05/22/2012 05:39 pm ET Updated Jul 22, 2012

Preventing Congress From Killing a Future Deal With Iran

For those who have advocated for the U.S. to begin a serious pursuit of diplomacy with Iran, last month's negotiations in Istanbul were a step in the right direction, albeit a long overdue one. Not only was the meeting's occurrence in and of itself encouraging, but coming out of the talks the participating parties labeled the negotiations "constructive" and agreed to resume talks on May 23 in Baghdad. While it is far too early to predict an imminent solution, some guarded optimism seems justified that progress on the nuclear standoff may finally be obtainable.

Yet obstacles remain. Ironically, one of the biggest obstacles is the very same policy that many are crediting with getting Tehran to return to negotiations -- sanctions. Sanctions may have helped pressure Iran back to the negotiations table, but now that they are ready to engage removing them will be a key Iranian demand, and it is unclear if this is politically feasible in the U.S.

U.S. sanctions codified into law cannot be lifted unilaterally by the President. Thus an agreement with Iran requiring the repeal of sanctions will need congressional approval before it can be implemented. Getting Congress to do so will be difficult, given their extreme hawkishness on Iran.

Just last December the most draconian sanctions to date, referred to by some as the "nuclear option," sailed through Congress, passing unanimously in the Senate. Complicating matters further, the Republican controlled House will be loath to support any compromise backed by the White House, particularly during an election season.

Yet, any deal with Iran will almost certainly require a substantial compromise: allowing Iran the right to enrich uranium up to 5 percent with the proper safeguards. Problematically, anything less than a complete capitulation by Iran is unlikely to be sufficient to gain congressional support for lifting sanctions. An LA Times article quoted a senior Senate aide with knowledge of the issue as saying any deal allowing Iran to continue any enrichment "would be dead on arrival" in Congress.

In spite of these difficulties, however, diplomacy is not yet doomed. There are ways forward to circumvent congressional obstinacy on sanctions and keep the possibility for a deal alive.

The saving grace for a future agreement may be the desire of the parties to pursue a step-by-step approach, instead of a strategy that calls for all concessions to be made up front. This type of arrangement has the benefit of occurring over an extended period. Rather than requiring Congress to revoke sanctions immediately, they will have time to verify that Iran has met their obligations, allowing Congress to build confidence in Iran's sincerity and warm to lifting sanctions.

The challenge will be in getting all the parties to respect the spirit of the step-by-step strategy, which calls for smaller steps upfront before building to bigger concessions. There are already concerns that Iran may be harboring unrealistic expectations for an immediate lifting of sanctions. Gholam-Ali Haddad Adel, spokesman for Iran's Supreme Leader, Ali Khamenei, said of the upcoming talks in Baghdad, "At the least, our expectation is the lifting of sanctions."

Given the limitations of the U.S.'s ability to quickly rescind sanctions, it is important that both sides taper their expectations for upcoming talks. This may require Iran to be open to accepting a moratorium on new sanctions as a first step rather than requiring existing sanctions be lifted immediately. This may also require the P5+1 to be open to accepting concessions more modest than those being demanded by some.

However, if more ambitious demands cannot be avoided in Baghdad, there remains some wiggle room to avoid sanctions precluding a potential deal. In contrast to the U.S., the EU has no such domestic strictures limiting their policy options. With greater bureaucratic freedom to modify their sanctions they have the option to suspend an upcoming ban on insuring ships carrying Iranian oil or, if Iranian concessions in Baghdad justify such steps, they can even freeze their impending oil embargo.

Additionally, while Obama cannot lift sanctions on his own, he does possess the ability to issue a presidential waiver. Although this waiver does not allow him to freeze an entire type of sanction, he can issue individual waivers exempting key entities from U.S. sanctions. Specifically, on central bank sanctions about to take effect July 28, Obama has the authority to issue a 120 day waiver to temporarily allow major purchasers of Iranian oil to continue to do business with Iran.

The president would then have the option to renew the waivers in the future, effectively delaying any congressional showdown on sanctions until after elections. At that point, if he is reelected, he could then use newly gained political capital from his reelection to push Congress to repeal sanctions.

So despite Congress' reluctance to lift sanctions there is still a path forward for negotiations. If a realistic step-by-step time table can be created, and/or if Obama and the EU are able to adroitly use their ability to delay upcoming sanctions, enough breathing room can be created to ensure negotiations are given their due chance to succeed.