy Carter in 1977 that grants the president this kind of licensing authority, but Section 601 directs the president to use his authorities to quote carry out the 2012 law, not to overturn it by reopening the very loophole it closed.
Republican presidential candidate, Senator Ted Cruz, a Harvard-trained lawyer, and hardened critic of the Iran deal, told Fox News the 2012 law makes this form of sanctions relief illegal, and he warned foreign subsidiaries they could someday face penalties for using their new licenses.
CRUZ: The obligation to follow federal law doesn’t go away simply because we have a lawless president, who refuses to acknowledge federal law.
ROSEN: The Senate Banking Committee could offer no time table for when it might hold a on Adam Szubin’s nomination for that post. Over here at State, officials continue to insist that Iran will not receive any relief from the so-called primary sanctions, which among other things, prohibit U.S. parent firms from doing business in Iran. View the video here.
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