If Republicans really want to hold up the Iran deal, they should send Dick Cheney to jail

If the GOP really wants to hold up the Iran deal, it must first hold its party members accountable for their crimes

Published September 11, 2015 9:58AM (EDT)

  (Chip Somodevilla)
(Chip Somodevilla)

Almost immediately after Dick Cheney finished an inflammatory speech on Tuesday, telling grave stories of Iranian nukes that seemed a direct copy of the aluminum tubes claims he made exactly 13 years earlier, three more Democratic senators announced their support of Obama's nuclear deal: Richard Blumenthal (Conn.), Ron Wyden (Ore.), and Gary Peters (Mich.), with Maria Cantwell (Wash.) announcing her support later that evening. With 42 senators now supporting the deal, Democrats can filibuster any vote against it, and have plenty of votes to sustain a veto.

Thus far, Republican efforts to thwart peace have failed.

It turns out the guy who lied us into a catastrophic war with Iraq, Cheney, wasn't the most convincing person to whip votes against the Iranian deal.

Now, Republicans are scrambling to find a new way to thwart peace. On the eve of planned votes on the Iran deal, conservatives in the House scuttled the debate. Their excuse? President Obama hasn't released information about two side deals struck between the International Atomic Energy Association and Iran, highlighted in a now-discredited AP story weeks ago, and therefore the clock on congressional notice hasn't started yet.

Illinois congressman Peter Roskam has led this complaint, issuing a resolution calling on a delay in any vote until Congress receives the side deals. "A day after the nuclear accord was announced, reports surfaced that Iran and the IAEA struck two side agreements related to Tehran’s past nuclear work," Roskam's release on the delay explained. "In clear violation of federal law, repeated requests from leading Democrats and Republicans to review the side agreements were rebuffed by the Obama Administration."

Roskam needs to take his complaint up with former Bush administration lawyer John Yoo, though.

That's because -- as the Obama administration recently released in response to a Federation of American Scientists FOIA -- in 2003, Yoo wrote an Office of Legal Counsel memo deeming it legal for the president to withhold weapons of mass destruction information from Congress, even if sharing that information is required by law.

The memo, dated Jan. 27, 2003, the day before President Bush delivered a constitutionally mandated State of the Union message to Congress that included a number of claims about Iraqi nuclear proliferation that proved to be flimsy, generally held that a series of laws requiring the president to inform Congress about certain activities -- including covert operations and efforts to prevent proliferation -- must be interpreted to permit the president to ignore such laws if he or she deemed the information too sensitive to share. "In order to respect the President's constitutional independence in international affairs," Yoo concluded in his memo, "constitutional problems must be minimized by reading the disclosure requirements of [four laws requiring some kind of disclosure] as not applying to cases in which the President concludes that the disclosure to Congress of sensitive intelligence regarding the proliferation activities of other nations could harm the national security."

If the president decides sharing WMD information Congress has required him to share would damage national security, he cannot be required to do so, even by a specific law.

While Yoo was reviewing laws on the books in 2003 and not the Iran Nuclear Agreement Review Act mandating congressional review of the Iran deal, nothing in Yoo's expansive conclusion would change for this law. Indeed, Yoo relied heavily on an OLC memo written during the Iran-Contra scandal finding that the president could blow off reporting requirements passed specifically to cover those activities. Yoo's claim that presidents can blow off mandated WMD reporting relied on the executive's past efforts to blow off very specific efforts to rein in the president.

So while Roskam may be right, in theory, that Congress should have a "robust and transparent review process necessary to cast a fully informed vote," to argue the point, Republicans will also have to argue that a bunch of Republicans (many of them Iran deal opponents) should have gone to prison for blowing off Congress in Iran-Contra, and another bunch of Republicans (again, most of them Iran deal opponents) should be legally accountable for withholding any details about Iraq's purported nuclear program in advance of the Iraq War.

Want to hold up the Iran deal? Fine. Send Dick Cheney, its biggest opponent, to prison first.

Republicans are right to demand transparency from the executive branch (though in this case, they seem to be asking for things that -- by design -- the president cannot give). But to force the issue, they're also going to have to find a way to criminalize common Republican practice, a practice blessed by John Yoo.

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By Marcy Wheeler

Marcy Wheeler writes at EmptyWheel.net and is the author of "Anatomy of Deceit."

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